*1 APARTMENTS, PART- TIMBERWALK
NERS, INC., Apartments Sovereign Manage-
Ltd., and National
ment, Sovereign/LBI, Inc. Petition- d/b/a
ers, Tammy
Tammie Rene CAIN a/k/a
Cain, Respondent.
No. 97-0475.
Supreme Court of Texas.
Argued Jan. July
Decided *2 Adаms, sharply disputed. Many at trial were Wayne Guariglia, Jack issues Diane M. Houston, petitioners. previously McKinley, police for that he met Cain told Saenz lot, but stated that she parking Cain Tabak, Stanley, Hous- Thomas M. Moms the encounter. Saenz also did not remember ton, respondent. through him police that admitted told *3 telephone, use the but Cain the front door to HECHT, Justice, investigating offi- opinion the and the delivered denied this. She PHILLIPS, Court, in which Chief the through the entered cer testified that Saenz Justice, GONZALEZ, ENOCH, OWEN, door, by palm his sliding glass as evidenced HANKINSON, BAKER, ABBOTT the prints that door. Cain testified that on Justices, joined. locked, was glass was but there sliding door expert entry. Cain’s testi- sign no of forced alleges raped Plaintiff she was her sliding glass be the door could fied pro- apartment because her landlord failed locked, opened but he and others tried while security. principal adequate issues vide had a to do it without success. Cain plaintiff alleges negligent ac- are whether sometimes, but not al- broomstick that she defect, tivity premises chapter or a bar, ways, “charley” and it is not used as a ap- B subehapter of the Code night it the of the clear whether she used actions, injury plies personal and whether sys- apartment an alarm assault. Cain’s had sexually risk that a tenant be would tem, operating at the time. but it was not reasonably assaulted was foreseeable de- believed that defendants Cain’s roommate judg- fendants. The district court rendered operate charged an additional fee defendants, ment on a verdict for and the alarm, asserted that Cain and but defendants appeals court of reversed.1 We reverse operating could have had an her roommate part part judgment and affirm in of the asking. contends defen- appeals court of and remand the ease to the code for the Cain proceedings. district court for further roommate this. dants never told her or her have been claimed that there should
Cain
watching
apartments, but
security guards
I
they told
defendants asserted that
Cain’s
Tammy
raped
Rene Cain was
in the bed-
only guard
that the
was an officer
roommate
apartment by
an in-
room her Houston
An
apartments.
in one of the
who lived
truder,
Saenz,
Peter
about 3:00 a.m. one
complex
gate
the side of the
where
access
on
ultimately
Sunday.
convicted of
Saenz
work,
and Cain understood
Cain lived did
that sexual assault and seven others
fixed, but defendants assert-
that it would be
followed,
prison.
and sentenced to
Cain
understanding was based on
ed that Cain’s
personal injuries against
brought suit for her
prior
of the
representations of the
owner
300-apartment complex,
of the
the owners
fix
complex
they
promised
never
Partners,
Apartments,
Inc. and
Timberwalk
complained when
gate.
Cain’s roommate
Apartments
(together,
Limited
asked to move
gate
remained broken and
“Timberwalk”),
management
and their
com-
complex where the
to the other side of the
Inc.,
Sovereign
Management,
рany,
National
that there
gate worked but was told
access
alleging
they negligently
pro-
failed to
waiting
for those units.
a six-month
list
security,
“charley”
adequate
including
vide
living
that Saenz was
at
There was evidence
doors,
pin
sliding glass
bars or
locks for
in the
his common law wife
time with
systems
apartments,
alarm
in the
access
complex, so that he would
same
complex, proper
routine
gates
lighting,
to the
gate
to access whether the
have been entitled
surveillance,
alleged
guards.
also
However,
also
or not.
there was
worked
Deceptive
Trade Praetices-
violations
living with a
Saenz was still
evidence that
ac-
Protection Act.2 Cain claimed
Consumer
punitive damages.
girl friend elsewhere.
tual and
Com.Code §§ 17.41-.63.
2. Tex. Bus. &
1.
One of the few issues on which the evi- to defendants as in a viz, essentially undisputed case, dence was was the ordinary the “failure to use care to activity of criminal at the Timber- incidence reduce or eliminate an unreasonable risk of Apartments, nearby complexes, walk at harm which created condition surrounding area. Cain admitted that occupier about or in the the owner or knows she had not heard ordinary exercise of care should know Apartments during the Timberwalk the six in- about.”3 The court concluded that this there, stayed months she except when “probably kept jury from struction con- ex-boyfriend her roommate’s slashed the complaint, sidering gravamen of Cain’s Sovereign’s tires on her roommate’s car. tо, apartment complex had a manager complex for over a decade not, provide adequate security mea- did testified that she had never heard of another *4 protect argued sures to its tenants.”4 Cain fact, complex. sexual assault at the jury that have been instructed should only reported serious from the crimes ever negligence respect that to with defendants Apartments burglary Timberwalk were the care; ordinary means “failure to use that is During of one car and the theft of another. say, person to failure to do that which a Cain, year preceding police the assault on ordinary prudence would have done under a one- received eleven calls from within circumstances, doing the same or similar reporting mile radius Timberwalk sexual ordinary prudence person that which a originated assaults. Four of these calls not the same or would have done under apartment complexes, one of which bordered similar circumstances.”5 calls, only Timberwalk. But these were reports actual crimes. Incident showed appeals jury The court also that the held only reported one of the eleven callers charged should not have been as follows: crime, rape. actual and it did not involve shall You are instructed that a landlord Cain, year preceding The the assault on sta- repair remedy diligent make a effort to tistics that sexual occurred in showed assault specifies if the con- a condition the tenant 1,000 per people. Houston 0.72 times The person in a notice to the to whom or dition that, year before the rate of occurrence in place normally paid to the where rent is Timberwalk’s census tract was 0.58 sexual materially and the condition affects 1,000 per people, assaults while the statewide ordinary physical safety health or of an lower, 1,000 per only slightly rate 0.534 tenant. The tenant’s notice must be assault-type people. The total of all crimes if is in writing only the tenant’s lease apartment complexes in all Timber- writing requires written notice.6 year preceding walk area the Cain’s sexual six, expert figure assault was defendants’ this instruction The court concluded “astonishingly characterized as low”. duty duty to the to “limited the landlord’s jury injuries were The found that Cain’s repair not include the a condition and did only by negligence, caused her own duty precautions prevent take foresee- failed to find that defendants violated party.” able criminal acts of a third judgment DTPA. The district court rendered appeals the case for a new court of remanded defendants, ap- on the verdict for and Cain complaint, reaching trial third without Cain’s pealed, only negligence but on her claim and declaring court erred in not district DTPA claim. her granting a trial after Tim- a mistrial or new violated an order on mo- berwalk’s counsel appeals The court of reversed and remand- trial, by referring tion in limine to another lawsuit holding that the district ed for new negligence with re- Cain had filed.8 defining court erred in 7. Id. 3. 942 S.W.2d 701-702.
4. Id. at 702. 8. Id. Id. at 702 n. 1. Id. at 703. gave present court Sovereign separate tion the district Timberwalk and filed petitions of error in this We case. for writ Court. argue there was no granted both.9 Both complaint A that a landowner failed correct, jury charge. they If are error security against criminal provide adequate Sovereign is entitled to rendition of then liability ordinarily is conduct
judgment, Timberwalk is entitled present ease. That is true of the claim.14 appeals for consid- a remand to the court of injured that she was Cain does not assert complaint not eration of Cain’s additional contemporaneous result of by or as a However, previously addressed. only activity of defendants. it argues that as a matter of law owed also Rather, injured was Saenz’s. Cain crimi- Cain no of care because Saenz’s pro- failure to asserts that defendants’ If this nal attack on her was unforeseeable. security created an adequate vide measures correct, Timberwalk, too, argument is then risk of harm that defendants unreasonable Therefore, judgment. to rendition of entitled yet have known about and knew or should arguments charge consider both the we must premises liability to correct. This is a failed duty argument. and the We consider correctly claim on which the district court charge arguments first. charged jury. properly The court re- jury request charge as
fused Cain’s *5 negligent a case. II B A argue also the dis Defendants that the Defendants contend district jury charging err in trict court did not jury in charging court did not err as on a responsibility repair or concerning their to premises liability negli claim rather than a make remedy conditions of which tenants In Keetck v. gent activity agree. claim. We complaint. instruction was tak written Co.,10 Kroger explained we be difference 92.052(a)(1), (a)(3), from en verbatim Section liability negligent activity tween lia (d) Property of the Texas Code. Cain failing remedy bility for an unreasonable giving argues that the district court erred premises. of harm risk due the condition of Section 92.052 has no the instruction because “Recovery negligent activity theory on a re case, application in this the instruction mis person injured by quires that the have been law, probably states the and the instruction contemporaneous or as a result of the activi improper judg caused the rendition of an ty by itself rather than a condition created ment. activity.”11 by Negligence the former 92, subchapter B of the simply doing failing Chapter context means or to do repair person ordinary prudence prescribes in the a landlord’s what a Code 92.052, premises. remedy same or similar circumstances would have or leased Section part subchapter, requires Negligence not done or done.12 in the latter which is of the repair ordinary diligent to “make a effort to context means “failure to use care landlords they have remedy” an risk or conditions of which to reduce or eliminate unreasonable applies to re- by written notice. Section 92.054 of harm created a condition casualty by insur- occupier pairs losses covered which the owner or knows due [of land] ordinary applies 92.055 when a landlord about or in the exercise of care ance. Section premises altogether. to close should know about.”13 This is the instruc- elects 267; 16, Keetch, Sup (Oct. 1997). S.W.2d see Comm, J. 34 13. 845 Ct. 9. 41 Tex on Pat- Jury State Charges, Tex., Bar of Texas Pattern tern (1997). Jury Charges PJC 65.1A (Tex.1992). 262 10. 845 S.W.2d Old, See, e.g., Management Id. at 264. Co. v. 946 Lefmark 53 1997); (Tex. Realty, Centeq Inc. v. S.W.2d (Tex.1995); Jury Siegler, Exxon S.W.2d State 12. See Comm, Charges, on Pattern Bar of Tidwell, (Tex.1993). (1997). Jury Corp. S.W.2d v. PJC 65.IB Charges Tex., Texas Pattern gives non-judicial obligations statute a tenant both on a landlord or tenant other judiсial expressly remedies for a landlord’s violation. than those stated in this sub- 92.056, may chapter. Under Section tenant make repairs costing greater no more than the of Hardly clarity, a model of 92.061 Section or one month’s rent and deduct cost $500 appears self-contradictory. The first sen- payments, from may rent or the tenant ter- preempts tence law landlords’ common duties 92.0563, minate the lease. Under Section maintenance, repair, security, “for habitabili- tenant sue for nonretaliation”, ty, and while the second sen- (1) directing an order the landlord to preserves rights tence “otherwise” tenants’ repair remedy take reasonable action to injuries personal to sue for under the com- condition; literally mon law. The first sentence read (2) rent, reducing order the tenant’s entirely superflu- makes the second sentence notice, repair from the date the first preempted ous. The actions not would proportion to the reduced rental value re- be those not covered the first sentence. sulting from the condition until the condi- appears suggest But the second sentence remedied; repaired tion is preemptive effect of the first sen- (3) judgment against the landlord for tence is limited. penalty plus a civil of one month’s rent statute, meaning To determine the $500; purpose. we look to its The statute was (4) against a judgment the landlord for passed15 legislative following session damages; the amount of the tenant’s actual Bennett,16 our decision in Kamarath which recognized for the first time Texas an (5) fees, attorney’s court costs and ex- implied warranty habitability existing be- cluding any attorney’s fees for a cause of In that tween landlord and tenant. case *6 damages relating personal action for to a damages the tenant sued for economic
injury. by caused latent defects in his residential provides apartment. Section 92.058 landlords remedies that The Court held against tenants who statute. violate the unit, dwelling in a rental of a whether for a applicability subchapter The of B is limited will, specified implied there time or is 92.061, by Section which states: warranty habitability by of the landlord
The of a and fit for duties landlord and the reme- the is habitable inception subchаpter living. dies of a tenant this are This means that at the of under existing in lieu of law defects common and other the rental lease there are no latent statutory of law warranties and duties of the facilities that are vital to the use maintenance, repair, security, premises purposes landlords for the for residential nonretaliation, habitability, and and reme- that these essential facilities will remain in dies of tenants of a the liva- for violation those condition which makes Otherwise, warranties and duties. this ble.
subehapter any right does not affect other contract,
of a landlord or tenant under law,
statutory or common law that is con- im- purposes subchap- sistent with the of this In order to constitute a breach of habitability any right plied warranty ter or or tenant of the defect landlord personal will bring injury have to an aсtion for must be of a nature which render unsafe, unsanitary, property damage of or other- under the law this impose subchapter living state. This does not wise unfit for therein.17 R.S., 28, 1979, (Tex. 1978). May Leg., 15.Act 66th ch. 16. 568 S.W.2d 1979 Tex. Gen. Laws 1978 Stat. (Tex.Rev.Civ. Ann. 5236f), May repealed art. Act of recodified Id. at 660-661. 26, 1983, R.S., Leg., 68th ch. 1983 Tex. 3475, 3632-3639, (adopting Gen. Laws Code). have been included case and should not Legislature enacted the statute that is
The lan- subchapter replace charge. B to the broad now guage with mini- of Kamarath more argues that the instruction habitability, mum a method for standards jury may have misread harmful because the standards, for enforcing those and remedies merely say that a land the instruction noncompliance. legislation’s landlord’s repairs gives if make a tenant lord must suрporters urged sponsor and enactment be- condition, but that a landlord must notice of a that Kamarath created a cause fears gives if a tenant repairs make if have
vague standard that landlords would jury in instructions to the such notice. Error difficulty'satisfying.18 closely in a likely to be harmful is more preemption provision, 14 of the section case, was a In this there contested ease.23 law,19 virtually identical to current dispute require at trial over the vigorous 92.061. The 1979 Act was amended Section evi ment of written notice. Cain adduced Although and recodified 1983.20 the reco- accepted and dence that Timberwalk often language altered the contained in dification responded requests repairs, for while to orаl 92.061, Legislature Section reversed the Sovereign that ten Timberwalk and insisted changes years through “clean-up” two later provide written notice. required ants were inadvertently bill which reinserted omitted gave never Tim undisputed It was that Cain essence, language into statute.21 any notice of of the defects berwalk written 1985 amendments conformed the 1983reeodi- alleges in this action. she statutory original language fication to the summation, Moreover, in at- Timberwalk’s torney jury’s attention on the focused appears subchapter It thus B was plainly misstated it: instruction and govern disputes intended to between a land- you charge has told The Court repairs a tenant over lord and liabili- duty repairs only to make landowner’s ty personal injuries rеsulting prem- from receipt exists on of a written notice. Read ises defects actionable under the common this, carefully you go when read this real light purpose, law. Viewed in of the statute’s This back there. is the first two sentences of Section 92.061 are you’re judge giving you. This is the law by limiting preemptive reconciled their effect to follow. instructed comprehended to such matters within the no- There is no evidence of written *7 implied warranty habitability of Kamarath Phyllis They’ve tice. all admitted that. recognized. only to other court have one; give give Tammie didn’t one. didn’t addressed this issue has reached the same duty exist? Where does the applicability conclusion.22 Given this limited B, subchapter this mis- of it follows that the district The court should have сorrected charge. flagrant a court’s instruction based on Section 92.052 characterization of the So applicability trespasses no it on even the broad has to this case. While misstatement in invites correctly obligation states a landlord’s to re- latitude allowed summation and pair, apply personal injury it does reversal. the Senate
18. on H.B. 1773 before the 21. See Debate on H.B. 1550 before See Debate Tex. Comm, Comm, Indus., R.S., Affairs, Leg., Leg., House on Bus. & 66th R.S. State 69th ch. 200 on 19, (Mar. 1979) testimony (including 5, 1985). favorable (May Apartment representatives the Texas As- from of Builders, Inc., sociation, Texas of the Association Assocs., Brittany Square v. 899 S.W.2d 22. Moreno ReaItors)(available and the Texas Association of 261, (Tex.App. [14th Dist.] 262-263 —Houston Servs.). from H.R. Videо/Audio 1995, denied). writ R.S., 780, 28, 1979, May Leg., ch. 19. Act 66th 1978, Lemond, 14, (re- § Tex. Gen. Laws 1983 897 S.W.2d 1979 23. See Lone Star Gas Co. 755, (Tex. 1995). pealed). 26, 1983, R.S., May Leg., ch. 20. Act of 68th See (eff.Jan. Tex. Gen. Laws 1984). objected
Cain to the instruction on the sonable foreseeable of harm risk to the course, exception applies, ground “misleading that it be invitee.”28 The would confusing jury”. to a landlord who “retains control over the determining to the security safety premises”.29 charge “probably error “Foreseeability requires only gener- improper judg- caused the rendition of reversal, danger, sequence al not the exact of events require analyze ment” so as to we harm, produced be foreseeable.”30 vigorous the entire record.25 Given evi- “general danger” When the is risk of dentiary dispute significance over the of writ- injury activity, from criminal the evidence ten closing argument, notice and counsel’s we previous “specific must reveal crimes on or proba- surplus conclude that the instruction premises” near the order to establish fore- bly improperly unduly nudge did seeability.31 jury against Accordingly, to find Cain. we agree appeals with the court foreseeability of an unreason instructing jury district court’s error in prerequisite able risk of criminal conduct is a regarding Section 92.052 was reversible er- person imposing duty to of care on a who ror. premises protect owns or controls others property on the from the risk. Once this
Ill
met,
prerequisite
parameters
is
of the
duty must still be determined. “Foreseeabil
charge
require
But the
error does
end,
ity
beginning,
is the
not the
if,
argues,
new trial for
it
it
as
analysis
determining the extent of the
duty
provide security
had no
measures as
duty
protect against
criminal acts of third
alleges
because there is no evidence
parties.”32
reasonably
it could
have foreseen the
of violent criminal
likelihood
within
upon
be visited
vir
“[C]rime
apartment complex.
its
duty
Whether a
ex-
place”,33
tually anyone at
time or
question
ists is a
lawof
for the court to
of a
nature at a
conduct
decide.26
particular
is never foreseeable mere
location
ly
increasingly
because crime is
random and
A
may possibly
any
violent and
occur almost
rule,
where,
person
legal
especially
large city.
If
As a
“а
has no
a land
duty
protect
duty
protect people
another from the criminal
owner had a
on his
person”.27
exception
acts of a
An
from criminal conduct
third
whenever
occur,
duty
controls '...
does
crime
“[o]ne who
would be univer
might
duty
ordinary
protect
have a
to use
care to
sal. This is not the law. A
exists
parties
great
invitees from criminal acts of third
if when the
of criminal
is so
risk
conduct
he knows or has reason to know of an unrea-
that it is
and foreseeable.
both unreasonable
61.1(a)
Lefmark,
(setting
see Restatement
Tex.R.App.
P.
forth the standard
946 S.W.2d
53;
*8
Montez,
error);
for reversible
Lentos v.
680
(1965).
(Second)
§
of Torts
344
798,
(Tex.1984).
S.W.2d
801
197; Walker,
Centeq,
S.W.2d at
see
924
899
29.
Dunn,
914,
Co. v.
592 S.W.2d
Patterson Dental
25.
S.W.2d at 377.
(Tex.1979) (stating
legal
921
that a
error occa
if
is contested and
sions
unfair trial
the trial
377;
Walker,
Harper
2
S.W.2d at
see also
30.
924
sharply conflicting);
the evidence
see also Lo
20.5(6),
(1956)
§
at 1147
& James,
The Law of Torts
Co.,
818,
russo v. Members Mut. Ins.
603 S.W.2d
precise
("Foreseeability
mean that the
does not
(Tex. 1980) (refusing
821-822
to find reversible
consequences
were
or the exact
which
hazard
error because no evidence indicated that the case
foreseen.”).
encountered should have been
contested).
sharply
was
Walker,
S.W.2d at 377.
924
31.
53;
Lefmark,
Centeq,
757 But property.36 proaching a landowner’s must not risk was foreseeable Whether such strong, especially and must be such evidence hindsight but rather be determined risk criminal conduct that the must show premises knew or light what the owner merely property is not on the landowner’s criminal act have known before the should as to make increasing has reached a level determining the oc- occurred. likely. crime on a currence of certain criminal conduct property should have been fore- landowner’s geo- have looked to narrow Most courts seen, consider whether courts should foreseeability analyzing the graphic areas in or previously occurred on criminal conduct A few courts have conduct.37 of criminal occurred, recently it property, near the how activity occurring examined occurred, con- it how similar the how often re- areas.38 Statistics geographic broader property, to the conduct on the duct was geographic areas large undefined garding or publicity given the occurrences to what foreseeable make crime do not themselves knew or should indicate that landowner city’s if a over- Even at a location.39 on about them.34 We elaborate have known risen, specific within has areas all crime rate Likewise, each of these factors. free. city may remain crime crimes have occurred merely because several
1 high-crime ATM located in a particular at a likely that it more not render to foresee criminal area does For landowner every ATM the future crimes will occur at property, on there must bе evidence conduct foreseeable, For a risk to be prop bank owns. have occurred on the that other crimes of criminal activ- there must also be evidence erty vicinity.35 Criminal its immediate issue, specific area at either on ity within the activity occurring farther from the landown nearby. property closely landowner’s less relevance because er’s bears expected vary signifi crime rates be 2 This cantly large geographic within a area. depends Foreseeability also on how say
is not to that evidence of remote criminal conduct has ap- recently and how often criminal activity that crime is can never indicate (the Bank, (Minn.1989) ramp parking generally 324 landowner’s 34. See Boren v. WоrthenNat’l Co., hotel); 416, 934, (1996) (consider- Speaker adjacent v. Cates 879 S.W.2d 941 Ark. 921 811, (Tenn.1994) (the location, landown 814-815 ing "similarity, frequency, prox- S.W.2d Holley incidents”); apartment complex); v. Mt. Zion Ter Jacqueline er’s imity prior in time of the 98, (Fla.Dist. Inc., York, 288, Apts., 382 So.2d 99-100 City race New 81 N.Y.2d 598 S. v. (the 160, 723, (1993) (ana- apartment com Ct.App.1980) landowner’s 726 N.Y.S.2d 614 N.E.2d Manage "location, Realty plex); ment, Inc., v. Wexenthaller lyzing Petrauskas nature and extent of those 556, 820, Ill.App.3d 134 Ill.Dec. similarity, 186 previous criminal activities and their 902, (1989) (the 906 landowner's proximity relationship 542 N.E.2d or other to the crime in complex). question”). Bank, Walker, (considering Ark. at 377 Worthen Nat'l 35. See 924 S.W.2d 38. See Boren v. 416, 934, (1996) (considering apartment complex at the 921 S.W.2d crime rates street). activity of the defen neighborhood at all residential acrоss evidence of criminal ATM’s, plain merely the one at which dant’s injured). tiff had been Partnership, 253 Gans v. Parkview See Plaza ("[I]t (1997) N.W.2d does Neb. necessarily prior Corp., similar crim- follow v. Crown Cent. Petroleum 39. See Habich 1994) place premis- (Ala. (stating taken at the inal es; must have that evi 642 So.2d required that the criminal act or it is stores regarding crimes at convenience dence question give occurring at a acts near no evidence that crime the state was across foreseeable); may travel to the notice of the risk that crime v. H particular Martinko store *9 owner”.). 1986) Assocs., 320, (Iowa premises of the business N.W.2d 322 N-W 393 (“ at the de crimes occurred "[Wlhether some states, cities, 272, Co., in Realty other malls other Henley So.2d fendants’ v. 456 37. See Pizitz foreseeability 1984) probative in this (Ala. (the ramp); of parking countries is not case.”); 273 landowner’s Millsom, Lannon, 43, Cal.App.4th Bell, 25 Pamela W. v. 48-49 v. 744 P.2d Taco Inc. 690, ("[Tjhere 950, (1994) restaurant); (Colo.1987) (a Sturbridge Cal.Rptr.2d 694 30 particular that, Walker, 785, example, Partners, utility in evidence for 482 S.E.2d little v. 267 Ga. Ltd. ‘high Diego crime 339, (1997) (an San is a complex); Pacific Beach area of apartment Erick 341 ”). Co., 165, 170 area.’ 447 N.W.2d v. Curtis Inv. son 758 past. Assessing
occurred The occurrence of a this factor is difficult because significant of easily compartmen- number crimes within a short is not “[c]riminal period strengthens time may expose the claim that talized.”43 crimes a particular crime at issue dangerous per- was foreseeable.40 condition that could facilitate hand, crimes, complete On the other apartments target- absence of sonal as when are crimes, previous repeatedly by burglar may or the occurrence of a few “If ed thieves. period, negates apartment], may rapist.”44 crimes over an extended time [an enter so foreseeability apartment initially upon element.41 An intruder intent
stealing
decide to assault a tenant dis-
inside,
if
covered
even
the tenant avoids con-
3
contrast,
frontation.
auto-
vandalism to
The previous crimes must be suffi
apartment complex’s parking
mobiles
an
ciently
question
similar to the crime in
to as
concern,
lot can be a serious
but it does not
place the
landowner on notice of the
suggest the
of
likelihood
sexual assault.
Thus,
danger.
we have
held
the stab
bing
apartment
guest
complex
of a
at an
4
prior
not foreseeable from four
of
incidents
refrigerator
publicity surrounding
vandalism and the theft of a
apartment.42
prior
previous
helps
from a vacant
crimes
crimes
whether a
determine
string
need not be
A
identical.
of assaults
landowner knew or should have known of a
apartment complex
danger.
robberies
an
make
foreseeable
A
often
landlord
has
crimes,
previous
the risk of
violent
knowledge
other
like murder
actual
of
crimes occur
hand,
rape,
ring
premises through
foreseeable. On the other
on the
tenants’
re
spate
complex
ports.
of domestic violence in
past
Actual notice of
incidents
portend
party
strengthens
does not
third
sexual assaults
claim
that future crime was
However,
or robberies.
unreported
foreseeable.45
criminal
Bell,
Lannon,
43,
lot,
Supercenter parking
40. See Taco
Inc. v.
744 P.2d
48
was unfore-
[crime]
(Colo.1987) (ten
years);
seeable".);
incidents within three
Transp.
see also Greater Houston
Co.
5,18,
Hughes,
523,
Jardel Co. v.
523 A.2d
525-526
Phillips,
v.
801 S.W.2d
526-527
(Del.1987) (394 incidents within two and one-
(1990)(holding
company
that a cab
could not
Co.,
years); Galloway
half
v. Bankers Trust
420
employee’s
upon
foresee an
act based
437,
(Iowa 1988) (approximately
N.W.2d
439
40
prior
twenty year period;
one
incident in
year);
incidents within one
Erickson v. Curtis
case,
in that one
the driver had been exonerated
Co.,
165,
(Minn.1989) (85
Inv.
447 N.W.2d
167
wrongdoing).
of
years);
within three or four
Butler v.
incidents
Markets, Inc.,
270,
1141,
Acme
89 NJ.
445 A.2d
Walker,
foreseeability. Previous similar incidents duty no to owed Cain Because Timberwalk if no- cannot future crime foreseeable make security a matter of provide as additional body have known that those knows or should law, notwithstand- judgment to it is entitled bear incidents occurred. owners As we jury charge. have ing the error in the duty inspect regularly no to criminal records noted, however, Sovereign argue does in risk of crime area. determine the duty. charge Thus the it owed no hand, On the when the occurrence of against other claims requires that Cain’s Sov- error activity widely publicized, proceedings, criminal a is land- further ereign be remanded for expected knowledge can to have of appeals lord be the court concluded. Accord- as of judgment of the court of ingly, such we affirm the crimes. as to Tim- appeals Sovereign, as to reverse berwalk, judgment that Cain take and render B nothing against Timberwalk. proximity, recency, These factors — publicity SPECTOR, J.,
frequency, similarity, concurring opinion. be a filed —must in together determining whether considered SPECTOR, Justice, concurring. Thus, criminal conduct was foreseeable. I agree with the Court’s remand of While frequency previous necessary crimes of issue, charge I Sovereign’s claim on the dis- similarity foreseeability show lessens as the duty analysis. agree with Ac- the Court’s previous of the crimes to the incident at issue cordingly, join I Part III of do frequent prop inсreases. The of occurrence Court’s decision. erty vicinity in not as crimes indicative foreseeability frequent as the less occur determining a owner whether of personal rence crimes on the landowner’s duty security, provide has a additional property weigh itself. The court must by or required appli- other than a lease evidence using all the factors. statute, today holds that “for cable the Court foreseeable, must ... a risk to be there be present in the ease evidence is that no activity spe- evidence of criminal within personal violent crime occurred the Tim- issue, cific area at on the either landowner’s years Apartments preceding berwalk for ten , closely nearby.” S.W.2d . In Cain’s sexual assаult. The crimes that words, other the Court holds absent complex tire- occurred were the recent, evidence similar slashing by ex-boyfriend, roommate’s Cain’s area, a matter of law there as burglary car and car theft at an earli- risk of harm to cannot be foreseeable some- er, unspecified year preceding time. In the disagree. like Cain. I one assault, only Cain’s sexual one sexual assault Certainly, weigh factors to one of the had occurred within one-mile radius of the assessing foreseeability of risk is whether Apartments. That year, Timberwalk same there have been other similar incidents assault-type neighbor- six crimes occurred in However, I would vicinity. immediate hold ing complexes. There is no evi- types may also that other of evidence estab dence that of these crimes was ever example, the foreseeability. lish For “na media, reported in the or that Timberwalk ture, condition and location defen any way knowing knew had about them. premises” by be considered dant’s should have set Applying impose the factors we out to the determining Court us, facts before we conclude that the risk Hunting duty on the Isaacs landowner. sexually that a tenant would be assaulted was Hosp., Mem’l Cal. ton Cal.3d (1985); way no foreseeable to Timberwalk. see Rptr. P.2d also law, Therefore, § a matter of 344 cmt. f as (Second) of Torts Restatement (“If (1965) provide owed busi place [a] Cain no additional se- or character curity by beyond required landowner] ness ... is such that should [the statute and reasonably anticipate careless or criminal the lease. *11 part persons,
conduct on the of third either
generally time, particular or at some [the may
landowner] be under a to take it_”)
precautions against (emphasis add-
ed). Houston, Fry, appellant. Gerald place
If the or character of a business is Harrity, Attorney, John Assistant District such that the landowner be said to have Richmond, Paul, Matthew Attorney, Stat’s especial “an temptation opportu- created Austin, for State. nity misconduct,” for criminal Page W. Kee- & AL„ ton ET PROSSER KEETON ON THE LAW OF (5th ed.1984), § OPINION at 201 then this Torts also is a factor to in determining consider MANSFIELD, Judge, delivered the criminal conduct is foreseeable. Court, opinion McCORMICK, in which Here, however, presented no evidence KELLER, PRICE, Presiding Judge, and character, made, use or location of WOMACK, Judges, joined. HOLLAND and complex heightened created post-conviction application This is a for a risk of foreseеable criminal I conduct. corpus pursuant writ of habeas filed to Arti- therefore concur in the Court’s rendition of 11.07, Applicant cle V.A.C.C.P. was convicted judgment for Timberwalk. aggravated possession of the offense of of a punishment
controlled substance and the was years assessed at confinement for five Department Texas of Criminal Justice —In- stitutional appeal Division. No direct taken. present application, Applicant
In his con- given tends that he was not notice parte Lynford Ex Bozzle MINOTT. finding State’s intent to seek an affirmative 42.12, deadly weapon § 3g under Art No. 72877. (a)(2). Appeals Court of Criminal of Texas. record, According Applicant pleaded to the guilty aggravated possession to the offense of July еxchange controlled substance for a years.
sentence of five The record contains an affidavit from the assistant attor- district ney, Harrity, Mr. J. which states: John petitioner during was informed of this plea negotiations, during as well as State’s recommendation to the Court at plea, the time of the that an affirmative finding deadly weapon that a was used Petitioner would be made at the time he pled guilty before the Court. The State’s recommendation was on each of Petition- years er’s cases for Five run I.D.T.D.C.J. to concurrent with an af- finding deadly weapon, firmative twenty years in the instant without an case finding deadly weapon, affirmative of a non-aggravated. accepted The Petitioner years the offer of five with an affirmative finding deadly weapon, of a want-