PENG WANG, CHONG ZHANG AND MENGQI (NINA) LIU v. TREA CHURCHILL ON THE PARK, LLC, PINNACLE PROPERTY MANAGEMENT SERVICES, LLC, AND AMERICAN MANAGEMENT SERVICES CENTRAL, LLC
No. 05-21-00880-CV
Court of Appeals Fifth District of Texas at Dallas
October 24, 2022
On Appeal from the 192nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-20-02223
MEMORANDUM OPINION
Before Justices Myers, Pedersen, III, and Garcia
Opinion by Justice Garcia
This is аn appeal from the trial court‘s grant of a traditional and no evidence summary judgment in favor of the owner and property manager on Peng Wang, Chong Zhang, and Mengqi Liu‘s (collectively, “Appellants“) premises liability claim. In three issues, Appellants argue: (i) the summary judgment was in error because appellees had a duty to use reasonable care to reduce the foreseeable and unreasonable risk оf injury; (ii) appellees did not use reasonable care to reduce the foreseeable and unreasonable risk of injury; and (iii) there is evidence that appellants’ failure to use reasonable care to protect against the risk of injury from
We conclude the trial court‘s summary judgment was not erroneous because the evidence established there was no duty as a matter of law. Accordingly, we affirm the trial court‘s judgment.
Background
On September 21, 2018, Jeremy Meeks, described as a “homeless and mentally disturbed individual,” scaled the six-foot fence surrounding the Churchill on the Park apartment complex in Dallas (the “Apartments“). Wang was out walking her cat. Meeks trailed her to her apartment and stabbed her to death. He then attacked Wang‘s roommate Liu.
Wang‘s parents and Liu initiated this suit against TREA Churchill on the Park, LLC, the owner of the Apartments, and the property managers, Pinnacle Property Management Services, LLC and American Management Services, LLC (collectively, Appellees). The suit alleged that Appellees had a duty to prevent the attacks and the apartment security measures were inadequate.
Appellees moved for traditional and no-еvidence summary judgment on Appellants’ premises liability claims, arguing there was no legal duty to protect Appellants from the violent third-party criminal acts and that Appellants had no evidence to support their premises liability claims. Appellees’ motion was supported by the declaration of Bruce Jacobs (the “Jacobs declaration“), a tenured professor of
The trial court conducted a hearing, granted the motion, and entered a take-nothing judgment against Appellants on their claims. Appellants now appeal from that judgment.
Summary Judgment
Appellants argue that the trial court‘s summary judgment was in error. In a traditional motion for summary judgment, the mоvant has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.
“A fact issue is raised by circumstantial evidence if a reasonable person would conclude from the evidence that the existence of the fact is more reasonable than its nonexistence.” Guthrie v. Suiter, 934 S.W.2d 820, 831 (Tex. App.—Houston [1st Dist.] 1996, no writ). “All that is required is that the circumstanсes point to ultimate facts sought to be established with such a degree of certainty as to make the conclusion reasonably probable.” Id. “No fact issue is raised where the evidence is so indefinite and uncertain as to preclude a finding.” Id. at 831-32.
Premises Liability
The elements of a premises liability claim are (1) actual or constructive knowledge of some condition on the premises, (2) an unreasonable risk of harm posed by thе condition, (3) failure to exercise reasonable care to reduce or eliminate the risk, and (4) injuries proximately caused by the failure to use reasonable care. See Motel 6 G.P., Inc. v. Lopez, 929 S.W.2d 1, 3 (Tex. 1996) (per curium).
Appellants’ arguments are premised on the foreseeability of the criminal conduct; specifically, the violent assault and murder. Texas cases discussing the foreseeability of intervening criminаl conduct do so primarily in the context of the element of duty. See, e.g., Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) (holding no legal duty exists to prevent unforeseeable criminal acts); Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996) (holding that duty to protect from criminal acts “does not arise in the absence of a foreseeable risk of harm.“). Like any other negligence action, a defendant in a premises case is liable only to the extent it owes the plаintiff a legal duty. Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217 (Tex. 2008).
Generally, a landlord has no duty to tenants or their invitees for dangerous сonditions on the leased premises. Johnson Cty. Sheriff‘s Posse, Inc. v. Endsley, 926 S.W.2d 284, 285 (Tex. 1996); Caldwell v. Curioni, 125 S.W.3d 784, 790 (Tex. App.—Dallas 2004, pet. denied). And as a general rule, “a person has no legal duty to protect another from the criminal acts of a third person.” Timberwalk, 972 S.W.2d at 756. The exception to this rule is that one who controls the premises has “a duty to use ordinary care to protect invitees from criminal acts of third parties if [the possessor] knows or hаs reason to know of an unreasonable and foreseeable risk of harm to the invitee.” Timberwalk, 972 S.W.2d at 757 (internal quotation and citation removed). The exception only applies if the risk of criminal conduct is unreasonable and foreseeable. Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999).
Foreseeability is established through evidence of “specific previous crimes on or near the premises.” Timberwalk, 972 S.W.2d at 756. Moreover, these crimes must be sufficiently similar to the crime in question as to place the landowner on notice of the specific danger. Id. at 758. Factors we consider when determining whether
The summary judgment evidence establishes that in the two years prior to the incident, there were no violent crimes at the Apartments. Specifically, there were no sexual assaults, robberies, aggravated assaults, or homicides. There were five burglaries involving homeless individuals breaking into vacant units to sleep, theft of furniture and art from a model unit, maintenance equipment stolen from the shop, and attempted car burglaries. None of these instances escalated into a violent crimе.
According to the Jacobs declaration, data concerning reported violent crimes within a one-mile radius of the Apartments shows there was not a single predatory (stranger-on-stranger) violent crime at any house, condominium, or other residential address in the two years preceding the incident.1
Rathburn does not dispute that there were no violent crimes at the Apartments during the two years рrior to the incident. Instead, he analyzes crime statistics for crimes occurring with a one mile, one half mile, and one quarter mile radius of the Apartments for the 994-day period prior to the incident. He first includes all crimes in his count, including vandalism, prostitution, and narcotics violations. But he provides no basis to conclude that all of these crimes are pertinent to the analysis.2 See, e.g., Sanders v. Herold, 217 S.W.3d 11, 17 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (noting that foreseeability is often determined by whether the defendant is aware of prior similar behavior). Although prior crimes need not be identical to establish foreseeability, the previous crimes must be sufficiently similar to the crime in question to place the party who owns or controls the premises on notice of the specific danger. See Trammel Crow Central Tex., Ltd. v. Gutierrez, 267 S.W.3d 9
Rathburn also divides the crimes into a category labeled “Violent Crimes and Residential burglaries.” According to Rathburn, “it is reasonable to consider all property crimes in the foreseeability analysis because of the known relationship between property crime and violent crime.” But Rathburn provides no basis for his conclusion that there is a “known relationship,” and importantly, no rationale for concluding that the burglaries are similar to the crimes at issue here. See Trammel Crow, 267 S.W.3d at 16. In fact, there is no detail concerning the burglaries or whether they escalated into a violent crime. On the other hand, Jacobs opined that, per multiple data bases within the scientific field of Criminology, “[p]roperty crimes such as burglary, larceny, and motor vehicle theft do not empirically fоrecast violent crime.”
Excluding the burglaries, Rathburn identifies five murders, fifteen sexual assaults, seventy-six robberies, and forty-nine aggravated assaults occurring with a one-mile radius. One murder, sixteen robberies, and seven aggravated assaults occurred with a half mile radius, and there were two robberies within a quarter mile radius. There is no detail concerning these crimes, or comparison to the crimes at issue. There is no information abоut whether the crimes were predatory and whether they occurred at a home, business, or elsewhere. See Tex. Real Estate Holdings, Inc. v. Quach, 95 S.W.3d 395, 399–400 (Tex. App.—Houston [1st Dist.] 2002, pet.
Moreover, Rathburn provides no evidence regarding the publicity for any of these crimes. The publicity surrounding previous crimes helps determine whether a landowner knew or should have known of a foreseeable danger. Timberwalk, 972 S.W.2d at 758. Nothing in the recоrd demonstrates that appellees knew or would have reason to know about any of the crimes that occurred off the property.
Rathburn also opines that the Apartments’ proximity to a psychiatric hospital is significant.3 But there is no nexus between this proximity and the crimes he discusses, nor is there any indication that the crimes he identifies originated at the hospital or were committed by an individual receiving treatmеnt there.
The Rathburn declaration also includes a section listing what he terms “Similar and Recent Crimes,” that he opines are similar to the incidents here. He declares that “all 39 of these prior incidents and especially the crimes involving a
Of the thirty-nine crimes listed, six included a knife, and two of the six were actual stabbings. None of these incidents occurred at the Apartments, and nothing
Appellants cite Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 764 (Tex. 2010) in support of their argument that appellees had or should have had specific knowledge of conditions making the crimes foreseeable. This reliance on Del Lago is misplaced.
In Del Lago, the court concluded that Del Lago had a duty to protect its patrons because it “had actual and direct knowledge that a violent brawl was imminent between drunk, belligerent patrons, and had ample time and means to defuse the situation.” Id. at 769. The court concluded that “the duty arose not because of prior similar conduct but because it was aware of an unreasonablе risk of harm at the bar that very night.” Id.
Other than Meeks, however, there is no evidence that mentally unstable persons were “coming on the property.” Moreover, nothing establishes how long Meeks was on the property or whether Appellees knew he was there. And none of the calls about criminal activity occurred on the night in question. The Del Lago court held that “criminal misconduct is sometimes foreseeable because of immediately рreceding conduct.” Id. at 762. There is no such conduct here.
In addition, the harm caused to the plaintiff in Del Lago was a natural and predictable progression from the conduct that preceded it. In other words, the brawl that occurred outside the bar causing plaintiff‘s injury had the same character, albeit with greater severity, as the foretelling verbal and physical confrontations that occurred earlier in the bar.
Finally, the Del Lago court noted that “the nature or character of the premises can be a factor that makes criminal activity more foreseeable,” and “intoxication is often associated with aggressive behavior.” Id. at 768. It is axiomatic that the
Considering all the Timberwalk factors together, we conclude as a matter of law that the risk of injury from violent crime on the premises in question was not foreseеable based on evidence of prior crimes. See Park v. Exxon Mobil Corp., 429 S.W.3d 142, 148 (Tex. App.—Dallas 2014, pet. denied); see also QuikTrip Corp. v. Goodwin, 449 S.W.3d 665, 674 n.18 (Tex. App.—Fort Worth 2014, pet. denied) (concluding “as a matter of law” that crime in question was not foreseeable, despite jury‘s finding of premises liability, because foreseeability is question of law for court when parties “do not identify disputed, material facts” that would impact determination of fоreseeability, but rather “disagree about the legal significance of undisputed facts“).
The record reflects that Appellees took measures to protect its tenants from crime. These measures include uniformed security officers patrolling twice a day and three times at night, and a Dallas Police Department courtesy officer residing on the property. A six-foot fence with access gates surrounds the property and there is a video surveillance system.
Rathburn opines that Appellees failed “to provide a reasonable level of security,” and identifies several areas where he believes security could have been improved. According to Rathburn, none of these improvements “would have been overly costly for luxury apartments . . . .” This evidence goes to the reasonableness
Unreasonableness turns on the risk and likelihood of injury, as well as the magnitude and consequences of imposing a duty on the premises owner or controller. Id. at 102. “A risk is unreasonable when the risk of a foreseeable crime outweighs the burdens placed on property owners and society at large—to prevent the risk.” Id. at 103. The unreasonableness inquiry “explores the policy implications of imposing a legal duty to protect against foreseeable criminal conduct,” and includes whether a duty would require “conspicuous security at every point of contact or require adoption of extraordinary measures to prevent a similar occurrence in the future.” Id. (citing Trammell Crow, 268 S.W.3d at 18 (Jefferson, C.J., concurring)). But we have concluded that the violent criminal acts in this case were not foreseeable. Accordingly, we need not consider “unreasonableness.” See id. at 102 (citing Mellon, 5 S.W.3d at 655); see also, Timberwalk, 972 S.W.2d at 759 (lack of foreseeability was dispositive).
210880F.P05
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
STATE OF TEXAS
THE Court of Appeals Fifth District of Texas at Dallas
JUDGMENT
PENG WANG, CHONG ZHANG AND MENGQI (NINA) LIU, Appellants
No. 05-21-00880-CV V.
TREA CHURCHILL ON THE PARK, LLC, PINNACLE PROPERTY MANAGEMENT SERVICES, LLC, AND AMERICAN MANAGEMENT SERVICES CENTRAL, LLC, Appellees
On Appeal from the 192nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-20-02223.
Opinion delivered by Justice Garcia. Justices Myers and Pedersen, III participating.
In accordance with this Court‘s opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee TREA CHURCHILL ON THE PARK, LLC, PINNACLE PROPERTY MANAGEMENT SERVICES, LLC, AND AMERICAN MANAGEMENT SERVICES CENTRAL, LLC recover their costs of this appeal from appellant PENG WANG, CHONG ZHANG AND MENGQI (NINA) LIU.
Judgment entered October 24, 2022.