Trammell Crow Central Texas, Ltd. v. Gutierrez

267 S.W.3d 9, 51 Tex. Sup. Ct. J. 1355, 2008 Tex. LEXIS 767, 2008 WL 3991185
CourtTexas Supreme Court
DecidedAugust 29, 2008
Docket07-0091
StatusPublished
Cited by68 cases

This text of 267 S.W.3d 9 (Trammell Crow Central Texas, Ltd. v. Gutierrez) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Trammell Crow Central Texas, Ltd. v. Gutierrez, 267 S.W.3d 9, 51 Tex. Sup. Ct. J. 1355, 2008 Tex. LEXIS 767, 2008 WL 3991185 (Tex. 2008).

Opinions

Justice WILLETT

of the Court,

in which Justice O’NEILL, Justice WAINWRIGHT, Justice MEDINA, and Justice GREEN joined.

Ten years ago, we noted that “crime may be visited upon virtually anyone at any time or place,”1 and unfortunately, the same is true today. Given the pervasive and often random nature of crime in our society, we have avoided imposing a universal duty on landowners to protect persons or their property from third-party criminal acts.2 However, we have also recognized that, in some circumstances, the [11]*11risk of a crime may be sufficiently unreasonable and foreseeable to justify imposing a duty on landowners to protect invitees while they are on the landowner’s property.3 The parties dispute whether the facts of this case give rise to the exception to the no-duty rule. We conclude they do not; accordingly, we reverse the court of appeals and render judgment in favor of Trammell Crow Central Texas, Ltd. (Trammell Crow).

I. Background

Around 11 o’clock on the night of February 17, 2002, Patrick Robertson, an off-duty policeman, began his shift as a security guard at the Quarry Market, a 53-acre mall in San Antonio. Following standard procedure, Robertson patrolled the parking lots in an unmarked car while dressed in his police uniform. Shortly after midnight, while driving slowly past the front of the movie theater, he noticed two people he thought were dressed in black hats and jackets standing by the payphones located just to the side of the theater entrance. He made eye contact with them, and they acknowledged his presence. He continued his patrol, heading away from the theater as patrons began exiting the building.

Among those patrons were Luis Gutierrez and his wife Karol Ferman, who had just finished watching a movie and were heading towards their car. Shortly after exiting the building, Karol heard a gunshot. She turned in the direction of the sound and saw a person dressed in black and wearing a ski mask pointing a gun towards her and Luis. The assailant fired again, hitting Luis in the shoulder and causing him to fall to the ground. Luis got back up, and the couple began running. Karol was only able to run a short distance before she fell face-first to the ground and crawled under a nearby car for protection. Although Karol did not hear any more shots, Luis suffered four gunshot wounds: one in the shoulder, two in the back, and one in the back of the head.

Robertson, who was only a few hundred feet away from the theater when the shots were fired, drove to where Luis lay wounded, secured the crime scene, and notified the police dispatcher of the incident. Meanwhile, security personnel in a different part of the mall saw someone run through a breezeway and get into a green jeep. The security officers chased the jeep onto a nearby road but discontinued the chase when the jeep’s occupants fired shots at their vehicle.

Luis was taken to the hospital, where he died of his wounds. Police classified the crime as a homicide and began an investigation, but criminal charges were never filed. Luis’s mother Maria and Karol, acting for themselves and for Luis’s children, filed a civil suit against Trammell Crow, the property manager of the Quarry Market. Maria and Karol alleged that Tram-mell Crow negligently failed to provide adequate security at the mall. During the trial, the parties developed competing theories to give context to the otherwise seemingly random attack.

Maria and Karol portrayed the attack as a botched robbery. Karol testified that she saw Luis grab his wallet before they left home for the theater. Although the police recovered other valuables at the crime scene — a watch, a cell phone, keys, some cash, and a broken bracelet — the wallet was never found. Plaintiffs’ expert criminologist testified that the absence of Luis’s wallet indicated that a robbery had occurred and that attackers intent on murdering a victim would not likely have taken [12]*12the time to loot the body before fleeing the scene.

Trammell Crow countered that Luis was killed in retaliation for providing the police with information regarding a series of burglaries in which he was involved. A few weeks before Luis’s death, police officers arrested Luis after finding a stolen watch in his home. Faced with possible charges of possession of stolen property and burglary, Luis provided information about the burglaries and those who committed them. A few weeks later, Luis asked the police for money to relocate after he received threatening messages from those involved in the burglary ring. The officer told Luis that additional protection might be available, but Luis said that he could get himself out of trouble. So the officer gave Luis $250; Luis was killed one week later.

At the close of trial, the jury returned a verdict in favor of Maria, Karol, and the children, and the trial court signed a judgment conforming to the verdict, awarding the plaintiffs over $5 million in damages. Sitting en banc, the court of appeals affirmed in a sharply divided opinion, holding that Trammell Crow owed a duty to Luis as a matter of law and that the evidence was sufficient to support the jury’s finding that Trammell Crow breached its duty in a way that proximately caused Luis’s death.4 Trammell Crow contends that the court of appeals erred on both points, arguing that no duty exists because Luis’s death was unforeseeable and that any failure on Trammell Crow’s part did not proximately cause Luis’s death. We begin with the duty question.

II. Discussion

The existence of a duty is a question of law determined by the court.5 Generally, a person does not have a duty to protect others from third-party criminal acts.6 However, “[o]ne who controls the premises does have a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee.”7 Foreseeability is established through evidence of “‘specific previous crimes on or near the premises.’ ”8

The evidence establishes that Trammell Crow exercised control over security at the Quarry Market. Current and former Trammell Crow property managers testified that they controlled key aspects of security, including the number of guards on premises and the equipment available to them. Trammell Crow hired off-duty police officers to provide security for the Quarry Market common areas at all times. It also hired a security agency to provide additional security for specific projects. At peak times, three to four security guards patrolled the mall. While working at the mall, the security guards wore their official police uniforms and carried their standard police equipment. The security guards had the discretion to patrol the mall on foot, on bikes, or in unmarked cars, but generally preferred patrolling on bikes, which allowed them to be highly visible, fully mobile during high-traffic periods, and more aware of their surroundings. However, at night, the guards generally preferred to use unmarked cars so they could cover ground more quickly and [13]*13avoid attracting the attention of potential criminals, thus making it easier to catch criminals in the act of their crimes.

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Bluebook (online)
267 S.W.3d 9, 51 Tex. Sup. Ct. J. 1355, 2008 Tex. LEXIS 767, 2008 WL 3991185, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trammell-crow-central-texas-ltd-v-gutierrez-tex-2008.