Trammell Crow Central Texas, Ltd. v. Gutierrez

EN BANC OPINION

Opinion by

The Quarry Market is a 53-acre shopping mall located in San Antonio, which in 2002 was managed by Trammell Crow Central Texas, Ltd. On February 18, 2002 at approximately 12:30 a.m., Luis Gutierrez and his pregnant wife, Karol Ferman, were leaving a movie theater located in the Quarry Market, when Karol heard a gunshot. Turning toward the sound, Karol saw the shooter, dressed in black with a black hood or ski mask over his or her face. Although she did not believe the first shot hit anyone, she thought a second shot hit her husband in the shoulder. Gutierrez fell to the ground, then got up, and the couple started running towards the south end of the Quarry Market. Then Karol fell to the ground and, no longer able to move, crawled under a car, where she remained until the ambulance arrived. There were no other witnesses to the shooting. Gutierrez later died at the hospital from four gunshot wounds, and the San Antonio Police Department classified his death as a murder. One month after Gutierrez’s death, Karol gave birth to a son, four months premature.

On March 28, 2002, Maria Gutierrez (Gutierrez’s mother) and Karol Ferman, individually and on behalf of her infant son, filed the underlying lawsuit alleging Gutierrez’s death was proximately caused by Trammell Crow’s negligent failure to provide adequate security. The petition was later amended to add claims by Maria Gutierrez on behalf of Gutierrez’s three minor children from a previous relationship. Finding Trammell Crow negligent, the jury returned a verdict in favor of the plaintiffs and Trammell Crow appeals. On appeal, Trammell Crow asserts it owed no duty to Gutierrez because his murder was not foreseeable and, even if foreseeable, the plaintiffs failed to show that any negligence on Trammell Crow’s part proximately caused Gutierrez’s murder. We affirm.

DUTY

In its first issue, Trammell Crow asserts that as a matter of law it owed no duty to Gutierrez. “The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question.” Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). As a general rule, “a person has no legal duty to protect another from the criminal acts of a third person.” Id,.; Timberwalk Apts., Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998). However, an exception to the general rule exists in that 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 risk of harm to the invitee.” Timberwalk, 972 S.W.2d at 756 (citation omitted). “[W]e consider not only the foreseeability of the *36general criminal act but also the foreseeability that the victim might be injured by the act. Stated more broadly, we determine both the foreseeability of the general danger and the foreseeability that a particular plaintiff — or one similarly situated— would be harmed by that danger.” Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 655 (Tex.1999).

A. Foreseeability Of General Danger

With regard to foreseeability of the general danger, the Timberwalk Court held as follows:

“Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable.” When the “general danger” is the risk of injury from criminal activity, the evidence must reveal “specific previous crimes on or near the premises” in order to establish foreseeability.

The foreseeability of an unreasonable risk of criminal conduct is a prerequisite to imposing a duty of care on a person who owns or controls premises to protect others on the property from the risk. Once this prerequisite is met, the parameters of the duty must still be determined. “Foreseeability is the beginning, not the end, of the analysis in determining the extent of the duty to protect against criminal acts of third parties.”

Id. at 756 (footnotes omitted).

We do not determine whether a risk of criminal conduct is foreseeable in hindsight; instead, we do so “in light of what the premises owner knew or should have known before the criminal act occurred.” Id. at 757. Evidence of specific previous crimes on or near the premises is relevant to the issue of foreseeability of criminal activity. Thus, we consider the following factors: whether any criminal conduct previously occurred on or near the property, how recently it occurred, how often it occurred, how similar the conduct was to the conduct on the property, and what publicity was given the occurrences to indicate that the landowner knew or should have known about them. Id.

1. Proximity and publicity

We examine publicity surrounding prior crimes to “determine whether a landowner knew or should have known of a foreseeable danger.” Id. at 758. Also, “[f]or a risk to be foreseeable, there must also be evidence of criminal activity within the specific area at issue, either on the landowner’s property or closely nearby.” Id. Here, it is undisputed that Trammell Crow knew about the crimes reported at the Quarry Market premises. Accordingly, our foreseeability analysis presumes knowledge and proximity, and turns on the recency, frequency, and similarity of the reported crimes occurring at the Quarry Market.

2. Recency, frequency, and similarity

“The occurrence of a significant number of crimes within a short time period strengthens the claim that the particular crime at issue was foreseeable.” Id. “On the other hand, the complete absence of previous crimes, or the occurrence of a few crimes over an extended time period, negates the foreseeability element.” Id. As to the similarity factor, the Timberwalk Court cautioned against any requirement that “the exact sequence of events that produced the harm” be foreseeable, or that the prior crimes be identical. See id. at 756, 758. Timberwalk calls for an examination of whether the previous crimes are “sufficiently similar” to the crime in question. Id. at 758.

Police incident reports admitted into evidence and relied upon by both parties indicate that during the two years preced*37ing Gutierrez’s death on February 18, 2002, the Quarry Market was the stage for the following violent crimes:1

1. Thursday, January 24, 2002 at 2:05 p.m. — When a store manager chased a shoplifting suspect out into the parking lot to get the suspect’s license plate number, the suspect got into a vehicle and steered his vehicle towards the manager, striking the manager’s left elbow with the driver’s side mirror and causing the manager to spin and fall. This crime was classified by the SAPD as “robbery-bodily injury.”

2. Sunday, January 13, 2002 at 5:48 p.m. — As a woman started to open her car door, a suspect placed an arm around her, placed a gun to her chest, and told her to give him her purse. The suspect fled in a vehicle. This crime was classified by the SAPD as “aggravated robbery-deadly weapon.”

3. Monday, October 22, 2001 at 11:45 p.m. — As a woman and her companion were walking in the parking lot, they noticed a man standing in front of a parked car, inside of which another individual sat in the driver’s seat. The man approached the couple and asked for the time. The woman gave the man the time; and the two continued walking away. The man then demanded their money. As they continued walking, the driver in the parked car stepped out of the car and pointed a gun at them that looked like an Uzi and told the woman “get on the floor and give me all your money or I’m oging [sic] to kill you!!!” Fearing for their lives, the couple was going to comply. The first man then grabbed the woman’s purse, and told the couple not to turn around and look at him. He got into the car, and fled with the other man. This crime was classified by the SAPD as “aggravated robbery-deadly weapon.”

4. Monday, July 9, 2001 at 9:44 p.m. — As a man was sitting in his car with his girlfriend, a suspect tapped on his window with a gun, told the man he needed his vehicle, gave the man time to remove his belongings from the car, and then took the car. This crime was classified by the SAPD as “aggravated robbery-deadly weapon.”

5. Wednesday, December 20, 2000 at 7:35 p.m. — A suspect entered a bank located inside a Quarry Market store and presented the teller a handwritten note. The note stated that it was a robbery and the teller should not move or he would be killed and demanded the money in the top drawer. The suspect then handed the teller a large manilla envelope and told the teller to put the note and the money in the top and bottom drawers in the envelope. As the suspect left, he told the teller there were three others in the store with him. This crime was classified by the SAPD as “robbery.”

6. Monday, December 18, 2000 at 7:24 p.m. — While seated inside a restaurant, a woman’s purse was stolen. When she pursued the purse snatcher into the parking lot, he pushed her away, jumped into the passenger side of a waiting vehicle, and sped away. This crime was classified by the SAPD as “robbery-bodily injury.”

*387. Saturday, May 20, 2000 at 6:53 p.m. — A suspect entered a store, told an employee he had a heat-activated hand grenade, and demanded money. The employee complied, turning over approximately $750. The purported hand grenade was found to be simulated. When the suspect fled on foot to his vehicle, two off-duty officers working security attempted, on their bicycles, to pursue the vehicle as it left the parking space but they were unable to get close enough to get the license plate number. This crime was classified by the SAPD as “aggravated robbery.”

8. Sunday, May 7, 2000 at 1:10 a.m. — As a man was walking from a store to his vehicle, two people in a passing car first asked for directions and then said, that if he did not want to die, he should give them his wallet. When the man said he did not have a wallet, the people in the car asked him for his pager, cellular telephone, and keys. While the man relinquished these items, one of the suspects pointed an unknown object covered by a black trash bag. This crime was classified by the SAPD as “robbery-deadly weapon.”

9. Monday, April 17, 2000 at 12:30 a.m. — As a man was exiting the movie theater, two men asked if he was “some big shot” and followed the man back into the theater. The two suspects then began to hit the man, knocking him down, and reached into his pocket and took his money, credit cards, necklace, and military ID. The complainant said someone told the suspects to leave him alone, and they fled in a vehicle with a third suspect. The complainant also said the suspects dropped a cellular phone as they were assaulting him. This crime was classified by the SAPD as a “robbery-bodily injury.”

10.Wednesday, March 29, 2000 at 6:40 p.m. — As a woman exited a store, a man grabbed her purse. She pulled back; but he pushed her, over-powered her and took her purse, ran off, and got into a waiting vehicle. When a witness tried to block the suspect with her vehicle, he rammed her car and fled. This crime was classified by the SAPD as “robbery.”

Here, there is no doubt the prior crimes are “sufficiently similar” to the crime against Gutierrez. Each of these violent crimes involved injury to a person or the threat of injury and occurred within two years of Gutierrez’s murder. Most involved the use of a deadly weapon. Nevertheless, the dissent argues that none of these crimes are remotely similar to Gutierrez’s murder because none of the prior crimes involved a shooting or a murder. However, the Timberwalk Court recognized that “[a]n apartment intruder initially intent upon stealing may decide to assault a tenant discovered inside, even if the tenant avoids confrontation.” Id. So too, an armed individual intent upon stealing may decide to discharge his weapon in a manner that leads to the injury or death of the victim. “A string of assaults and robberies in an apartment complex make the risk of other violent crimes, like murder and rape, foreseeable.” Id. (emphasis added). Similarly, a string of assaults and robberies in a shopping mall and its large parking lot make the risk of other violent crimes, like murder, foreseeable. We conclude that a string of similar violent crimes occurring on the property over a two-year period establishes that the general danger of a person being murdered at the Quarry Market was foreseeable.

B. Foreseeability That Gutierrez Would Be Murdered

The next inquiry is whether it was foreseeable that Gutierrez, or a person similar*39ly situated, could be murdered on the premises. Mellon Mortgage, 5 S.W.3d at 656-57 (holding that although rape in parking garage was foreseeable, it was not foreseeable that the plaintiff would be stopped, several blocks away from the garage, by a third party over whom defendant had no control, and taken to the garage where she was raped).

Trammell Crow asserts Gutierrez died as a result of a targeted “hit” and it could not foresee a “reprisal killing.” Trammell Crow characterizes Gutierrez as being concerned about “the criminals he ‘ratted on’ ”. Relying on this characterization, the manner in which Gutierrez was shot, and the fact that his wallet was never recovered by the police, Trammell Crow concludes Gutierrez was targeted for murder and not robbed; something that could not have been reasonably foreseen.

The record reveals that a few weeks prior to his murder, Gutierrez provided San Antonio police officers with the names of individuals involved in a string of smash and grab burglaries. After his meeting with the police, Gutierrez received a threatening call on his cellular telephone. Gutierrez allowed the police officers to listen to the message, but according to one of the officers who testified, Gutierrez “wasn’t that worried.” When asked if the police could do anything else for him, Gutierrez responded, “No, all I want is the money — I don’t need anything else — so I can get myself out of this.” The police paid him $250 to assist in relocating his mother. About one week after his final conversation with the police, Gutierrez was murdered. After his murder, the burglary investigators gave the names of the individuals whom Gutierrez “ratted on” to the homicide detectives. Although the homicide detectives investigated these individuals, the police were unable to tie them to Gutierrez’s murder. Despite a full investigation, no one has been arrested or convicted for the murder.

Gutierrez’s wife testified that earlier in the day of the murder, he and his mother went to the cemetery to visit his father’s grave site. Later that evening, the couple decided to go to a late movie at the Quarry Market. Karol said she did not notice her husband as being nervous, concerned, or scared. She said he was wearing a necklace, bracelet, watch, and ring. Karol stated in an earlier deposition that she did not know if her husband had his wallet at the movie theater, but on the witness stand at trial she testified her husband usually carried his wallet with him and she remembered him putting his wallet into his back pants pocket before they left for the movie. She said he usually kept his money and driver’s license in his wallet. At the theater, Gutierrez paid for the tickets and purchased snacks and drinks. As they were leaving the movie theater, Gutierrez was shot and killed. A subsequent autopsy revealed he had been shot once in the back, twice in the back of his right shoulder, and once in the back of the head. The medical examiner’s inventory of items taken from Gutierrez lists his necklace and watch, his cellular telephone, the movie tickets, small change, rolls of film, a key chain and keys, a pocket knife, and an automatic door opener. Although not on the list, Gutierrez’s bracelet was later recovered. His wallet was not on the list, and neither the wallet nor its contents were ever recovered. Gutierrez’s clothes were placed on the floor of the hospital morgue and later retrieved by the medical examiner’s office and placed on a tray in the cooler to be examined by the medical examiner. The hospital’s inventory of items also did not list the wallet.

Although the only evidence that Gutierrez had his wallet when the couple went to the Quarry Market came from *40Karol’s trial testimony, which varied from her deposition testimony, it was the jury’s, and not this court’s, province to determine her credibility on the witness stand. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.2005). As a reviewing court, we must assume the jurors decided the question of Karol’s credibility in favor of the verdict “if reasonable human beings could do so.” Id. We conclude it would not be unreasonable for a jury to determine that Gutierrez had his wallet with him when the couple went to the movie.

It is also the province of the jury to draw from the evidence “whatever inferences they wish, so long as more than one is possible and the jury must not simply guess.” Id. at 821. It is true there is no direct evidence that Gutierrez’s wallet was taken in the course of a robbery that ended with his murder. However, we conclude a reasonable jury could have inferred that Gutierrez’s wallet was stolen by the perpetrators and he died as the result of a robbery, as opposed to a retaliatory “hit” as argued by Trammell Crow. Karol testified he placed his wallet in his pants pocket before they went to the theater. The morgue inventory lists everything taken from Gutierrez’s body (his necklace and watch) and his pockets (his cellular telephone, the movie tickets, small change, rolls of film, a key chain and keys, a pocket knife, and an automatic door opener). The wallet in which he kept his money is not listed and was never recovered. A reasonable inference is that the wallet was not in his pants pocket when his clothing was inventoried because it was stolen during the robbery/murder. “[CJourts reviewing all the evidence in a light favorable to the verdict must assume jurors made all inferences in favor of their verdict if reasonable minds could, and disregard all other inferences in their legal sufficiency review.” Id. Thus, we disregard any inference that the wallet was not stolen in the course of Gutierrez’s murder.

We next analyze Gutierrez’s robbery and murder “within the context in which it occurred....” Mellon Mortgage, 5 S.W.3d at 657. Of the ten violent crimes occurring at the Quarry Market in the two years before the Gutierrez shooting, eight occurred between the hours of 6:00 p.m. and 6:00 a.m., most occurred during the Saturday to Monday period, and the average appears to be one violent crime every other month. Many of the crimes occurred as the victims were walking to or from a store or their vehicles. Such repeated violent crimes at a targeted shopping mall may increase the risk of violent personal crimes such as murder at the same location. See Timberwalk, 972 S.W.2d at 758. Gutierrez’s murder occurred sometime after midnight on a Sunday as Gutierrez and his wife were walking from the movie theater to their car. Because his murder occurred at a time and place that injury to him might reasonably have been foreseen, Gutierrez was “within the range of [Trammell Crow’s] apprehension that [his] injury was foreseeable.” Mellon Mortgage, 5 S.W.3d at 657. Accordingly, we conclude it was foreseeable that Gutierrez, or a person similarly situated, could be murdered at the Quarry Market.

CAUSATION

Trammell Crow next asserts the plaintiffs failed to show that any negligence on its part proximately caused Gutierrez’s murder. Proximate cause is comprised of two elements: cause in fact and foreseeability. Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 549 (Tex.1985). Because Gutierrez’s murder was *41foreseeable,2 the last inquiry is whether Trammell Crow's acts or omissions were the cause in fact of Gutierrez’s injury. “The test for cause in fact is whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred.” Western Inv., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex.2005). “If the defendant’s negligence merely furnished a condition that made the injuries possible, there can be no cause in fact.” Id.

In February 2002, Trammell Crow employed off-duty San Antonio police officers who patrolled the property either by riding bicycles or by driving the property in their own private unmarked vehicles. Two of these officers testified that when they drove in their vehicles, they kept the driver’s side window rolled down and their arm propped on the window so that their San Antonio Police Department uniform patch was visible. The vehicles had no designation identifying them as security and had no conspicuous fights. One of Trammell Crow’s security officers stated he preferred to patrol in an unmarked vehicle, because “[t]hat way people can’t — if they’re breaking into a building, they don’t know where I’m at.”

One of the off-duty police officers testified that a private investigator hired by a woman whose purse was stolen earlier spoke with him ten days before the Gutierrez shooting; the officer in turn relayed the conversation to Shirley Scheer, a Trammell Crow property manager. According to the officer’s testimony, he told Scheer that the woman had sent someone over to complain that security was not visible enough. Scheer’s response was that bicycles were adequate and provided high visibility. On the night Gutierrez was murdered, Trammell Crow had three off-duty police officers on duty; none of whom were on bicycles. Two of the officers were stationed at the south end of the mall on a specific assignment to watch for store burglaries, leaving only a single officer to patrol the entire property in his unmarked car.

Plaintiffs’ criminologist expert, Dr. George Kirkham, testified that the security system in place at the Quarry Market on the night Gutierrez was murdered violated acceptable professional security standards. He explained the difference between a “deterrent” security system and an “undercover” security system. According to Kirkham, an “undercover” security system, such as the one utilized by Tram-mell Crow, served to apprehend criminals only after the crime had been committed. On the other hand, Kirkham said a “deterrent” security system, such as Wal-Mart’s use of golf cart-type vehicles with flashing fights in their store parking lots, prevented crime because security was conspicuous. Kirkham stated off-duty police officers were the best type of security because they were well-trained, armed, and knew the law. However, they were not conspicuous because the officers drove the Quarry Market parking lot in their private unmarked vehicles. Kirkham distinguished between law enforcement’s function to catch criminals and private security’s function to deter crime. Thus, according to Kirkham, while the off-duty officers may come upon someone committing a crime, their inconspicuous presence provided no deterrence, and deterrence is required in a shopping mall parking lot as large as that of the Quarry Market’s.

*42Kirkham explained that private security-in shopping malls, particularly in parking lots, should be conspicuous because it deters opportunist criminals. He said shopping mall parking lots are “hot spots” that require conspicuous security because customers are distracted as they walk to their cars with packages or leave their cars, locking up on their way into stores. Kirk-ham opined that, even if this was a targeted shooting, “[i]t would look to anyone as if there’s no security around here. And, that’s the problem.... Here, they were able to take their time after shooting, for whatever reason, take personal effects and so on. It indicates to me logically as a criminologist that they must not believe there’s any security.”

Trammell Crow’s expert admitted the following:

I think what I testified to is that if we would have had visible patrols — and here I’m talking about some kind of patrolling arrangement in the [sic] in the immediate vicinity of where this took place — I would like to think that, regardless of who the offender was, he [or] she would not have done it at that particular time. Now, he or she may have picked another time and place, like a drive-by at Mr. Gutierrez’s home or somewhere else, but I would agree with you. If they had a fixed post guard, I don’t think it would have happened right at that time. But it would have happened somewhere else.

On this record, we conclude Trammell Crow’s inconspicuous “undercover” security system was a substantial factor in causing the death of Gutierrez at the Quarry Market. Thus, the plaintiffs established proximate cause and that Trammell Crow failed to act within the parameters of its duty.3 See Hamer v. E-Z Mart Stores, Inc., 825 S.W.2d 456, 461-62 (Tex.1992) (concluding that although the precise circumstances of the murder would never be known, plaintiffs had introduced enough evidence for the jury to conclude that the store’s inadequate security system was a cause of the victim’s death).

CONCLUSION

Accordingly, we overrule Trammell Crow’s issues on appeal and affirm the trial court’s judgment.

Dissenting opinion by SARAH B. DUNCAN, Justice; joined by KAREN ANGELINI, Justice and PHYLIS J. SPEEDLIN, Justice.