*1 Conclusion
Because Bexar Metropolitan Water Dis- suit, immunity
trict is entitled to from this
the trial denying court erred in Bexar jurisdiction. plea
Met’s there- We
fore reverse the trial court’s order and judgment dismissing
render the Joint Ven- jurisdiction.
ture’s suit for want of
TRAMMELL CENTRAL CROW
TEXAS, LTD., Appellant,
v. GUTIERREZ, Individually
Maria and as Martinez;
Next Friend of Andrew
Christopher Martinez; and Alex Mar-
tinez; Ferman, Individually and Karol Angel
and as Next Friend of Luis Gu-
tierrez, Appellees.
No. 04-05-00056-CV. Texas, of Appeals
Court
San Antonio.
Dec. *2 wounds,
pital gunshot from four and the Department Police San Antonio classified his death as a murder. One month after death, gave Karol birth to a *3 son, premature. four months 28, 2002, On March Maria Gutierrez Hall, Johnson, Wendell Lara W. Rose- (Gutierrez’s mother) Ferman, and Karol Kanusky, Fulbright marie & Jaworski individually and on behalf of her infant L.L.P., Antonio, appellant. San for son, underlying alleging filed the lawsuit Keller, Kimberly S. The Keller Law proximately Gutierrez’s death was caused Firm, Antonio, San Joe B. Stephens, The by negligent Trammell Crow’s failure to Firm, Stephens Katy, Law appellees. provide adequate security. petition by was later amended to add claims Maria LÓPEZ, Sitting: ALMA L. Chief Gutierrez on behalf of Gutierrez’s three Justice, STONE, Justice, CATHERINE previous minor children from a relation- DUNCAN, Justice, SARAH B. KAREN ship. Finding negligent, Trammell Crow ANGELINI, Justice, SANDEE BRYAN jury returned a verdict favor of the MARION, Justice, PHYLIS J. plaintiffs and Trammell appeals. Crow On SPEEDLIN, Justice, REBECCA appeal, Trammell Crow asserts it owed no SIMMONS, Justice. duty to Gutierrez because his murder was and, foreseeable, if foreseeable even EN BANC OPINION plaintiffs any negli- failed to show that Opinion by SANDEE BRYAN gence on part proximate- Trammell Crow’s MARION, Justice. ly caused Gutierrez’s murder. We affirm. shop- is a 53-acre DUTY ping Antonio, mall located in San which in 2002 managed by issue, Trammell Crow In its first Trammell Crow Texas, Central 18, Ltd. February On 2002 asserts that as a matter of law it no owed approximately a.m., 12:30 duty Luis Gutier- to Gutierrez. “The existence of a wife, Ferman, rez and pregnant his duty question Karol is a of law for the court to leaving were a movie theater located in the decide surrounding from the facts the oc Market, Harris, when Karol a gun- heard in question.” currence Walker v. Turning sound, (Tex.1996). shot. toward the Karol 924 S.W.2d 377 gen As a shooter, saw the rule, dressed in black with a eral “a legal duty has no black hood or ski mask over or protect her another from the criminal acts of a face. Although Id,.; she did not person.” believe the third Apts., Timberwalk Partners, hit anyone, thought Cain, first shot she second Inc. v. (Tex.1998).
shot hit
her husband in the shoulder. Gu-
an exception to the
ground,
tierrez fell to the
then got up,
general
rule exists in that one who controls
couple
running
started
premises
duty
ordinary
towards the
has “a
to use
care
south end of the
Market. Then
to protect
invitees from criminal acts of
and,
ground
Karol fell to the
longer
no
if he
parties
third
knows or has reason to
move,
car,
able to
crawled
under
where
know of an unreasonable and foreseeable
Timberwalk,
she remained until the ambulance arrived.
risk of harm to the invitee.”
(citation omitted).
There were no other witnesses to the
1. January 2002 at by “aggravated fied rob- SAPD p.m. manager 2:05 a store bery-deadly weapon.” —When shoplifting suspect chased a out into the Monday, July 4. 2001 at 9:44 parking get suspect’s lot to license p.m. a man sitting his car —As number, plate suspect got into a girlfriend, suspect tapped with his vehicle and steered his vehicle towards gun, his window told the man he with manager, striking manager’s left vehicle, gave needed his the man time elbow with the driver’s side mirror and car, belongings remove his from the causing manager spin and fall. crime then took car. This was clas- This crime was classified the SAPD “aggravated sified the SAPD as rob- as “robbery-bodily injury.” bery-deadly weapon.” Sunday, 2. January 2002 at 5:48 p.m. a woman open started to her Wednesday, —As December 2000 at door, car a suspect placed an arm *5 p.m. suspect 7:35 a entered bank —A her, chest, around placed gun a to her located inside a Market store and told her give purse. to him her presented and the teller a handwritten in suspect fled a vehicle. This crime note. The note stated that it was a by was classified the “aggra- SAPD as robbery the and teller should not move vated robbery-deadly weapon.” or he would be killed and demanded the Monday, 22, 3. October 2001 at 11:45 money in top suspect the drawer. The p.m. a woman and her companion —As then handed the teller a large manilla walking were in lot, the parking they envelope put and told the teller to the noticed a man standing in front of a note money top and the the and bot- car, parked inside of which another indi- tom in the envelope. drawers As the vidual sat the driver’s seat. The man left, suspect he told the teller there were approached the couple and asked for the three others in the him. store with This time. The woman gave the man the by crime was classified the SAPD as time; and the two continued walking “robbery.” away. The man then demanded their Monday, 6. December money. they As continued walking, the p.m. 7:24 a seated inside restau- parked driver the stepped car out of —While rant, a purse woman’s was stolen. the car pointed gun and at them that pursued purse When she snatcher looked like an Uzi and told the woman lot, into parking pushed he her “get on the floor give your me all away, money jumped passenger I’m into the oging side of you!!!” [sic] kill vehicle, lives, Fearing waiting sped away. for their couple This going to comply. The first man crime was classified then the SAPD as grabbed the purse, woman’s and told “robbery-bodily injury.” vandalism, experts assaults, agreed following 1. All that the are person 37 acts of and 1 murder, rape, robbery, "violent crimes”: possession aof switch blade knife on the aggravated undisputed assault. It is also premises. Because these other are not crimes experienced over 200 oth- crimes, considered violent we do not consider premises, including er crimes on the 14 bur- foreseeability analysis. them in our thefts, thefts, glaries, simple 20 auto back; purse. pulled 6:53 She Saturday, May grabbed 7. 2000 at her store, her, told an her p.m. suspect pushed over-powered entered a but he —A employee had a hand off, heat-activated ran purse, got took into her grenade, money. The and demanded waiting When witness tried vehicle. approx- employee complied, turning over vehicle, he suspect to block the with her imately purported gre- hand $750. car and fled. crime rammed her This nade was found to be simulated. When by the SAPD as “rob- was classified vehicle, suspect on his fled foot to bery.” security off-duty working two officers Here, prior no doubt the there is attempted, bicycles, pursue their “sufficiently are similar” to the space it left parking vehicle as Each of these against crime Gutierrez. close get but unable to were injury involved to a violent crimes enough number. get plate license and occurred within injury or the threat of This the SAPD crime was classified murder. Most years of Gutierrez’s two “aggravated robbery.” deadly weapon. Nev involved use of 1:10 Sunday, May 2000 at ertheless, argues that none of the dissent from a walking a.m.—As a man was remotely similar to Gu these crimes are vehicle, in a people store to his two prior none of the tierrez’s murder because passing car first asked directions shooting or a murder. crimes involved die, said, then that if he did not want to recog Timberwalk Court give he should them his wallet. When initial wallet, intruder apartment nized that “[a]n the man he did not have a said to as ly upon stealing intent decide people in the car him for asked *6 inside, keys. even if the telephone, and a tenant discovered pager, cellular sault items, too, relinquished man these Id. So While the tenant avoids confrontation.” unknown suspects pointed stealing one of the an upon an armed intent individual object by bag. a black trash covered in a discharge weapon his may decide to the SAPD by This crime was classified injury that or death manner leads weapon.” “robbery-deadly as rob string of assaults and the victim. “A April complex at 12:30 make the Monday, in an apartment beries crimes, movie exiting a.m.—As a man was murder of other violent like risk theater, (emphasis two men asked if he was “some Id. rape, and foreseeable.” big shot” followed man back into added). and and string of assaults Similarly, a then be- suspects the theater. The two large mall its and shopping robberies a man, down, him gan knocking hit the lot risk of other violent parking make the pocket and into his and took reached crimes, murder, con like foreseeable. We cards, necklace, mili- money, and credit a violent string clude that of similar tary ID. someone complainant said two-year occurring on over property alone, and suspects told to leave him general danger that the period establishes sus- they in a vehicle with a third fled murdered at the person being of a the sus- pect. complainant also said Market was foreseeable. they pects dropped phone a cellular assaulting him. crime was were This Foreseeability That Gutierrez B. “robbery- classified the SAPD as Be Murdered Would bodily injury.” fore- whether it was The next 10.Wednesday, inquiry March 2000 at 6:40 Gutierrez, store, or a similar- man seeable p.m. a woman exited —As situated, ly gation, could murdered on the no one has been arrested or con- premises. Mortgage, Mellon at victed for the murder. (holding although 656-57 rape that earlier in Gutierrez’s wife testified foreseeable, parking garage was it was not murder, day he and his mother plaintiff
foreseeable that would be went to to visit cemetery his father’s stopped, away several ga- blocks from the grave evening, couple site. Later that rage, by a over party third whom defen- go decided to movie at the to late control, dant had no taken to the Market. did Karol said she not notice her garage raped). where she was nervous, concerned, being husband as scared. was wearing She said he a neck- Trammell Crow asserts Gutierrez died lace, bracelet, watch, ring. Karol stat- as a targeted result of a “hit” could ed in an earlier that she deposition did not not foresee a “reprisal killing.” Trammell if know her had his wallet at husband Crow being characterizes Gutierrez as con- theater, movie the witness but on stand at cerned about “the criminals he ‘ratted trial she usually testified her husband car- characterization, on’”. Relying on this ried his wallet with him she remem- shot, manner in which Gutierrez was bered him wallet into putting his his back the fact that his wallet was never recov- pants pocket they left for before the mov- ered the police, Trammell Crow con- usually ie. kept She said he his money cludes targeted Gutierrez was for murder and driver’s license in his wallet. At the robbed; and not something that could not theater, paid Gutierrez for the tickets and have been reasonably foreseen. purchased snacks and drinks. As The record that a reveals few weeks theater, leaving were the movie Gutierrez prior murder, to his Gutierrez provided was shot A subsequent autop- and killed. San police Antonio officers with the names sy revealed shot he had been once in string individuals involved of smash back, right twice in the of his back shoul- grab burglaries. After his meeting der, and once in the back head. The with the police, Gutierrez received a inventory medical tak- examiner’s items threatening call on his cellular telephone. en from Gutierrez lists his necklace and *7 Gutierrez allowed police the officers to lis- watch, telephone, his cellular the movie ten to the message, according but to one of tickets, film, small rolls of a change, key testified, the officers who Gutierrez knife, chain keys, pocket and a and an “wasn’t that worried.” When asked if the automatic opener. Although door not on police him, anything could do else for Gu- list, the Gutierrez’s bracelet was later re- “No, responded, tierrez all I want is the list, covered. was not His wallet on the money don’t anything need else—so I —I and nor neither the wallet its contents can get myself police out of this.” The were ever recovered. Gutierrez’s clothes paid him in relocating to assist his $250 placed hospital were on the floor the mother. About after one week his final morgue and later the medical retrieved conversation with police, the Gutierrez was placed tray examiner’s office on a murder, murdered. After burglary his the the cooler to the be examined medical investigators gave the names of the indi- hospital’s inventory examiner. The viduals whom Gutierrez “ratted on” to the items also wallet. did not list the homicide Although detectives. the homi- cide only investigated Although detectives these individu- the evidence that als, police the were unable to tie them couple to Gutierrez had his wallet when the Despite Gutierrez’s full murder. a investi- went to the Market came from Thus, testimony, disregard any trial which from Id. we inference that Karol’s varied testimony, jury’s, it the deposition her the wallet was not stolen in the course of court’s, this province and not to determine Gutierrez’s murder. credibility the stand. See her witness analyze next robbery We Gutierrez’s Wilson, City Keller v. 168 S.W.3d murder the in which “within context it (Tex.2005). court, we reviewing As a Mortgage, occurred....” Mellon S.W.3d jurors ques- assume must decided at 657. Of the ten violent crimes occur- credibility tion of Karol’s in favor of the at ring in the two “if beings reasonable human could
verdict eight years shooting, before the Gutierrez it so.” Id. conclude would not be do We p.m. occurred between the hours of 6:00 jury unreasonable to determine that a.m., during and 6:00 most occurred had Gutierrez his wallet with him when Saturday Monday to and the aver- period, went to movie. couple age appears every to one violent crime Many other of the crimes oc- month. province jury It is also walking as curred the victims were from infer to draw the evidence “whatever vehicles. Such from store or their re- they wish, long as one ences so more than targeted at peated shop- violent crimes jury simply possible and the must not mall increase risk of violent ping Id. at It is true there is no guess.” as at personal crimes such murder direct evidence that Gutierrez’s wallet Timberwalk, same location. See robbery in the of a that end taken course at murder oc- 758. Gutierrez’s his con ed with murder. we midnight curred after on Sun- sometime inferred jury clude a reasonable could have day walking as and his wife were Gutierrez by the that Gutierrez’s wallet was stolen car. from movie theater to their Be- as of a perpetrators and he died the result a time “hit” cause his murder occurred at robbery, retaliatory as opposed reasonably him argued by place injury might Trammell Crow. Karol testi foreseen, placed pants pock “within fied his wallet his have been Gutierrez was apprehen- et before went theater. range Crow’s] of [Trammell taken morgue inventory everything lists injury sion that was foreseeable.” [his] (his body from necklace at 657. Ac- Mortgage, Mellon watch) (his tele pockets cellular foreseeable cordingly, we conclude was tickets, change, the movie small phone, Gutierrez, similarly situat- or a film, a key keys, pocket rolls of chain ed, could be murdered Mar- knife, and an door opener). automatic ket. *8 kept money in his is not
wallet which he A reason listed and was never recovered. CAUSATION not in inference is that wallet was able next asserts Trammell Crow clothing his was pants pocket when any negli to plaintiffs failed show during inventoried because was stolen proximately caused Gu gence part its robbery/murder. reviewing “[CJourts is com Proximate cause tierrez’s murder. light in a all the evidence favorable fact cause in prised of two elements: infer jurors must made all verdict assume Property v. Mr. foreseeability. Nixon in favor verdict if reasonable ences of their (Tex. Co., Inc., 546, 549 could, Mgmt. 690 S.W.2d disregard minds infer all other 1985). murder was legal sufficiency in their review.” Because ences foreseeable,2 murdered, inquiry the last is whether Trammell Crow had three off- Trammell or Crow's acts omissions were duty duty; police officers on none of whom the cause in fact injury. of Gutierrez’s bicycles. were on Two of the officers were “The test for cause in fact is whether the stationed at the south end of the mall on a act or omission was a substantial factor in specific to assignment watch store bur- causing injury without which the harm glaries, leaving only single officer to Inv., would not have occurred.” Western patrol property the entire his unmarked Urena, (Tex. Inc. v. car. 2005). negligence “If the defendant’s merely furnished a condition that made the criminologist Plaintiffs’ expert, Dr. injuries possible, there can be no cause Kirkham, George testified that the securi- fact.” Id. ty system place Market on the night Gutierrez was murdered vio- February
In Trammell acceptable professional security lated stan- employed off-duty Crow po San Antonio explained dards. He lice difference be- patrolled officers who the property by riding bicycles either by driving security system tween a “deterrent” property their private own unmarked an security system. “undercover” Accord- vehicles. Two of these officers testified Kirkham, ing to an security “undercover” that when they vehicles, drove in their system, such one utilized Tram- they kept the driver’s side window rolled Crow, mell served apprehend criminals down and their arm propped on the win only after the crime had been committed. dow so that their San Antonio Police De hand, On the other Kirkham said a “deter- partment uniform patch was visible. The security system, rent” such as Wal-Mart’s vehicles had designation no identifying golf cart-type use of vehicles flashing with security them as conspicuous and had no fights lots, in their store parking prevented fights. One of Trammell security Crow’s security crime because conspicuous. was officers stated he preferred patrol in an off-duty Kirkham stated police officers vehicle, unmarked way because “[t]hat type security were the best because people they’re can’t—if breaking into well-trained, armed, were and knew building, they don’t know where I’m at.” However, they the law. conspic- were not One of off-duty police officers testi- uous because officers drove the fied that a private investigator hired parking lot in their un- private woman whose purse was stolen earlier distinguished marked vehicles. Kirkham spoke days with him ten before the Gutier- between law function enforcement’s rez shooting; the officer in relayed turn catch criminals and private security’s func- Scheer, Shirley conversation to Thus, tion to deter crime. according to Trammell Crow property manager. Ac- Kirkham, while the off-duty officers cording to the officer’s testimony, he told upon crime, come committing someone Scheer that the woman had sent someone inconspicuous presence provided their no complain over to security deterrence, required and deterrence is in a enough. visible response Scheer’s *9 bicycles shopping parking large that were mall lot as that adequate provided as high visibility. On night Gutierrez was of the Market’s. foreseeability analysis 2. The (Tex.App.-San is the same for Antonio no duty proximate Mortgage, cause. Mellon pet.). 659; Cross, 5 S.W.3d at Garcia v. Thus, security- plaintiffs established explained private Kirkham that Market. malls, cause that particularly parking proximate Trammell Crow shopping lots, parameters act within of its conspicuous because it de- failed to should Stores, duty.3 E-Z opportunist shop- He said Hamer v. Mart ters criminals. See Inc., (Tex.1992) spots” 461-62 ping parking mall lots are “hot that security precise that cir- require conspicuous (concluding although because cus- of they tomers distracted walk to their the murder would never be are as cumstances cars, known, plaintiffs enough their had introduced packages cars with or leave locking way jury their into stores. Kirk- for the that the up on evidence conclude that, system opined target- inadequate security ham even if this was store’s death). anyone if shooting, ed would look to as cause of the victim’s “[i]t And, security there’s around here. no CONCLUSION Here, they
that’s were problem.... shooting, their after for able take time Accordingly, we overrule Trammell reason, take personal whatever effects on and affirm the appeal Crow’s issues on. logically so It indicates to me as judgment. trial court’s criminologist they that must believe Dissenting opinion by B. SARAH security.”
there’s any DUNCAN, Justice; joined KAREN expert Trammell Crow’s admitted ANGELINI, Justice and PHYLIS J. following: SPEEDLIN, Justice. I I if think what testified to is that we Justice, patrols DUNCAN, had would have visible SARAH B. —and talking dissenting. here I’m about some kind of arrangement in the in the patrolling [sic] duty majority’s imposition vicinity where took this immediate its conclusion upon Trammel Crow rests that, place like to think re- would —I that is no that nine robber- “there doubt” was, gardless of who the offender he [or] aggravated ies assault over a two- and one par- she not have it at that would done year at a mall period shopping 53-acre Now, ticular time. he or she have ‘sufficiently “are to Gutierrez’s similar’ place, like a picked another time murder foresee- to render his shooting” Mr. drive-by at home or Gutierrez’s Because, majority says, Why? able. else, agree I but would with somewhere aggravated as- the nine robberies and one you. post guard, had I If a fixed murder preceded sault Gutierrez’s happened right don’t it would have think threat injury to a “involved But hap- at that time. it would have years two injury and occurred within pened else. somewhere is thus irrelevant murder.” It record, majority’s analysis none On we conclude Trammell this involved a shoot- previous “violent crimes” inconspicuous Crow’s “undercover” securi- (much shooting), from ing injury factor in less an ty system was a substantial caus- in fact consist- “shooting” ing of Gutierrez at the while Gutierrez’s death sentence, relief, Crow this asks single prayer In a Crow its Trammell Trammell asserts factually legally its We judgment evidence is insuffi- favor. court to render that it to act within the cient to show failed Crow’s issues construe Trammell therefore parameters duty, any, to of its if Gutierrez. legal sufficiency of complaint regarding the argu- makes Trammell Crow no the evidence. sufficiency any regarding ment factual and in *10 ed of three shots his back and one shot lighter for their recommendation aof sen- in the back of his head. Likewise irrele- tence “filing large,”3 pro- Gutierrez majority’s analysis vant to the is the undis- vided regarding par- information the other puted evidence that the being ticipants chance of burglary. Intending to (much victim any violent crime charge less a receipt Gutierrez with the of stolen murder) at during property after the serial number checks years preceding two Gutierrez’s death was were completed, police arrested Gu- 1,637,630 majority’s analysis to 1. The ap- tierrez on outstanding arising warrants out pears reject to Supreme the Texas get Court’s of traffic tickets “to him sys- into the analytical tem,” him, frameworks in Timberwalk and handcuffed and took him to the City replace Keller and station, them with a rule police station. At the Gutierrez liability of strict for premises voluntary owners. made a written statement nam- From judgment inevitably results, ing his confederates. When Gutierrez was I cannot do other released, than dissent. gave Sanders him a business card and told Gutierrez him if page to he Background1
Factual and PROCEDURAL any had other information. an Within bond, hour posted While the San after Gutierrez he Depart- Antonio Police called (SAPD) ment Sanders’s pager number and asked investigating a series of picked “smash grab” burglaries,2 up jail. outside the At it received his subse- station, quent information that provid- some of the visit Gutierrez proper- stolen ty from ed one of these further information burglaries regarding was in those possession of participating burglary Luis Gutierrez at the home and ex- he mother, pressed shared with his Maria concern that one of his Gutier- confeder- Subsequently, rez. ates had seen the police Detective Eddie Gon- marked cars zales partner Sanders, parked and his during Brad front his home assist- ed officers, several search other and another had been arrived at told Gu- Mrs. Gutierrez’s home tierrez’s arrest to conduct a his brother. search. parked
The officers their police marked Approximately two or three weeks after cars in front of the home. arrest, again po- called the search, During wanting lice to talk. During the officers this conver- recov- sation, ered a bearing relayed watch Gutierrez serial number that he had been matched one receiving stolen in threatening messages one of the “smash from his grab” burglaries under confederates on cell investigation. phone and was confronted, When drive-by Gutierrez afraid of a shooting. claimed he did He had actually burglary commit the but was recorded some of phone messages these merely the “fence” for operation. Af- and let Detective Gonzales listen to them. police ter the officers afforded Gutierrez In messages, one of these the caller said: an opportunity cooperate in exchange you ..., “If say anything why didn’t are 1.In an encourage effort to "smash-and-grab” others to follow 2. burglary, In a suit, publicly express my I would like to sin- through plate glass drives a track window appreciation parties cere and their at- and steals merchandise. torneys providing hyper- this with a Court linked brief and electronic record. These large,” 3. When a suspect case is "filed at writing, tools have made the tasks of cite- give is notified before the case is filed to him checking, circulating opinion this far opportunity arrangements an to make for an and, result, more efficient as a saved tremen- attorney money. and raise bail dous time and other limited resources. *11 44 a bitch. head. classified hiding? Quit being little the The SAPD
you Gon- Although out and talk to us.” death as murder. Come patrol car in front park zales offered to 28, 2002, March Maria On Gutierrez and home, told Mrs. Gutierrez’s Gutierrez of Ferman, individually and on behalf Karol money police the all he wanted was son, Gu- alleging of her filed this lawsuit not be the relocate so his mother would by proximately tierrez’s death was caused shooting. of Gutierrez said victim negligent pro- failure to Trammell Crow’s problems. of get could himself out his adequate security. petition vide The “[he] But Gutierrez warned Gonzales that to add Mrs. Gu- later amended claims into.” know stumbled [he’d] what [didn’t] mi- tierrez on of Gutierrez’s three behalf offer to some- response In to the meet relationship. previous nor children from a station, police other than the Gu- where jury of The returned verdict in favor the not that tierrez said he was worried $6,555,900 them in plaintiffs and awarded come to the station. Detective would credit, damages. Due to settlement this get impression thus not Gonzales did judgment in the amount was reduced final being his life was thought Gutierrez $5,341,998. at threatened. After Gutierrez arrived 2002, 11, Monday, February on the station Duty gave him police $250. a matter argues Trammell Crow that as Sunday, February following duty I of law owed no to Gutierrez. p.m.,
approximately 10:00 Gutierrez agree. wife, Ferman,4 pregnant his Karol went Regal
a late movie at the Cinemas Standard of Review Market, mall shopping a 53-acre managed at the time Trammell Crow duty question of “The existence of is a Texas, At approximately Ltd. Central law for court to decide from facts a.m., or 12:30 as the exited couple 12:20 surrounding question.” the occurrence in car, Karol cinema and neared their Harris, v. Walker around, heard a shot. she turned When (Tex.1996). However, specific “evidence of shooter, with saw the dressed in black she premises on or near the previous crimes mask face. hood or ski over his black foreseeability raise a on fact issue any- hit Karol did not think the first shot Id. review must activity.” of criminal This one, thought she the shooter’s second but law. light applicable conducted in the shot hit Gutierrez shoulder. Gutier- got then and the ground, up, rez fell to Applicable Law south couple running started towards the law parties agree applicable of the mall. Then Karol fell end Partners, and, move, got Apts., forth in longer able to set Timberwalk ground no (Tex. Cain, thought a car. never their Inc. v. under She 1998), Tex Supreme of shooting at A subse- which the Court assailant was her. em duty analysis forth to be autopsy Gutierrez had been as set quent revealed aris back, injuries an invitee’s suit for ployed once twice in the back shot parties: acts third shoulder, criminal right ing and once in the back out finding ap- challenge Although disputed at trial does this Trammell Crow Crow married, whether and Gutierrez were peal. Ferman were; jury and Trammell found *12 rule, recency, legal duty proximity, person As a “a has no These factors— similarity, publicity— protect frequency, to another from the criminal acts person.” exception together of a third An is that in deter- must be considered premises who controls ... does “[o]ne criminal conduct was mining whether duty ordinary have a to use care to Thus, frequency the of foreseeable. protect invitees from criminal acts of necessary crimes to show fore- previous parties third if or he knows has reason similarity of the seeability lessens as the to an know of unreasonable and foresee- at previous crimes to the incident issue able risk harm of to the invitee.”.... frequent occurrence of increases. “Foreseeability requires only that the property vicinity crimes the is not as general danger, sequence not the exact foreseeability of as the less indicative harm, produced of events that be frequent personal occurrence of crimes “general foreseeable.” When the dan- property on the landowner’s itself. The ger” injury the risk criminal is from all weigh using court must the evidence activity, “spe- the evidence must reveal the factors. previous cific crimes on or near Timberwalk, 756-57, 759 972 S.W.2d premises” in order to establish foresee- omitted) (citations (quoting v. Har Walker ability. (Tex.1996) ris, foreseeability of an unreasonable Old, Mgmt. Co. v. Lefmark risk of criminal a prerequisite conduct is (Tex.1997)). imposing duty to of care aon premises pro- who owns or controls The Evidence tect others on the property from the met, prerequisite risk. Once this is Timberwalk, we must first review Under parameters duty of the must still proximity, recency, the evidence of the fre- determined. quency, similarity, publicity specific duty only .... A exists when the risk previous Quarry crimes at or near great of criminal conduct is it so that is Market.
both unreasonable
and foreseeable.
such
Whether
risk was foreseeable must
Proximity
Publicity
hindsight
be determined in
but rath-
The record is devoid of evidence of
light
premises
er in
of what the
owner
surrounding
knew or should have known before
crimes in the area
determining
criminal act occurred.
In
publicity
Market and of
as such. Howev-
er,
whether the
crimi-
occurrence
certain
purpose
reviewing publicity
is
nal
on a
property
conduct
landowner’s
or
determine “whether a landowner knew
foreseen,
should have been
courts should
known of a foreseeable dan-
should have
any
consider whether
criminal conduct
Timberwalk,
ger.”
Similarity, Recency, Frequency trial, if But even it she was sure did. were assumed Gutierrez had his wallet conclusively The evidence establishes murdered, testified, night Karol he was murder, that, Quar- before Gutierrez’s testimony does not that Gu- establish experienced had a mur- ry Market never during a rob- tierrez’s wallet stolen Indeed, death, der. before bery; well have stolen at been experienced Market had never *13 or later at scene after he was murdered Therefore, shooting. plaintiffs sought the “ the hospital.6 ‘When the circumstances to establish that oc- Gutierrez’s death are consistent with either of two equally robbery curred the context of a and ” facts, City fact inferred.’ neither occurring offered evidence of robberies at Wilson, 802, v. 813 Keller 168 S.W.3d of 1, January the from Market (Tex.2005) (quoting Tubelite v. Risica & February 18, However, until 2002. the (Tex. Sons, Inc., 801, 819 S.W.2d robbery of a is at best thin. evidence Keller, 1991)); City see also there Karol Ferman testified was no (“[WJhen injury occurs at 814 or death money prior property demand for or and only meager cir- eyewitnesses without prior indeed no interaction with their as- hap- what suggests cumstantial evidence all; at simply sailant the shooter started pened, disregard meager cannot other we shooting. No to having one testified seen causes.”). equally likely The evidence of try- bending the shooter over Gutierrez or I have not majority has identified and him; ing anything to take from and no one the anything found the record to make to take purse. tried Karol’s Karol also urge fact wallet plaintiffs the —Gutierrez’s that, testified at the when arrived during the the by was stolen shooter cinema, necklace, wearing a Gutierrez was robbery any plausible course of a more — bracelet, watch; undisputed but the including the any possibility, than other evidence establishes that all items these argues fact Trammell Crow —Gutierrez scene were found either at the or on Gu- retaliatory by in a hit his was murdered body.5 recovered the hos- tierrez’s Also at Indeed, if either inference confederates. phone, 2 pital were Gutierrez’s cell one is it is that was plausible, more Gutierrez bills, exposed an quarters, dollar five roll in a hit. A retaliato- retaliatory murdered film, stubs, key two chain movie ticket man- ry only hit consistent not with the is knife, keys, pocket ga- with four and a (without a ner of death demand opener. rage door three shots money property or head) only evidence that Gutierrez’s death in the the back and one back a robbery occurred timing (shortly context after he but also with its wallet; missing police thus his evidence gave confederates’ names to the his conflicting. at best have regarding by wallet is known his confederates to was arrested, deposition, shortly Karol testified he received In her she was been after messages phone had cell threatening not sure whether Gutierrez his wallet on his confederates, week after night By time of from his and one was shot. According the Bexar Coun- Appellees argue 6. to the records of 5. Gutierrez also robbed Center, undisputed hospital of his bracelet. tes- em- ty Forensic Science timony property employee, that, room of an SAPD body ployee reported Gutierrez's when Weaver, Anthony property room's up, clothing on the picked was left that the re- records established bracelet was only by morgue recovered an floor and later and had been stored as covered scene employee office. of the medical examiner's property in the evidence SAPD room. bag. a black trash object from to relocate to covered police he took $250 in a the SAPD being avoid his mother harmed drive- This crime was classified Nonetheless, by shooting). agree weapon.” I with “robbery-deadly majority that we should review the May 2000 at 6:53 Saturday, 4. plaintiffs’ specific evidence of store, told an p.m. suspect entered a —A January from hand employee he had heat-activated through February money. The grenade, and demanded During years preceding the two Gutier- complied, turning approx- over employee death, rez’s Market was gre- imately purported hand $750. stage aggravated for four robberies and nade was found to be “simulated” These crimes”7 can six robberies. “violent by the fake. This crime was classified be more described as follows: specifically robbery.” “aggravated SAPD as *14 29, Wednesday, 1. March 2000 at 18, at Monday, December 2000 5. store, a p.m. 6:40 woman exited —As a restau- p.m. 7:24 seated inside —While grabbed pulled man her purse. She rant, purse a woman’s was stolen. back; her, pushed he her but took purse the snatcher pursued When she off, purse, got waiting ran and into a lot, parking pushed the he her into
vehicle. When a witness tried to block away, jumped passenger into the side of vehicle, suspect with her he rammed vehicle, waiting sped away. and This car her and fled. This crime was classi- by crime was classified the SAPD as by “robbery.” fied the SAPD as “robbery-bodily injury.” Monday, 17, 2. April 2000 at 12:30 20, Monday, December 2000 at 6. cinema, man exiting a.m.—As a was p.m. suspect entered a store 7:35 —A men if big two asked he was “some shot” containing presented a bank and and followed the man into cine- back note, report- teller a handwritten which suspects began ma. The two then to hit edly robbery stated that it was a and the man, down, him knocking and or he would be teller should move reached into pocket and took his money in the killed and demanded the money, cards, necklace, credit and mili- top suspect drawer. The then handed tary by ID.8 This crime was classified large envelope the teller a manilla and “robbery-bodily injury.” the SAPD as a put the note and the told the teller Sunday, May 3. 2000 at 1:10 money top in the and bottom drawers a man from a walking a.m.—As envelope. This crime was classified vehicle, store to his in a people two by “robbery.” the SAPD as passing car first asked directions and said, die, Monday, July then that if he not want to 2001 at 9:44 did 7. give sitting them a man in his car p.m. should his wallet. When —As wallet, girlfriend, suspect tapped the man said he did not have a with his man he people gun, in the car asked him for his his window with a told the vehicle, man time to pager, telephone, keys. gave cellular and needed his car, items, belongings remove his from the relinquished While the man these car. crime was clas- suspects pointed one of the an then took the This unknown "pistol- following Appellees argue experts agreed that the are 8. the man was 7. The murder, police report rape, robbery, whipped.” makes crimes”: "violent weapon pistol-whipping. aggravated no mention of a assault. 48 were mini- “aggravated the SAPD as rob- resulted from these robberies
sified (# 5); pushed mal—two women were bery-deadly weapon.” (# 2); man knocked down one was hit and Monday, October at 11:45 8. hit by left elbow was and another man’s p.m. companion a woman her —As (# 10). mirror There were vehicle’s side lot, parking they in the walking were stores; also two mall robberies inside but standing a man in front of a noticed these plaintiffs’ expert admitted rob- parked approached The man them car. beries were not relevant issues the time. and asked for The woman this suit. In addition to these “violent time; man the gave the and the two crimes,” people coming to Mar- walking. The man then de- continued experienced “property ket crimes”: money. their As contin- manded thefts, burglaries, twenty fourteen walking, parked the driver in the ued step analysis in the auto thefts. The next pointed out of the car and stepped ear “weigh using should be the evidence all to them an gun that looked like Uzi Timberwalk, 972 the factors.” give money told the woman to him their or he kill them. The first man would grabbed purse, got then the woman’s Weighing the Evidence car, into the and fled with the other (fourteen crimes” “property With 166 This crime was man. classified *15 thefts, twenty burglaries, 132 auto “aggravated robbery-deadly as SAPD thefts) in two-year period preceding weapon.” murder, that proper- it is clear Sunday, January at 5:48 9. ty crimes Market were fore- p.m. open a woman started to her —As frequent seeable. occur- “[t]he door, of at purse car she was robbed her in vicinity rence of crimes property gunpoint. This crime classified foreseeability not as indicative of as the “aggravated robbery-dead- as the SAPD frequent personal of less occurrence ly weapon.” property itself.” crimes the landowner’s January 24, Thursday, 2002 at therefore return to analysis Id. The should a p.m. manager store 2:05 similarity recency, frequency, —-When shoplifting suspect out into the chased at personal violent crimes get the license parking suspect’s lot to Market, in mind that “the fre- keeping number, plate suspect the scene fled necessary crimes to quency previous vehicle, striking the left manager’s in his the similari- foreseeability show lessens as with the driver’s side mirror and elbow to the ty previous crimes incident at manager to fall. causing spin Id. issue increases.” crime was classified the SAPD This If I Gutierrez’s murder were to assume injury.” “robbery-bodily parking of a lot occurred in the context robbery one that only was thus There that I robbery assumption believe is —an early of a morning occurred in the hours frankly speculative —the that morning robbery oc- death Monday had years the two before Gutierrez’s years lot parking curred almost two before Gutierrez’s robber- experienced six other (# 2). remotely There were three that defi- similar. None murder ies. None was (# 7, 9)8, shooting. In- gun and one or even a nitely involved involved murder 3). (# deed, any involved gun only None of the six that have involved five the robber and shooting physical involved or a contact between these robberies Indeed, all; contact arose out of bodily injuries that victim and this death. “comparing city’s the victims’ to their Pickard that efforts recover stolen testified property. sixth—the crime most sim- crime specific crime rate to a location’s ilar that involving Gutierrez —was the comparing apples oranges;” rate is like attack on man exiting the cinema testimony and to consider Bieck’s would twenty-two Monday, months earlier on I contravene the standard of review. dis- (#2 above). April 2000 at 12:30 a.m. agree arguments. with both Both crimes occurred near the theater Pickard testified he created the early morning Monday. hours of a using police depart- Houston Index Crime But the similarities end there. The rob- ment records to determine the number of April began bers on the altercation property violent and crimes occurred verbally, asking thought the man if he he tracts, City’s assign- in each of the census shot,” “some of big kind while Gutier- crime, ing type a value to each and then nothing; simply rez’s attacker said low, tracts as below av- rating the census shooting. started in the April robbers average, high erage, average, above victim, hit knocking 17 altercation their “to informa- give average person crime him ground, while Gutierrez was tion on where live and the crime.” ground by knocked to the three shots Pickard then testified as follows: the back and one in the back of the head. Index, On the Houston ... we Crime April The robbers in the 17 altercation disregard population. And there’s a pocket reached into their victim’s and took that, jury reason for and the needs to cards, money, necklace, credit and mili- security experts know. the FBI When ID, tary while Gutierrez’s attacker at best cities, compare they compare cities to wallet, took his leaving behind his neck- per city. We all know that at lace, bracelet, watch, cell phone, one morning, neighborhood 8:00 in the our bills, quarters, dollar five an exposed roll goes you try compare to work. When *16 film, tickets, of key two movie chain with another, particular place one other knife, keys, pocket four garage and a city city, you’ve got peo- than mobile opener. door And including no Ka- one— ple running put around. When we our rol Ferman —testified that the shooter together, index we ran into the same bent any- over Gutierrez or tried to take problem, telling you experts with us thing from him. surprisingly, Not can’t or you do that can’t do this. We SAPD classified the April 17 altercation a simple. just made it real We added the robbery, while it involving classified that up number of crimes that were in the short, Gutierrez a April murder. In 17 it; census track. That was that’s all we altercation occurred twenty-two months just it up, high- did was added from the before only Gutierrez’s murder and was got est and the lowest. we Once marginally simply similar. It cannot be range, everything median either was said that violent crime of the sort that Very easy. above that or below that. in ended Gutierrez’s murder frequent was agreed Pickard on cross-exami- at the Market. This conclusion is Quar- a population nation that count of the borne out the testimony of one of ry performed Market could be and a crime experts, Trammell security Crow’s consul- Bieck, rate calculated and that rate could be com- tant William who the “vio- assessed pared City lent in to the crime rate for the of San crime rate” or risk of victimization Antonio; City simply performed of had not San Antonio plaintiffs may point testify Market. The insist we that work. At no did Pickard City consider this evidence for compare two reasons: that to the crime rate for the 50 year preceding would “sexual as
of Antonio and the Mall the assault San oranges,” as comparing apples per be “like times sault occurred Houston 0.72 any appellees argue, illegitimate that, 1,000 people,” year while “the before task, way. And unlike other this Court’s the rate of occurrence in Timberwalk’s in compiling Pickard’s the Houston Crime per tract census was 0.58 sexual assaults Index, is not to “real make the statistics 1,000 while rate was people, the statewide rather, simple” average person”; “for the lower, 1,000 only slightly per peo 0.534 so meaningful it is to make the statistics El ple”). Appeals But the Paso Court that we determine oc- “[t]he whether has considered—in the Timberwalk con significant currence of a number of expert’s testimony regard defense text —a period strengthens a short time within crime ing the rate. See Jai Jalaram particular claim that the crime at issue Leribeus, Lodging Group, v. No. L.L.C. n Timberwalk, 972 was foreseeable.” 08-04-00192-CV, 304496, at 2006 WL at 758. Whether the number of S.W.2d 4,-S.W.3d-& accompanying text n. given “significant” logi- crimes in a area is 9, 2006, pet. Paso de (Tex.App.-El Feb. cally the area’s entails consideration of nied) (considering testimony of defen What considered population. might be that the crime rate expert dant’s witness in a ten- “significant” number of robberies for the town the assault issue which unit less so apartment complex might be 1,000 per per occurred “about 3.2 In- complex with thousand units. one sons,” Houston while “the crime rate for deed, concept is virtu- “population” 1,000, national per about with the “frequent,” in the ally implicit definition of 1,000).” I average per at between 5 and 6 only which considers not the number El no reason not Paso see to follow an event the intervals at times occurs but Indeed, to me non lead. it seems Court’s which the event occurs. See WebsteR’s disregard the Timberwalk sensical to —in Collegiate DiCtionaey Ninth New testimony that undisputed expert context— Inc.1984) (Merriam Webster, (defining See quantifies the risk of victimization. “common,” “usual,” “frequent” “happen- (“A Timberwalk, duty at 756 intervals”). I con- ing at short therefore con only when of criminal exists the risk testimony does not clude Pickard’s unreason great both duct is so preclude consideration of Bieck’s testimo- foreseeable.”). able ny. does the of review. Nor standard *17 City at the Antonio’s To San arrive Timberwalk, 752, Citing 972 S.W.2d rate,” the to- crime Bieck divided “violent supreme Trammell Crow asserts that the popu- number of violent crimes tal “clearly type of evi court condoned this calcu- Using methodology, this he lation. evidence dence when considered similar ” in 2000 City’s crime rate lated the violent comparing different rates of crime.... at a To arrive to be 6.63 and 8.15 in 2001. However, page on the court’s discussion Market, Bieck Quarry for the “population” in comparing 752 the rate of sexual assault from Sun- a traffic count performed had assault at Houston with rate of sexual Saturday, June day, through 2003 in the June Apartments occurs not Timberwalk 143,869 vehi- and determined that analysis state 2003 court’s but in the court’s Quarry Market entered and exited the procedural ment of the factual and back cles Multiplying (noting during seven-day period.9 that in ground of the case. See id. pedestrian per- Quarry Market did include Due to the dates count was not 9. the traffic traffic, formed, days, or the shopping “tax relief” population Bieck's for the estimated vandalism, by fifty-two yields apart this number the number and theft from vacant entering Quarry ment); of vehicles exiting Holdings, Real Inc. v. Tex. Estate 7,481,- during one-year period: Market Quack, (Tex.App. Using industry average denied) of 2.4- 2002, pet. Houston [1st DistJ persons per yield popu- 2.5 vehicle would car in (holding jacking that violent which 18,754,- Quarry lation for the Market of plaintiff was shot was foreseeable conservatively 351.78. Bieck as- when, previous years, premises had two only sumed each vehicle contained one “stranger- experienced reports no other person. Bieck then divided the number of involving injuries initiated” violent crime (7,481,188) persons days the number of relatives, only but an assault between (365) year Quarry to arrive at the thefts, three auto and five thefts from ve 20,- average daily population: Market’s hicles); v. AHP Mut. Hous. Ramirez 496.40547. Ass’n, Inc., 14-04-00159-CV, No. 2005 WL “average daily pop- Once Bieck had this 425486, at *2 (Tex.App.-Houston [14th Market, Quarry ulation” for the per- 24, 2005, pet.) (mem.op.) Feb. no Dist.] analysis applied formed the same he had (holding stabbing incident was not foresee City of San Antonio to determine able as a matter of law because other Quarry Market’s rate of violent crime reported crimes were not “even close to during years the two preceding Gutierrez’s being as violent or as serious as the attack computations murder. These revealed Ramirez”) Quack). (citing Harris and Quarry the violent crime rate at the Market was .03 in 2000 .01 in 2001 and Conclusion 2002 for the (compared Market City’s violent crime rate of 6.63 Because Gutierrez’s murder was not 2001). words, 8.15 In other Bieck law, foreseeable as matter of Trammell testified, being while the chance of a victim duty to steps pre- Crow owed no take City of violent crime in the of San Antonio vent I Accordingly, it. would reverse the year 44,760 one, in the 2001 was judgment trial court’s and render a take- being chance of a victim of violent crime at nothing judgment. majority Because the during two-year affirms, respectfully instead I dissent. period preceding Gutierrez’s murder was 1,637,630to one.
Because violent crime of the sort that
caused Gutierrez’s murder was so infre
quent unprecedented and so in character Market, I would hold Gu
tierrez’s murder was not foreseeable as
matter compare of law. See and Walker *18 Harris, (Tex.
v. 377-78
1996) (holding that stabbing death was not premises
foreseeable when other crimes on disturbances, neighbor
were domestic or Arms-Reo, Thanksgiving holidays, Campbell, and Christmas which 10. See Dickinson L.P. v. J., (Tex.2000) (Hecht, usually account for two-thirds to three-fourths Owen, J., joined by dissenting from denial of of retail sales. review). petition for