Lead Opinion
delivered the opinion of the Court,
Plaintiff alleges she was raped in her apartment because her landlord failed to provide adequate security. The principal issues are whether plaintiff alleges a negligent activity or a premises defect, whether chapter 92, subehapter B of the Property Code applies to personal injury actions, and whether the risk that a tenant would be sexually assaulted was reasonably foreseeable to defendants. The district court rendered judgment on a verdict for defendants, and the court of appeals reversed.
I
Tammy Rene Cain was raped in the bedroom of her Houston apartment by an intruder, Peter Saenz, about 3:00 a.m. one Sunday. Saenz was ultimately convicted of that sexual assault and seven others that followed, and sentenced to prison. Cain brought suit for her personal injuries against the owners of the 300-apartment complex, Timberwalk Apartments, Partners, Inc. and Timberwalk Apartments Limited (together, “Timberwalk”), and their management company, Sovereign National Management, Inc., alleging that they negligently failed to provide adequate security, including “charley” bars or pin locks for sliding glass doors, alarm systems in the apartments, access gates to the complex, proper lighting, routine surveillance, and guards. Cain also alleged violations of the Deceptive Trade Praetices-Consumer Protection Act.
Many issues at trial were sharply disputed. Saenz told police that he met Cain previously in the parking lot, but Cain stated that she did not remember the encounter. Saenz also told police that Cain admitted him through the front door to use the telephone, but Cain denied this. She and the investigating officer testified that Saenz entered through the sliding glass door, as evidenced by his palm prints on that door. Cain testified that the sliding glass door was locked, but there was no sign of forced entry. Cain’s expert testified that the sliding glass door could be opened while locked, but he and others tried to do it without success. Cain had a broomstick that she sometimes, but not always, used as a “charley” bar, and it is not clear whether she used it the night of the assault. Cain’s apartment had an alarm system, but it was not operating at the time. Cain’s roommate believed that defendants charged an additional fee to operate the alarm, but defendants asserted that Cain and her roommate could have had an operating code for the asking. Cain contends defendants never told her or her roommate this. Cain claimed that there should have been security guards watching the apartments, but defendants asserted that they told Cain’s roommatе that the only guard was an officer who lived in one of the apartments. An access gate on the side of the complex where Cain lived did not work, and Cain understood that it would be fixed, but defendants asserted that Cain’s understanding was based on representations of the prior owner of the complex and that they never promised to fix the gate. Cain’s roommate complained when the gate remained broken and asked to move to the other side of the complex where the access gate worked but was told that there was a six-month waiting list for those units. There was evidence that Saenz was living at the time with his common law wife in the same apartment complex, so that he would have been entitled to access whether the gate worked or not. However, there was also evidence that Saenz was still living with a girl friend elsewhere.
The jury found that Cain’s injuries were caused only by her own negligence, and failed to find that defendants violated the DTP A. The district court rendered judgment on the verdict for defendants, and Cain appealed, but only on her negligence claim and not her DTPA claim.
The court of appeals reversed and remanded for a new trial, holding that the district court erred in defining negligence with respect to defendants as in a premises liability case, viz, the “failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier knows about or in the exercise of ordinary care should know about.”
The appeals court also held that the jury should not have been charged as follows:
You are instructed that a landlord shall make a diligent effort to repair or remedy a condition if the tenant specifies the condition in a notice to the person to whom or to the place where rent is normally paid and the condition materially affects the physical health or safety of an ordinary tenant. The tenant’s notice must be in writing only if the tenant’s lease is in writing and requires written notice.6
The court concluded that this instruction “limited the landlord’s duty to the duty to repair a condition and did not include the duty to take precautions to prevent foreseeable criminal acts of a third party.”
II
A
Defendants contend that the district court did not err in charging the jury as on a premises liability claim rather than a negligent activity claim. We agree. In Keetck v. Kroger Co.,
A complaint that a landowner failed to provide adequate security against criminal conduct is ordinarily a premises liability claim.
B
Defendants also argue that the district court did not err in charging the jury concerning their responsibility to repair or remedy conditions of which tenants make written complaint. The instruction was taken verbatim from Section 92.052(a)(1), (a)(3), and (d) of the Texas Property Code. Cain argues that the district court erred in giving the instruction because Section 92.052 has no aрplication in this case, the instruction misstates the law, and the instruction probably caused the rendition of an improper judgment.
Chapter 92, subchapter B of the Property Code prescribes a landlord’s duty to repair or remedy leased premises. Section 92.052, which is part of the subchapter, requires landlords to “make a diligent effort to repair or remedy” conditions of which they have written notice. Section 92.054 applies to repairs due to casualty losses covered by insurance. Section 92.055 applies when a landlord elects to close premises altogether. The
(1) an order directing the landlord to take reasonable action to repair or remedy the condition;
(2) an order reducing the tenant’s rent, from the date of the first repair notice, in proportion to the reduced rental value resulting from the condition until the condition is repaired or remedied;
(3) a judgment against the landlord for a civil penalty of one month’s rent plus $500;
(4) a judgment against the landlord for the amount of the tenant’s actual damages; and
(5) court costs and attorney’s fees, excluding any attorney’s fees for a cause of action for damages relating to a personal injury.
Section 92.058 provides landlords remedies against tenants who violate the statute.
The applicability of subchapter B is limited by Section 92.061, which states:
The duties of a landlord and the remedies of a tenant under this subchapter are in lieu of existing common law and other statutory law warranties and duties of landlords for maintenance, repair, security, habitability, and nonretaliation, and remedies of tenants for a violation of those warranties and duties. Otherwise, this subehapter does not affect any other right of a landlord or tenant under contraсt, statutory law, or common law that is consistent with the purposes of this subchap-ter or any right a landlord or tenant may have to bring an action for personal injury or property damage under the law of this state. This subchapter does not impose obligations on a landlord or tenant other than those expressly stated in this sub-chapter.
Hardly a model of clarity, Section 92.061 appears self-contradictory. The first sentence preempts landlords’ common law duties “for maintenance, repair, security, habitability, and nonretaliation”, while the second sentence “otherwise” preserves tenants’ rights to sue for personal injuries under the common law. The first sentence reаd literally makes the second sentence entirely superfluous. The only actions not preempted would be those not covered by the first sentence. But the second sentence appears to suggest that the preemptive effect of the first sentence is limited.
To determine the meaning of the statute, we look to its purpose. The statute was passed
in a rental of a dwelling unit, whether for a specified time or at will, there is an imрlied warranty of habitability by the landlord that the apartment is habitable and fit for living. This means that at the inception of the rental lease there are no latent defects in the facilities that are vital to the use of the premises for residential purposes and that these essential facilities will remain in a condition which makes the property livable.
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In order to constitute a breach of implied warranty of habitability the defect must be of a nature which will render the premises unsafe, or unsanitary, or otherwise unfit for living therein.17
The preemption provision, section 14 of the 1979 law,
It thus appears that subchaрter B was intended to govern disputes between a landlord and a tenant over repairs and not liability for personal injuries resulting from premises defects actionable under the common law. Viewed in light of the statute’s purpose, the first two sentences of Section 92.061 are reconciled by limiting their preemptive effect to such matters comprehended within the implied warranty of habitability Kamarath recognized. The only other court to have addressed this issue has reached the same conclusion.
Cain argues that the instruction was harmful because the jury may have misread the instruction to say not merely that a landlord must make repairs if a tenant gives notice of a condition, but that a landlord must make repairs if and only if a tenant gives such notice. Error in instructions to the jury is more likely to be harmful in a closely contested ease.
Moreover, in summation, Timberwalk’s attorney focused the jury’s attention on the instruction and plainly misstated it:
The Court has told you in the charge that the landowner’s duty to make repairs only exists on receipt of a written notice. Read this, read this real carefully when you go back there. This is the duty that the judge is giving you. This is the law you’re instructed to follow.
There is no evidence of any written notice. They’ve all admitted that. Phyllis didn’t give one; Tammie didn’t give one. Where does the duty exist?
The court should have corrected this mis-characterization of the charge. So flagrant a misstatement trespasses on even the broad latitude allowed in summation and invites reversal.
Ill
But the charge error does not require a new trial for Timberwalk if, as it argues, it had no duty to provide security measures as Cain alleges because there is no evidence that it could reasonably have foreseen the likelihood of violent criminal activity within its apartment complex. Whether a duty exists is a question of law for the court to decide.
A
As a rule, “a person has no legal duty to protect another from the criminal acts of a third person”.
The foreseeability of an unreasonable risk of criminal conduct is a prerequisite to imposing a duty of care on a person who owns or controls premises to protect others on the property from the risk. Once this prerequisite is met, the parameters of the duty must still be determined. “Foreseeability is the beginning, not the end, of the analysis in determining the extent of the duty to protect against criminal acts of third parties.”
“[C]rime may be visited upon virtually anyone at any time or place”,
1
For a landowner to foresee criminal conduct on property, there must be evidence that other crimes have occurred on the property or in its immediate vicinity.
Most courts have looked to narrow geographic areas in analyzing the foreseeability of criminal conduct.
2
Foreseeability also depends on how recently and how often criminal conduct has
3
The previous crimes must be sufficiently similar to the crime in question as to place the landowner on notice of the specific danger. Thus, we have held that the stabbing of a guest at an apartment complex was not foreseeable from four prior incidents of vandalism and the theft of a refrigerator from a vacant apartment.
Assessing this factor is difficult because “[c]riminal activity is not easily compartmentalized.”
4
The publicity surrounding the previous crimes helps determine whether a landowner knew or should have known of a foreseeable danger. A landlord often has actual knowledge of previous crimes occurring on the premises through tenants’ reports. Actual notice of past incidents strengthens the claim that future crime was foreseeable.
B
These factors — proximity, recency, frequency, similarity, and publicity — must be considered together in determining whether criminal conduct was foreseeable. Thus, the frequency of previous crimes necessary to show foreseeability lessens as the similarity of the previous crimes to the incident at issue increases. The frequent occurrence of property crimes in the vicinity is not as indicative of foreseeability as the less frequent occurrence of personal crimes on the landowner’s property itself. The court must weigh the evidence using all the factors.
The evidence in the present ease is that no violent personal crime occurred at the Tim-berwalk Apartments for ten years preceding Cain’s sexual assault. The only crimes that had occurred in the complex were the tire-slashing by Cain’s roommate’s ex-boyfriend, and a car burglary and car theft at an earlier, unspecified time. In the year preceding Cain’s sexual assault, only one sexual assault had occurred within a one-mile radius of the Timberwalk Apartments. That same year, six assault-type crimes occurred in neighboring apartment complexes. There is no evidence that any of these crimes was ever reported in the media, or that Timberwalk knew or had any way of knowing about them.
Applying the factors we have set out to the facts before us, we conclude that the risk that a tenant would be sexually assaulted was in no way foreseeable to Timberwalk. Therefore, as a matter of law, Timberwalk owed Cain no duty to provide additional security beyond that required by statute and by the lease.
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Because Timberwalk owed Cain no duty to provide additional security as a matter of law, it is entitled to judgment notwithstanding the error in the jury charge. As we have noted, however, Sovereign does not argue that it owed Cain no duty. Thus the charge error requires that Cain’s claims against Sovereign be remanded for further proceedings, as the court of appeals conсluded. Accordingly, we affirm the judgment of the court of appeals as to Sovereign, reverse as to Tim-berwalk, and render judgment that Cain take nothing against Timberwalk.
Notes
.
. Tex. Bus. & Com.Code §§ 17.41-.63.
.
. Id. at 702.
. Id. at 702 n. 1.
. Id. at 703.
. Id.
. Id.
. 41 Tex Sup Ct. J. 34 (Oct. 16, 1997).
.
. Id. at 264.
. See Comm, on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges PJC 65.IB (1997).
. Keetch,
. See, e.g., Lefmark Management Co. v. Old,
.Act of May 28, 1979, 66th Leg., R.S., ch. 780, 1979 Tex. Gen. Laws 1978 (Tex.Rev.Civ. Stat. Ann. art. 5236f), repealed and recodified by Act of May 26, 1983, 68th Leg., R.S., ch. 576, 1983 Tex. Gen. Laws 3475, 3632-3639, 3730 (adopting the Property Code).
.
. Id. at 660-661.
. See Debate on Tex. H.B. 1773 before the House Comm, on Bus. & Indus., 66th Leg., R.S. (Mar. 19, 1979) (including favorable testimony from representatives of the Texas Apartment Association, the Texas Association of Builders, Inc., and the Texas Association of ReaItors)(available from H.R. Video/Audio Servs.).
. Act of May 28, 1979, 66th Leg., R.S., ch. 780, § 14, 1979 Tex. Gen. Laws 1978, 1983 (repealed).
. See Act of May 26, 1983, 68th Leg., R.S., ch. 576, 1983 Tex. Gen. Laws 3475, 3632 (eff.Jan. 1, 1984).
. See Debate on H.B. 1550 before the Senate Comm, on State Affairs, 69th Leg., R.S., ch. 200 (May 5, 1985).
. Moreno v. Brittany Square Assocs.,
. See Lone Star Gas Co. v. Lemond,
. Tex.R.App. P. 61.1(a) (setting forth the standard for reversible error); Lentos v. Montez,
. Patterson Dental Co. v. Dunn,
. Lefmark,
. Walker v. Harris,
. Lefmark,
. Centeq,
. Walker,
. Walker,
. Lefmark,
. Id. at 56 (Owen, J., concurring).
. See generally Boren v. Worthen Nat’l Bank,
. See Walker,
. See Gans v. Parkview Plaza Partnership,
. See Henley v. Pizitz Realty Co.,
. See Boren v. Worthen Nat'l Bank,
. See Habich v. Crown Cent. Petroleum Corp.,
. See Taco Bell, Inc. v. Lannon,
. See Walker,
. Walker,
. Jardel Co. v. Hughes,
. Aaron v. Havens,
. See Cordes v. Wood,
Concurrence Opinion
concurring.
While I agree with the Court’s remand of Sovereign’s claim on the charge issue, I disagree with the Court’s duty analysis. Accordingly, I do not join Part III of the Court’s decision.
In determining whether a premises owner has a duty to provide additional security, other than that required by a lease or applicable statute, the Court today holds that “for a risk to be foreseeable, there must ... be evidence of criminal activity within the specific area at issue, either on the landowner’s property or closely nearby.” S.W.2d , . In other words, the Court holds that absent evidence of reсent, similar criminal activity in the specific area, as a matter of law there cannot be a foreseeable risk of harm to someone like Cain. I disagree.
Certainly, one of the factors to weigh in assessing foreseeability of risk is whether there have been other similar incidents in the immediate vicinity. However, I would hold that other types of evidence may also establish foreseeability. For example, the “nature, condition and location of the defendant’s premises” should be considered by the Court in determining whether to impose a duty on the landowner. Isaacs v. Huntington Mem’l Hosp.,
If the place or character of a business is such that the landowner may be said to have created “an especial temptation and opportunity for criminal misconduct,” W. Page Kee-ton ET AL„ PROSSER & KEETON ON THE LAW OF Torts § 33, at 201 (5th ed.1984), then this also is a factor to consider in determining whether criminal conduct is foreseeable. Here, however, Cain presented no evidence that the character, use made, or location of the apartment complex created a heightened risk of foreseeable criminal conduct. I therefore concur in the Court’s rendition of judgment for Timberwalk.