Holder v. Mellon Mortgage Co.

ty оf the testimony. case, witness’s Benoit Wil case to the Heaton which slip involved a son, (1951). 150 Tex. and fall on dirty grapes. smashed and ease, however, above, Heaton, In this as case, stated there 547 S.W.2d at 75. In that conflicting however, is no undisputed evidence. The dangerous condition was caused simply evidence is slipped by grapes Mrs. Gonzalez grapes on the floor. The were salad, on some macaroni it out”, had some dirt in spread described as “smashed and “the it, it, it track juice had marks in pressed them”, and looked been had out of pivotal fresh and question “they wet. The Further, in a drying stage.” were support whether this evidence is footprints sufficient to there were and cart tracks in them finding and, that the macaroni salad importantly,“the most layer same of dirt long enough floor charge Wal-Mart with proceeded was on the floor to cover the constructive presence. notice of its grapes Whether if they had been great there for a question Further, exists “is a length law for the of time.” majority as the noted, court to decide from surrounding the facts dirtyand grapes desiccated on the question.” the occurrence in Greater Hous floor are “quintessential considered the dan Transp. ton Phillips, Co. v. gerous Wyatt condition.” See v. Furr’s Su Inc., permarkets, denied). App.—El And, Paso in authorities, Based on the above-cited situation, such a knowledge of a hazard is in legally evidence factually case is Accordingly, majori easier to infer. Id. support insufficient to a finding of construc- ty’s inappropriate reliance on Heaton is knowledge. tive The macaroni salad was not the facts of this case. drying condition or discolored as Chavez and Heaton. large There was not a Because I am opinion there was no amount оf it as in Garrett. There was no evidence that knowledge Wal-Mart had indication there were employees store constructive knowledge of the macaroni on close proximity to the macaroni salad at or slipped floor where Mrs. Gonzalez fell, near the time that Mrs. Gonzalez as in fell I would judgment reverse and render Robledo, Mungia. As in there is no evidence favor of Wal-Mart.

that Mrs. Gonzalez did not make the tracks fell, the macaroni salad when she or that

another customer traversing busy aisle just

did not make the tracks minutes before

Mrs. Gonzalez fell. simply There is no evi- jury

dence from which the could infer how

long the macaroni salad had been on the floor. Angela HOLDER, formerly N. known as majority The jury concludes could Angela Hamilton, Appellant, N. have inferred from the track marks that the macaroni salad had been on the floor for a impute sufficient amount of time to knowl- MELLON MORTGAGE COMPANY edge employees. majori- to Wal-Mart’s City Houston, Appellees. ty attempts distinguish through tracks No. 14-96-00043-CV. through

water from tracks macaroni stat- ing through that tracks transitory water are Texas, Appeals Court of whereas through pre- tracks solid matter will (14th Dist.). Houston sumably up. last until cleaned While that true, Aug. 1997. may be the fact that there were track marks long is still no evidence of how Rehearing Overruled Nov. because, macaroni had been on the floor un- case, simply der the facts in this there is

way knowing long how the track marks majority

had been there. The likens this Schick, Coats, M.

Laura Anne Robert Smith, Gallagher, A. B. Kathleen Catherine Houston, appellee. YATES, FOWLER, HUDSON and

Before JJ. OPINION

MAJORITY FOWLER, Justice. (“Holder”), formerly

Angela N. Holder Hamilton, Angela appeals N. known as judgment granted summary favor of (“Mellon”) Company Mortgage Mellon and City in from a dismissal favor of the (“the City”). Houston Holder sued both City sexually Mellon after she was and police in Mel- assaulted Houston officer parking garage. appeal, In lon’s this Holder points alleging raises three of error that the granting trial court erred in Mellon’s motion summary judgment, sustaining Mel- objection report lon’s and affidavit witnеss, expert granting City’s her and part motion to dismiss. We affirm in part. reverse and remand in Background I. driving approximately

Holder was home at morning 3:30 a.m. on the of November (“Potter”), when Calvin Potter an on- officer, duty City police stopped her for an apparent traffic violation near downtown stopping taking Houston. After Holder and card, her identification and insurance Potter Driving ordered Holder follow him. car, City squad Potter Holder to the led garage third floor of Mellon’s less than six away. garage blocks was unsecured and deserted, garage, while at the Potter sexually City’s police assaulted Holder in the assault, reported car. After Holder Pot- tried, arrested, convicted, ter was and sen- years prison. four tenced to against Holder filed suit Mellon and the 27, 1994, City alleging on June theories of Mellon, negligence. Against alleged she per negligence se for violation of section 10- (“the City 361 of Ordinance No. 93-1570 Or- dinance”) because the “dan- Moms, Furlow, gerous building” meaning Kenneth M. David A. within the Houston, appellant. alleged Ordinance. She also common law mary judgment to exercise raised Mellon. See Ma negligence for Mellon’s failure Bros., prevent in- looly Napier, care to a foreseeable Inc. v. reasonable jury by permitting (Tex.1970). to re- caused accessible, unattended, easily open, main poorly pleaded lit. also She of Review A. Standard In

negligence gross negligence. constituted addition, a claim for loss of she asserted reviewing summary judgment, we minor consortium on behalf her child. take the evidence favorable to the non-mov- City, alleged against her claim Holder every indulge ant as true and reasonable City employees were their su- inference in the non-movant’s favor. Nixon pervision City his use of the Potter and Cо., Property Management v. Mr. patrol car. 546, 548-49 When a trial summary judgment specify grounds upon Mellon moved for court does not (1) grounds City Ordinance is grants summary judgment, it which (2) here; inapplicable presented to the facts here, judgment we will affirm the if one legal Mellon because owed Holder of the theories advanced the motion is invitee, trespasser, she was a not an Casualty meritorious. State Farm Fire & general duty prevent acts has no criminal S.S., (Tex.1993); Co. (3) control; parties of third outside its Brasher, Carr criminal in this case was not foresee- conduct 1989). Summary judgment for the defendant (4) able; remotely Mellon’s conduct was too proper proof is when the shows there is injuries to connected to Holder’s establish genuine no issue of material fact as to one or (5) causation; legal the child’s loss of plain- more of the essential elements of the claim Holder not consortium fails because did tiffs cause of action. Black v. Victoria serious, allege permanent, disabling (Tex.1990). Co., Lloyds Ins. physical injury. words, disprove, must other defendant 6, 1995, November the trial court On law, as a matter of one of the essential summary judg- granted Mellon’s motion for plaintiffs elements of a cause action. ment, specify but its order did Perez, Siegler, Lear Inc. v. summary judgment ground on which Mel- granted. The trial court also sustained objection report of lon’s to the affidavit and B. Facts security expert, B. Holder’s Horace Loomis. appropriate We review the facts under City properly pleaded its affirmative

The summary judgments, for standard review sovereign immunity moved to defense taking to the non-movant evidence favorable It ar- dismiss Holder’s suit on that basis. Nixon, true. at 548-49. gued that claims not fall within Holder’s do immunity garage least governmental waiver of Mellon has owned the since аt the limited operated it since provided in the Texas Tort Claims Act and controlled and (“TTCA”). 1,1992, previous when it canceled its Crv. October Tex. Prac. & Rem.Code Ann. (Vernon Supp.1997). Allright ‍‌‌‌‌‌‌​​‌​​​​‌​‌​‌‌‌​‌‌​​​​‌​​‌​‌‌‌‌‌‌​‌‌‌‌‌‌​​‌‍Parking. §§ 101.001-.009 1986 & with management contract granted City’s The trial court motion to public garage not a and is used garage jurisdiction on November dismiss for lack of normal employees during for Mellon’s busi- granted RzasnicM, CEO, same Mellon’s date hours. Peter Mellon’s ness summary judgment. for motion that Mellon take made the decision would placed garage. control of the RzasnicM over Summary Judgment II. charge garage, in even Oblinger Curtis operat- though prior experience error, he had point In Holder’s first she facility. not make ing parking Mellon did erred in generally asserts that the trial court area or to investigate crime summary judg efforts granting motion for Mellon’s security mea- whether additional single, point is sufficient determine ment. This broad garage. for sures were needed preserve grounds error on all sum- increase in crime provided summary judgment proof about a “drastic Holder garage previous six support surrounding her contention that the area” high in a crime area. Her evidence consisted of crimi- months. Hilliard had heard rumors of, matters, among other HPD’s crime statis- activity, including reports of violent crime nal showing January area, tics surrounding from other Mellon in the incident, through the 190 violent date plan in- employees. proposed He crimes, murders, robberies, including rapes, security. Oblinger responded never creased assaults, reported aggravated were with- to Hilliard’s memo. quarter-mile garage. in a radius copy of an Holder also furnished e-mail Holder contends that because of this evi- Oblinger from Cathleen sent to and others crimes, previous on her dence of assault Hackward, emрloyee. Hack- another Mellon foreseeable, creating for Mellon complaint “lodge wrote to a formal ward steps prevent to take such an attack. virtually security non-existent about Oblinger acknowledged deposition in his parking garage our since Mellon took over testimony that he had known since Mellon job.” “people She wrote that are free to responsibility garage took over for the on there, through obviously committing roam 1, 1992, parking garages October crimes,” per- her and she was concerned for inherently susceptible Houston are to crimi- safety. sonal Hackward also testified de- activity. acknowledged nal He that on week- position security guard that she had Mellon’s ends, p.m. Fridays from 11:45 until 6:00 garage escort her to when she worked Mondays, security a.m. on there were no go late because she did not consider it safe to guards garage, although at the Mellon ar- alone. ranged guard for an armed from 6:00 a.m. Oblinger’s stated that Mellon was affidavit p.m. Monday to 11:00 through Friday. occurring in unaware of violent crimes addition, off-duty police randomly officer before this incident and that patrolled garage during business hours. knowledge only of car theft two instances Potter, however, employed by was never reported. Oblinger had been also testified supervision Mellon nor did he act its under garage well-lighted In is at all times. During and control. garage the times the addition, provided undisputed Mellon testi- by employees was not in use Mellon on mony that neither Holder nor Potter had weekends, nights security and there were no permission garage in at be the time gates, entrances, no chained or fenced and no the assault. pedestrian barriers to or vehicular traffic. Oblinger frequented knew beer drinkers Negligence C. Per Se garage on weekends the beer bottles that We first address Holder’s contention Monday mornings. found on It was also granting summary the trial in apparent court erred people sleeping that were in the judgment for Mellon because it was up stairwells from blankets and rolled news- Mellon, by as a matter of law. She contends papers Oblinger acknowledged found there. unsecured, leaving garage its violated the costing that a chain between could $10 $20 against dangerous buildings Ordinance that fact, prevented entry. have vehicular designed protect public, of which began chaining Mellon the entrances to the 1993, she is a member. Mellon denies that garage July several months after the applicable garage. its Ordinance is assault on Holder. Hilliard, employee, a IX of the John Mellon testified The Ordinance is found Article Code, by deposition jeep designated that his was stolen out of Houston which is as the garage “Comprehensive October 1992. Hilliard sent Urban Rehabilitation and (“the others, Oblinger, among Building memo to on or about Minimum Standards Code” Code”).1 27, 1992, expressing October his concern Section 10-361 of the Code defines parties agree Ordi- and Holder relies on the 1993 version of the 1992. The that nance, although technically ap- provisions the 1992 version applicable are 1993 versions of the plies because incident occurred on November 10-361, part express language of section this Or- buildings” in relevant as “dangerous prevent danger designed to “a dinance was follows: health, welfare,” safety public and and (a) structures, dwellings, buildings, All public. certainly a member of the Holder is units, accessory buildings, re- dwelling and Therefore, per- she falls within the class of construction, that of their date of gardless designed to the Ordinance was sons following defects are have of the Nixon, at 549. protect. See 690 S.W.2d dilapidated, to be substandard deemed danger unfit for human habitation and is whether The real issue before us health, welfare, safety public and parking cover a is intended to the Ordinance dangerous build- are further declared to be occupied” actually “not garage that ings: weekends, whether, Mel night as abandoned, only applies to argues,

lon guided by are long-vacant buildings. Courts (11) structures, Buildings regardless city principles interpreting the same condition, of their that have dur- structural generally followed in con ordinance that are they actually occu- ing times were Brown, struing statutes. Mills v. 159 Tex. owners, pied by legal lessees or other their also, (1958); 720, 723 see invitees, left unsecured from unautho- been Helotes, e.g., City v. Grothues they may entry to the extent that be rized (TexApp.—San Antonio by vagrants or other uninvited entered writ). Statutory question interpretation is a harborage persons place or could be Maley court to determine. of law for the entered children. Inc., Freeway, 7111 Southwest provides (Tex.App.—Houston Section 10-362 of the Code [14th Dist.] denied). “dangerous buildings” as defined therein we are confronted When vacated, secured, repaired, construction, “shall be removed question statutory we with provided as hereinafter or oth- or demolished whether the statute must first determine Motors, Inc., erwise abated.” ambiguous. Cail Service meaning If not maintain that Mellon’s Holder does unambiguous, ex is clear and statute parking garage structurally unsound. rules of construction are trinsic aids and Oblinger, president vice Curtis Mellon’s giv be inappropriate, and the statute should maintenance and manager charge of the common, meaning. everyday Id. en security at the time assault, was well-built testified parties in this The contеntions of the properly maintained. addi- and had been ambiguity. claim of When case amount to a tion, Mellon’s evidence in the record shows exists, give apparent ambiguity we are to by garage been parking has never cited keep the statute a reasonable construction or City for violation of this Ordinance legislative City Ma ing with intent. Thus, building other code or ordinance. we Co., 18, 150 Tex. son v. West Tex. Utilities only consider whether Mellon violated need (1951). 273, Legislative in 237 S.W.2d 278 by leaving dangerous building Ordinance entire be from the tent should determined open nights unsecured at and garage its act, portions not from isolated thereof. garage was not on weekends when Comm’n, 790 S.W.2d Acker v. Texas Water employees. regular by use Mellon (Tex.1990). 299, the stat We must read 301 give effect interpret it to ute as a whole and unexeused violation of an ordi Pruitt, parte 551 S.W.2d every part. Ex negligence as a matter of to nance constitutes (Tex.1977). meaning of 706, pre 709 When designed was law if such ordinance ambiguous, the construction provision is injury persons class of to which vent by agency provision Corp. placed upon injured party belongs. El Chico (Tex.1987); is entitled Poole, charged with its administration Nix Bullock, on, Airlines Co. According weight. Southwest at 549. 10-326(a)(7). § City 86-56 substantially Houston Ordi- nance the same. See reading provisions of other (Tex.App.—Austin Our relevant writ). City Coun- the Code leads us to conclude no apply cil the Ordinance to to vacant intended interpreting In or ordi a statute refers buildings. Section 10-411 of Code nance, by guided we are also rules of con dangerous buildings as defined to “vacant 10-361_” struction. See Tex. Gov’t Code (11) Ann. Only subsection section (Vernon 1988). presume § that 311.023 We can be a “va- section 10-411 read define just reasonable result intended. dangerous building.” “Vacant” is cant Martinez, Industrial Accident Bd. v. Code; look to its defined in the therefore we (Tex.App.—Houston [14th ordinary meaning. See Tex. Gov’t Code Ann. writ). 1988). 312.002(a) (Vernon Dist.] We must consider Common, § ordi- consequences that follow from our construc nary definitions of “vacant” include “not lived tion of a use,” “abandoned,” statute and avoid absurd results. in,” put “emp- “not Inc., Collegiate Sharp Lloyd, v. House 815 S.W.2d ty.” Ninth Dic- WebsteR’s New tionary (1991). It is assumed that those The definition section complete enacting new laws do so with provides of the Code that the term “vacant knowledge existing “any law and with reference dangerous building” means structure Acker, to it. supporting for or shelter- was intended ing any occupancy use or and that is not whole, In reading the Code as a presently occupied daily or in other use apparent purpose minimum its is to set owner, lessees, or other owner’s invi- construction, building repair, standards tees that has been determined be and maintenance. Division which includes dangerous building under this article or 10-361, “Dangerous section covers Build- § legal process.” (emphasis other 10-317 ings.” The definition section of the Code added). addition, “occupancy” is defined provides: purpose part building, “the for which a substandard, Dangerous building means a thereof, is used or intended to be used.” Id. damaged or building deteriorated or im- parking garage Mellon’s in- is used (1) provement that has one or more of the purposes daily during on a tended basis nor- defects or conditions in section 10- listed Moreover, mal business hours. there is 361 of this Code. some evidence in the record that the night late at and on when used weekends Section 10-361 lists eleven defects or condi- employees Mellon worked extra hours. We tions, the first danger- ten of which define a parking garage not a hold Mellon’s building ous as a result of the condition of dangerous building” “vacant as defined in the itself, building e.g., walls that “lean or Code. here, (11), buckle.” Subsection at issue de- addition, dangerous building fines a based on the va- Mellon the affidavit of filed cancy Link, building, Neigh- not on the structural Bea Assistant Director building. Depart- condition of the Holder contends borhood Protection Division of the require buildings Engineering.2 the Ordinance does not to ment of Public Works and dangerous, be “vacant” to be but instead the Link stated that the Ordinance had “no rele- requires buildings parking garage Ordinance to be secured vance” to a unless the entry “during “structurally from unauthorized times is unsafe.” While Link’s state- that, they actually occupied,” City that were not which on of ment based her review the records, nights structurally parking ga- in this is at case and on weekends. no sound 3, 166a(c) permits 2. Mellon filed Link’s affidavit on November affidavit. Rule the court to con- 1995, hearing summary judgment proof after the on its motion for sum- filed after the sider permis- mary judgment hearing judgment on October 1995. Holder if filed before and with 166a(c). objected untimely filing both to the affidavit’s P. Holder sion of court. Civ. Tex.R. statement, conclusory requested assigned point and its has not a of error to trial trial court strike the affidavit. On November court’s consideration of Link's affidavit. None- theless, granted the trial court sum- we have considered in our discussion the Mellon’s motion for mary judgment by objections Hold- order dated November to Link’s affidavit contained in 15, 1995, granted the court leave to file Link’s er’s brief. buildings left unsecured.3 The “unoccupied” of the rage has cited in violation Ordi- been meaning “unoccupied” also is “not summary judgment proof, common proper nance empty.” opinion that the was not rele- lived in: her Ordinance Ninth New WebsteR’s Dictionaby Collegiate (1991). There conclusion. parking garages legal is a vant support a in the Local Government legal implication A is insufficient to conclusion summary judgment might as a matter of be “occu- Code that structures motion Snider, actually oc- pied” during weekdays, law. Anderson v. but “not (Tex.1991); Corp., to be cupied” night Mercer v. Daoran or on weekends were (Tex.1984). Nevertheless, power regulate a city’s a included within that the give weight “dangerous” building. some to the evidence we charge enforcing the Ordi- department conclude, reading on the based We applied parking garage it to a nance has not conjunction authority with the entire Code structurally Tex unless it was unsafe. See by legislature, giving granted cities Capitol, ans to Inc. v. Board Save interpretation, weight to its administrative Austin, Adjustment City apply to Mellon’s that the Ordinance does (Tex.App.—Austin 776-77 parking garage. Accordingly, we overrule n.r.e.) city building de (relying on the ref d point negligence one as to Holder’s of error city zoning partment’s interpretation of a per se claim. height governing building limita ordinance tions). Negligence Law D. Common accept that to Holder’s con- argues Negligence

Mellon and Gross applies to a tention that the Ordinance struc- summary judgment Mellon also moved for during times ture that is not in use certain duty that it owed no to Holder grounds to an absurd result. Mellon con- would lead proximate not a and that its actions were interpretation, Holder’s tends under injuries. cause of Holder’s within apply would to homeowners Ordinance City garages who fail to lock their while Negligence 1. Common Law work, by leaving open them to access away at Duty a. agree that vagrants or children. We by city officials in result was not intended negligence consists of A cause of action for dangerous buildings Ordinance. enacting the (1) duty legal elements: a three essential (2) another; by party a breach inter- owed one persuaded are also that Holder’s We (3) duty; damages proximately of that pretation is incorrect our review by that breach. Houston Code caused Greater provisions in the Local Government 523, 525 Transp. Phillips, 801 S.W.2d authority regulate dangerous Co. v. giving cities (Tex.1990). Duty inquiry in is the threshold structures. See Tex. Ann. Loc. Gov’t.Code (Vernon Id. The existence of (formerly negligence case. Supp.1997) § 214.001 Ver- 1175). Statutes, question of law for the court article is a non’s Annotated Civil 214.001(a)(2) surrounding the occur- from the facts almost identi- decide Section contains Realty, Inc. v. question. Centeq rence language as that found the Ordinance cal To here, Siegler, 899 S.W.2d except clearly applies at issue persons place Authority Regarding grants other uninvited Sub- 214.001. 3. Section harborage entered or used chil- Building or could be standard dren; or ordinance, (a) require municipality may, by A vacation, fenced, (3)boarded up, secured or otherwise securing, occupants, relocation of manner if: removal, building repair, or demolition of (A) danger building constitutes that is: entry; though public even secured substandard, (1) dilapidated, or unfit for hu- (B) building to secure the the means used public habitation and a hazard to man entry prevent inadequate unauthorized to welfare; are health, safety, and building condition, in the manner described or use of the (2) regardless unoc- of its structural (2). owners, lessees, in subdivision by other invitees cupied (Vernon § 214.001 entry unauthorized Gov’t.Code and is unsecured from Loc. Ann. Tex. added). (emphasis Supp.1997) by va- or used that it could be entered extent

795 1977, (Tex.Civ.App.—Texarkana a whether the defendant is under 649-50 determine n.r.e.)). duty, interrelated fac- ref d we consider several tors, risk, foreseeability, including the foreseeable, criminal conduct is When injury weighted against thе so- likelihood of duty prevent injuries has a to the defendant conduct, utility magni- the cial actor’s reasonably appears or should others if it to against guarding tude of the burden of the of appear him that others in the exercise to injury, consequences placing of the and the injured. Haight may be rights their lawful Houston, burden on the defendant. Greater 849, 853 Savoy Apartments, 814 S.W.2d factors, at 525. these the 801 S.W.2d Of 1991,writ de (Tex.App.—Houston Dist.] [1st is the risk is foremost consideration whether nied). a the criminal conduct of third While Corp., foreseeable. El Chico 732 S.W.2d may party may superseding be a cause that actor, Foreseeability means that the as negligent liability, from the relieve the actor person ordinary intelligence, should have a negligence superseded is not and will actor’s anticipated dangers act that his when the criminal conduct is not be excused Nixon, created for others. 690 S.W.2d at negligence. of such Tra a foreseeable result duty 549-50. of a While existence 94, City Mesquite, 98 vis v. 830 S.W.2d law, ordinarily question a in some instanc (Tex.1992). es, foreseeability the determination of Foreseeability is established evidence duty element of involves the resolution of premises that the owner realized or should disputed facts. Mitchell v. Missouri-Kan party the likelihood that a third have realized Co., 659, sas-Texas R.R. 786 662 S.W.2d might opportunity avail himself of the to (Tex.), denied, cert. 111 498 U.S. S.Ct. premises. a tort or crime on the commit (1990). 247, 112 L.Ed.2d 205 Nixon, Foreseeability 690 at 550. S.W.2d Generally, person legal duty a has no requires only general danger, protect another the criminal acts of a produced sequence the exact of events that person. Phillips, third at 525. S.W.2d Walker, harm, foreseeable. be Similarly, duty pre- a landowner has required at 377. All that is is that S.W.2d party vent the criminal acts of a third who injury general be of such a character as does not act under the landowner’s control or might reasonably anticipated, have been Tidwell, supervision.4 Corp. v. Exxon injured party be so situated with should (Tex.1993). exception An S.W.2d injury wrongful relation to the act that this rule arises when criminal conduct situated, her, similarly might reason or one foreseeable result of a negli- defendant’s Nixon, ably have been foreseen. 690 S.W.2d Harris, gence. See Walker v. 924 S.W.2d specific previous at 551. Evidence of crimes (Tex.1996) (holding lessor’s premises on or near the raises a fact issue on duty protect persons injured on the leased foreseeability activity. of criminal Lef premises does not arise the absence of Old, Management mark Co. v. 946 S.W.2d harm). duty foreseeable risk This devel- (Tex.1997) (Owen, J., concurring); 56-59 oped premise party out of the that the with Nixon, 690 at 550-51. “power expulsion” of control or inis harm, position protect against best The duties owed a landowner de location, party “by pend upon person injured when that reason of mode the role of the on business, Store, past doing premises. or observation or Rosas v. Buddies Food Texas, experience, reasonably anticipate should part persons, emerged. criminal An invitee enters conduct third three roles have party] duty precau- ... has a to take onto another’s land with the owner’s knowl [that Exxon, against edge tions it.” at 21 and for the mutual benefit of both Barnette, duty An (quoting parties. Morris v. Id. owner owes an invitee absolute, employ- general premises 4. This rule is not however. owes to tenant’s protect employee exceptions ordinary if ee to use care to Courts have carved out when certain See, special relationships e.g., Corp. to know of an exist. Exxon the lessor knows or has reason Tidwell, (lеssor (Tex.1993) and foreseeable risk of harm from unreasonable parties). security safety over the criminal acts of third who retains control 796 n.r.e.). 1979, protect fore- writ ref d Section [14th Dist.]

of reasonable care to her from 344 states: injuries. A licensee is seeable Id. prem- remain on the

privileged to enter and Open to Acts of Business Premises Public: permission by express implied or ises or Animals Third Persons owner, but a licensee enters land for possessor open A of land who holds it to or on for some- his own convenience business entry pur- public for for his business other than the owner. Texas-Louisiana one poses subject liability is to members of Webster, 126, 127 91 Power Co. v. Tex. they upon public are the land for while (1936); Andrews, 302, v. S.W.2d 306 Smith purpose, physical harm such a caused 395, (Tex.App.—Fort accidental, 397 832 S.W.2d Worth negligent, or intentional- denied). 1992, Finally, trespasser animals, writ is ly persons harmful acts of third or property one who enters of another without possessor the failure (a) any authority express or or right, lawful reasonable care to discover exercise invitation, license, implied permission, or likely or being that such acts are done are (b) performance done, not in duties for the give warning adequate or to be owner, harm, merely purposes, but for his own or to enable the visitors to avoid pleasure or convenience. Weaver v. KFC protect against them it. otherwise to (Tex. Inc., 24, Management, 750 S.W.2d 26 § (Second) 344 ToRts Restatement denied). 1988, App.—Dallas writ (1965). f to 344 further Comment section under which such a details the circumstances occupiers premises Owners or duty arises: duty only injuring to refrain from have possessor is not an insurer of the Since trespassers willfully, both wan licensees and safety, ordinarily visitor’s he is under no tonly, v. through gross negligence. or State duty any care until he knows or to exercise (Tex.1974); Tennison, 560, 562 acts of the has reason know Shipbuilding v. Brous Burton Constr. & Co. person occurring, or are about to third are sard, 50, 598, 154 Tex. 273 602-03 S.W.2d however, may, occur. He know or have (1954). addition, when the licensor has know, past experience, that reason to knowledge dangerous actual of a condition part there is a likelihood of conduct not, however, li- and the licensee does persons general likely of third which duty censor owes a either to warn the licen visitor, endanger safety of the even dangerous or to see of the known condition though expect he has no reason to it on the reasonably Peters make the condition safe. part any particular If the individual. Detsco, Inc., 38, (Tex.App.— v. business, place or character of his denied). 1991, writ A Houston [14th Dist.] past experience, is such that he should imputed knowledge licensee is with of those anticipate or criminal reasonably careless him, perceptible to or the exis conditions part persons, either conduct on the of third of which can be inferred from facts tence time, particular he generally or at some present past knowledge. within his See may duty precautions be under a to take Valley Murphy, Lower Neches Auth. it, reasonably provide a against and to (Tex.1976); Weaver, S.W.2d number of servants to afford sufficient at 26-27. S.W.2d protection. reasonable § cmt. f (Second) of ToRts Restatement Texas courts have relied on the Restate- (1965). Thus, a landowner under section analyz- § 344 when (Second) ment of ToRts only subject general duty of care when to a duty by a business owner ing the owed open public his land he holds involving third-party crimi- negligence ease only to those purposes, “and then business Parking, Allright nal acts. Kendrick v. purрoses for upon the land for the who come Antonio (Tex.App.—San open public.” Id. it is thus held which denied); McGinty, 771 Garner at cmt. a. (Tex.App.—Austin expression of writ); authorities follow this Corp., 580 Texas v. Hilton Hotels Walkoviak invitees. Wal- owed business App.—Houston Civ. involving koviak, premises liability case a plaintiff a con- Another the attended business facility Parking Concepts paid park parking at the is Ronk v. vention at a hotel and to Inc., Texas, (Tex.App.— at As parking lot. 580 S.W.2d 624. hotel’s n.r.e.). Ronk, In Fort writ ref d parking his car in the lot that Worth approached he summary affirmed a appeals court of by two unknown as- night, he was accosted there sailants, beaten, stabbed, the defendant because judgment robbed. To vio- past criminal the hotel’s insufficient evidence question raise a fact to defeat was circum- premises, or other summary victim lence on the judgment, motion for placed the owner months before stances which would have provided evidence that occurred, attack, dangerous a condition. Id. at this two similar incidents on notice of Therefore, plaintiff to raise a brought to the 419. failed after which the victims were plaintiff pro- question parking lot owner hotel for assistance. ‍‌‌‌‌‌‌​​‌​​​​‌​‌​‌‌‌​‌‌​​​​‌​​‌​‌‌‌‌‌‌​‌‌‌‌‌‌​​‌‍The also fact whether security failing to an assault expert an affidavit from a that was foresee vided invitee, though plain- security inadequate. This on its business even the hotel’s was proprietor public provided that of a tiff evidence of seventeen various court held reported two-year pe- in a duty to exer- criminal incidents business establishment has assault, premis- on the protect patrons care to riod before the either cise reasonable injuries per- vicinity. in the immediate Id. at 416- from intentional caused third es or distinguished if he has reasоn to know that such acts 19. The court Pearson be- sons likely Liability may plaintiff provided in Ronk no ex- are to occur. Id. at 625. cause the regarding fore- pert testimony arise from the failure to exercise reasonable the issue of Id.; Hines, occurring seeability. care to discover that such acts are see also Midkiff occur, likely (Tex.App.—Houston coupled [1st or are with the failure 866 S.W.2d 328 writ) protect pa- (reversing summary provide reasonable means to no Dist.] give adequate judgment questions trons from harm or to warn- because fact existed as ings foreseeability to avoid the harm. Id. concluded to the of criminal conduct We summary judgment precluded parties drive-through be- at the defendant’s third cause fact issues existed about whether the restaurant and whether the defendant’s inad- murder); duty. security equate hotel had breached Id. at 626. caused victim’s (fact Kendrick, questions 846 S.W.2d at 458 premises liability involving case foreseeability kidnapping as to the parking garage where a customer sued after rape parking precluded of a lot customer gunpoint at she was robbed and her car was summary judgment). stolen, rejected the First Court operator’s duty Supreme contention that it has never di- had no The Texas Court security, place provide rectly duty question or a safe and secure addressed the that con- Nixon, park, provided or to in this the su- warn when it no fronts us case. Pearson, security. foreseeability in the Allright, preme Inc. v. court considered (Tex.App.—Houston duty imposed by an ordinance. [1st context ), part part plaintiff alleged at 549. The Dist.] 1986 and rev’d aff'd apartment building owner’s vi- grounds, on other 735 S.W.2d 240 the defendant supported a olation an ordinance owners of requiring The court found the evidence duty buildings keep windows breach of that beсause the customer’s vacant doors and security expert garage’s securely prevent unauthorized en- testified that closed rape security inadequate, try party was lo allowed a third to commit area, apartment. supreme high prudent inside a vacant The cated in a crime rejected argument that the victim person anticipated have that a rob court should trespasser that be- bery garage’s occur. was a and determined could Id. exits, victim committed uncontrolled entrances and with no cause the innocent property and the wrong coming onto the personnel on and no notices schedule, protect larger class it foreseeable ordinance was meant to attendant’s made licensees, the traditional robbery that a could occur. Id. than invitees Foods, Inc., Peerenboom v. premises liability distinctions were irrelevant HSP writ) 1995, no (Tex.App.—Waco 163-64 analysis.5 Id. to its summary judgment for a (reversing a defen- ease, however, In this we have found questions fact exist- dant-restaurant because apply the Ordinance cited Holder does foreseeability of a sexual assault ed as Thus, find, facts. we cannot as these employee on a who had the status of a tres- Nixon, duty that the existence of Mellon’s is assault). passer at the time of the not an by unaffected the fact that Holder was permission Because Holder had no And, premises. onto its unlike courts invitee assault, to be at its at the time of the jurisdictions, Supreme the Texas some Mellon contends we must consider Holder a Court has not abandoned the traditional clas- trespasser. duty to busi contrast premises liability for actions.6 sifications invitees, regarding policy ness and law Williams, See, 940 e.g., State Texas curiam) trespassers provides: (Tex.1996) 583, (per S.W.2d 584-85 proper jury (setting out the instructions long It been the law in Texas that a has liability plaintiff is premises actions when the obligation to maintain landowner has invitee); Dep’t High- strang- a licensee or State premises in a safe condition for Payne, ways Transp. v. 838 S.W.2d entering & Public ers without authorization. (Tex.1992) 235, (distinguishing 236-37 differ- may persons will landowner assume ent duties owed to invitees and licensees penetrate his boundaries uninvited. defect). Therefore, injured by premises we Trespassers premises must take , among them, and, that these injured must conclude distinctions they they if are find trespassers, appli- are licensees and invitees unexpected dangers, their own. the loss is cable to Holder. Co., Baldwin v. Texas Elec. 819 S.W.2d Utils. (Tex.App.—Eastland writ de- 266 invitee, Clearly, Holder was not Mellon’s nied). Texas distinguishing this case from other this parking Based on the circumstances of involving cases criminal conduct at case, See, Kendrick, at we determine that Holder’s status is facility. e.g., Pearson, 689, Ronk, 455; gratuitous A licen 711 at 711 the nature of licensee. S.W.2d 416-19; Walkoviak, pres whose 580 at see has been described as one S.W.2d at premises solely upon ence cognizant 624. We are that section 344 possessor only premis- purpose visitor’s own which the Restatement addresses interest, ordinary property has no either busi occupier’s duty of care to invitees es social, privilege of criminal ness or and to whom the protect them from foreseeable Nevertheless, entering we con- extended as a mere favor parties. acts of third express by general custom. of care owed to consent Gon clude the lesser duties Broussard, trespassers apply also in cases zalez v. licensees and n.r.e.) posi- Civ.App.—San Antonio writ ref d third-party criminal conduct. This injured (classifying еmployee’s drive- unprecedented in child tion is not Texas. See many prem opinion premises, states have eliminated 5. We cannot tell from the if the court premises liability rejected liability solely would have traditional determina ises classifications as controlled distinctions if the ordinance had not Worthington, Trends in tive." Friedman and Nixon, outcome, 690 S.W.2d at see Organizations Holding Business Liable for since then. the court has not addressed the issue A Third Persons on the Premises: Criminal Acts of fact, has had occasion to refer when court (1991). Perspective, S.Tex.L.J. Texas recently, more it has not addressed Nixon among the states that have aban Texas is not example, aspect For in a recent of the case. distinctions for determin doned the traditional concurring opinion, on Justice Owen commented ing owed to entrants on land. Nixon, referring without to the court’s determi- J., Nixon, (Kilgarlin, con 690 S.W.2d at 551-54 trespasser, that the victim was not a nation (advocating abandoning curring) the landowner only the ordinance controlled stated vestiges liability the last distinctions as "one of J., (Owen, Lefmark, S.W.2d at 58 outcome. general duty substituting a feudalism" and concurring). circumstances). ordinary While care under the Kilgarlin's argument, our prop- we see merit in Justice “Reflecting growing trend to hold the supreme it. injuries court has chosen not to follow erty occupier suffered on the liable for (Tex.1976) (holding grounds, playground premises while on theater’s licensee). diving permission boy injured as a Gra- after into with owner’s that a who licensee, pedestrians taking not a tres- gratuitous tuitous licensees include canal was a Weaver, lots, parking boys cuts see in the passer, short across on evidence swam based (individual slipped prohibited 750 S.W.2d at 26-27 who every day signs and no such canal grease taking through while shоrt cut activity). Because Mellon allowed licensee); parking may lot nights be considered open and accessible on to remain Drive-Ins., 140, weekends, Boss v. Prince’s may entering those be consid- (Tex.Civ.App.—Waco refd implied per- gratuitous licensees with ered (individual n.r.e.) who was threatened with garage.8 mission to enter the to a assault when he returned drive-in res- gratuitous li The duties owed to parking companion taurant lot where his had expressed as follows: censees are licensee); occupied left his vehicle status of Burger King Corp., possessor premises see also of the does not [T]he Cochran 937 W.D.1996) duty (Mo.App. (pedes- gratuitous owe to the licensee the injured taking exercising trian when a short cut across to the reasonable care discover does, parking premises. the defendant’s lot was considered a condition of the He never- gratuitous open, duty licensee the where lot was theless owe the licensee the of re- anticipate people fraining willfully wantonly causing the restaurant could would or closed, use it injury committing negli- even when it was and there him or from active was and, discouraged gence resulting injury, no indication that the restaurant if traffic), “loafers, loiterers, such gratuitous as well as harm to the licensee is caused people only get who come in to out of the the result of a natural or artificial condi- Page property, posses- al., weather.”7 W. to tion of the known et Keeton PROSSER § property at sor of the and which he should and Keeton on the Law of Torts (5th ed.1984). may gratu- One also be a an unreasonable risk to the realize involves itous licensee when a landowner tolerat- has licensee and has reason to believe that the trespass ed a period for such a of time that licensee will not discover the condition or public risk, “permission” believes it possessor has to use realize the owes the property. Murphy See duty Lower Neches licensee the to make the condition Autk., Valley reasonably him Civ. safe or to warn 1975), App.—Beaumont rev’d on other condition and the risk involved therein. 7. safety that, Even if we had not determined that Holder was if she did not follow Potter’s orders and facts, gratuitous protection, a licensee under these some law her own she remained at the support exists to a conclusion that the until Potter allowed her to leave. See law should 197(1) (1965). § designate trespasser against not as a one taken Restatement (Second) Torts Nixon, property. her will onto another’s J., (Spears, concurring) (rejecting S.W.2d at 554 The Restatement now includes its discussion rigid application of the traditional entrant cate- gratuitous general under the section for licensees gories, noting although the victim entered licensees. See Restatement of Torts (Second) property the defendant’s without the defendant’s (1965). §§ "[a] We are aware that consent, knowledge manifestly "it would be expensive pre- failure to take burdensome and unjust classify trespasser to her as a when she against only cautions intrusion manifests an un- dragged property by rapist”). on the willingness go expense to the trouble and summary judgment supports land, evidence an infer- trespassing preventing others from on the ence that Holder believed she had no choice but only practically and indicates toleration of the affidavit, garage. to follow Potter to the In her unavoidable, rather than consent to enter as options case, Holder stated: "I felt that I had § licensee.” c. Id. cmt. In this during extremely frightened however, ordeal. I was only evidence in the record indi- police that this was a officer and that he was required cates that it would not have burden- someone who would have access to informa- expensive prevent some or measures to access to honestly tion in world about me.... I feel garage. Oblinger by deposition Mellon’s testified run, attempted that if I had I would have been that there was "no reason” Mellon could not stopped—I probably put feel that he would up have said have lock, fences or at least used chain and resisting prevented that I was arrest and would have shot that these measures would have argues privileged driving garage, me as I ran.” Holder she was and that Potter from into prohibitive. to enter the because she feared for her these measures were not cost (citations Gonzalez, (Tex.App.—San at 739 omit- Antonio n.r.e.) ted). (recognizing that to leave Recently, Supreme the Texas Court ref d a was- open may night hateria and unattended all proper jury instructions to be clarified provide impose duty on the business to given premises liability cases when the Williams, security duty may some sort of whereas that plaintiff is a licensee. apply department not to a store in a mall at 584-85. addition defendant’s employees present). injure plaintiff willfully, with wan- jury tonly through gross negligence, questions We therefore find fact exist as be instructed as follows when the should foreseeability of assault such a criminal plaintiff ais licensee: garage. as this Mellon’s Evidence of oth- respect prem- With to the condition of the area, er crimes the memos from em- ises, if— defendant ployees alerting Mellon about crime in the posed a. the condition an unreasonable area, Oblinger’s parking ga- admission that harm; risk of rages inherently susceptible in Houston are knowledge b. defendant had actual activity, expert testimony criminal danger; security expert from Holder’s are sufficient question foreseeability raise a fact on the plaintiff c. did not have actual knowl- of criminal conduct such as the assault on edge danger; and defendant failed Houston, City v. Holder. ordinary protect to exercise care to Cf. Barefield of (TexApp.—Houston 403 plaintiff danger, by failing to both denied) (holding that Dist.] adequately plaintiff [14th warn of the condi- knowledge activity criminal in general about failing that tion and to make condition is insufficient to the downtown Houston area reasonably safe. foreseeability fact issue on of criminal raise a case, questions Id. In this there are fact as to specific conduct in the absence of evidence of knowledge Holder’s and Mellon’s actual of area). earlier, crimes in the As noted al- garage. of criminal at the the risk conduct exist, foreseeability though other factors type of business a defendant in important establishing the most factor operates may foreseeability increase the of a addition, duty. only evidence con- Operation parking criminal attack. of a requiring that tained the record shows may “peculiar attraction” pose structure to close landowner to take some measures especial temptation op and create “an garage the entrance of the would not be a portunity” for criminal misconduct. Gomez prohibitive Consequently, burden. we con- Ticor, 622, 628, 632, Cal.App.3d v. 145 193 duty. fact exists as to clude that a issue (1983). 600, 604, Cal.Rptr. 607 des “[T]he structures, espe erted ... nature of these b. Proximate Cause cially night, likely places for at makes them In addition to the existence of a rapists robbers and to lie wait.” Id. The legal duty, we must also consider causation notes that in situations where Restatement summary judg because Mellon is entitled to property peculiar temptation “a affords conclusively that ment if it established its opportunity for intentional interference or proximate conduct was not a cause Hold harm,” likely is re to cause the defendant injury. Proximate cause consists of er’s intentional, against the or quired guard Travis, foreseeability. in fact and 830 cause criminal, conduct of others. Restate even at 98. The test for cause in fact is S.W.2d e, 302B, § (Second) cmt. ment Touts omission was the defendant’s act or whether (1965). By leaving garage subcmt. G bringing about the a substantial factor unattended, open Mellon attracted have oc injury which would not otherwise activity, in provided a climate for criminal Prudential Ins. Co. Am. v. curred. Jeffer Kendrick, cluding crimes. See 846 violent Assocs., Ltd., 161 son S.W.2d distinction (recognizing at 458 S.W.2d 1995). prone premises that are to attract between not); reject that there is Mellon’s contention activity criminal and those that are We cf. Co., Sears, a matter of law. We find no causation as Roebuck & S.W.2d Castillo realized the likelihood that such Mellon’s failure to secure its have created, legal might cause. and that a “too attenuated” constitute situation be Dallas, Inc., Boys Clubs person might Doe Greater avail third Cf. himself of (Tex.1995) (holding a tort or opportunity to commit such screen, super- investigate, club’s failure to crime. inju- was not in fact of

vise volunteers cause Nixon, (citing at 550 Restate- boys, ries from sexual molestation of since (1965) (em- § (Second) ment of ToRts investigation of volunteer’s criminal record added)). phasis Based on our discussion would have revealed two misdemeanоr driv- foreseeability, we conclude Mellon failed ing while intoxicated convictions that would negate as a of law. causation matter precluded presence not have volunteer’s club). Evidence exists the record Negligence 2. Gross condition of Mellon’s was a substan- questions Fact also exist as to bringing injury: tial factor in about Holder’s created, of, whether Mellon and was aware ga- but for the secluded nature of Mellon’s an extreme risk of harm so as to be liable for rage, protected easily from view and accessi- gross negligence.9 negligence Gross includes ble, may the assault not have occurred. Mel- two elements: argues lon that Potter have taken would (1) objectively standpoint from the viewed else, only Holder somewhere but the sum- actor, the act or omission must mary judgment evidence the record indi- risk, degree involve an extreme consid- cates that there was no other site in the area ering probability magnitude providing these conditions. others, potential harm to Pump Mellon cites Union v. Allbrit Co. (2) actual, subjective the actor must have ton, (Tex.1995) for the involved, awareness of the risk but never- proposition legal cause is not established proceed theless in conscious indifference if the defendant’s conduct does no more than safety, rights, or welfare of others. furnish the plain condition that makes the Moriel, Transportation Ins. 879 Co. injury possible. Pump tiffs Union is not a (Tex.1994). 10, summary S.W.2d 23 premises liability case and its statement that context, judgment prong the first of the test causation is merely absent if a defendant requires conclusively estab- defendant furnishes a permitting injury “condition” genuine lish that there is no issue of fact as antithetical to the imposing liability basis for to whether its conduct created an extreme on landowners to those who come onto then- Peerenboom, degree of risk. 910 at S.W.2d property injured by and are a condition of prong 163-64. The second of the test re- property. that aspect We consider this of quires conclusively the defendant to establish Pump’s analysis legal Union causation to genuine that there is no issue of fact as to inapplicable Instead, be here. we that find subjective knowledge whether it had actual causation, the Restatement’s discussion of of an risk of harm. extreme serious Id. Nixon, applies: as cited person committing The act of a third Loomis, superseding expert,

intentional tort or crime is a Holder’s in his asserted harm resulting report Garage cause of to another there- that created an unrea- “[t]he from, harm, although negligent the actor’s con- sonable and extreme risk of and Mel- Oblinger duct created a situation which afforded an lon knew it. Haekward’s memo to 14, person 1992, opportunity to the third to commit October and Hilliard’s memo dated crime, 27, 1992, Oblinger such a unless the actor at the time dated October show person-in-charge conduct realized or should that Mellon’s had actual Lundell, intent); pleading 9. There is no or evidence in the record eludes element of Brown v. 616, (Tex.Civ.App.—Amarillo injured willfully wantonly, that Mellon Holder or S.W.2d 619-20 1960), (1961) incorporate higher culpable aff'd, both of which men- 162 Tex. 344 S.W.2d 863 Trust, Inc., (wanton Mortgage party when ‍‌‌‌‌‌‌​​‌​​​​‌​‌​‌‌‌​‌‌​​​​‌​​‌​‌‌‌‌‌‌​‌‌‌‌‌‌​​‌‍the has tal states. See Baskin v. & misconduct occurs knowledge (Tex.App.—Houston that his conduct will in all [14th conscious denied) (willful probability injury). misconduct in- result Dist.] a drastic increase in E. Loss of Consortium awareness of crime and oc- crime the area before the Assault Holder also contends Mellon is not Yet made no effort to deter- curred. Mellon summary judgment entitled to on her child’s activity in mine the extent of criminal consortium claim. Mellon obtained loss of steps, vicinity or to take reasonable or summary the consortium claim judgment on steps, Garage prevent to secure its or to solely ground on the that Holder did not at, into, entry or unauthorized serious, deter crime plead permanent, disabling Garage.” injuries he knew of no other physical Loomis stated as a result of the assault. Indus., Lieck, Browning-Ferris Inc. v. facility vicinity garage or in the that would (Tex.1994); Reagan v. provided Potter with the same or a have (Tex.1990) (lim Vaughn, comparable opportunity to commit the as- iting recovery damages parental for loss of Relying sault. on evidence that Potter knew parent consortium to those cases where the entry garage’s about the unrestricted “serious, permanent, has sustained and dis straight garage, that Loomis he drove injuries). abling” physical pleaded Holder unprotected asserted the “unattended and serious, per have caused “[d]efendants Garage causing factor in was a substantial manent, disabling injuries to Nicholas’ the Assault.” Based on review of the crime allegation physical mother.” There is no compiled by statistics and other evi- Pickard injury, however. report, opined dence cited in his Loomis summary judgment proof There is no on Garage at the time of the Assault was “[t]he pleading this issue. If Holder’s was defi- high in a area. It was foresee- located crime cient, summary was not entitled to Mellon Assault, able at the time of the based on having special judgment excep- filed without prior vicinity criminal acts and the permitting opportunity tions and Holder an inherently dangerous nature of unattended of B.I.V., to amend. See In the Interest unprotected garages, parking (Tex.1994); Dept. 13-14 Texas might reasonably Assault or a similаr event Herring, Corrections steps result in the absence of reasonable exceptions special There are no ordinary prevent care to or deter acts of this to the loss of consortium claim in directed summary judgment nature.” Under our record. Holder raised Mellon’s failure to review, raising standards addition specially except response in her to Mellon’s foreseeability questions fact and causa- Therefore, summary judgment. motion for tion, this is sufficient to raise fact evidence summary granting trial court erred in gross negligence. questions on judgment on the consortium claim. Without expressing any opinion as to the ultimate short, Mellon failed to establish claim, viability point we sustain this legal duty or causation as a absence of respect to claim for error one with Holder’s negate matter of law so as to an element of of her brought of consortium on behalf loss Indulging all in- negligence Holder’s claims. minor son. favor, that ferences Holder’s we conclude creating in the there is some evidence record Summary Objections F. that a fact issue as to whether Mellon knew Judgment Proof garage open to criminal unsecured two, complains point of error Holder activity, which could include serious crimes her improperly trial court excluded that the murder, rape whether its such as complaint A based on the expert’s affidavit. a substantial factor unattended or exclusion of evidence improper admission leading injury. to Holder’s reviewed under an abuse of discretion Therefore, questions because we find fact Winkle, 660 standard. Jackson v. Van precluding summary judgment exist as to For the exclu- S.W.2d liability negligence law Mellon’s for common er- to constitute reversible sion of evidence (1) ror, party gross negligence, complaining we sustain Holder’s must show: (2) error; and trial court committed claims. that the point of error one on those that the reasonably error was foreseeability arising calculated to of criminal conduct probably Id.; Ronk, cause and did cause the prior rendition of criminal acts. improper judgment. Maris, an v. McCraw usually S.W.2d at 419. Because Texas courts Tex.R.App. (Tex.1992); rely upon expert testimony about the fore- 81(b)(1). P. seeability of criminal conduct in similar cases, the exclusion of Loomis’s affidavit Expert’s

1. Holder’s Affidavit Kendrick, Compare case was harmful. Report (security expert’s 846 S.W.2d at 458 testimo- ny question raised fact crimi- summary Holder’s as whether judgment proof foreseeable) Ronk, Loomis, included an nal attack was affidavit from Horace B. with (no expert an security question S.W.2d at 419 fact matters. Mellon on foresee- filed “global” objection ability expert raised the absence of testi- this affidavit “because mony). expert that report opinions contains that are wholly conelusory.” specify Mellon did not We conclude that the trial court abused its opinions

which “wholly conelusory.” were excluding expert’s discretion in Holder’s affi- objection Mellon raised no expert’s to the entirely, davit and that this exclusion was qualifications or the opinions. bases for his harmful. point We sustain of error two.

Holder objection asserts that Mellon’s does not meet requirements specific objec- 2. Holder’s Proof tions under the rules for summary judgment reply point, In Mellon’s fifth complains proof. 166a(f); Tex.R. Crv. P. Garcia that the trial court should have sustained its Co., John Hancock Variable Ins. Life objections summary to Holder’s judgment 434 (Tex.App.—San Antonio proof. denied) (holding objection that objected Mellon hearsay state that affidavit speсulation “contains matters of ments contained in Holder’s affidavit of what and conclusion” sufficiently specific was not allegedly primary Potter told Holder. The apparent because it was not objec- from the objection is to Potter’s statement that Mel to); tion which objected statements were see lon’s “sleeping spot.” was his These McKinney also v. National Union Fire Ins. statements were Co., admissible as statements (Tex.1989) (holding against 52(a) interest under Tex.R. requires rule specific objection Evid. Civ. which 803(24). McMillan, Washington See enables the trial court to understand the (Tex.App.—San 397 n. 5 Antonio precise grounds so as to make an informed writ). Moreover, any error from ruling, affording the offering party oppor- the trial court’s consideration of Potter’s tunity remedy defect, possible). if We statements would be harmless. The court agree. could infer that Potter was familiar with the Moreover, argues Holder garage’s unattended status from the evidence expert’s her affidavit was admissible and straight garage. Potter drove should not have been excluded. While an Nixon, (evidence 690 S.W.2d at 549 expert may testify opinion on a assailant took “directly victim to a vacant pure law, question may of he opinion state an apartment” permitted inference that the as question on a mixed Lyon of law and fact. “acutely sailant was aware” of the vacant Daniel, Inc., dell Petrochem. Co. v. Fluor 888 unit’s easily existence and that it was an 547, S.W.2d (Tex.App.—Houston 554 [1st place perpetrate accessible in which to denied). 1994, Dist.] writ opinion For the assault). admissible, be expert must articulate the underlying factual addition, basis of his conclusion. complains Mellon Id; Ryland Hood, Group, see also Inc. v. 924 the trial court should have sustained its ob (Tex.1996). 120, 122 S.W.2d gave jection Loomis to the affidavit of Richard Pickard factuаl bases for his Expert conclusions. because the affidavit failed to establish his testimony is admissible negli competency on the issues of testify about crime statistics gence proximate cause, including the in required by the area as the rules of evi-

804 City’s Liability under III. The Evid. 702. Pickard’s

denee. See Tex.R. Civ. Act Tort Claims principal in he is a recites that affidavit Inc., summary Search, prepares which Crime error, of Holder asserts point third her Houston Police records of the reports using City’s granting in trial court erred qualifica- other There are no Department. jurisdiction. for lack of motion to dismiss given. tions City alleged the Holder admissibility him, Potter, entrusting him retaining The same standards hiring summary judgment car, apply in a police and moni- badge of evidence and a with a regular applicable to proceeding failing that are to discover toring his activities and Longoria, v. problems. Blood Services Based on trial. United personal and emotional 166a(f) (Tex.1997). 29, Rule claims, City’s im- 938 S.W.2d Holder contends these judgment proceed- summary requires liability is waived under munity from (“TTCA”). opposing affidavits ings, supporting Tex. Crv. Act Tort Claims Texas (Ver- would be admis- § forth such facts as “shall set 101.001-.009 PRAC. & RemlCode Ann. evidence, affirmatively show and shall Supp.1997). sible non 1986 & testify to the competent to affiant is that the P. therein.”

matters stated Tex.R. Civ. Review A. Standard 166a(f). expert testi- party relies on When subject of its A trial court’s determination proof of the requirement includes mony, this of law. Texas jurisdiction question is a matter Longoria, qualifications. expert’s Air Control v. Texas A ss’n Business at 30. (Tex.1993). 440, Bd., 852 S.W.2d qualified to offer a witness is Whether subject the issue of trial court determines testimony matter committed expert is a solely by allegations jurisdiction matter Heise, v. Broders the trial court’s discretion. allega pleadings, and the plaintiffs in the The trial 924 S.W.2d plaintiff Id. A taken as true. must bе tions putative expert if the court must determine alleging facts affirma bears the burden skill, experience, training, “knowledge, has had sub showing that the trial court tively the trier would “assist education” that review, our jurisdiction. Id. In ject matter burden of Evid. 702. The fact.” Tex.R. Crv. pleadings favor construe we is on establishing expert’s qualifications pleader. Id. Broders, at party. offering Immunity Sovereign B. of Pickard’s affi examination A close compo immunity has two Sovereign report reveals that accompanying davit and immunity nents—immunity from suit and expert opinion testi provide Pickard did R.R. v. Pac. Co. liability. Missouri Instead, merely provided a sum he mony. Dist., 453 S.W.2d Navigation Brownsville taken from statistics mary police crime Int’l, (Tex.1970); Inc. v. Green pub compilations from reports. Data police State, (TexApp.—Austin hearsay exceptions to the agencies lic are dism’d). immunity from Sovereign writ 803(8). excep This rule. Evid. Tex.R. Civ. govern of state against units suits suit bars however, compilation when the applies, tion given. has been express consent ment unless employees by public officials prepared 432; Int’l, Liberty Mut. Green performance of supervision in under their 736, 738 Sharp, 874 S.W.2d Ins. Co. Corp. Fibreboard their official duties. denied). party A writ App.—Austin Pool, (Tex.App.—Texar protected entity governmental suing denied). kana allege consent to immunity must sovereign express or to statute by reference suit either data object that Pickard’s Mellon did Pac., 453 Missouri permission. legislative In the ab- authenticated. properly was not pleading there is at 814. Unless say cannot S.W.2d objection, we proper sence of jurisdiction to consent, no trial court has in consid- abused its discretion the trial court case. Id. hear the report. ering Pickard’s city liability City’s A is negligent supervision immune from for its and monitor- actions, governmental immunity unless that ing pоlice of Potter and his use of its car. City Barfield, is waived. v. City’s LaPorte Holder contends Potter used the car 288, 291 protec- S.W.2d Police stop Holder and that he committed the as- governmental tion ais function. Tex. Civ. though sault in the car. Even acted Potter 101.0215(a)(1) § PRAC. & Rem.Code Ann. intentionally, City’s Holder claims the dis- (Vernon Supp.1997). hiring firing and patchers responsible supervising city employees operation police and the of a monitoring negligent. Potter were department governmental are also functions. apply The TTCA does not to a claim Barfield, 291; ‍‌‌‌‌‌‌​​‌​​​​‌​‌​‌‌‌​‌‌​​​​‌​​‌​‌‌‌‌‌‌​‌‌‌‌‌‌​​‌‍City 898 S.W.2d at Dallas v. assault, “arising battery, impris out of false Moreau, (Tex.App.— S.W.2d onment, tort, or other intentional includ n.r.e.). Corpus Christi refd ing involving disciplinary by tort action Therefore, City liability immune from school authorities.” Tex. Civ. Peac. & Rem. legislature unless the has waived its immuni- 101.057(2) (Vernon 1986). § Code Ann. ty by clear unambiguous language. See Thus, City immunity claims is not waived Barfield, 898 (citing Duhart v. for Potter’s intentional assault of Holder. State, (Tex.1980)). However, though even an intentional tort is Section 101.021 of the TTCA sets out the by governmental immunity, barred an in provisions governmental for waiver of immu- jured party may pursue still a claim for nity, provides governmental that a unit is simple negligence arising out of the same liable for: Sterk, County facts. Jefferson (1) property damage, personal injury, and (Tex.App.—Beaumont writ de proximately death by wrongful caused nied). act or omission negligence or the of an Delaney Houston, University employee acting within scope of his Supreme Texas recognized negli- Court employment if: barred, gence may though claims not be even (A) property damage, personal inju- an intentional tort occurred. 835 S.W.2d 56 ry, or death operation arises from the (Tex.1992). In Delaney, a raped student was use of a motor-driven vehicle or motor- university dormitоry her room and she equipment; driven university sued the for negligence. The su- (B) employee personally would be preme court negligence held that the victim’s liable to the claimant according to Texas against university action did not fall with- law; and exception the intentional tort to the waiver (2) personal injury and death so caused governmental immunity. Id. at 60. The a condition or tangible personal use of rejected court argument that all of the property real governmental if the unit plaintifPs claims were barred section would, private person, were it a be liable to 101.057(2) of the they TTCA because arose the claimant according to Texas law. out rape. of her Id. at 59. The court wrote § PRác. & Rem.Code Ann. 101.021 that Tex. Civ. intervening “intentional conduct be- (Vernon 1986). negligent tween a act and the result does not City

Holder contends that the always liability vitiate negligence.” for the failing properly supervise or monitor interpreted Id. at 60. The court section car, 101.057(2) Potter’s City’s police use of the which requiring as the tortfeasor qualifies “tangible personal property” subject un- complaint whose conduct is the (2) der subsection of the TTCA.10 Holder government employee must be a before an argues predicated her claim is not exception on the immunity to the TTCA’s waiver of City’s liability vicarious applies. Potter’s inten- Id. The court held that the victim’s Instead, tional acts. her claim against university arises from action was not barred petition, (1). alleged City In her Holder pleaded City Holder also that the was liable immunity (1) waived its under both subsections negligence, for Potter’s but she has abandoned (2) appeal, and argument of the TTCA. On she makes argument appeal. support of waiver under subsection affirmed, concluding that the offi- appeals оf rapist governmental not a because ap- precluded for the tortious action the victim’s claims cer’s intentional employee, and dormitory TTCA, notwithstanding repair her university’s plication failure to of the requests were distinct despite repeated negligent hiring, retention and allegations lock of Id. Applying Id. at 673. The rape supreme from the she suffered. court entrustment. ease, Delaney to the facts of we must this by the court of disapproved this statement govern- Potter was a that because negli- conclude petitioners’ that the appeals and found exception to the TTCA’s employee, ment employment and entrustment claims gent immunity applies to his intentional waiver of city alleged negligence arose out Nonetheless, consider we must conduct. officer, not out of employees supervising the negligent super- separately allegations tort. 787 at officer’s intentional superiors. Potter’s vision Nevertheless, the court found no error 51. appeals’ of the court requiring reversal Delaney, reaching in In its decision application for writ of judgment and denied opinion on an supreme our court relied Id.11 error. Supreme applying Court the United States in Federal Tort Claims language similar analogous argues that this case Holder States, 487 U.S. v. United Sheridan In Act. Texas, 664 S.W.2d University to Smith (1988), 101 L.Ed.2d 108 S.Ct. n.r.e.). 1984,writ ref d (Tex.App.—Austin off-duty an intoxicated plaintiffs sued after Smith, a re- plaintiff volunteer their rifle shots into serviceman fired several shot-put marking sponsible for distances employ They alleged government car. The competition at Memorial Stadium. UT’s negligent permitting the service ees were hit him in injured a shot plaintiff was when finding after him intoxi man to wander off head, university and he sued rifle. The possession of a Court cated and event. The court negligently supervising the “aris plaintiffs’ claim was not one held that proper claim plaintiff that the stated ruled meaning of assault within the ing out of’an alleged neg- because he UT under the TTCA arose instead because it the federal statute prop- of real ligently supervised both the use negligence in government’s alleged out of the Stadium) (the shot-put area at Memorial erty 401-03, Id. at allowing the incident to occur. (the shot), and fact personal property specifically The at 2455-56. Court S.Ct. summary judgment on precluded questions hir negligent whether to consider declined claim. Id. at 187-88. this train supervision, negligent ing, negligent liability provide the basis for under ing may Smith caused the of the shot The use a foreseeable assault the federal act for ease, in this injury plaintiff, whereas Id. employee. battery by government plaintiffs patrol car did not cause 8, 108 Smith, at 2456 n. 8. 403 n. S.Ct. argues that in injuries. City also The the shot inten- may have thrown the athlete has indicated Supreme Court The Texas commit an intention- tionally, but he did not employment and that actions More al tort as the officer did this case. liability provide could a basis for entrustment that an it was foreseeable importantly, while City Dim Young under the TTCA. at a shot could occur injury from a thrown mitt, (Tex.App.—Amarillo 776 S.W.2d meet, no facts supervised track curiam, negligently per 1989), writ denied in this case that petition in the' alleged are (Tex.1990), attempted to city police officer improper su- make it foreseeable would oncoming his car into kill himself and drove sexual lead to a pervision of Potter would city alleging sued the plaintiffs traffic. Hein v. Harris patrol car. assault in his negligently him employed negligently (Tex.Civ.App.— County, him. The trial court police car to entrusted n.r.e.) 1977, writ refd [1st Dist.] Houston plaintiffs’ claim and the court dismissed affirmance, immunity. Waldon v. waiver of TTCA’slimitеd Treating denial of writ as an Young Longview, Appeals City Tyler relied on Court of 1993, writ). negligent entrustment cause follow App.—Tyler that a We decline to conclude City use of a against a for an officer’s action Waldon. included in patrol not a cause of action car is (“To Here, during car the patrol Potter negligence infer that the of the used but for tort. supervisors plaintiff not have commission of an [in- would been intentional jured] pure speculation.”). would be analogous to Townsend v. This ease is also inquiry applica- The critical to determine Center, 529 S.W.2d 264 Memorial Medical bility of the in this ease is the TTCA nexus (Tex.Civ.App.—Corpus Christi property between the use of the and the n.r.e.). Townsend, plaintiff the refd In sued alleged causing injury. negligent conduct the county hospital being raped after in a eleva- Supreme The has Texas Court held: by orderly. alleged hospital tor the an She proximate damages the of the cause safety procedures adequate failed to maintain personal injury negli- death or must be the hospital’s and the administrator failed gence wrongful or act of the officer or properly supervise personnel. The hospital employee scope acting within the of his plaintiff trial the failed court determined that employment negligent or The con- office. under to state a cause of action the TTCA duct, however, involve must “some condi- appeals The court of dismissed her suit. tangible property tion or some use” of affirmed, finding gist plain- of the that the under where there circumstances would be rape, complaint tiffs an intentional was the private liability. by tort excluded the TTCA Id. at 266-67. Dist., Hosp. Salcedo v. El Paso Delaney distinguished The court Townsend recently, More the court orderly’s govern- based оn the status as a “requires proper has stated the TTCA the employee. Delaney, ment 835 S.W.2d at 60. ty’s injury.” condition or use to cause the case, also, complaint In “gist” this the Hatley, Kassen v. rape, government is the and Potter 1994) added). (emphasis plaintiff The must employee. allege injury an arising from the use of the Ryan, In Texas Youth Comm’n property. Id. (Tex.App.—Houston [14th S.W.2d 340 Dist.] City argues The that Holder has not al writ), raped, no who was a victim leged relationship a sufficient between her juvenile by stabbed and beaten sued TYC injury tangible personal and the use of prop youth. negligent supervision The car, erty, police bring the this claim within alleged diagnostic victim the misuse tests the immunity. TTCA’s waiver of Holder at evaluation forms determine the tempts to create a between nexus the car and injuries. youth’s placement her caused This alleged the negligence supervi of Potter’s York, court relied on UTMB sors, though injury even by her was caused 175, 178-79 (Tex.1994), and held that the use an intentional tort. A argument similar was diagnostic merely tools were recorded rejected in McCord v. Memorial Medical information, property ideas and under Hosp., Center (Tex.App.— 750 S.W.2d 362 Ryan, the TTCA. 344. We writ). Corpus Christi further held that these tests fell short of the McCord, plaintiff by was assaulted “required trigger liability causal nexus” hospital security guard using nightstick. they under the were not TTCA because sued, plaintiff alleging among The other proximately “direct devices” which caused hospital claims that was plaintiff’s injuries. at 344-45. Id. supervising guard’s The guard. use of ease, patrol the use of car was nightstick tangible proper- use of causing inju- not the “direct Holder’s device” TTCA, ty according plain- within the ry, “required and the causal nexus” for liabil- granted summary tiff. The trial court judg- Instead, ity missing. under the TTCA is hospital, ment in favor of and the court injured by Holder was Potter’s intentional appеals appeals affirmed. The court of rea- assault. nightstick soned that since the use of the so, against appellant by committed And we that Holder has not determine security guard alleged arising injury in the course of an intentional caused tort, appellant’s precluded property the use claim was under TTCA Even 101.057(2) construing pleadings section after in favor of of the TTCA. Id. at 363. Holder, we hold that she failed state a submission to Potter’s authori officer, immunity governmental ty police claim for which as a she entered without under right, authority, express implied waived the TTCA. trial court lawful properly consent, against invitation, by dismissed Holder’s claims acquiescence or Mel City. therefore, Accordingly, point was, the we overrule of trespasser. lon. She a Row error three. City Corpus land v. Christi of (Tex.Civ.App.—Corpus Christi 933 IV. Conclusion n.r.e.). duty only ap to refd Mellon’s pellant injure willfully not to conclusion, was her or portions reverse those we of through negligence. wantonly gross or summary ordinary judgment the on Holder’s Inc., Fit, Bill’s Williams v. Custom gross negligence and claims and the loss of (Tex.App.—Waco no S.W.2d brought consortium claim on behalf of Hold- writ). child, appellant trespasser not a minor To find was er’s and we remand those causes entry upon property the trial further because her the was proceedings to court for i.e., permit party, opinion. involuntary with would a third consistent We affirm the Potter, summary judgment Holder’s not under the control of negligence on who is the claim, owner, per the to property se and we affirm trial court’s alter the status the dismissing against injured party. order claim the Holder’s City. majority The Holder was concludes that a gratuitous licensee because Mellon failed to HUDSON, Justice, dissenting. erect across a barrier the entrance its Appellant kidnаpped sexually and as- garage thereby acquiesced in entry her and Potter, by a saulted Calvin Houston Police However, property. onto a licensee is the a initially Although Officer. Potter encoun- person privileged and remain who is to enter street, public tered his victim a he trans- by express implied the or premises on the ported her to third floor of Mellon’s permission of the owner. Peerenboom v. parking garage perpetrated where he Foods, Inc., HSP patrol in the his offense interior of car. The writ). express App.—Waco no No such direct, immediate, primary ap- cause implied permission presented or is here. pellant’s injury Potter. ma- was Calvin The lot, parking pedestrian a Unlike a where contends, however, jority that there is some might tempted property to cut be across injury appellant’s to evidence show was also journey particular to to shorten his a destina- by prevent caused failure to Mellon’s vehicu- tion, parking garage multi-level offers no entering during garage lar traffic may have been “short cuts.” While fore- evening If Potter had been hours. not vagrants shelter in seeable that would seek his police able to hide car inside the confines edifice, such there to antici- was no reason garage, majority appellant claims pate traffic in during vehicular the structure not might have been assaulted. Because non-business hours. appellant duty Mellon breached no and its proximate appel- was not a cause of conduct However, even if should have antic- Mellon I injury, lant’s dissent. ipated park would within that cars enter and hours, duty during property The non-business owed owner gratuitous licensee person depends upon appellant even if another status аcquiescence, duty injured law that a virtue of Mellon’s party. The assumes appellant duty The owed a property greater responsibili- owner was breached. bears wantonly, injure willfully, ty upon toward one whom he has invited licensee is not negligence to warn of property through gross than to he has invit- one whom actually injured party, dangerous make conditions ed. The status of the there- safe Authority fore, Valley by the known. Lower Neches is determined actions (Tex.1976); State relationship Murphy, owner property and his with (Tex.1974).1 Tennison, injured party. appellant Although S.W.2d 560 entered contrast, occupier is required premises his invitees of conduct toward 1. In the standard majority contends Mellon had a to make this instance was that Potter could not aban- condition,” i.e., car, “dangerous patrol temporarily, safe a known without don his even possibility attracting suspicion of criminal He misconduct. other officers. place perpetrate much a needed not so Unfortunately, activity perva- criminal offense, place but a to conceal his vehicle society scarcely any sive our and there is while carried out the assault. he refuge from it. In this sense it is foreseeable may any place might reasonably anticipated that crime occur Mellon have property, by time. vagrants during Some virtue of its loca- that its would attract crime, in depressed high tion areas of evening hours. It was even foreseeable likely activity. more might be site of criminal that it an attractive be site sub- However, property However, a transport only owner cannot stance abuse and vandalism. his real to a part estate more desirable under the bizarre and unusual facts of this city, property and the mere location antiсipated case could Mellon have regarded “dangerous should not be a facility as con- an would be attractive edifice for I property dition.” believe perpetrated against person during becomes “dan- crimes a gerous” in activity the context of criminal non-business hours. Because Mellon could only possesses it special quality reasonably when some not have foreseen the unusual activity which fosters or attracts criminal garage circumstances which would make its dangerous that makes it more than other for activity, attractive site criminal it had property in the immediate area. no to make the condition safe block- ing vehicular traffic.

Here, property Mellon’s particu- was not a larly Moreover, attractive activity. site for criminal even if Mellon should have against persons homicide, Crimes such as prevent closed the entrance its garage robbery, kidnapping, any and assault not occurring do oc- criminal conduct from on its cur people present. where premises, are not The first I do not believe this failure or prerequisite for a predatory criminal act is proximate a omission can be a deemed cause of victim, vacant, garage and while the appellant’s injury. point At some in the dangerous Indeed, chain, condition could endure. causal conduct will become too remote case, in this the episode began ly criminal in not connected to in be considered a cause fact. Allbritton, garage, upon Further, the Pump Union v.Co. but the street. assault, Here,

cases of sexual can offense be the record con perpetrated reasonably darkened or proof tains some that “but for” Mellon’s fail private perpetrator area where the will not ga ure to exclude vehicular traffic from its most, be discovered—many, if rage, not occur in no assault would have occurred because the victim’s own respect, home. In this Mel- nearby there was no other location which lon’s parking garage inherently provided necessary dan- could have conceal gerous. What made the patrol attractive ment for Potter’s car.2 While this ordinary reasonably prudent person plaintiff’s property, care that a one workmen stole pertinent compact would exercise moving under all circum- box of music discs. After the Stores, Safeway company stances. Corbin v. had terminated the workman on ac- 1983). (Tex. theft, count of the the workman went to the plaintiff’s Although home and assaulted him. is, believe, only 2. The "but for” test I valid when assault would never have occurred "but for” exclusion, used as a standard of not inclusion. original misrepresentations, defendant's the con- example, plaintiff stopped For where the to fix a misrepresentation nection between the and the malfunctioning sign vehicle, by passing and was struck legal assault was too remote to constitute a sign manufacturer was not liable for cause. injury though plaintiff even would not Moreover, Boys while the defendant in Doe v. injured sign. have been but for the defective Dallas, Inc., Clubs Greater 868 S.W.2d 942 Perez, Siegler, Lear Inc. v. 819 S.W.2d 470 1994), (Tex.App.—Amarillo aff'd, 907 S.W.2d 472 1991). (Tex.1995) may incorrectly represented have Lines, Mason, plaintiffs Wheaton Van Inc. v. that its volunteer workers had been (Tex.App.—Fort S.W.2d 722 investigated, misrepresentation Worth this was not the denied) misrepresen- legal perpetrated ‍‌‌‌‌‌‌​​‌​​​​‌​‌​‌‌‌​‌‌​​​​‌​​‌​‌‌‌‌‌‌​‌‌‌‌‌‌​​‌‍by the defendant made certain cause of the sexual abuse plaintiff employ victim/plain tations which caused the particular moving company. one of the volunteer workers on the moving While tiff. Nevertheless, in fact means that cause philosophical in the

provides some nexus substantial sense, if the cause is not established act or omission was legal defendant’s than fur- does no more injury defendant’s conduct which bringing about factor plaintiff’s that made the nish the condition occurred. Union not otherwise have would Id., injury possible. at 776. Pump, at 775.6 Pump majority distinguishes Union and, believe, superseding I The direct premises by noting not a case that was appellant’s injury in this ease was cause qualifies liability. I fail to see how Potter. While the the criminal act of Calvin activity” “Negligent distinguishing factor. if Potter had might not have occurred assault negligence- “premises liability” are both garage, into the his car been unable drive liability.3 Both theories based theories of hardly accessability of Mellon’s premise that the defendant upon rest appellant’s a cause fact constitutes morally responsible he is pay should because except in the most attenuated and injury fact, concept injury. for the whole philosophical sense. criminal, civil is derived liability, both passion vengeance from a common reasons, respectfully I dissent. For these why outrage.4 This is correct a moral imposes requirement a of foreseeabil- law with a no blame associated

ity'—there can be prudent mor- which a

sequence of events rea- responsible person could not have

ally

sonably foreseen. therefore, surprising,

It is not in cause is used proximate

same definition activity premises lia-

cases of may legal more than one

bility.5 There be in fact injury, and cause

cause for

certainly synonymous with sole cause. Co., body doing damage be whether it Riojas attaches to Finally, v. Lone Star Gas in inanimate, and Holmes observed that (Tex.App.—Fort writ animate or Worth S.W.2d 956 n.r.e.) gas company a when it failed a civilized man will kick door

ref’d the defendant even monthly plaintiffs supra months. pinches finger. bill to for four at 11-12. To send a Holmes, During period, plaintiffs object called and re- vengeance, satisfy this “re- the desire peatedly requested a Whеn the defendant injury bill. sponsible” was at first surrendered for the bill, large plaintiff times, finally it was too sent plaintiff. the owner of the In later permit pay. refused to installment Defendant privilege of offending object extended the service. payments bill and terminated on the money substitutionary payment making as poi- injured by carbon monoxide Plaintiffs were vengeance permitting way buying off the soning they charcoal inside their when burned "[wjhat Eventually, property. him to retain Although plaintiffs never have would home. buying vengeance privilege off had been negligence injured defendant's "but for” the been paying damage of sur- agreement, instead accumulate, permitting of bills to in four months offender, body doubt rendering legal plain- negligence cause of was not the supra general at 15. custom.” became Holmes, injuries. tiffs cause proximate cause are elements of 5. The two Co., Grocery Butt 3. v. H.E. Ramirez Pump, forseeability. Union fact and denied). (Tex.App.—Waco 775; Manage- Property v. Mr. Nixon S.W.2d at ment, law the fact 4. This is illustrated Roman be- was forced choose the offended citizen proximate "Through diverse theories of all the remedy or a criminal indictment. tween a civil thread; agree all a common cause runs 171-72 Justinian, Institutes of Justinian Flavius The a cause in wrongful must be conduct defendant's trans., ed.1913). (J.B. Moyle See also O.W. 5th liability. plaintiff's injury there is Jr., before (1881). fact of While Law 2-3 Common Holmes, metaphysical one but an notion is not This readily appreciated revenge can be the desire for inquiry existence torts, ordinary, into the matter-of-fact obvi- it is less the context of intentional laymen relation of a causal injuries arising or nonexistence applied accidental when ous Harper 2 Fowler V. would view it.” Fleming objects. arose There with inanimate connection (1956). § however, 20.2 liability antiquity, notion that James, , The Law of Torts Jr

Case Details

Case Name: Holder v. Mellon Mortgage Co.

Court Name: Court of Appeals of Texas

Date Published: Nov 26, 1997

Citation: 954 S.W.2d 786

Docket Number: 14-96-00043-CV

Court Abbreviation: Tex. App.