Allright San Antonio Parking Inc. v. Kendrick

• Decision Date: 17 June 1998
• Docket Number: No. 04-96-00699-CV,04-96-00699-CV
• Citation: 981 S.W.2d 250
• Parties: ALLRIGHT SAN ANTONIO PARKING INC., Appellant, v. Suzette KENDRICK, Appellee.
• Court: Texas Court of Appeals

Page 250

981 S.W.2d 250

ALLRIGHT SAN ANTONIO PARKING INC., Appellant, v. Suzette KENDRICK, Appellee.

No. 04-96-00699-CV.

Court of Appeals of Texas,

San Antonio.

June 17, 1998.

William L. Powers, Jennifer Gibbins Durbin, Allen, Stein, Powers, Durbin & Hunnicutt, Wallace B. Jefferson, Sharon E. Callaway, Crofts, Callaway & Jefferson, P.C., San Antonio, for Appellant.

Anthony F. Constant, Law Offices of Anthony F. Constant, Corpus Christi, J. Thomas Rhodes, III, Lyons & Rhodes, P.C., San Antonio, Frank Herrera, Jr., Law Offices of Frank Herrera, Inc. San Antonio, for Appellee.

Before RICKHOFF, LOPEZ and ANGELINI, JJ.

OPINION

RICKHOFF, Justice.

In this case we confront the recurring question of when to hold a premises owner liable for criminal acts committed by a third person against a customer. Because this was a random act of violence, without evidence of specific prior crimes on the property, we find it was not foreseeable.

Suzette Kendrick was abducted from a parking lot in downtown San Antonio by Larry Wayne Gross; he forced her into her own car, drove her to his apartment, raped her, and after a ten-hour ordeal released her. Kendrick sued the lot's owner, Allright San Antonio Parking, Inc. ("Allright") for negligently failing to provide for her safety. The trial court granted summary judgment; we reversed, holding that a fact question existed on whether one of Allright's servants witnessed the assault. Kendrick v. Allright Parking, 846 S.W.2d 453 (Tex.App.--San Antonio 1992, writ denied). The cause was not tried on this issue; rather, a jury was asked whether Allright had breached a duty to protect Kendrick from crime on its lot. The jury found for Kendrick and awarded a $4.7 million judgment.

In seven points of error Allright complains that the trial court erred in rejecting its motions for judgment non obstante veredicto and to modify the judgment because Allright owed no duty to Kendrick as a matter of law; that those motions should have been granted because the evidence was legally insufficient to support the verdict; that the evidence is factually insufficient to support the jury's finding that Allright's negligence proximately caused Kendrick's damages; that improper, surplus jury instructions were submitted; that the trial court erroneously admitted an unedited version of a deposition; that Kendrick made an improper and incurable jury argument; and that one of Kendrick's expert's reports was not submitted as required.

We find Kendrick did not carry her burden to establish that her abduction was forseeable, in a legal sense. Because this violent criminal act was not forseeable, Allright owed Kendrick no duty; absent a duty there can be no tort recovery. We therefore reverse the judgment of the trial court and render a take-nothing judgment.

THE QUESTION OF DUTY

Allright's first point of error asserts that the trial court erred in not granting its motion for judgment non obstante veredicto or to modify the judgment because Allright owed no duty to Kendrick as a matter of law. Allright's second point of error argues the evidence was legally insufficient on the question of duty to support the jury's verdict.

The threshold inquiry in a negligence case is duty. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex.1987). The question of duty turns on the foreseeability of harmful consequences, which is the underlying basis for negligence. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex.1983). Forseeability means that the actor, as a person of ordinary intelligence, should have anticipated the dangers that his negligent act created for others. Missouri Pac. R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977). 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); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990).

In Texas, the duty owed by a premises owner or occupier is largely determined by the status of the complaining party. An "invitee" is "one who enters on another's land with the owner's knowledge and for the mutual benefit of both." Rosas v. Buddies Food Store, 518 S.W.2d 534, 536 (Tex.1975). Generally, a premises owner or occupier owes to invitees a duty to use reasonable care to protect them from foreseeable injuries. See Boyer v. Scruggs, 806 S.W.2d 941, 944-45 (Tex.App.--Corpus Christi 1991, no writ). It is undisputed in this case that Kendrick was Allright's invitee at the time of the assault. The question, then, becomes whether Kendrick's injuries from this criminal act were forseeable, and whether Allright exercised reasonable care to protect Kendrick.

Because criminal and tortious conduct of third persons is not necessarily foreseeable to a reasonably prudent landowner, such conduct is usually a superseding cause relieving a negligent landowner from liability. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 550 (Tex.1985). In Texas, evidence of specific previous crimes on or near the premises will render a criminal act forseeable, and the premises owner will be charged with a duty to protect against crime. Walker, 924 S.W.2d at 377 (citing Nixon, 690 S.W.2d at 550).

Such evidence of specific previous crimes is completely absent from this record.

1. Forseeability Given the Totality of the Circumstances

Kendrick had the burden to establish forseeability; that is, that Allright knew that crime was a dangerous condition on this particular lot, or should have known given the totality of the circumstances, and yet elected not to warn its customers or take extra precautions. Put another way, the dangerous condition of crime had to be such a threat to Allright's customers that the precaution Allright did take--stationing an attendant instructed to look out for its customers' safety on the lot--was so inadequate that the law will still hold Allright liable for its customer's injuries.

a. The Evidence

The trial court excluded the police reports of crime in the area; therefore they will not enter into our duty analysis. Ronk v. Parking Concepts of Texas, 711 S.W.2d 409, 416 (Tex.App.--Fort Worth 1986, writ ref'd n.r.e.). This means the only evidence of crime in the area of the lot was the testimony of two experts hired by Kendrick.

Norman Bottom testified in an affidavit that after reviewing San Antonio crime statistics, he noted that there had been six unspecified reports of nonviolent crime near the intersection where the lot was located. We note first that instances of nonviolent crime will not suffice to put a landowner on notice that violent crime is a condition for which he may be held liable. Walker, 924 S.W.2d at 377. Second, Bottom's affidavit did not contain a time frame when these crimes may have occurred, and he did not provide details in his trial testimony. The affidavit is vague, conclusory and without specifics.

Detective Anton Michalec, testifying on the police records excluded by the trial court, said that "three robberies and one officer in trouble, a suspicious person" had occurred in the previous three years near the parking lot. We think this testimony inadequate to meet Walker 's requirement of specificity in the evidence.

It is undisputed that none of these criminal acts could be affirmatively placed on Allright's lot. Both Michalec and Allright's expert, Merlyn Moore, agreed that the records relied on by Michalec could not place any crime on the lot because the lot did not have a street address. Michalec also indicated that some of these criminal incidents may have happened inside a bar adjacent to the parking lot. Moore added that these records generally indicated the location of the telephone from which the police were summoned, not the site of the crime itself, and there was no telephone at the lot.

Michalec also testified that, absent a subpoena, even if Allright officials suspected criminal acts occurred near the lot they could not obtain the internal San Antonio Police Department reports that would pinpoint the site of the actual crime because this was not released to the public. Finally, two parking lot attendants testified they were not aware of any crime on the lot in question in the years just prior to Kendrick's abduction.

b. The Legal Test

Texas courts have generally applied a "totality of the circumstances" test to the question of forseeability in a parking lot setting. Nixon, 690 S.W.2d at 551; Ronk, 711 S.W.2d at 418. Under the totality of the circumstances test, the crime must occur on the premises in question--or close enough to give notice to the owner-occupier of land--before the owner-occupier will be liable for criminal acts of third persons. See Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623, 627 (Tex.1979) (plaintiff was robbed in hotel's parking lot; fact question on forseeability where two robberies occurred in the previous year on adjacent property and victims were brought to the hotel for assistance); Walker, 924 S.W.2d at 378 (where evidence showed crime around four-plex was "average," with no reports of violent crime on the premises, movants for summary judgment established lack of forseeability as a matter of law); see also Coffee v. F.W. Woolworth Co., 536 S.W.2d 539, 541 (Tex.1976) (unjust to hold a landowner responsible for the conduct of a person over which he had no control unless it has a reasonable opportunity to discover the dangerous condition).

c. Application of the Legal Test to the Facts

We find Ronkto be the case most factually similar to ours. In Ronk, a summary judgment case, the plaintiff sued after an assailant forced her into her own car and attempted to abduct her; she managed to get away when the car stalled and hit a curb. Ronk, 711 S.W.2d at 410. Like the lot in our case, the lot in Ronk was an open-air lot with a parking attendant. The reviewing court used the "totality of the circumstances" test first announced in Isaacs v. Huntington...