Perez v. DNT Global Star, L.L.C.
339 S.W.3d 692
Tex. App.2011Background
- Perez sued DNT Global Star, L.L.C. and Stellar Development & Management Co. after her teenage son Patrick Rios was shot dead at Crosstimbers Park; the defendants were owners/managers of the premises where the incident occurred.
- Perez testified she asked manager Nora Nunez if Crosstimbers Park was safe and was told it was safe; she leased a unit soon after.
- Gates at the complex intermittently functioned and were not repaired due to cost after initially working; security maintenance issues were raised.
- Patrick Rios visited Perez at the apartment; after a family dinner, he took out the trash; a gunshot occurred in the parking lot and Rios died from a gunshot wound; the shooter was never caught.
- Perez asserted premises liability, DTPA, and fraud claims and challenged evidentiary rulings and jury instructions including foreseeability and sole proximate cause.
- The trial court admitted the jury charge aligned with the pattern premises liability instruction; the court excluded evidence of 28 nonviolent crimes on the premises; the court refused to give a foreseeability instruction separately and submitted a sole proximate cause instruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Premises liability proximate cause viability | Perez argues Stellar breached duty and proximate cause | Stellar contends lack of foreseeability and no causative link | Not against weight; evidence supports no proximate cause |
| DTPA and fraud claims falter for lack of producing cause | Perez contends misrepresentation caused move | Stellar argues credibility and no reliance proven | No reversible error; verdict not against weight of evidence |
| Exclusion of nonviolent crimes evidence | Nonviolent crimes show foreseeability | Evidence outweighed by prejudice and relevance is marginal | Affirmed exclusion, no error |
| Foreseeability instruction and sole proximate cause instruction | Electrical foreseeability should be law established | Broad form duty suffices; sole proximate instruction proper when nonparty acts possible | Foreseeability instruction not required; sole proximate cause instruction proper |
Key Cases Cited
- Timberwalk Apartments Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998) (premises liability foreseeability factors for third-party crime risk)
- Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010) (foreseeability and duty analysis for third-party criminal acts)
- Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d 9 (Tex. 2008) (foreseeability factors; evidence of prior crimes near premises)
- Walker v. Harris, 924 S.W.2d 377 (Tex. 1996) (foreseeability general principle in negligence)
- E. Tex. Theatres, Inc. v. Rutledge, 453 S.W.2d 466 (Tex. 1970) (no cause in fact without evidence of deterrent effect)