Trammell Crow Central Texas, Ltd v. Gutierrez, No. 07-0091 (Tex. Aug. 29, 2008)(Willett)
(premises liability, owner liability for crime on property, forseeability, no duty)

Justice Willett delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Medina,
and Justice Green joined.

Because the attack on Luis was so extraordinarily unlike any crime previously committed
at the Quarry Market, we conclude that Trammell Crow could not have reasonably
foreseen or prevented the crime and thus owed no duty in this case. Therefore, without
reaching the issue of causation, we reverse the court of appeals’ judgment and render a
judgment that Respondents take nothing.

Bexar County; 4th district
(04-05-00056-CV, 220 SW3d 33, 12-20-06)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Medina, and Justice Green

Chief Justice Jefferson delivered a concurring opinion, in which Justice Hecht, Justice Brister, and Justice
Johnson joined.


Trammell Crow Central Texas, Ltd v. Gutierrez, (Tex. 2008)


Argued January 17, 2008
Justice Willett delivered the opinion of the Court, in which Justice O’Neill, Justice
Wainwright, Justice Medina, and Justice Green joined.

 Chief Justice Jefferson filed a concurring opinion, in which Justice Hecht, Justice
Brister, and Justice Johnson 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 risk 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 Trammell 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 the 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
avoid attracting the attention of potential criminals, thus making it easier to catch
criminals in the act of their crimes. Trammell Crow placed responsibility for scheduling
the officers with one of the security guards, but the property managers discussed
ongoing security matters with the guards on a daily basis and adjusted the security plans
as needed. For example, more guards were utilized during the high-density holiday
season. When guards expressed concern over teenage loitering at the movie theater,
Trammell Crow discussed the matter with the theater owners, who responded by
providing their own guard during the weekends.

Trammell Crow does not dispute the issue of control, nor does it dispute Luis’s status as
an invitee. Instead, Trammell Crow contends that the evidence of previous criminal
activity at the mall does not establish that Luis’s death was foreseeable.

A. Evidence of Prior Crimes

In the two years prior to Luis’s death, 227 crimes were reported at the Quarry Market. Of
these reported crimes, 203 were property and property-related crimes—mostly thefts,
but also a handful of burglaries, auto thefts, and incidents of vandalism. Fourteen “other
crimes” occurred—thirteen simple assaults[9] and one incident of weapon possession.
The remaining ten crimes, all robberies, were classified as violent crimes—a category
that also includes murder, manslaughter, rape, and aggravated assault.

Although criminal conduct is difficult to compartmentalize,[10] some lines can be drawn.
For instance, we have held that reports of vandalism, theft, and neighborhood
disturbances are not enough to make a stabbing death foreseeable.[11] Similarly,
although the repeated occurrences of theft, vandalism, and simple assaults at the
Quarry Market signal that future property crimes are possible, they do not suggest the
likelihood of murder.[12] Accordingly, like the court of appeals, we limit our review to the
ten instances of violent crime that took place at the Quarry Market during the two years
prior to Luis’s death. The police records of these undisputed incidents were accurately
summarized by the court of appeals as follows:

1. 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 [San
Antonio Police Department (SAPD)] as “robbery.”

2. 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.”

3. 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

4. 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.”

5. 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.”

6. 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.”

7. 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.”

8. 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.”

9. 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.”

10. 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.”[13]

B. Foreseeability

To determine whether the risk of criminal conduct is foreseeable, a court weighs the
evidence of prior crimes using five factors: proximity, publicity, recency, frequency, and
similarity.[14] The evidence is not considered “in hindsight but rather in light of what the
premises owner knew or should have known before the criminal act occurred.”[15]
Proximity and publicity are not disputed in this case: the ten violent crimes described
above all occurred at the Quarry Market, and Trammell Crow knew about these crimes
at the time of Luis’s death. Therefore, we focus our analysis on the other factors:
recency, frequency, and similarity.

1. Recency and Frequency

Although the five factors present distinct considerations, we have previously examined
recency and frequency in tandem.[16] A criminal act is more likely foreseeable if
numerous prior crimes are concentrated within a short time span than if few prior crimes
are diffused across a long time span.[17] For example, in Mellon Mortgage Co. v. Holder,
we held that a rape was foreseeable when it took place in an area that had witnessed
190 violent crimes in the space of two years, or one violent crime every four days.[18] In
contrast, the Quarry Market was home to ten violent crimes committed over a 23-month
period prior to Luis’s murder, equating to one violent crime every sixty-nine days. A direct
comparison between these cases is not definitive, since Holder arose in a different city
with a different crime rate. However, statistics from the San Antonio area suggest that
the Quarry Market has a relatively low rate of violent criminal activity. In 2001, a resident
of San Antonio faced a 44,760-to-1 chance of becoming the victim of a violent crime on
any given day. In contrast, according to calculations performed by Trammell Crow’s
expert, the odds of suffering a violent crime on any given day at the Quarry Market
during the two years prior to Luis’s death were 1,637,630 to 1.

Maria and Karol contend that these calculations compare “apples to oranges” because
comparing crime rates between a city and a location within the city will not take into
account the mobility of the city’s population. They also argue that reliance on the
citywide crime rate will lead to an incomplete and misleading analysis that fails to include
important geographic and demographic considerations. They are certainly right that
numeric comparisons may be imperfect and may omit important, less-easily-quantified
considerations. Furthermore, we emphasize that no one ratio or odds calculation
conclusively resolves the frequency analysis. Crime counts, crime rates, odds
calculations, and other comparisons merely serve as data points a court may rely on in
determining the frequency of crime in a certain location; just as the frequency analysis is
merely one factor in the total foreseeability analysis. Nevertheless, these calculations,
performed by a qualified expert, can be used to help a court resolve the difficult question
of whether criminal conduct is reasonably foreseeable.

2. Similarity

In addition to the recency and frequency of past crimes, a court must consider the
similarity of the past crimes to the criminal conduct in question.[19] Foreseeability does
not require “the exact sequence of events that produced the harm [to] be foreseeable,”
[20]—rather, previous crimes need only be “sufficiently similar to the crime in question as
to place the landowner on notice of the specific danger.”[21] Furthermore, we have
recognized that crimes fitting one category can relate to or result in crimes of another
category: a string of violent crimes such as robberies or assaults can make other violent
crimes like murder or rape foreseeable; a thief entering a dwelling to steal property may
also commit personal crimes.[22]

No one had been murdered at the Quarry Market prior to Luis’s shooting, but ten
robberies had occurred, many with violent characteristics. One of the incidents is
particularly striking—a man exiting the theater at 12:30 a.m. on a Monday morning was
approached by a group of strangers, who followed him back into the theater, knocked
him down, and stole his valuables before fleeing the scene. However, unlike the attack
on Luis, the strangers first accosted the victim; their ultimate aim was to take his
property; and they did not use a deadly weapon or seriously injure him.

Of the remaining nine crimes, three involved the use of guns, and another involved an
unknown object that could have been a gun. However, none of these weapons were
ever fired. Three of the nine incidents involved the use of physical force, and four others
involved a threat of serious injury or death. However, unlike the attack on Luis, in all
three situations involving physical contact, the suspect used force only after the victim
pursued the suspect or otherwise tried to regain possession of the stolen items.
Furthermore, no one was seriously injured in any of the nine robberies. Two other
differences are noteworthy. First, in six of the nine crimes, the perpetrator made a
demand on the victim for property, indicating that the primary purpose of the criminal
conduct was to obtain property. There is no evidence that Luis’s assailant made any
demand, threat, or said anything at all; the assailant simply started shooting. Second,
three of the robberies were perpetrated on businesses—two stores and a bank—rather
than individuals, like the attack on Luis.

3. Application

Considering the five factors together, we cannot conclude that Luis’s murder was
foreseeable. Trammell Crow had knowledge of violent crimes that were committed at the
Quarry Market within a reasonable time prior to Luis’s death. Nevertheless, these
previous crimes were not sufficiently frequent and similar to give rise to a duty in this
case. Only four times in two years were robberies committed without a prior demand for
property. Only three times in two years was a weapon clearly used to commit a robbery.
In those same two years, no weapon had been used to harm someone, no victim had
been seriously injured, and in only one case was a victim attacked prior to the
accompanying theft. Even viewing the attack on Luis as a robbery, as we presume the
jury did,[23] the circumstances of this attack are extraordinary. The assailant opened fire
from behind at long range without making any prior demand. After missing with the first
shot, the attacker proceeded to shoot Luis four times from behind before taking his
wallet. Nothing about the previous robberies committed at the Quarry Market put
Trammell Crow on notice that a patron would be murdered as part of a robbery on its
premises. Thus, Luis’s death was not foreseeable, and Trammell Crow did not have a
duty to prevent the attack.

III. Conclusion

“The foreseeability of an unreasonable risk of criminal conduct is a prerequisite to
imposing a duty of care”; otherwise, a person who controls property would be subject to
a universal duty to protect against third-party criminal conduct.[24] As we have stated
before, “[t]his is not the law”[25]: a landowner is not the insurer of crime victims.[26] The
foreseeability requirement protects the owners and controllers of land from liability for
crimes that are so random,[27] extraordinary,[28] or otherwise disconnected from them
[29] that they could not reasonably be expected to foresee or prevent the crimes.[30]
Because the attack on Luis was so extraordinarily unlike any crime previously committed
at the Quarry Market, we conclude that Trammell Crow could not have reasonably
foreseen or prevented the crime and thus owed no duty in this case. Therefore, without
reaching the issue of causation, we reverse the court of appeals’ judgment and render a
judgment that Respondents take nothing.

                                                                         Don R. Willett


OPINION DELIVERED: August 29, 2008.

[1] Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) (quoting Lefmark Mgmt. Co.
v. Old, 946 S.W.2d 52, 56 (Tex. 1997) (Owen, J., concurring)).

[2] See Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 658 (Tex. 1999); Timberwalk, 972 S.W.2d at 756.

[3] Timberwalk, 972 S.W.2d at 756.

[4] 220 S.W.3d 33, 40, 42.

[5] Timberwalk, 972 S.W.2d at 756.

[6] Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).

[7] Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997).

[8] Timberwalk, 972 S.W.2d at 756 (quoting Walker, 924 S.W.2d at 377).

[9] The FBI, which created the uniform crime classification system relied on by these crime reports, defines
“simple assaults” as “all assaults which do not involve the use of a firearm, knife, cutting instrument, or other
dangerous weapon and in which the victim did not sustain serious or aggravated injuries.” Dep’t of Justice, Fed.
Bureau of Investigation, Uniform Crime Reporting Handbook (2004), available at http://www.fbi.
By comparison, the Texas Penal Code defines an assault to include “intentionally, knowingly, or recklessly”
causing bodily injury; an assault is aggravated when the victim suffers serious bodily injury or the assailant uses
or exhibits a deadly weapon in the course of the assault. See Tex. Penal Code §§ 22.01(a), 22.02(a).

[10] Timberwalk, 972 S.W.2d at 758.

[11] Walker, 924 S.W.2d at 377–78.

[12] See Timberwalk, 972 S.W.2d at 758.

[13] 220 S.W.3d at 37–38 (reordered from original).

[14] Timberwalk, 972 S.W.2d at 759.

[15] Id. at 757.

[16] See id. at 757–58.

[17] Id. at 758.

[18] 5 S.W.3d 654, 657 (Tex. 1999).

[19] Timberwalk, 972 S.W.2d at 758.

[20] Id. at 756 (quoting Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996)).

[21] Id. at 758.

[22] See id.

[23] See City of Keller v. Wilson, 168 S.W.3d 802, 821 (Tex. 2005).

[24] Timberwalk, 972 S.W.2d at 756.

[25] Id.

[26] Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 658 (Tex. 1999).

[27] See Timberwalk, 972 S.W.2d at 756.

[28] See Walker v. Harris, 924 S.W.2d 375, 377–78 (Tex. 1996).

[29] See Holder, 5 S.W.3d at 658.

[30] Walker, 924 S.W.2d at 378.