Mellon Mortgage Co. v. Holder

COMPANY, MELLON MORTGAGE

Petitioner,

Angela HOLDER, Angela N. N. f/k/a

Hamilton, individually and for a/n/f Laske, Respondent.

Nicholas C. Smith, Schick, B. Catherine Robert M. No. 97-1187. Houston, Gallagher, Kathleen A. for Peti- Supreme Court of Texas. tioner. Argued Jan. 1999. Morris, Furlow, Kenneth M. David A. Brannon, Locke, John S. L. Gene Andrea Sept. Decided Chan, Coats, Laura Anne Elizabeth M. Rehearing Overruled Dec. Revere, Houston, Respondent. for

Justice ABBOTT a plurality delivered opinion, in which Justice HECHT and join. Justice OWEN driving night While late one area, downtown Houston Angela Holder an stopped alleged for traffic violation Potter, on-duty Calvin po- Houston lice officer. Potter took Holder’s insur- ance and identification cards and told her squad to follow his car. Holder followed Potter several to a parking garage blocks owned Mortgage Company. Mellon garage, Once sexually inside the Potter squad assaulted his car. Holder sued City Mellon Houston but did not sue her attacker. granted summary judg- The trial court City ment for Mellon and the on all of Holder’s af- appeals claims. The court summary firmed the judgment favor of City sovereign the basis immuni- ty. With regard Holder’s claims Mellon, against the court of appeals af- summary firmed the judgment on Holder’s claim, per se negligence but reversed negligence, gross negligence, and loss petition consortium1 claims. On Court, claims, among review to this things, other that it legal duty owed Holder. Because hold we that it was not person foreseeable to Mellon that a would be accosted several blocks from Mellon’s 1. Holder sued loss of consortium as next friend for minor son. might reason- situated similarly to one to that and forced to drive assaulted, ably foreseen.” have been sexually be

where she would to to duty Mellon owed omitted); (citations emphasis Id. at 551 the Accordingly, we reverse attack. Dickens, Cities Gas Co. see also Texas and render judgment of appeals’ court 140 Tex. nothing.2 that Holder take judgment Behne, 231 Co. v. Ry. & A.P. Antonio San (Tex. App.1921, Comm’n

S.W. Thus, not consider we judgm’t adopted). crim- foreseeability general of the only the to acts of third regard With foreseeability that the also inal act but duty a to owners owe parties, property injured by the act. Stated might be victim by the criminal who be harmed those the fore- both broadly, we determine more criminal conduct only when the risk of acts and the general danger seeability of the great that it both unreasonable is so is plaintiff— foreseeability particular that a Apartments, Timberwalk foreseeable. See similarly situated —would Cain, one Partners, 756 or Inc. danger. (Tex.1998). harmed that our attention this We focus “foreseeability.” prem- For most case widely em duty analysis has been This cases, foreseeability analy- liability ises penned Cardozo Judge since Chief braced determining shaped by whether sis will be Pals Palsgraf opinion. See the seminal invitee, licensee, a or a was an plaintiff R.R., 248 N.Y. Long Island graf v. an un- trespasser. Because Holder was (1928). Palsgraf teaches that 162 N.E. 99 status, regardless victim foreseeable question considers the properly unnecessary determine into which to injured Mrs. party. of the Instead, categories falls. of the three she at the standing Palsgraf platform was foreseeability princi- on general we focus for a train. waiting railroad defendant’s scope defendant’s ples that limit help away, porters tried distance Some duty in this case.3 they As assist a train. passenger board of fire him, dislodged package they ed repeatedly “[f]ore that We have stated fell package carrying. he works was general that seeability requires knocking exploded, over the rails sequence of events danger, not the exact id. Palsgraf. See injuring Mrs. scales and harm, be foreseeable.” produced that at 99. Harris, 924 Walker v. Proper Nixon v. Mr. see also that, regardless court held Management

ty ain might have acted the railroad whether (Tex.1985). frequently stat We have also manner, neg- wrongful it was generally foreseeability: two-prong ed a test regard Palsgraf. to Mrs. with ligent explained, Judge Cardozo particular As Chief required id. is not [I]t wrong’ is ‘a must show should been ‘What complained of accident foreseen. All required ^[1] herself; i.e., a violation of her own right, merely wrong to some one injury be of such “that plain- 100. Because Id. at reasonably have been else....” character as anticipated; ^[2] injured tiff was not so situated to the wrongful act might reasonably have injury that her relation should be so situated with party foreseen, did not owe the defendant him or injury been wrongful to the act complementary, not contra- analysis is request review 3. This did this Court to 2. Holder dictory, to the traditional judgment part appeals’ of the court Therefore, opinion should categories. result, portion As to her. adverse tradition- supplanting the construed as not be judgment undis- appeals’ of the court of premises liability relates al turbed. plaintiff's status. (5th ed.1984). protect her from the resulting at 287 The Restate “ injury. air, (Second) negligence ‘Proof of so ment of Torts states: speak, 'will not ... do.’ The risk for the actor to negligent order reasonably perceived to be other, with respect his conduct defines relation; obeyed, imports be and risk it recognizable must a of create risk harm is risk to another or to others within the a individually, the other or to class of range apprehension.” at Id. persons persons as, example, all of — added). (emphasis Because the railroad a given danger within of area which —of duty Palsgraf, owed no it Mrs. was the other If is member. the actor’s unnecessary to any question consider of a recognizable conduct creates such risk proximate cause. only of particular harm to a of class in persons, the fact fact causes dissent, however, Palsgraf

The illus- class, a person harm to of different duty trates the counter view that is owed reasonably whom the actor could not generally and limitations on anticipated injury, does not make cause,” should through “proximate be in persons in- actor liable to the so “foreseeability” which necessarily must jured. greater play duty analy- role than dissent, Writing sis. Judge for the An- § 281 cmt. (Second) Restatement of Torts rejected drews the court’s view that the Harper (1965); c see supra, also al., et par- (the

duties owed a defendant 20.5, were § scope at of product ticularized relationship of a deter- “(1) limited persons likely those that are in part by foreseeability. “Every mined omission, to be endangered by the act or one large owes to the world at interest) of (to harm person such refraining from those acts that unrea- a risk the of from likelihood which made sonably safety threaten the of others. the act negligent”). or omission The re Such act occurs. Not is he analysis sult of this plaintiff “[a] is that has wronged harm might reasonably to whom right wrong of action unless there was result, expected but he also who is in relative to her or a right, violation injured, fact if he even be outside what and there is no such relational wrong generally thought would danger personal-rights negligence violation in a (Andrews, J., zone.” Id. at 103 dissent- case where to avoid foreseeable dissent, ing). Palsgraf like the dis- plaintiff risk to the has not been breach case, appears sent to contend that 15; Zipursky, supra, ed.” at see also Nix particular plaintiffs consideration re- on, at A wrong alleged wrongful lation to an act is better enough; plaintiff is not herself must be guise proximate considered under the wronged. Zipursky, See at 12. supra, cause. particular whether a When we consider

Although judges long and scholars have criminal act was so foreseeable unrea impose duty upon debated the relative merits of the two sonable as to a land views, owner, gist Judge particular of Chief Cardozo’s we first examine the duty analysis widely light has been embraced. criminal conduct occurred Harper previous Compare “specific crimes on or near the al., et The Law (2d 18.2, ed.1986); Walker, § premises.” at 654-55 Torts Re If, applying cmt. c after the Timberwalk factors (Second) statement of ToRts (1965); Rights, Wrongs, similarity, Zipursky, recency, frequency, pub and Re Torts, Timberwalk, licity, course in the Law 51 Vand. see 756- L. (1998); Green, general danger Proximate we determine that the Rev. Law, foreseeable, Cause in 28 Tex. act Negligence Texas the criminal was we 471, 472 apply prong with Keeton et then of the fore the second al., L.Rev. seeability and determine whether Prosser and Keeton Law of Torts victim would be the that she injured party, could foresee that the foreseeable Carey criminal act. See situated, third-party would be of this similarly or one 31, 124 Tex. essence, Corp., 133 we Pure Distrib. criminal act. victim of the (1939); Restatement (Sec- was within consider whether (1965). § 281 emt. c apprehension range of the defendant’s ond) of ToRts squarely fall within injury was foreseeable. of this case such that her facts Only foreseeability analysis when prong 162 N.E. at 99-100. Palsgraf, second within have rea- analyzed the criminal act Mellon could not we have show it occurred can we to secure the context which that its failure sonably foreseen injuries. the landowner owed determine whether to Holder’s would lead See, Centeq injured party. e.g., duty to the that its em- Certainly, expected Mellon 195, 197 Siegler, Realty, Inc. garage, use the often ployees would (Tex.1995) (when determining whether relatively vacant it would be times when lies, all “the facts must consider we is not unrea- dangerous. It and thus more in question”). occurrence surrounding the Mellon could fore- to conclude that sonable factors, it was Applying the Timberwalk person employee or some other see that an of law that a as a matter not unforeseeable be the could frequents garage who garage. in the rape parking occur To garage. of a violent crime victim had no violent crimes Although similar users, provid- Mellon garage protect these parking garage before occurred weekdays from security patrols ed armed Holder, summary judgment attack on in addition ran- p.m., to 11:30 5:45 a.m. years pre- that in two evidence shows police officers dur- off-duty patrols dom crimes, incident, ceding the 190 violent however, Holder, was hours. ing business murder, reported including rape and were any other class nor not a member of this to a fre- garage. equates near the This reasonably have fore- that Mellon could every quency one violent crime roughly of a criminal act be the victim seen would days. four garage. its any there is no While evidence victim, Holder any foreseeable Unlike Mellon publicity crimes received these aby a.m. over in her car at 3:30 pulled was inspect police records required was not had no con- whom Mellon party third over garage its was in determine whether trol, was led from several blocks and she area, summary judgment high crime Not actual crime scene. away to the was evidence that Mellon establishes over the crimi- have no control did Mellon occurred, aware that crimes had nal, Potter, him nor knowledge had employee’s including the theft of a Mellon pick he would any to know that reason complained employee Mellon car. Another reprehensible the scene of his garage as virtually manager garage “about Moreover, had no knowl- Mellon crime. garage, which security” non-existent nor to believe edge of Holder reason seek an employee escort compelled situated, she, similarly person Fur- worked late. to her car when she subject crime on Mellon’s could fre- thermore, vagrants knew that Mellon foreseeable, not simply It was property. garage drank quented the and sometimes sense, philosophic beyond a remote there. would occur to Holder tragic event to Mel- relation property. With constitute some Mellon’s Together, these facts securing wrongful act of not allegedly conduct was lon’s evidence that violent criminal morning, Holder three in may garage have its But while it been foreseeable. to her injury as situated that such was not so violent crime foreseeable She occur, might reasonably have been foreseen. end our this does not rape might short, was, beyond Mellon’s reasonable must consider whether analysis. We also apprehension. such that Mellon Holder was situated argues that Mellon- knew that Kline 1500 Massachusetts garage of its un- condition created an Apartment Ave. Corp., 439 F.2d degree reasonable and extreme of risk (D.C.Cir.1970)); see also Restatement an attack such as this would occur. How- f cmt. (Second) ToRts ever, nothing in summary judg- Holder’s (“[T]he possessor is not an insurer of the suggests ment evidence that Mellon could safety....”). visitor’s reasonably foreseen that its Accordingly, legal duty Mellon owed no would as picked Potter the scene of to Holder. To extent that Mellon’s his if it garage. crime did secure its harm, conduct have created a risk The mere fact prevalent that crimes are did not breach to Holder because enough. downtown Houston she was not so with relation to situated Timberwalk, 972 S.W.2d at 756. Examin- wrongful injury might aet such that her evidence, ing it is Mellon true that was have been foreseen. aware that a car been had stolen from its garage, but this does indicate that the II place would be to bring used Holder. It is also true implies dissent that this aware vagrants frequented ga- Nixon, inconsistent with Nixon. In how- rage, but this suggest does not that it was ever, analyze the Court did not discuss or place that invited criminals to transport Instead, aspects duty. common law of summary judg- victims there. Holder’s duty by Court held that the owed provides ment evidence little more than applicable defendant was an governed by of “proof negligence in the air.” Palsgraf, so, doing In ordinance. the Court stated: 162 N.E. 99. She provides at no evidence apartment An requiring ordinance own- of a risk in foreseeable relation to her. part crime deterring ers do their end, points In the again designed prevent injury gener- to the again to the fact that Mellon was aware al public. R.M.V. falls within class. this cars could enter its without pro- Since the ordinance was meant to foreseeability authorization. But to base a larger tect class than invitees fact, more, on this without would effective licensees, and since R.M.V. committed ly place duty a universal on landowner wrong in coming property, onto the with property prevent secluded premises liability these distinctions are property becoming from the scene of analysis. irrelevant to our field, crime. it an Whether farmer’s Nixon, Thus, at 549. 690 S.W.2d the ordi- park, twenty-four-hour or a industrial scope nance defined of the second laundromat, placing on landowners injured prong foreseeability: “that the acts their party should be so situated with relation to simply gain because criminals could access to him to wrongful injury act or to their land would make landowners similarly reasonably one might situated victims, regardless insurers of crime (citations have been Id. 551 foreseen.” at lack of connection between the landowner omitted). or perpetrator. either the victim the Moreover, in considering the foresee- agree “Courts country across Nixon, ability aspect proximate cause in possessor owner not an Court’s discussion and its use italics safety insurer of the on the prem of those Old, it Management solely make clear that focused ises.” Co. v. Lefmark (Tex.1997) 52, (Owen, J., prong foreseeability: first “[i ]t 59 946 S.W.2d Tidwell, required (citing Corp. particular not that the accident concurring) Exxon 19, (Tex.1998); 21 been complained 867 Ann M. v. should have S.W.2d foreseen. Ctr., required injury All that Shopping Plaza 6 is that the Cal.4th Pacific Cal.Rptr.2d P.2d 215-16 such a character reason- as ” (ci- owed set that the defendant anticipated .... Id. ably been Nixon, omitted). duty imposed statute. See proximate In cause tations its Yet, defining “foresee discuss, not analysis, the Nixon Court did S.W.2d case, the Court ability” applied as italicize, analyze the second otherwise proxi with dealing exclusively Thus, cited case foreseeability. Nixon is prong of cause, Railroad Missouri mate of this case. inapposite Pacific Statesman, 99, 103 552 S.W.2d American with this The dissent also takes issue duty, dealing only with a case to Holder analysis Mellon’s Sears, & Roebuck Castillo “improperly bootstraps claiming that Antonio (Tex.App. S.W.2d — San. proximate foreseeability cause into the n.r.e.); deal writ ref'd another duty question.” threshold both, v. Hilton Hotels ing with Walkoviak J., (O’Neill, dissenting). The does dissent (Tex.Civ. 623, 625, Corp., however, explain, how the foreseeabil- Dist.] writ ref'd App. [14th — Houston “proximate under cause” dif- ity analysis n.r.e.). Nixon, at 550. foreseeability analysis from under fers perpetuated confusion has been Additionally, the does not “duty.” dissent Harris, 924 Nixon. In Walker v. similarly improper since explain why it was courts, (Tex.1996), Court, and Exxon to fre- and other this (Tex. Tidimll, singular foreseeability analy- Corp. v. quently use a 1993), foreseeability considered interchangeably between Court sis so, Furthermore, duty. doing proximate relates cause. dis- to the Nixon explain why the second Court cited sent does which, noted, applied foreseeability analysis analysis, as has been prong of the —that injured proximate to cause. party should be so situated wrongful inju- with relation to the act that appeals’ opin Interestingly, the court similarly ry to or to one situated her relies on Nixon’s discus ion in this case reasonably applies have been foreseen — foreseeability, to applied as was sion of foreseeability to and proximate cause causation, support for of its discussion duty The foreseeability. not to dissent duty. as it to foreseeability applies however, faulted, failing for to cannot be The concluded that 795. court ju- questions answer these because Texas because, to Holder duty a was owed risprudence on these has been un- issues Id. at injury was foreseeable. part, simple: clear. But is The answer cause,” the Turning “proximate “foreseeability” analysis is the same for Holder’s again court considered whether duty proximate both and cause. foreseeable, than injury but rather was verbatim, the court sim proximate repeat its questions duty and previous discussion ply in a refers its cause “are often used confused “duty.” Id. foreseeability on a under way” because both rest overlapping single discussion of upon relies a “foreseeability.” The court determination Har per foreseeability’s 650; 18.1, foreseeability establish see also supra, al., et duty proximate for both Mesquite, requirements City Travis v. (Tex.1992) appeals in this Neither the court of cause consists of cause. (proximate Nixon, this Court in Walker foreseeability); case nor cause-in-fact and Greater Tidwell, Harris, Corp. v. were and Exxon Transp. Phillips, Co. v. Houston (main (Tex.1990) relying upon for law estab wrong determi ap standard that foreseeability). foreseeability confu a duty lishes nant of is found, duty proximate cause in Nixon. to both example, plies can be sion Consis is same. There, foreseeability analyzed only because the standard was entirely prop approach, “proximate cause” tent with heading under the apply for the at the out er Court the Court determined because standard duty stated Nixon to the anal injury, person time on the land ysis invitee, in this case. licensee, anwas trespasser.2 or a invitees, To duty landowner owes Justice a concurring ENOCH filed to exercise reasonable care keep opinion. reasonably in a safe condition licensees, use Justice BAKER the invitee.3 To filed the land- concurring owner opinion. owes a warn of or to make safe hidden dangers known to the land- Justice O’NEILL a dissenting filed owner and intentionally, not to wil- opinion, in which Chief Justice PHILLIPS fully, through gross negligence cause join. Justice HANKINSON injury.4 And to trespassers, a landowner only duty owes not to intentionally, Justice wil- participate GONZALES did not fully, or through gross negligence the decision. cause injury.5 concurring. ENOCH While this traditional classification sys- I join judgment. I join Court’s can debate, subject tem has been it remains plurality opinion neither the nor Justice Thus, the law in Texas. I believe it must writing Baker’s I because believe those applied in this case. opinions skip a step critical that could lead this Because case strikingly some to similar to assume the adopted Court has Co.,6 Property Nixon Mr. Management new common law duty a landowner —that I There, consider that case instructive. has a duty to not negligent. ten-year-old R.M.V. dragged into an Texas, That not the law in apartment complex that today. she didn’t after I am reside Because concerned that in by an unknown assailant and was might mislead, sexu omission sepa- write ally assaulted. Her next friend sued rately. Mr. Property, manager apartment This case presents simple question: complex, alleging that it breached a Whether landowner be held liable of care to granted R.M.V. The trial court injuries for caused to stranger who was summary judgment for Property. Mr. brought premises against by her will Holding that R.M.V. a “trespasser,” the criminal attack of stranger.1 another and that Mr. Property’s duty was not to begin To answering question, this I note injure wilfully, or wantonly, through that a landowner has no duty to gross negligence, the court appeals aff negligent entering toward those irmed.7 land. The extent of liability a landowner’s injuries by existing caused a condition We reversed and on remanded depends the land ground city on the status of the that a Dallas requir- ordinance injured person. Thus, the scope ing of a “keep land- owners to the doors whether, duty depends owner’s at the and windows of a vacant structure va- See, Williams, 583, 1. See Totten v. e.g., More Oakland 5. Residential State v. Inc., 538, Housing, Cal.App.3d 134 Cal. Shipbuild- Burton Constr. & 29, (1976). Rptr. Broussard, 50, ing Co. v. 154 Tex. (1954). See, Inc., e.g., 2. Weingarten, Carlisle v. J. Tex. Gal- (Tex. 1985). 6. 690 S.W.2d 546 Morton, veston Oil Co. v. 70 Tex. 7 S.W. (1888). (Tex.App. 7. — Dallas See, Carlisle, e.g., 152 S.W.2d at 1075. 1984), rev’d, 1985). (Tex. 690 S.W.2d 546 See, e.g., Texas-Louisiana Power Co. v. Web ster, (1936). 127 Tex. classifications, I note Addressing these securely dosed portion cant of a structure entry” an imposed unauthorized that Holder was that no one asserts Property on Mr. without standard of care end, argues Holder invitee. At the other We said: regard to R.M.V.’s classification. enter Mellon’s she didn’t that because Proper- Mr. question what [T]he she was purposes, for her own by is ty owed R.M.V. answered appeals the court of But trespasser. legislatively This ordinance. ordinance explained that rightfully in the Nixon case we of conduct which imposes standard land on one’s visitors classification of a reason- adopt to define the conduct ... but depend upon volition “does person- The unex- ably prudent land- knowledge [the and consent upon of a or ordinance eused violation statute the absence “[i]n And that owner].”9 negligence of law constitutes as matter knowledge landowner’s] consent [the was de- if such a statute or ordinance ... greater ... than not to was no to the signed prevent injury class wilful, or grossly negligent].”10 wanton [be injured persons person to which the be- that for I with Justice O’Neill agree Thus interpretation .... longs A reasonable status on determining Holder’s purposes of designed of this ordinance is that was question the relevant property, activity reducing to deter Holder meant to be in not whether conspicuous for crimi- opportunities expressly garage, but “whether requir- nal conduct.... An ordinance impliedly entry.”11 [Holder’s] consented to ing apartment part owners to do their part ways I Where Justice O’Neill and deterring designed pre- crime is question. answering this general public. injurg vent R.M.V. falls within class. Since concludes there Justice O’Neill protect a the ordinance was meant Mellon, by its question whether fact about larger class than invitees and licen- conduct, granted license impliedly sees, and since R.M.V. committed disagree. garage.12 into its come wrong coming property, onto the First, O’Neill cites don’t the cases Justice these distinctions Each of these support this conclusion. analysis.8 are irrelevant to our a nexus between the cases demonstrate virtually The facts this case are indis- activity during injury which the occurred tinguishable from in- Nixon —we hold, license.13 n And none implied and the against nocent victim taken her will into would, that a license O’Neill assaulted, fol- sexually vacant area and implied implied for some a license against tort lowed claims the landowner aware of all.14 Evidence that Mellon was taking steps prevent for not to the assault. way implies in no vagrants garage in the Nixon, But Holder unlike the vehicular opened that Mellon not claim in Court that an ordi- does day night. hours of the traffic at all nance makes the traditional classification my struggle to avoid colleagues And while Thus, system left “irrelevant.” we are “trespasser,” the sum- calling Holder liability with the traditional clas- that duty. judgment evidence establishes mary sifications to determine Mellon’s added). Nixon, (citing (emphasis at 672 two Texas court at 549 13.See id. 690 S.W.2d boys that who swam appeals cases that found Inc., Property Management 9. Nixon v. Mr. by governmen- frequently property owned 1984). (Tex.App. 675 S.W.2d "gratuitous — Dallas because were licensees” tal units boys were governmental that units knew 10. Id. purpose took using property that for it). steps J., (O’Neill, dissenting). 11. 5 S.W.3d at 672 14.See id. 12. See id.

that her through inju- was status under the nomencla- gross negligence cause them premises liability ture of the traditional ry. categories. Rather struggling than with Having determined that this was the the terminology, the Court could more eas- Holder, duty Mellon owed to the next in- ily harsh-sounding establish another less quiry would be whether Mellon met its Regardless, term. accepting Holder’s summary judgment burden to conclusively

blamelessness, this le- does affect the prove intentionally, wilfully, that did not gal analysis duty. of Mellon’s through gross injure negligence Holder. that Consequently, Mellon met burden. part As argument, Holder cites up to present summary was to Holder 197(1) (Second) section of the Restatement judgment evidence that raised a fact issue Torts.15 She contends that she had presented by on consent. The evidence “privilege” enter Mellon’s be not. Thus I concur in does cause was in fear safety, she for her judgment. Court’s therefore, she “trespasser” was not a purposes of determining scope Mel BAKER, concurring. duty. argument incomplete. lon’s This that, I agree by with Holder guided rule, As a landowner has no 197(1) Restatement, section she was legal duty protect another from the privileged to go on to property. Mellon’s criminal acts of a third party who IBut read section to mean supervi- under the landowner’s control or she is relieved of to Mellon for sion. See Apartments, Timberwalk Part- having ners, done so. Should this adopt Court Cain, Inc. 972 S.W.2d 197(1), not, Harris, section Holder could as a mat Walker 924 S.W.2d law, entering (Tex.1996). ter be liable to To extent that garage. Mellon’s impose duty, the law does the threshold issue is whether risk harm But privilege whether Holder had a Timbenualk, foreseeable. See nothing be Mellon’s has to do 756; Walker, at 377. I scope duty with of Mellon’s to Holder. that, conclude as matter law under the 345(1) While section of the Restatement here, record Mellon could foresee the (Second) Torts declares a landown- risk a sexual assault would occur its er owes the same to a privileged Therefore, employee parking garage. I trespasser that the landowner owes a li- agree plurality’s with the conclusion censee,16 adopt I would be reluctant duty. Mellon did not owe Holder section. Mellon’s determined however, agree, cannot plurality’s with the And Holder’s status. Holder’s status is Therefore, duty analysis. I concur in the determined whether Mellon consented separately. judgment write her presence garage. change simply to Holder can’t be- THE I. PLURALITY cause Holder went invol- plurality Palsgraf Long relies on untarily. Railroad, two-prong Island for its foresee in parking garage Mellon owned a ability down- duty. Palsgraf Long test for See v. R.R., 339, town not open Houston. Island 248 N.Y. 162 N.E. 99 (1928). public at night. use and was not used even plurality’s But cited au that, duty to those on the recognize contrary who were thorities claim, Palsgraf’s opinion’s two-prong duty without Mellon’s consent was only intentionally, wilfully, analysis “widely to not has not been embraced.” 345(1). 197(1) (Second) (Second) § § 15. Restatement of Torts 16. Restatement Torts (1965).

663 Sullivan, 112 v. 654, 655; n.r.e.); Flores (Sec see also see Restatement 5 S.W.3d 321, Anto (Tex.Civ.App. Reporter’s Notes 323 ond) 281 S.W.2d of Torts —San (1966) 1937), Tex. (noting Palsgraf grounds, “controver rev’d on other nio that, 1966, (Tex.1939); Powers, late the decisions 55, and as as sial” S.W.2d Pals- analogous that are at all on facts Supreme Judge Jury in Texas and divided.”); Zipur “few graf s facts are and Court, at 1703. Conse 75 Tex. L.Rev. Wrongs, sky, Rights, and Recourse in duty analysis to quently, changing Torts, 1, 3 51 Vand. Law L.Rev. fore proximate cause clude the traditional as Palsgraf scholars treat (1998)(“Leading to trial power allocates more seeability test Cordozo’s proximate cause case.... judges, to de appellate as judges, as well ig Palsgraf typically reasoning own traditionally and properly questions cide Powers, derided.”); see also nored or jury. for the reserved Judge Jury Supreme and in the Texas duty the law of change than Rather (1997) Court, 75 Tex. L.Rev. 1702-03 foreseeability analysis, second-prong add a approach Dean Keeton’s (explaining that the Timberwalk we consider need cause, in which proximate and recency, fre- similarity, proximity, factors— lia a defendant’s questions about whether analyze foresee- publicity quency, —to bility particular type plain to a extends as arises within the context ability questions proximate tiff are cause Timberwalk, 972 at 759. here. S.W.2d See Texas). Fur duty, prevailed has ther, concedes, the Texas the plurality two-prong

cases it cites for the foreseeabil II. FORESEEABILITY analysis foreseeability only ity discuss negligence consists Common-law cause, duty. proximate the context of (2) legal duty; these elements: v. Property Management Nixon Mr. See (3) damages duty; breach of that 690 S.W.2d 549-50 resulting from breach. proximately Dickens, 140 Tex. Texas Cities Gas Co. v. Poole, Corp. S.W.2d See El Chico (1943); Carey v. 168 S.W.2d (Tex.1987). Duty the threshold 31, 124 Corp., Pure Distrib. 133 Tex. law for the inquiry, question which is & San Antonio S.W.2d Houston Greater court to decide. See (Tex. Behne, 354, 356 Ry. A.P. 231 S.W. 801 S.W.2d Transp. Phillips, Co. v. 1921). Moving the determination (Tex.1990). rule, land As of poten harm to a certain class whether criminal acts has no owner plaintiffs proxi tial is foreseeable from the are not under parties who of third duty analysis mate cause See supervision. control or landowner’s It changes law in this of case. type Texas 756; Walker, Timberwalk, 972 at negligence changes every also the law 377; Corp. v. Tid at Exxon 924 S.W.2d duty analysis as a requires a case that (Tex.1993). well, To importantly, threshold issue. More duty, impose does extent that the law in such cases. power shifts the allocation analysis. initial See foreseeability is the Powers, Judge Jury in the Texas See 756; Walker, Timberwalk, 972 S.W.2d Court, 75 Tex. L.Rev. at 1703. Supreme Only after foreseeabil at 377. Traditionally, duty legal is is a threshold must we determine ity is established decides. See Walk properly sue the court Timberwalk, duty. parameters of er, Powers, 377; Judge at 757. Court, Jury Supreme in the Texas Tex. Timberwalk, stated the this Court usually Proximate cause L.Rev. at 1703. in determin- factors courts should consider jury Waggoner, issue. See Clark on a landowner’s ing if criminal conduct Hous City 440 S.W.2d of (1) (Tex.Civ. whether Jean, is foreseeable: property 599 ton 517 S.W.2d on or previously occurred criminal conduct writ ref'd App. Dist.] [1st —Houston 664 (2)

near the property; recently how III. ANALYSIS (3) occurred; occurred; (4) how often summary judgment Mellon entitled to how similar the conduct was to conduct the if it can establish a matter of law that on property; publicity the and what the ga- the sexual assault in parking Mellon’s occurrences received to show that the rage Forseeablilty was not foreseeable. requires landowner or of frequency, recency, knew should have known Timberwalk, publicity, similarity of previous about them. crimi- See 972 S.W.2d Timberwalk, activity. nal See 972 S.W.2d at 757-58. We summarize these foresee at In reviewing summary 759. judg- ability similarity, proximity, factors as re ment, we assume all evidence favorable cency, frequency, publicity previous of Nixon, the nonmovant to be true. See Timberwalk, criminal conduct. See S.W.2d at 548-49. S.W.2d at 759. Courts must consider all Timberwalk, the factors together. See Mellon’s in downtown Hous- twenty-two ton. S.W.2d at In the months 759. before assault, Holder’s had violent crimes similar, sufficiently Past crimes must be one-quarter occurred within a mile radius identical, though not at issue crime year garage. that Holder was put the landowner on notice assaulted, sexually oc- violent crimes Timberwalk, specific danger. See surrounding curred in the garage: area example, at 758. For S.W.2d automobile assaults, robberies, sexual 57' in apartment vandalism an complex does Indeed, aggravated assaults. ex- Holder’s not put the landowner on notice pert, relying police on reports, testified likelihood of a sexual assault. Timber See high there were crime rates in the walk, at 758. surrounding garage. area Mellon’s But frequent “[t]he of property occurrence Proximity requires evidence other vicinity crimes in the is not as indicative of on in the property’s crimes immediate frequent as the less occur- Timberwalk, vicinity. See at S.W.2d personal rence of crimes on landown- 757. Evidence of criminal activity occur Timberwalk, er’s property itself.” ring farther from the property landowner’s S.W.2d at 759. The evidence crimi- relevant than past activity less criminal activity nal garage is evidence specific area at issue. See Timber vagrancy and automobile theft. There walk, 972 S.W.2d at 757. is no of personal occurring evidence crimes in the garage. Foreseeability depends also re- activity On the of criminal publicity cency of past criminal conduct. See Tim area, complains that Mellon did berwalk, signifi at A 757-58. not regularly police check Houston rec- occurring cant number of crimes in a short But ords. landowners have no period time near makes regularly inspect criminal records to deter- crime in question more foreseeable. mine risk of area. crime Never- Timberwalk, at 758. theless, employees two Mellon had written Publicity prior strengthens crimes response memos Mellon in auto thefts particular claim that a crime was foresee occupied when the occurring able because a owner can be ex by employees’ vehicles. One of the memos pected to knowledge have of such criminal area discussed crime increase Timberwalk, 972 activity. See surrounding But garage. its author Landowners, however, testified that he based his information on inspect records determine rumors he had heard from other Mellon risk crime the area. See Timber employees. responded to these walk, security memos armed employing auto garage in Mellon’s were reported

guards during employ- hours that Mellon violent crimes vagrancy, Mellon not using garage. ees would be thefts and argues The dissent also security against persons. also escorts for Mellon provided nature garage. disregard and from the employees going completely that we premises at issue. of the and character fre- fact that there have been factors are Although the Timberwalk activity in the quent and recent criminal exclusive, nothing suggests in Timberwalk surrounding garage area and that Mel- take into court must account lon criminal knew about certain activities of the premises nature and character occurring garage in its does not alone Ticor, By citing the dis issue. Gomez garage mean that in a sexual assault parking garage argues sent that all owners was foreseeable. We have stated that the in inherently rapists lying foresee should frequency previous necessary crimes at all hours unsuspecting wait victims foreseeability show lessens as the similari- 654, 669 day night. and of the ty previous of the crimes to the incident at Ticor, (citing Cal.App.3d Gomez Timberwalk, issue increases. See (1983)). effect, Cal.Rptr. at 759. The is also S.W.2d converse make all own the dissent would previous true —the less similar crimes are public. This is ers insurers of the issue, the frequency to the one at neces- Man in Texas. See the rule Lefmark sary to show increases. Old, 52, 59 agement Co. Thus, we must consider whether such J., (Owen, Timber concurring); see also activity criminal was similar to the crime walk, Walker, 756; judgment at issue. There no summary in S.W.2d at The flaw the dissent’s personal evidence that or crimes violent properly dissent fails to is that the had in garage. occurred Mellon’s The evi- all the Timberwalk factors to consider dence shows automobile thefts Timberwalk, 972 S.W.2d at gether. See during vagrancy business hours and had garage. occurred thefts Automobile vagrancy suggest do not likelihood Timberwalk, of sexual assault. V. CONCLUSION summary at 758. Nor is there hold that could Because I would judgment any evidence four garage, a sexual assault in its foresee reported sexual assaults the area sur- therefore, did not owe Holder a rounding occurred in either law, judg- I as matter of concur private public parking garage were ment. similar otherwise to Holder’s. Considering summary judgment evi- O’NEILL, joined by dissenting, factors, dence here and all the Timberwalk and Justice Chief Justice PHILLIPS although I conclude that there is evidence HANKINSON. frequent activity recent opinions applying In three three differ- surrounding garage, the area rationales, a vagrancy ent divided Court concludes evidence Mellon knew of itself, summary judg- entitled to and automobile thefts in that Mellon is opinions, none of which car- it was not foreseeable to Mellon that ment. These majority, alternately conclude that garage. sexual assault would occur its ries a (1) foreseeable, the crime victim was not IV. THE DISSENT (2) not foresee- the crime committed was able, to- trespasser Holder was a The dissent misstates our view when fulfilled duty. its mem ward whom Mellon employee claims we discount two summary agree, light contrary, memos are rele cannot os. To evidence, fac- judgment of these vant show that the of the crimes nature reasons, tors was a plurality established as matter of law. the it is difficult to rec I Accordingly, respectfully in dissent. oncile their conclusion with that reached

Nixon. On almost identical facts — a I young girl was abducted from another lo cation in and assaulted an sexually aban Foreseeability of Plaintiff apartment doned a is held that fact —we factors, the Applying the Timberwalk sue existed whether the criminal assault concludes, do, plurality as that there is management was foreseeable to the com some evidence to that show violent crimi pany apartment that had the left unlocked: nal conduct in Mellon’s was fore litany a prior With crimes ... and seeable. See Timberwalk Apartments, deposition that testimony vagrants with Partners, Cain, Inc. v. area, frequented the a material fact (Tex.1998). however, They proceed, question exists on the foreseeability of employ a so-called “second foresee prong” proximate this crime as it relates to the ability analysis that focuses on class the cause issue. victim to determine the existence a added). now, (emphasis Id. To hold duty. Although approach produces a facts, nearly foreseeability identical that is result, seemingly improperly desired lacking as a matter of law for rather bootstraps cause proximate foreseeability proximate purposes logic than cause defies duty question, into the threshold thereby ignores and a primary function of the tra- usurping the function traditional the premises liability ditional classifications. premises liability classifications. Whether Were towe abandon the traditional classi- foreseeability or not analysis the is the system impose fication upon landown- proximate same for both cause generalized duty ers a to exercise reason- purposes, plurality posits, the as con entrants, able care toward all as Holder cept foreseeability the context of urges, place there a the “fore- liability premises is embodied classi plaintiff’ approach.1 require- seeable fications that have defined landowner’s injury ment that the plaintiffs “class” duty for years. over one hundred foreseeable, however, inherent in premises liability between “in- distinctions It is true that in v. Mr. Property Nixon vitee,” “licensee,” “trespasser.” Like (Tex. Management 690 S.W.2d 546 Enoch, I believe that these classifi- 1985), and in two other cases cited analysis. cations our govern inquiry plurality opinion, we stated that foresee “ should be whether established as ability requires injured party ‘that scope matter of law that it acted within the should be situated so with relation any duty that it owed to Holder. The wrongful to him injury act or to one depends upon that duty nature of the sta- similarly might reasonably situated person entering property. tus of the (Tex.1985) been foreseen.’” Id. Carey Corp., (quoting Pure Distrib. agree Both Justices. Baker and Enoch (1939)). second-prong foreseeability analy- Tex. But that the flawed, analysis applied join sis the plural- determination decline to cause, proximate ity opinion. which is typically applies Justice Baker duty, that, jury, typi issue which Timberwalk and concludes as factors law, cally question for the court. Id. And if matter of a sexual assault Mel- same, as lon’s was not foreseeable. Like supplant Although disclaiming imposing general negligence duty an intent to on land- premises premises the traditional classifica- Far from es- owners for defects. tions, position plurality just by analyzing pousing Palsgraf, as does dissent’s involving negligent activity, plurality charges, the case as one the precedent I follow well-established Palsgraf, rather defect. of a than defines landown- premises liability approach dangerously er in Such an comes close to context. they garage, going I cannot were into the plurality, Justice Enoch and nothing, there. He did drinking be drawn were beer agree such conclusion however, judgment entry. summary from this record. to their evidence, Baker Reviewing II that someone concludes that “the risk Foreseeability Crime of sexually in Mellon’s would be assaulted to Mellon as garage was not foreseeable summary shows judgment evidence a conclusion drawn matter of law.” Such that, 1, 1990, through January from the record, in summary judgment from this incident, crimes, date of the 190 violent my and the reality blinks strains opinion, murders, robberies, including rapes, and beyond logical their or Timberwalk factors assaults, aggravated reported were within reach. intended quarter-mile garage. of radius Mellon’s reported This amounted one violent bright line be Justice Baker draws a every days, five enough crime and was occurring inside tween crimes support “High designation for Crime” personal oc garage Mellon’s and crimes Average” in and an area “Above He curring outside. thus discounts in designation identifying property employee memos Hilliard, John employee, a Mellon testi- garage, crime within dismisses by deposition fied Jeep his was stolen in vi their reference violent crime garage out in Hilli- however, October 1992. clear, cinity It as “rumors.” ard garage manager, sent memo to the employees’ that the were written memos others, Oblinger, among expressing Curtis personal out of concern for their own safe Ms in concern about “drastic increase just security their ty, not cars. surrounding crime area” in pre- states, explicitly memo “not Hackward vious six months. Hilliard heard ru- had car, my I worried about but I fear am activity mors of increased criminal from my personal safety for as well.” And Hilli- employees, other including reports in Ms deposition ard testified surrounding of violent crime in the area. in crime” in the sur “drastic increase Hilliard proposed plan ga- for increased memo rounding area to which Ms referred rage security, Oblinger respond- but never crimes, violent includ reports included ed to his memo. ing robbery. an armed Hilliard’s memo that the should Oblinger suggested Hackward, Cathleen another Mellon em- patrolled prohibit “to automobile theft ployee, Oblinger sent an e-mail to In potential danger employees.” “lodge complaint others to a formal about that, we held for a risk to be Timberwalk virtually security non-existent for our foreseeable, activity of crimmal evidence “people parking garage.” She wrote that on the landowner’s or “either there, obviously are through free roam nearby” may be closely considered. crimes,” committing and stated that she Timberwalk, 972 at 757. Consid personal safety. was concerned her crime that occurred in the ering the had by deposition Hackward testified that she garage and the of violent crime abundance security guard had her to Mellon’s escort area, entirely it was fore the immediate late she car when she worked because might sexual assault occur seeable go did not consider it safe to to the open garage. abandoned alone. Hilliard, Justice Baker also discounts Holder’s According was obvious violent crimes because people sleeping garage. prior were evidence “that four newspapers There were blankets and there is evidence reported in the sexual assaults the area sur- up sleeping rolled “like someone was garage occurred in either Oblinger vagrants rounding knew that stairwell.” public private parking area, garage or were ture other crimes in fail to otherwise assaulted, similar to Holder’s.” It is true see it. year Holder was party presented assaults, robberies, that neither four fifty-seven evidence de sexual tailing the circumstances of twenty-seven aggravated the sexual as assaults oc saults other 190 violent crimes commit curred in proximity garage. close vicinity. Any ted But Timberwalk does distinction that be drawn require heightened degree such a tween Holder’s vio prior assault and these similarity purposes determining lent crimes inconsequential at best. Timberwalk, Moreover, foreseeability. See 972 we stated in Timberwalk that recognized S.W.2d at 758. As frequency previous we Tim “the of crimes neces berwalk, it compartmentalize is difficult sary to to show foreseeability lessens as the criminal activity, “[pjroperty similarity previous crimes crimes to the may expose dangerous condition that at issue incident increases.” See Timber walk, personal could facilitate crimes.” Id. at Conversely, 912 S.W.2d at 759. the Galloway similarity previous 758. See also v. Bankers of necessary Trust to crimes (Iowa Co., 1988) (stat 437, lessen, 420 N.W.2d 439 show foreseeability should to a cer believe, however, extent, ing do not “[w]e tain frequency previ as the initially Co., crimes property directed toward ous crimes increases. See Jardel Inc. (Del.1987) any probative are without 518, value on the v. Hughes, 523 A.2d 525 question foreseeability of injury.”); (stating repetition activity, Aar “the of criminal Havens, (Mo. 446, mix, 758 regardless may of its be sufficient to 1988) (stating necessary place “[i]t is not to al owners on notice of the lege past entry crimes involving injury, into that personal merely likelihood result.”). places loss, gener Here, unauthorized are the same will gave al nature as the one which rise to the distinction that be drawn between enter, burglar may claim.... If a may so Holder’s assault and the other violent rapist.”). in light crimes diminishes of their sheer number. To the extent Justice Baker bases his

“similarity” upon presented distinction the manner in Holder additional foreseeabil- i.e., assaulted, which ity Holder was that she evidence that accounts for the nature issue, was lured into the from another and character of premises location, immaterial, it is for we have long parking garage, which Baker’s recognized that what opinion must be foreseeable altogether disregards. it is While sequence the exact our events true that decision Timberwalk artic- conduct, produces the criminal but similarity, proximity, recency, ulated fre- general danger. quency, publicity previous See Walker Har criminal ris, 375, 377 conduct as factors relevant to determine Lof 384, ton v. Brine Corp., foreseeability, nothing suggest Texas there is to (Tex.1989). to And the extent his that these are meant to be factors exclu- upon differing Oblinger deposition distinction is based na sive.2 admitted in his authority supports duty provide Substantial consider business some sort of prem duty apply ation of the security, nature character of a de analysis. partment employees pres ises a factor in the store in a mall with ent); Allright Parking, See Kendrick v. Huntington see also Isaacs v. Mem'l (Tex.App. Hosp., Cal.Rptr. Antonio writ 38 Cal.3d — San denied) "nature, (1985) (recognizing (stating the distinction between P.2d that the premises prone to that are attract criminal condition location of defendant’s not); activity premises" duty and those are Castillo v. should considered in the Sears, Page analysis); Roebuck & W. al., Keeton et Prosser (5th (Tex.App. writ at Antonio ref’d on the Keeton Law Torts — San n.r.e.) ed.1984) (recognizing (stating that to leave a washateria the defendant has night open may impose heightened duty protect and unattended all from nature of that de- to Holder. The parking garages downtown that he knew inherently susceptible person enter- are status of pends upon Houston Hold- activity. report' And the ing property. Loomis, refers security expert, Horace er’s inherently dangerous nature “the Ill ga- parking unprotected

unattended and Holder’s Status gives opinion Justice Baker’s rages.” particular to the fact that the consideration outset, abolish urges At us to cir- premises may, issue under certain liability classifica the traditional cumstances, pose peculiar attraction for well over by Texas courts applied tions Ticor, criminal misconduct. Gomez century to a landowner’s determine 622, 628, Cal.Rptr. 600 Cal.App.3d coming property. onto the persons na- that “the ... (stating deserted entrant’s That sta defined structures, especially ture of these invitee, licensee, trespasser tus as an likely places them for rob- night, makes v. Buddies Food premises. See Rosas wait”). lie in rapists bers Store, 534, 536 my “it agree justices fellow that I with Inc., 137 Weingarten, J. Tex. Carlisle v. law not unforeseeable as a matter of (1941); 220, 152 1073, 1074-75 Gal might parking occur in the rape Morton, 400, 7 70 Tex. veston Oil Co. v. join garage,” and therefore cannot (1888). 756, According S.W. 757-58 opinion. agree Baker’s And with Justice Holder, the lead of those we should follow plurality’s Enoch that the comes jurisdictions abrogated have the tradi upon close land- dangerously imposing scheme, and define tional classification not to common law owners ordinary negligence duty under Enoch, I negligent. be- Like Justice principles. liability lieve that the traditional jurisdictions have It true that some The in- govern analysis. distinctions our traditional classification abolished the estab- quiry should whether Mellon “unjust, scheme, unwork regarding as as a of it acted lished matter law See, e.g., Mi unpredictable.”3 scope any duty of that it owed able and within jurisdictions later fol party especial tempta in a number of third crimes when "an Courts abandoning opportunity miscon classifica tion in all lowed California tions, exists); See, duct” including trespasser. e.g., (Second) that of Torts Restatement of (1965) (stating place Sitka, § 344 cmt. f “[i]f City 561 P.2d Borough Webb v. 731, of or character of ... is such that [a] business 1977), (Alaska superseded part 732-33 reasonably anticipate [the landowner] should Shanti, by explained Alaska v. 835 statute as part on the of careless or criminal conduct 1225, (Alaska 1992); High Mile P.2d 1227 persons,” third the landowner 537, Radovich, v. 175 Colo. 489 Fence Co. e, it); 302B, guard against duty to cmt. id. 308, (1971), superseded statute P.2d 311-15 (1965) that, (noting de when the subcmt. G Assoc., Maes, Ltd. v. explained as in Lakeview tempta peculiar fendant’s affords "a 580, (Colo. 1995); Smith v. 907 582-83 P.2d opportunity tion or for intentional interfer 97, Restaurant, Inc., 469 Arbaugh’s F.2d 100 harm,” likely ence to cause defendant 939, denied, (D.C.Cir.1972), cert. 412 U.S. 93 intentional, guard against required to 2774, (1973); v. L.Ed.2d 399 Pickard S.Ct. 37 criminal, others). conduct of even Honolulu, 134, City County 51 Haw. 452 & of Mols, 445, (1969); Keller v. 129 P.2d 446 1968, Supreme of California Court 208, 411, 84 472 N.E.2d Ill.App.3d Ill.Dec. abolished the traditional classifications 161, (Ill.1984) (abolishing distinctions 163 principles of ordinary negligence declared the entrants); v. regard to Cates with child care be the risk and reasonable foreseeable 367, Inc., Coop., So.2d Beauregard 328 Elec. premises liability in California. standard for denied, 833, (La.1976), U.S. rt. 429 Christian, 108, 370-71 69 Cal.2d ce See Rowland 97, L.Ed.2d 98 Limber (1968), S.Ct. Cal.Rptr. superseded P.2d Big 218 Mont. Ditch hand explained part by in Calvillo- statute (construing statute to P.2d Grocery, 19 Cal.4th Silva Home all); (1998). Moody v. require duty ordinary care to of Cal.Rptr.2d 968 P.2d Sears, (1994). Abrogation jurisdictions chael the Traditional Most other have de of Law Liability, Common Premises U. cided retain the traditional classifica of 175, 184(1995). form, courts some recognizing Those tions their Kan. L. Rev. now in terms abrogation define landowner’s favor what has been criti status, plaintiffs but in as “a with terms cized standard no contours” risk problems. foreseeable and reasonable care. See would create corresponding Supreme id. The California first v. Ferguson, Court Younce 106 Wash.2d (1986). for doing articulated rationale so: P.2d A man’s life or limb does become premises liability classifications re worthy of protection by less the law nor policy judgments carefully developed flect worthy compensation loss less un- over time to balance the inter landowner’s der law he upon because has come enjoyment in the free est use of his the land of another without permission against persons land the interests of in permission or with without busi- but jured catego land’s condition. purpose. people ness Reasonable do not their corresponding place ries and duties ordinarily vary their conduct depending rational limits on the of landown matters, upon upon such and to focus ers, assuring do owners injured party the status as a against become absolute insurers all risk licensee, trespasser, or invitee in order injuries that others sustain question determine the whether These property. their distinctions afford a care, has a con- landowner degree certainty to what other would trary our social to modern mores an amorphous liability, wise be standard of humanitarian values. The law common provide relatively predictable rules rules obscure rather than illuminate which landowners and entrants assess proper gov- which considerations should propriety of their conduct. As recent ern question determination of the of ly Supreme stated of Court Mis duty. in deciding souri to retain the traditional categories: “To abandon the careful work Rowland, 97, 568. Cal.Rptr. 70 443 P.2d at generations of ‘reason amorphous Thus, the traditional have classifications able care under the stan circumstances’ occasioning been inequitable criticized as seems—to put kindly improvi dard results. — 926, Kinney, dent.” Carter v. 896 S.W.2d noted, however, It has been that while (Mo.1995). 930 movement abolish traditional then, gathered surprising, jur- scheme momentum It is not that most through mid-1970s, it has since come to “a to apply screech isdictions continue the traditional ing premises liability halt.” Prosser & Keeton on classifications.4 And Law of 62, decade, jurisdictions attempted § In the 433. last several have Torts only all ground by abolishing Nevada has abolished entrant clas reach middle invitees, Moody Manny’s v. Auto sifications. See distinction between licensees and 935, Repair, 320, Nev. retaining 110 871 P.2d 942-43 but limited rules toward 320, Manny’s Repair, County, categories. Auto 110 Nev. P.2d 250 See Heins Webster 935, Blanchard, (1994); 750, 51, (1996) 942-43 Ouellette v. (pro- Neb. 54-55 N.W.2d 552, 631, (1976); N.H. A.2d 633-34 viding comprehensive analysis howof other Miller, 233, Basso v. N.Y.2d N.Y.S.2d jurisdictions question dealt with 564, 868, 352 N.E.2d 871-72 Marior abrogate whether classifica- traditional Inc., DiPonte, Joseph 114 R.I. enzi A.2d tions). However, jurisdictions had fourteen (but 130-33 see Tantimonico categories, expressly retained the and another v. Allendale Mut. Ins. 637 A.2d apply common- fourteen had continued (R.I.1994) status)). trespasser (restoring specifically without ad- law classifications dressing validity. their See id. at continued By jurisdictions twenty-three had premises liability abolished some or all of the (Tex.App. writ de this mid- trespassers.5 agree While I — Dallas nied). licensee, by comparison, is a compelling far than the A dle road is more of the traditional privileged wholesale abandonment to enter on land person who is classifications, with that we are not faced by virtue the owner’s consent only Because traditional issue this case. not a that he is “under such circumstances by many supported classifications are Corpus City Rowland trespasser.” carefully developed public law and years (Tex.Civ. Christi, 930, 933 certainty to an policy and afford relative 1981, writ ref'd Christi App. Corpus— nebulous stan- otherwise Garcia, n.r.e.); Dominguez v. see also dard, them I would decline abandon (Tex.App.—San ton An “mak[ing] now. Far from all denied); writ (Sec io Restatement general public,” insurers of the owners (1965). Licensees ond) of ToRts charges, rely Justice Baker well-es- have been found to include: precedent defining tablished taking prop- cuts across the those short by determining her status owed to Holder ...; loafers, erty people loiterers and invitee, licensee, trespasser as an get out who come garage. weather; chil- those in search of their An land invitee enters onto another’s dren; persons; third servants or other and for the knowledge with the owner’s sightseers way not in spectators mutual both See Ro- parties. benefit of come; those who enter invited to sas, at 536. The owes owner deal- personal visits business social care to an invitee reasonable possessor ings employees with injuries. protect her from foreseeable Id. land; visiting plant tourists undisputed that was not an It is request; who come to their own those invitee; presence pick up remove tools or to borrow neither for Mellon’s benefit nor with its benefit; own or chattels for their refuse knowledge. private calling at the door of salesmen question The whether Holder closer homes, soliciting money for and those trespasser. a a A tres licensee or an of- charity; stranger entering without passer enters another’s a mail- building post letter in fice implied permission. or Tex express See only. provided for the use of box tenant^ Webster, 127 as-Louisiana Power v.Co. 126, 302, (1936); Weav Tex. 91 S.W.2d 306 Law of Torts and Keeton on the ProsseR omitted). (citations Inc., 60, § Management, at 413 er v. KFC 750 S.W.2d (1981); v. Ins. jurisdictions repudiated Allendale Mut. 5. At least fifteen have Tantimonico (R.I.1994); the licensee-invitee distinction while main taining 637 Hudson v. A.2d 1056 limited-duty trespassers. Gaitan, the rule for (Tenn.1984); S.W.2d 699 Anto 675 615, Freeland, See v. 349 507 Nelson N.C. 836, Reszcynski, 70 Wis.2d 236 v. niewicz 882, (1998) (abolishing licen S.E.2d 886-87 Beckwith, (1975); Clarke v. 858 N.W.2d 1 maintaining catego distinction but see-invitee (Wyo.1993)). modi 293 Six others have P.2d citing following doing as ries and the cases categories without abol fied the common-law Camp, the same: v. 284 So.2d 691 Wood ishing outright. Missouri and Ken them 499, 1973); Hansen, (Fla. Jones v. 254 Kan. recognize tucky, example, of care (1994); Colby College, v. 867 P.2d 303 Poulin equal to invitees all that owed to entrants (Me. 1979); 846 Baltimore Gas & 402 A.2d is aware of the entrant’s once the landowner 680, Flippo, 705 Elec. Co. v. 348 Md. A.2d Heins, at 54 — 55. See 552 N.W.2d presence. Ellard, (1998); Mounsey Mass. 1144 v. 363 passed legislation modifying the Connecticut 693, (1973); Peterson Ba 297 N.E.2d guest aof from law status social common lach, 161, Minn. 199 N.W.2d 639 Id. at Illinois elimi to invitee. 55. licensee 51; 750, Heins, N.W.2d Ford v. 250 Neb. by statute in 1984. classifications nated the 134, Comm'rs, County Bd. 118 N.M. judicially altered and Maine Coenen, Id. at Indiana (1994); O'Leary v. P.2d 766 guest from licensee to (N.D.1977); of social the status Ragnone v. Portland N.W.2d 746 1J, invitee. Id. No. 291 Or. 633 P.2d 1287 Sch. Dist. purposes distinguishing boys yet For an invi the asked swam canal never licensee, leave, tee no signs prohibited from courts often them to the purpose coming activity. looked to entrant’s their Id. at The court con- Thus, property. prove, onto the been said cluded the did has defendant law, premises injured boy presence licensee’s on the matter of that the was a benefits, own purposes, trespasser “for his conve and not a licensee. Id. Rowland, pleasure.” nience or Likewise, Zarate, El City Paso v. 933; Andrews, Smith City sued of El Paso after (Tex.App. Worth writ de — Fort her in muddy city two sons drowned nied). However, premises the traditional pond. (Tex.App. — El been classifications have also re writ). City Paso claimed tained, large part, an afford owners legally factually the evidence was in of certainty regarding element their support jury’s finding that sufficient to upon to entrants property. boys trespass were licensees case, present where it said that cannot be appeals ers. at 330. court Id. Holder entered the “for own gave disagreed, holding City that the its benefits, or purposes, plea convenience implied use permission sure,” inquiry the more appropriate area, put up because it failed to fence expressly impliedly whether Mellon con barricades, post warning signs, even Webster, entry. sented to the 91 though it knew often entered people 306; Rowland, S.W.2d at 620 S.W.2d at area to remove dirt and knew that four 933; also see (Second) Restatement years earlier a child almost drowned (1965). § Torts pond. Conversely, Id. in Smither undisputed It did Company, Texas Electric Utilities express injured party have Mellon’s consent to enter the court as a tres classified licensee, But garage. passer, consent to enter rather than when be manifested conduct made to owner’s evidence showed that efforts were byor premises. the condition of the land itself. See access (Tex.App. Paso on the Prosser Keeton Law Torts — El clearly at 413. writ agt.). Situations exist dism’d trespass “where a has been tolerated say every That is not to tolerance of period such a sufficient time will an consent imply intrusion owner’s public ‘permission’ believes it has the Instead, to enter the land. courts have possessor the to the property.” use Mur principles sound to determine articulated Auth., phy Valley v. Lower Neches the conditions under consent be which 816, 820 (Tex.Civ.App. — Beaumont inferred the of con from owner’s tolerance 1975), grounds, on other rev’d 536 S.W.2d First, tinued consent enter is trespass. to Boydston v. Nor see also actual implied unless the owner has Corp., App.3d S. 73 Ohio folk entering knowledge people been (Ohio Ct.App.1991)(stating that N.E.2d 171 Holton, the land. Hall v. 330 So.2d Cf. can implied acquies be from “[consent] v. (Fla.Dist.Ct.App.1976); Gonzalez property by cence to continued use the (Tex. Broussard, public”). n.r.e.). App. Antonio writ ref'd — San Murphy Valley implied may only In v. Lower And consent found Neches Au- knowledge fails thority, example, teenage swimmer when an owner with actual injured jumped steps prevent was when he into a canal to to or take reasonable lump clay. discourage persons entering his head those from struck Zarate, summary judgment Compare at 817. the land. boys finding (upholding evidence showed that 331-32 trial court’s swam every day, plaintiff trespass canal defendant knew that and not a was licensee licensee, own- plaintiff people used land When er when defendant knew out) respect to the condi- er with attempt keep negligent no them made to but if Lighting of the Longbottom with Sim-Kar tion (Pa. A.2d Fixture posed an unreasonable a. the condition Commw.Ct.1994) (holding that defendant harm; risk of conclusively not con proved did school knowledge actual defendant had b. climbing to on roof evi people sent when danger; school undertook various dence showed knowl- plaintiff did not have actual c. access). Finally, to measures edge danger; of the steps not take to evict known owner need ordinary to failed exercise d. defendant doing so would be undu trespassers when danger, plaintiff from protect to care Boydston, or ly burdensome futile. failing adequately warn both (quoting N.E.2d at 174 PROSSERand failing of the condition 414: Keeton on The Law of ToRts reasonably to make that condition mere toleration of continued intru “[T]he safe. objection or interference would sion where Williams, State likely ... burdensome or to be futile (Tex.1996) opinion denying (per ap- curiam and without more a manifesta itself error). mo- plication for writ of consent”). tion of judgment did not ad- summary tion case, present summary judg- In its if Holder were potential dress ment evidence shows Mellon knew licensee, we. to be a nor do found using garage nights were people sum, sum- properly placing after drinking and weekends for alcohol and mary burden on Mellon and re- judgment yet keep no sleeping, took action them the facts in solving all inferences from away. There some evidence that Mellon favor, I conclude that fact issues Holder’s entry by impliedly public consented fail- risk exist ing any to make attempt impede access garage and Mel- conduct post trespassing signs knowledge actual risk. Be- lon’s public it knew in fact when enter- otherwise, I cause the Court concludes ing sleeping there. Mellon respectfully dissent. that it presented nothing indicate would unduly have been burdensome futile to

attempt public keep ga- from prob-

rage, but rather stated that the noteworthy

lem “wasn’t corrective being

action taken.” Based on this sum- SMITH, Jerry Appellant, T. record, mary judgment conclude cannot as a matter of law that Holder was a licensee, trespasser, rather than a on Mel- of Texas. STATE premises. Wiley lon’s v. National Ga- Inc., rages, App.3d Ohio 488 N.E.2d No. 996-98. (Ohio li- Ct.App.1984) (conferring of Texas. Appeals of Criminal Court censee status on who was assault- parking after parking

ed defendant’s June “off Sunday during hours” with Rehearing Dissenting to Denial Opinion Nor do implied permission). owner’s 15, 1999. Dec. posi- any support find for Justice Enoch’s to enter public tion that a license imply foot does not license car.

to enter

Case Details

Case Name: Mellon Mortgage Co. v. Holder

Court Name: Texas Supreme Court

Date Published: Dec 2, 1999

Citation: 5 S.W.3d 654

Docket Number: 97-1187

Court Abbreviation: Tex.