*1 399 Aсt, 31 U.S.C. help of under the False Claims in the forehead. With Ortiz prosecut The civil suit was 3729-3731. guard, put the handcuffs another Ortiz §§ convicted defendant had been ed after the appellant. on the back arising out of the prosecution in criminal guilty of as- appellant The was found record from Based on the same facts. hearing. punish- As disciplinary at a sault trial, granted sum the trial court criminal ment, a Line reduced in status to he was government mary judgment in favor of 3, his cell for fifteen restricted to Class $130,000 fine and assessed commissary privileges days, and lost his claimed that the The defendant defendant. disciplinary Following the thirty days. for punishment fine to a second civil amounted ap- proceedings, grand jury indicted The the fifth amendment. violation prison of a pellant aggravated assault held that “under the Dou Supreme Court special plea guard. appellant The filed a al Jeopardy a defendant who ble Clause the trial jeopardy whiсh alleging double pros ready punished in a criminal has been court denied. addi may subjected to an ecution not be argues his trial and appellant that to the extent that the tional civil sanction rights his constitutional conviction violated fairly might not be charac second sanction already punished he since had been remedial, but as deterrent terized as authority support find no assault. We 109 at 1902. or retribution.” Id. S.Ct. the issue The seminal case on position. his aрply to Halper decision does not States, 183 F.2d v. is Patterson United crimi- Halper involved a the case at hand. Cir.), denied, 327, (4th 340 328 cert. U.S. by a civil lawsuit prosecution nal followed 200, (1950). 893, 647 71 S.Ct. 95 L.Ed. present involving conduct. the same that the that case the Fourth Circuit stated disciplinary administrative case involved a criminal fifth amendment does not bar prosecu- by a criminal sanctions followed prosecution arising from the same conduct pro- prison disciplinary tion. We hold impоsition disciplinary led to the preclude, ceedings punishments do not by prison authorities. Courts measures grounds, a later crimi- jeopardy on double consistently throughout country have arising out of the same con- nal conviction reached the same result. See United duct. 1255, (10th Rising, v. 867 F.2d 1259 States conviction. affirm the We 690, Cir.1989); Parrat, Kerns v. 672 F.2d (8th Cir.1982); 692 United States v. Stuck 1104, (3rd Cir.),
ey, 441 F.2d
1106
cert.
denied,
(1971);
United
Cir.1970);
419
Apker,
United States v.
388,
(9th Cir.1969).
F.2d
388
Texas courts Bobby
BAREFIELD and Clinton
Grant
McKinney
have reached
same result.
Zacharias, Appellants,
State,
(Tex.Crim.App.
v.
the cases cited above. The decision government involved a civil suit *2 Griffin, Sheppard, Cynthia T.
David C. Victoria, appellants. Bowman, Courtois, J. A. Mark
Barbara Houston, Clemer, Isbell, Mark C. James *3 appellees. JUNELL, ROBERTSON and
Before DRAUGHN, JJ.
OPINION
JUNELL, Justice.
Appellants appeal judg- granted appellees. Ap- in ments favor pellants brought suit Concerts, Houston, and Search- Inc., light Systems, d/b/a Con- Southwest damages per- Security cert to recover for injuries by appellants sustained fol- sonal lowing a concert. affirm. rock We friend, Ma-
Appellants and their
Nathan
rek,
a rock concert at the Sam
attended
(Coliseum), February
Houston Coliseum
Appellants parked
across
street
from the
an under-
Coliseum
garage
operat-
ground parking
owned and
by
ed
of Houston. When
around 11:00 or 11:30
concert was over
p.m., appellants and Marek left the Colise-
walking
parking
began
um and
toward the
garage.
20 to 30 feet outside
About
ap-
the three men were
Coliseum doors
group
to ten
proached by a
of seven
youths.
youths demаnded the concert
wearing. Marek refused
t-shirt Marek was
attacked, beaten and robbed.
and was
aid. The
Barefield went
to Marek’s
youths
around Barefield and Ma-
clustered
youth pulled a knife. Barefield
rek. One
knife and to leave
group
told the
he had a
this,
After
said
four
him alone.
Barefield
pulled
group
of the attack
or five members
knives,
Upon seeing the
Ma-
their knives.
began running back
rek and Zacharias
street
toward the Coliseum.
across the
and Zacharias
Barefield saw Marek
When
he, too, began running
running,
across
attempted to run
street. As Barefield
car,
street,
he was hit
across
leg.
resulting
compound
fracture to his
stop
did
to render
The driver of the car
friends
Barefield called to his
assistance.
premises.
security for the concert
help.
returned
vide
Marek and Zacharias
security guards
and officers were sta-
back across the street and moved Barefield
Coliseum;
onto the
inside the
none werе sta-
sidewalk.
tioned
tioned outside the Coliseum doors.
attempted
Marek
to return to
Colise-
get help,
group
youths
but the
um
brought suit
Barefield
Zacharias
building.
stood between him and
failing
against appellees
negligence
bystander
the extent of Barefield’s
saw
security
provide adequate
prem-
for the
injury
suggested
Marek and Zacharias
party
Marek
to the suit.
ises.
was not
carry
take
Barefield to their car and
him
neg-
alleged appellees
Appellаnts also
Marek,
by-
hospital.
Zacharias
appellees
ligent
knew
should
because
began
picked up
car-
stander
Barefield and
unreasonably dangerous
have known of the
*4
They
con-
rying him
the car.
toward
condition, i.e.,
potential
the
for criminal
again by
youths. By
the
this time
fronted
the condition
activity, and failed to correct
youths
group.
20
in the
there were 15 or
al-
appellants. Appellants further
or warn
group
The
demanded Zacharias’s t-shirt
by
leged
injuries were caused
a condi-
refused,
group
jewelry.
and
heWhen
tangible personal or real
tion or use of
him, breaking one rib and stab-
assaulted
of
property
operated by
owned
began
bing him in
the back.
attackers
Houston.
ran
throwing rocks and bottles. Marek
Pace,
of
filed
and The
Houston
police
a
back to the Coliseum and informed
summary judgment, which
motions for
the at-
officer inside the Coliseum about
granted.
eight points of er-
trial
In
court
tack.
ror, appellants argue the trial court erred
an
The officer said he would call
ambu-
granting
for sum-
appellees’
motions
scene,
lance. When Marek returned to
mary judgment.
lying
Barefield and Zacharias were
on
upheld on
judgment
A
will be
thought
ground.
yelling he
Barefield was
conclusively
appeal only if
has
the movant
by
going
he was
to die.
taxi drove
genuine
issue as
established there
no
appellants
ride to the
the driver offered
a
fact,
enti
any material
and the movant is
hospital.
Barefield
The taxi driver took
as matter of law. Davis
tled to
a
emergency
and Zacharias to the
room
District,
Independent School
v. Houston
Hospital. Marek
his own
Ben Taub
drove
818,
(Tex.App.
820
654 S.W.2d
- Houston
hospital.
to the
vehicle
writ).
1983, no
[14th Dist.]
surgery
leg, was
Barefield had
on his
summary judgment
is con
evidence
hospitalized
four
for one
and has had
week
light
to the
sidered in the
most favorable
surgeries.
was not
subsequent
Barefield
v.
party opposing the motion. Gоnzales
injured in the
with the
confrontations
Inc., 625
Equipment,
Truck
Global
&
only injury
by
his
was caused
be-
youths;
348,
(Tex.Civ.App.
350
by
car
he ran into the
ing struck
a
when
- Houston
1981, writ).
no
All
con
doubts
Dist.]
[1st
Ben
was not treated at
street. Zacharias
genuine
a
cerning the existence of
issue
hospital
around
Hospital.
Taub
He left
material fact should be resolved
at his home in Port
2:00 a.m. and arrived
evi
All conflicts
the movant.
Id.
Lavaca,
5:00
The fol-
Texas around
a.m.
evi
disregarded
dence must
and the
day,
by
was treаted
a
lowing
Zacharias
support
position
dence that tends to
in Port
Zacharias wore
physician
Lavaca.
accepted
Id.
the non-movant is
as true.
stab
wrap
eight
weeks. His
body
require sutures.
wound did not
question
appeal
on
to be determined
(Pace)
summary judgment proof
produced the rock is whether the
Pace Concerts
Col- establishes as a matter of
that there
leased the Sam Houston
law
concert. Pace
(City).
genuine
one more
City of
issue
fact
from the
Houston
iseum
Inc.,
plaintiffs
Searchlight
of the essential elements of
Systems,
Pace hired AAA
Motors,
(AAA)
Security
cause of
v.
Concert
action. Gibbs General
d/b/a Southwest
827,
(Tex.1970).
pro-
828
Police
450 S.W.2d
off-duty Houston
officers
The attacks took
plaintiff.
Id.
assaults a
of a cause of ac-
The essential elements
public streets.
legal duty
the sidewalks and
negligence
place
are a
tion based on
plaintiffs, a breach
control over thesе areas.
by defendants to
Pace had no
owed
damages proximately re-
duty, and
of that
agreement entered into
the lease
Under
Corp.
sulting from that breach. El Chico
not have
by
City,
Pace did
Pace and
306,
(Tex.1987).
Poole,
732 S.W.2d
areas outside the leased
control over the
Duty
inquiry. To establish
is the threshold
no control over
premises. Pace had
liability,
plaintiff
prove
must
tort
Pace,
beyond
doors.
area
the Coliseum
duty
of a
owed to
and violation
existеnce
therefore,
duty
to make
had neithér
him a defendant.
Id.
doors safe for
beyond the Coliseum’s
area
duty
appellants,
appellants, nor a
warn
PACE’S DUTY
invitees,
dangerous conditions
who were
seven,
one, four and
points
of error
control.
Liability
areas.
follows
on such
summary judgment
appellants assert
Co., 598 S.W.2d
Kroger
Howe v.
granted in
granted in favor of Pace was
writ).
(Tex.Civ.App.
- Dallas
genuine issues of material
error because
beyond
not extend
duty
defendant’s
dоes
duty
fact exist as to whether
owed
the defendant’s control. La
the limits of
care to
and as to whether
Fleur,
Pace’s
was
leased the Coliseum from the argue Pace them a Appellants owed the ton. The terms of the lease dictated duty of the confrontation be care because of Pace’s control the Coliseum. extent over group youths the appellants and tween argue Appellants the sidewalk where the to exception An exists was foreseeable. place part premis the first attack took no general that a defendant has the rule es under Pace’s control. Pace leased prevent criminal acts of a third duty to building premises, the and not outer party the defendant controls unless such or the common area sidewalks negligence is not premises. A defendant’s outside the Coliseum’sentrance. The lease a the criminal conduct of superseded when agreement required provide Pace to securi result of the party third is a foreseeable ty only within the Coliseum. LaFleur, negligence. 751 defendant’s rule, general a a As defendant duty defendant has a S.W.2d at 564. The duty prevent has no to the criminal acts of reasonably if it prevent injuries to to others party a third who does not act under the appears appear should to the defendant or supervision defendant’s or control. La may injured. Id. that others be Fleur v. Astrodome-Astrohall Stadium 563, duty a (Tex.App.— Appellants claim Pace had Corp., 751 S.W.2d 564 1988, writ). appellants from the at protect no A de to warn or Houston [1st Dist.] fendant, knowledge of however, Pace' had may subjected be to tort tackers because occurring other con liability if assaults at for another’s criminal act criminal There was no act the defendant’s certs held at the Coliseum. criminal occurs on any alleged summary judgment proof that premises. Id. at 565. The defendant’s at Pace concerts. duty provide protection prior arises from his incidents occurred to summary judgment proof premises. By occupying There no occupation of the was or should have known of premises power the defendant has the that Pace knew occurring outside exрulsion par potential criminal attacks of control and over the third knowledge of general ty. occupy If a defendant does not the Coliseum. Id. in downtown premises, potential activity criminal the Houston then he has no control enough to raise a fact issue ability party. to oust a third The defen area therefore, appellants and his failure the confrontation between dant is not liable for foreseeable. provide security group to whеn he does not con of attackers was thus premises upon party Although criminal acts do occur and trol the which a third 404 sense, leaving the drugs, hol and Colise-
may be in the broad would foreseeable night in downtown Hous- premises duty no um en masse at occupier of the has to negligently dangers Appellants argue he cannot reason ton. guard dangerous con- ably light ordinary creating or common foreseeable and foresee a dition, Todora, duty aрpellants to extended experience. v. Pace’s Hendricks (Tex.App where con- beyond premises actual - Dallas n.r.e.). ref’d cert was held. writ to appellants Before can hold Pace Foreseeability requires the actor as duty protection the criminal requiring intelligence person ordinary to antici parties, of third Pace must have the acts pate dangers negligent his act creates places over the where the power of control Id. 313. There is no sum for others. at committed, or Pace must criminal acts were mary judgment proof that the attackers reasonably foresee the criminal conduct. intoxicated, in attendance at the were were criteria, duty to Under this Pace owed concert, provided any al appellees or that appellants. drugs find did cohol or to them. We Appellants argue Pace owed also dangerous condition not crеate or cause duty care because Pace caused duty appellants. them a and therefore owed dangerous outside or created condition trial court Appellants assert also rely premises. Appellants the Coliseum granting erred Poole, Corp. El Chico 732 S.W.2d exists as of Pace because a fact issue favor (Tex.1987), support argument. contributorily to whether Employees an El Chico restaurant voluntarily in the negligent by engaging beverаges an intoxicat served alcoholic owed no Because Pace confrontations. restaurant, leaving person. Upon ed negli- any contributory appellants, *6 person driving his au the intoxicated while Pace gence appellants of is immaterial. tomobile, kill collided another vehicle with enti- as a matter of law its has established ing Larry Poole. Mr. Poole’s survivors negating summary judgment by tlement to brought wrongful ac a death and survival of appellants’ of cause primary a element Corp., liquor licen El a tion Chico appel- negligence. overrule action for We see, selling to an negligently for alcohol one, and seven. points of errors four lants’ person. intoxicated Id. liquor duty a to the licensee owes AAA’S DUTY general public not to serve alcoholic bever five, and points In of error two person the ages to a when licensee knows judgment argue summary the appellants pаtron the is intoxicated. or should know improperly granted granted AAA was to beverages who serves alcoholic A licensee fact genuine of material because a issue person negligent as a an intoxicated to duty a of AAA owed exists to whether Recognition 314. of matter of law. Id. at appellants. to care requires of more than this cause action patron. a To merely furnishing alcohol to contractor, AAA, security to hired a liable, thе must know or should licensee for perform services the concert. security at patron know is intoxicated. Id. the oral contract Pace had an and security provide services which AAA would although pa- argue the Appellants that There was the Coliseum. inside in El was created tron’s intoxication Chico parties that AAA agreement the between restaurant, of the the dan- premises on the security outside the provide services would did not occur until gerousness of act Coliseum, appellants injured. were where premises patron and be- left after driving. gan agreement between Pace oral agreements typical of former AAA was Appellants maintain Pace created dan- performed parties. AAA tick- by having a rock concert between gerous condition ushering security duties. taking, et known consume alco- which a crowd provid- for the method of pro- the determination required AAA to agreement The usual re- government protection, the ing police building only. security inside vide liability. v. Ter- State mains immune complain appellants None of the acts (Tex.1979). rell, All of inside the Coliseum. about occurred refers to an act performing of “method” public either on the side- acts occurred pro- plan or governmental decision street, walk, property public or other protection. Id. viding police or fire to the Coliseum. not connected any injury or government is not liable appellants duty not owe AAA does government’s deci- resulting from a death reasons Pace does not the same care for police efforts only minimal to use sion duty. Appellants’ inju- appellants owe partic- crime in a or to control control a riot third ries, by the criminal acts of caused however, If, an city. Id. area of a ular premises occupied occur on parties, did not negligently in car- acts еmployee officer injuries by AAA and or controlled liability government policy, rying out AAA, therefore, by AAA. not foreseeable may exist. Id. duty of care. did not owe based, argue their claim Appellants and five are error number two Points of method City’s determining the upon the overruled. upon police protection, but or manner of negligence carrying out City’s DUTY CITY OF HOUSTON’S protection. Ap- policy police particular six, points In of error three and Hous- “City pellants’ рetition states erred appellants argue the trial court provide secu- policy ton made a decision City Houston’s motion for granting the Houston Coliseum rity for the Sam genuine is summary judgment because a parking facili- surrounding area and the fact exists as to whether sue of material employees of Houston’s ties .... appellants. city owed a of care to poli- carrying out that negligently in acted argue point eight, appellants error officеrs cy.” Appellants claim individual immunity apply to the sovereign does not performing negligently acted City in this case. There is duties. claim. support appellant’s negligent proof to Appellants claim the was provide adequate secu- because it failed pro- off-duty police officers to Pace hired appellants of an rity or failed to warn *7 Off-duty security inside Coliseum. vide condition, po- unreasonably dangerous acting within the are not poliсe officers assert activity. Appellants criminal tential with scope employment of course danger- City unreasonably created the City not The did City of Houston. police pres- by providing ous condition security provide decision to policy make a Appellants the streets of Houston. ence on of ac- Appellants’ cause concert. for the by the injuries contend their were caused the lack of City stems from against the tion dangerous City’s рroperty, on the condition premises where presence on the police next to the and the street sidewalk negli- from the and not attacks occurred City Appellants also assert the Coliseum. officers in police more gence of one or failing injuries by to to their contributed protection. providing provide police protection downtown Department deter- The Houston Police oc- previous crimes had Houston where policing the downtown policy mines argue City owes Appellants curred. implemented, is policy, once area. The activity the criminal them a because protection. providing police method of it is City contends was foreseeable. arising any liability exempt from is the Texas Tort liability from under immune police protec- providing method of from the & Rem. Code Act. Tex.Civ. Prac. Claims to immune for its failure and is also tion seq. 101.001 et Ann. § municipality police prоtection. provide fail- arising “from the in for claims negligence causing an not liable If the providing of i.e., or the method policy, provide ure to in the of jury lies formulation quarters Depart- of the Houston Police police protection.” & or fire Tex.Civ. Prac. liability any on the ment. As to attendant (Vernon 1986). 101.055(3) Rem. Code Ann. § repeated city failure to do so after acts injuries suffered documented, question of are violence of were the result of criminal acts third either must also await further examination parties. liability is immune from pres- At by legislature or the courts. by for intentional torts committed third the facts liability ent no such exists under municipality exempt parties. A from by presented this case. “arising of liability for intentional torts out assault, battery, imprisonment any false tort_”
other intentional Tex.Civ. Prac. & (Vernon 1986). Rem. Code Ann. 101.057 § by Assuming appel- all facts stated true, correctly to be the trial court lants granted motion for City’s governmental immuni- based three, six, ty. Appellants’ pоints error SONNIER, Appellant, Lawrence eight, are overruled. Accordingly, judgment of we affirm the Texas, Appellee.
the trial court. The STATE of No. C14-92-00999-CR. DRAUGHN, Justice, concurring. Texas, Appeals Court of sepa- I opinion concur write but (14th Dist.). Houston aspect I rately clarify one case important for reference. consider future Dec. 1992. opinion, my appellant had the offered Rehearing Denied Feb. specific prior evidence of acts of violence against patrons on the sidewalks immedi-
ately adjacent the Sam Houston Colise- prior rock-type during spon-
um concerts Pace, Pace, being sored or which business, aware, I have been should liability. subject would have held them I caveat for future refer- But also attach a sponsors other are ence that such tragic notice occur- now on because this rence, they expect profit if large by attracting
such concerts numbers *8 people, they prepared of young should be responsibility for a modicum of assume security in the immediate area outside the pa-
building, which at allow would least get premises trons to on and off the with- being out assaulted robbed. appropriate seem for the It would also Department to re-evaluate Houston Police patrolling the policy its decision about area prior It after such concerts. would appropriate patrol particularly least one such as this where the concert
and the attendant violence was located main a few short blocks head-