Allied Universal Security Services v. John Edward Farley

In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-24-00374-CV ___________________________ ALLIED UNIVERSAL SECURITY SERVICES, Appellant V. JOHN EDWARD FARLEY, Appellee On Appeal from the 17th District Court Tarrant County, Texas Trial Court No. 017-337024-22 Before Sudderth, C.J.; Birdwell and Bassel, JJ. Memorandum Opinion by Justice Birdwell  MEMORANDUM OPINION I. Introduction Trinity Metro (formerly Fort Worth Transportation Authority (FWTA)) 1 contracted with Appellant Allied Universal Security Services for security services and with Herzog Transit Services, Inc. for train conductors for the Trinity Railway Express (the TRE). 2 See Tex. Transp. Code §§ 452.055(a) (providing that a regional transportation authority “may contract with any person”), 452.056(a)(3) (allowing contracts for the operation of all or a part of a public transportation system); FWTA v. Rodriguez, 547 S.W.3d 830, 834 (Tex. 2018) (stating that FWTA is a regional transportation authority under Transportation Code Section 452.001(1)). Allied provided—for the hours set by Trinity Metro in the contract—unarmed security officers for train and bus stations and the stations’ parking lots and armed off-duty police officers (referred to as transit officers) for trains, buses, and related facilities. On June 18, 2021, Appellee John Edward Farley, a Herzog conductor, was working on a TRE train. During a twenty-minute layover at T&P Station, a passenger, Gerion Handsborough, brutally assaulted Farley with a box cutter in an unprovoked 1 We use Trinity Metro and FWTA interchangeably. The TRE’s trains travel between Tarrant and Dallas Counties, but Dallas Area 2 Rapid Transit (DART) provides transit security in Dallas County. 2 attack.3 Allied’s transit officer, Fort Worth Police Officer Bobby Smith, had been on Farley’s train but had disembarked at the previous station because his shift had ended. Allied’s security officer, 4 Robert Pena, had been patrolling T&P Station’s parking lot when the assault occurred. Farley sued Allied for negligence in the provision of its contracted-for security services for failing to prevent the attack.5 Farley did not request that a premises- liability instruction be included in the jury charge, and he expressly disclaims that theory in his appellee’s brief. At the trial’s conclusion, the jury charge contained an instruction on third-party criminal acts6 and the Pattern Jury Charge instructions on 3 Photographs of Farley’s horrific wounds supported testimony that his “whole side was just ripped open from . . . pretty much his armpit to his butt.” Handsborough had also stabbed Farley multiple times in the back of his head and had left him suffering from severe emotional distress. Police apprehended Handsborough after the attack. See Handsborough v. State, No. 02-22-00300-CR, 2023 WL 8940402, at *1 (Tex. App.—Fort Worth Dec. 28, 2023, pet. ref’d) (mem. op., not designated for publication) (“Police received a description of Handsborough from Farley and put out the information on the police radio. Handsborough was eventually located and identified on a train that was heading back to the original station.”). He was charged with aggravated assault with a deadly weapon, a jury found him guilty and assessed a 20-year sentence, and this court has affirmed the conviction. Id. Transit officers are off-duty uniformed police officers; security officers are 4 unarmed personnel in Allied uniforms. Farley also sued Herzog for failing to provide a safe workplace, but he settled 5 with Herzog before trial and dismissed those claims. 6 The instruction stated, The act of a third person in committing a crime[] can be a superseding cause of harm to the Plaintiff although Defendant’s negligent conduct 3 general negligence, ordinary care, and proximate cause. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury Charges: General Negligence, Intentional Personal Torts & Workers’ Compensation PJC 2.1, 2.4 (2024). In a nonunanimous verdict, ten jurors answered the charge’s first question— “Did the negligence, if any, of those named below proximately cause the occurrence in question?”—“yes” as to Allied, and “no” as to Herzog and Handsborough. The jury found Allied 100% responsible for Farley’s injuries and awarded $3 million in damages. After accounting for Herzog’s settlement credit, interest, and costs, the trial court signed a judgment for $2,939,706.16.7 In parts of its first and second issues, Allied asks this court to render a take- nothing judgment based on Farley’s failure to plead, prove, and secure findings on a premises-liability claim and his failure to prove causation. Because Farley’s claim was in essence a premises-liability claim for which he did not prove or secure the required findings, and because the record does not otherwise support the jury’s proximate- created a situation [that] afforded an opportunity to commit such crime, unless the Defendant at the time of its negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a crime, in which case the Defendant’s negligence, if any, will not be excused where the criminal conduct is a foreseeable result of such negligence. 7 But see Tex. Transp. Code § 452.0561(b)–(c) (stating that transportation authority’s operations are essential governmental functions and not proprietary for any purpose and that such authority’s independent contractor performing one of the entity’s functions “is liable for damages only to the extent that the . . . authority would be liable if the . . . authority itself were performing the function”). 4 cause finding with legally sufficient evidence,8 we reverse the trial court’s judgment and render judgment for Allied.9 See United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 8 We may sustain a legal sufficiency challenge—that is, a no-evidence challenge—only when (1) the record bears no evidence of a vital fact, (2) the rules of law or of evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence establishes conclusively the opposite of a vital fact. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018). In determining whether legally sufficient evidence supports the challenged finding, we must consider evidence favorable to the finding if a reasonable factfinder could, and we must disregard contrary evidence unless a reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We indulge “every reasonable inference deducible from the evidence” in support of the challenged finding. Gunn, 554 S.W.3d at 658 (quoting Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017)). 9 Based on our disposition, we do not reach Allied’s remaining arguments, including whether Allied’s contract with Trinity Metro could create a tort duty to Farley. Compare Werner Enters., Inc. v. Blake, 719 S.W.3d 525, 539 (Tex. 2025) (considering proximate cause first in review of negligence award after jury trial and not reaching duty question “rendered superfluous by [the court’s] holding regarding the substantial-factor element of proximate causation”), and Tex. R. App. P. 47.1 (requiring court of appeals to “hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal”), with In re Home Depot U.S.A., Inc., 735 S.W.3d 719, 721 (Tex. 2026) (orig. proceeding) (identifying, in addressing a Rule 91a motion to dismiss, a legally cognizable duty’s existence as the “threshold inquiry in a negligence case”). However, we note that our sister courts have stated that security companies “owe no generalized duty to provide security services beyond their contract terms.” Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 910, 912 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Banzhaf v. ADT Sec. Sys. Sw., Inc., 28 S.W.3d 180, 185–86 (Tex. App.— Eastland 2000, pet. denied)). In Mayer, a parking-lot confrontation between 4 a.m. and 5 a.m. led to wrongful-death lawsuits against the property owner and its security company, among others. 278 S.W.3d at 905–06. The court concluded that the security company was not liable because its contractual parking-lot patrol hours did not cover that period. Id. at 910, 912–13. In Banzhaf, the court concluded that when a store had selected the limited security services it wanted, nothing in the contract created a duty to provide security services beyond that selection, and the security company owed no 5 467, 479–81 (Tex. 2017) (holding that the plaintiff’s claim against a contractor sounded in premises liability and that a general-negligence submission cannot support the plaintiff’s recovery in a premises-liability case). II. Background The contract’s general scope covered “the protection of customers, employees, company properties, and personal automobiles from theft, vandalism, unlawful entry, assault and harassment, as well as enforcement of FWTA policies/procedures, including the FWTA’s drug-free workplace policy” on Trinity Metro’s premises through physical and vehicle patrols, Closed-Circuit TV monitoring, emergency-call boxes, other customer assistance, and communication with the FWTA Radio Control Center. Unarmed security officers were to conduct frequent walking patrols and “monitor[] bus and train platforms, parking lots, and other public accessible areas of the facility to detect and deter loitering, trespassing, panhandling, and other incidents in violation of company policy(s).” For T&P Station, the contract listed the following for “[s]ecurity staffing hours of operation: One Person 24 hours a day, seven (7) days a week, 365 days a year. Weekly hours are 24x7 = 168 hours.” The T&P security officer was to deter and detect “vehicle burglaries and vandalism in the parking lot,” to prevent loitering and panhandling, and to provide security visibility and customer service. Among other duty to the store’s employees based on tort principles because to hold otherwise would shift responsibility for crime protection, without any contractual basis, from law-enforcement agencies to security companies. 28 S.W.3d at 186. 6 things, the contract and security operating procedures and post orders specifically required the T&P Station security officer to be visible on the platform at each train arrival, to perform a mandatory restroom patrol “every 15-minutes, to deter vandalism, loitering,” and to immediately proceed to the parking lot after a train arrived to patrol the parking lot “until clear.” The contract also required armed transit officers who were off-duty law- enforcement officers “for the purpose of onboard police presence of the FWTA’s commuter rail and fixed bus transit operation systems, in addition to vehicle patrols of its facilities, transit stations and centers, bus shelters, and other bus stops within the FWTA’s transit service area.” It allocated 111 weekly hours for commuter rail operations in which transit officers would “respond to criminal activity or disturbances, taking necessary enforcement action, and targeting areas with higher levels of activity that impact[] the safe and secure modes of operation provided.” In addition to patrolling both trains and platforms, transit officers were to “assist TRE . . . Conductor(s) in their performance of passenger ticket checks, by issuing citations to riders without valid fare, when necessary.” Transit officers rode multiple trains during their shifts because they were assigned to a block of time rather than to a particular train. Thus, at any given time, most trains had no transit officer present. Farley testified that his layover routine upon the train’s arrival at T&P Station was to mark down how many people got on and off and to walk the train “like in a figure eight” to see if anyone had left a bag or overslept and to pick up trash. He 7 would then check the train’s lights, brakes, and oil; visit the vending machine for a snack; and then return to the train and finish paperwork until it was time to leave on the next run. On the day of the attack, when the train pulled into T&P Station for its layover, Farley had a clear view of the platform but did not see any security officers. Allied’s GPS showed that Pena, its security officer that day, had been in the parking lot when Farley’s train arrived. Farley testified that there had been a lot of homeless people on the T&P Station platform, and more so when a security officer was not there. When he first saw Handsborough, he thought Handsborough looked like a homeless person 10 but did not think Handsborough was a threat or was going to attack him. He said that Handsborough had done nothing alarming on the train before the attack. Farley then described the attack at the end of the twenty-minute layover—two or three minutes before departure—when Farley had started letting passengers know that the train would not be going all the way to Dallas: I walked up to him, “Hey, sir, hey, how are you?” And I looked at him and just, “Hey, do you know” -- and he was just staring like this (indicating). And, like, he just glanced at me, and he just like stared at me with an angry look. 10 Landon Cox, Allied’s Trinity Metro account manager, and Kevin Hunt, Trinity Metro’s security director, testified that Handsborough had not appeared homeless to them based on the surveillance video that they had reviewed but that was not presented to the jury. 8  So I tried to back up. I just [said], “Hey, are you okay?” And then he -- so I started to walk by. He gets up, and he’s like -- he looks at me, and then he pulls out this -- I don’t know if it was a knife or whatever. Farley scooted back, yelled to the train’s engineer that the passenger had a knife, and turned to run, and Handsborough stabbed him. Farley then grabbed Handsborough, and they wrestled. Handsborough stabbed him and “slic[ed] him up on [his] side” 11 before Farley pushed him and escaped. Before the attack, Farley had reported passenger incidents to Herzog, but he had felt like Herzog had pushed him aside every time and never changed anything other than to tell him to continue writing incident reports. He stated that the incidents he had reported to Herzog had included assault, masturbation, urinating, and oversleeping, and he stated, “[T]here were so many, I could go all day with all the stuff that happens on the train.” Farley also testified that he had previously been threatened by passengers in a transit officer’s presence. Farley stated that each incident had to be reported “to every single group,” identifying the report recipients as Herzog, Trinity Metro, dispatch, “and two other people, too, that . . . worked for Trinity Metro or DART,” because he had to make five copies of each report. He did not know what happened after turning in his incident reports, and he did not know if they were sent to Allied. Farley’s incident reports to Herzog were not admitted into evidence, and he did not identify in his 11 Farley required two blood transfusions, 85 staples, and 20 stitches. 9 testimony which incidents had occurred on a train, at T&P Station, or at other stations in Tarrant County or Dallas County or describe any incidents involving a weapon. Officer Smith, whose shift as a transit officer on Farley’s train that day had ended before the attack, testified that he had never been physically threatened with a weapon by someone when he had been on a train with a conductor and that during his seven or eight years working as a transit officer, he had only experienced a passenger’s threatening to commit physical violence a couple of times a year. He had encountered passengers who had become violent, threatening, hostile, or disruptive in his presence and stated that it was fairly common, but he did not state when or where these incidents had happened. Like Farley, he testified that he had encountered passengers become that way with a conductor despite his presence, usually during ticket checks, and that sometimes his presence provoked a passenger to become hostile. Cox testified that Trinity Metro and Herzog tracked crime statistics and incidents but did not share those reports with Allied, and those reports were not offered into evidence. Hunt testified that a security presence is just to deter an assault but would not stop it from occurring, although he also testified that it was reasonable that an attack like the one on Farley would happen without security in place. He stated that there 10 had been six “aggressive” incidents before the attack, and his email to Cox five days after the attack indicated that those incidents had been at T&P Station in the last year: As you know, a TRE conductor was stabbed in the back of his head last Friday, 6/18, while the train was docked at the T&P Station. This horrific incident is unfortunately more of a culmination of increased incidents of aggressive behavior towards the TRE conductor, particularly while either performing required ticket checks, or sweeping the trains after docking at the end of the line (T&P). The stabbing incident marks the seventh overall “aggressive passenger” incident while the trains have been at the T&P Station, [this] year. Unfortunately for us, . . . there was a [transit officer] on board the train, and got off at [Central Station], prior to the assault. We realize the [transit officer] was getting off duty at the time, but the stabbing would have been prevented if the [transit officer] had remained on the train through its layover at T&P, then return[ed] to [Central Station]. In light of the recent trend of aggressive passenger incidents occurring . . . while the trains are docked at the T&P Station, it has become necessary to address the [transit officer] schedule to align with these said train layovers before our [transit officers] and [security officers] end their shifts. .... Again, these changes are to ensure our [transit officers] and [security officers] ride all the way to the T&P Station, assist Conductors with their security sweeps during the layovers, then return to [Central Station] to end their shifts. Also, our [transit officers] and [security officers] must be reminded that it is mandatory they WALK with the Conductors, while performing ticket checks from station to station, and as the Conductors are making final sweeps of the trains while docked at the T&P Station during layovers. This is not optional. Personnel will be disciplined if it is reported they are not performing these mandatory functions. The purpose is to prevent the aggressive behavior encountered. Please get this out to . . . our personnel, to ensure they are aware of the time changes, effective this Friday 6/25, and that they are also aware of their duties while on the trains. Let me know if you [g]uys have any questions regarding the new time changes. 11  Cox defined “aggressive” as “[y]elling, threatening, spitting,” and Hunt defined it to include those acts “up to and including physical aggression,” but neither testified which of the six prior incidents included which of these acts. Cox testified that before the attack on Farley, Trinity Metro and Herzog had never indicated a concern to Allied about conductor harassment, and both Hunt and Cox testified that before the assault, the increase in security over the preceding six months had been about homeless people’s activities in the T&P Station’s restrooms. 12 Hunt testified that the six incidents had been reported to him by Herzog and that they “stemmed from . . . aggressive behavior during ticket checks.” Hunt stated, “People would refuse to present their tickets when checked by a conductor. That would be a form of aggression, deliberate refusal or yelling, or cursing, up to and including physical assaults.” However, he was not sure how many of the six had involved physical assaults. Before Handsborough’s attack on Farley, Herzog had not indicated to Hunt that it believed Trinity Metro’s security was inadequate, and Herzog’s training and safety manager’s incident report about the attack, which was sent to DART, listed as preventive measures “[a]dded [s]ecurity” and “[c]ameras on trains/platform.” The record contains no such evidence of prior reports or notice to Allied about attacks like the one experienced by Farley, either at T&P Station or at any other TRE station. 12 No one testified that the homeless were violent. 12  Pena, the security officer on duty on the day of the attack, testified that before Handsborough’s attack on Farley, he had never had any problems involving anyone physically assaulting another person, he had never had to report anything that posed a safety threat to anyone at T&P Station, and he had never had to intervene in any activity taking place on the platform. An email sent by an Allied account manager about a closed-fist assault on a security officer at T&P Station on March 26, 2020, at around 1:05 p.m., by a suspect accompanied by a grey-and-white Pit Bull puppy, was admitted into evidence but not addressed by witness testimony. After the attack on Farley, Hunt and Cox worked together to modify the security coverage at T&P Station. Farley’s security expert, George Anderson, opined that Allied had failed to meet its contractual duties to effectively operate Trinity Metro’s security program based on everything he had reviewed for the case, the evidence he had heard, and other materials that were part of his analysis.13 But although he testified that a transit officer’s presence could have deterred the attack, he based his opinion that Handsborough’s attack was foreseeable on “the lack of other incidents that [were] 13 Farley’s counsel had provided to Anderson a one-page summary of the individuals involved, Farley’s pleadings, copies of the attack’s police and incident reports, all of the deposition testimony, and a list of incidents that had occurred at T&P Station over the two years before the attack. After Anderson testified, Farley’s counsel offered Herzog’s incident reports, and Allied objected. The trial court sustained the objection, and Farley has not cross-appealed to complain that Herzog’s incident reports should have been admitted. Farley did not offer the list of incidents that had occurred at T&P Station during the two years before the attack. 13 reported about attacks on conductors.” He stated, “[K]nowing that the security program specifically calls for transit officers to accompany conductors on ticket checks, it would appear that if most of the time the transit officers are accompanying the conductors, then the deterrence is working because we don’t have very many of these types of incidents.” And he concluded, “[T]he one case that we have that we looked at today in this trial where there wasn’t a transit officer present, an assault occurred, so I think it’s a critical thing that the transit officer was not present in this case.” Anderson admitted during cross-examination that crimes could happen “even with adequate security,” that Handsborough was responsible for Farley’s injuries, that there was no evidence to suggest that Herzog or Trinity Metro had shared any information with Allied about prior criminal incidents, that Trinity Metro decided how many security officers should be allocated to a particular post and had set their schedule, that nothing in the contract had required Allied to keep statistics on crime incidents in the area, and that before the attack on Farley, there was no evidence that a conductor had been injured. He agreed that he would be speculating to opine that Pena would have recognized Handsborough as a threat or that Handsborough would have been deterred by a security officer on the platform or a transit officer on the train. And he responded, “I am not,” when asked, “[Y]ou’re not telling this jury . . . that just because somebody is homeless that they are violent.” He agreed that homeless people more often were victims of violence. 14  Allied hired Bruce Jacobs, a criminology professor, to review the file, documents, and evidence and to render a professional opinion as to whether Allied had acted reasonably given its contractual responsibilities.14 He agreed with Anderson’s concession that a security presence does not guarantee that crime will not happen. He testified that some populations, in particular, would react counterintuitively to a security presence because of defiance or imprudence. By “defiance,” he meant “offenders who know the police [are] there, know security is there, and they hate them. They want to make a personal or political statement. They can’t stand the police. They’re going to offend right in front of them, maybe even attack them.” By “imprudence,” he meant offenders “who either don’t think about police or security as they’re offending, or they think about it and just don’t care” because they are drunk, high, angry, desperate, emotional, irrational, or in some sort of retaliatory mode. Jacobs opined that Handsborough’s sudden, unexpected attack—during a courtesy announcement and not a ticket check, for which no transit officer was required per the contract—was given without any prior indication that he was a danger or threat of imminent harm to anyone. Jacobs testified that Handsborough’s attack was “a clear example of either defiance or imprudence” that would not be deterred because everything Handsborough had done showed a “clear lack of 14 Both experts defined “criminology” to include the study of “the causation of crime” and crime prevention. 15 deterrability[:] eye[-]witnesses, cameras, broad daylight, . . . [and the] certainty of detection and identification.” Documents from Handsborough’s criminal trial showed his history of violent crimes. 15 III. Discussion Allied argues that the contract did not create a tort duty to Farley, that Farley failed to prove or secure any findings to support a premises-liability claim—or any other basis on which Allied may have owed him a duty to prevent third-party crimes—and that he failed to prove causation. Farley responds that he pleaded no theories other than general negligence and that because the Trinity Metro–Allied contract “expressly required Allied to protect employees such as Farley,” because his expert detailed Allied’s failures to comply with the contract and the applicable standards of care, and because the assault was not only foreseeable “but actually foreseen by Allied,” the jury correctly imposed general- negligence liability. The trial court admitted portions of Handsborough’s file from the 15 aggravated-assault charge that arose from the attack, including the judgment of conviction. The indictment included a repeat-offender notice alleging that Handsborough had been convicted in 2016 of robbery causing bodily injury; the jury found that allegation true. The State’s extraneous-offense notice listed that Handsborough had been placed on deferred-adjudication community supervision in October 2010 for an assault-by-contact offense. 16 A. Farley’s claim sounds in premises liability, the elements of which he failed to prove and for which he failed to secure findings. The supreme court has recently re-examined negligent activity and premises liability—“two []separate and distinct theories of recovery, requiring plaintiffs to prove different, albeit similar, elements to secure judgment in their favor”—and has declined to revisit its prior holdings that “the failure to make a hazardous condition safer sounds in premises liability, not negligent activity.” JMI Contractors, LLC v. Medellin, 738 S.W.3d 775, 780, 788 (Tex. 2026). Whether an injury implicates one theory or the other is a question of law. Id. at 785. The core distinction between the theories is malfeasance versus nonfeasance. Id. Negligent-activity claims are ground in malfeasance—a property owner’s affirmative, contemporaneous conduct causes the plaintiff’s injury. Id. at 785–86. Premises-liability claims are grounded in nonfeasance—a property owner’s failure to take measures to make the property safe causes the plaintiff’s injury. Id. at 786. And when an injury results from a confluence of factors involving human activity and the condition of the premises, we decide which controls by analyzing the essence or gravamen of the particular claim against a particular defendant. Id. Further, the court has “repeatedly treated cases involving claims of inadequate security as premises-liability cases.” Id. at 782 (quoting Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 775–76 (Tex. 2010) (citing Timberwalk Apts., Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998))); see Williams v. Hurricane Harbor, LP, No. 02-25-00160- 17 CV, 2026 WL 1449846, at *7 (Tex. App.—Fort Worth May 21, 2026, no pet.) (citing Timberwalk for the proposition that a complaint that a landowner failed to provide adequate security against criminal conduct is ordinarily a premises-liability claim); Stainbrook v. Tex. Christian Univ., No. 02-13-00433-CV, 2014 WL 5798273, at *3 (Tex. App.—Fort Worth Nov. 6, 2014, pet. denied) (analyzing complaint against university of inadequate security to protect appellant from third parties’ attack at tailgating event as a premises-liability case); 59 Tex. Jur. 3d Premises Liability §§ 88–89 (3d ed. 2026) (discussing premises owner’s duty of care regarding security of restaurants, hotels, shopping centers, shops, and places of public amusement); see also 41 Tex. Jur. 3d Garages, Service Stations, Etc. § 5 (3d ed. 2026) (discussing premises owner’s duty of care regarding security of parking lots or parking garages). This is because “[t]he duty to protect against the criminal acts of a third person will generally not be imposed unless the defendant has specific control over the security of the premises where the criminal act takes place.” 53 Tex. Jur. 3d Negligence § 58 (3d ed. 2026). Further, an exception to the general rule that a person has no legal duty to protect another from the criminal acts of a third person exists regarding an owner who “retains control over the security and safety of the premises; one who controls premises has 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 18 risk of harm to the invitee.[16]” Id.; see Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 196, 199 (Tex. 1995) (stating, when condo resident was attacked and kidnapped from parking garage and then sued for negligence in failing to provide adequate security, that “[b]efore we will impose the duty to protect against the criminal acts of third parties, we must find that the defendant had specific control over the security of the premises where the criminal act took place”). The burden to secure proper findings to support a theory of recovery is on the plaintiff, and a plaintiff who fails to satisfy that burden waives that claim. United Scaffolding, Inc., 537 S.W.3d at 481 (citing Tex. R. Civ. P. 279). While a plaintiff generally need only submit a general-negligence question to support its claim for a defendant’s liability under a negligent-activity theory, for a premises-liability defendant to be liable for a plaintiff’s injury, the plaintiff must prove (1) that the defendant had actual or constructive knowledge of some condition on the premises; (2) that the condition posed an unreasonable risk of harm to the plaintiff; (3) that the defendant did not exercise reasonable care to reduce or to eliminate the risk; and (4) that the defendant’s failure to use such care proximately caused the plaintiff’s personal injuries. Id. at 471. A premises-defect case improperly submitted to the jury under only a 16 The duty a defendant owes in a premises-liability case depends on the plaintiff’s status at the time of the incident. See United Scaffolding, Inc., 537 S.W.3d at 474. We will assume here that Farley was Trinity Metro’s invitee—one who enters the property of another with the owner’s knowledge and for their mutual benefit. See id. 19 general-negligence question, without the elements of premises liability as instructions or definitions, will cause the rendition of an improper judgment. Id. at 469–70. Our sister courts have applied the premises-liability theory to analyze the foreseeability of passenger attacks. See Garren v. Cunningham, No. 05-16-00455-CV, 2017 WL 1360229, at *7 (Tex. App.—Dallas Apr. 13, 2017, no pet.); Gibbs v. ShuttleKing, Inc., 162 S.W.3d 603, 606, 609–14 (Tex. App.—El Paso 2005, pet. denied). In Garren, a passenger (Morris) attacked the bus driver, causing the bus to crash. 2017 WL 1360229, at *1. When other passengers sued the bus line for damages, the court applied the Timberwalk premises-liability factors of proximity, recency, frequency, similarity, and publicity to determine “whether Morris’s criminal assault on [the bus driver] should have been foreseeable based on other incidents” before concluding that the attack had been unforeseeable. Id. at *1, *7–8. 17 17 The evidence showed that Greyhound had been aware of more than two attacks on a Greyhound bus driver by a passenger but that the only specific incidents in the record were temporally remote from the 2014 attack involving Morris: one had involved a suspected terrorist in 2001 and the other had been a 2002 attack with no evidence to establish any similarity to the incident at issue. Garren, 2017 WL 1360229, at *7. The evidence also showed that Morris had been paranoid, had cried, had talked about someone trying to kill him, had argued with his girlfriend, and had acted “in a manner characterized as strange, distracting, bizarre, nervous, and out of the ordinary,” but that no one had perceived him as exhibiting behavior that posed an imminent threat to any other passenger’s (or the driver’s) physical safety when he did not exhibit hostile behavior until, suddenly and without warning, he charged to the front of the bus and broke through the barrier separating the bus driver from the passengers. Id. at *8. The court concluded that Morris’s behavior was “not of a nature that should reasonably have caused [the bus driver] to anticipate or foresee that Morris posed a threat of attacking [him], taking control of the steering wheel, and crashing the bus.” Id. 20  In Gibbs, the driver sued his employer for negligence based on failing to provide a reasonably safe workplace when hijackers entered the casino bus with weapons. 162 S.W.3d at 606–07. He argued that ShuttleKing, the bus owner, had the ability and responsibility to control the third parties responsible for his injuries, and he relied on two criminal incidents—one in Las Vegas and one in New Jersey—and management’s having discussed the risk associated with accepting cash for ticket sales and late-night roadside checks in desolate areas. Id. at 611–12. ShuttleKing, in contrast, offered evidence that it operated buses in 29 states and had operated the Dallas–Bossier City run more than 1,400 times in the previous 22 months without a comparable incident. Id. at 612. The court concluded that under Timberwalk, the driver had failed to provide evidence to show that the actual incidents were similar to the crime perpetrated against him or that they were sufficiently publicized. Id. The court also noted, “While a bus may not fit neatly within the definition of a ‘premises,’ a bus utilized by a transportation company is sufficiently similar to a ‘premises’ to fall under the purview of the Timberwalk factors,” particularly where the bus was the plaintiff’s workplace—a definite area and locality. Id. at 613. Further, because the driver had been injured as a result of the hijackers’ conduct—it was a hijacker who had shot him—the circumstances were more akin to a premises-liability claim than to a negligent-activity claim. Id. at 614; see AAA Cooper Transp. v. Davis, No. 05-18-00541-CV, 2019 WL 3928754, at *4 (Tex. App.—Dallas Aug. 20, 2019, no pet.) (stating that Gibbs concerned “whether mobile property can be considered a premises 21 in and of itself because it is functioning as such”); see also Hausman Packing Co. v. Badwey, 147 S.W.2d 856, 858 (Tex. App.—San Antonio 1941, writ ref’d) (applying premises-liability law to a truck used as a business premises, stating “when the truck was stopped in the alley near appellee’s place of business and the brakes applied, it became for the time being a house” and noting that “[t]he fact that it was resting on wheels or might very easily be set in motion does not change the fact that while appellee was in the truck and trying to alight therefrom it was in every respect similar to a house”). We have closely reviewed the extensive record in this case—including the contract and related documents, the other admitted exhibits, and all of the testimony—and conclude that Farley alleged an inadequate-security claim, which sounds in premises liability, despite the general-negligence jury charge he requested. See United Scaffolding, Inc., 537 S.W.3d at 469 (stating that in reviewing alleged error in a jury submission, the court must consider the parties’ pleadings, the nature of the case, the evidence presented at trial, and the charge). In his pleadings, Farley alleged that Allied was responsible for patrolling the platform area “ma