Lefmark Management Co. v. Old

• Decision Date: 16 May 1997
• Docket Number: No. 95-0983,95-0983
• Citation: 946 S.W.2d 52
• Parties: 40 Tex. Sup. Ct. J. 577 LEFMARK MANAGEMENT COMPANY, Petitioner, v. Winona OLD, Individually and a/n/f of Phillip Albert Fults-Old, Respondent.
• Court: Texas Supreme Court

Page 52

946 S.W.2d 52

40 Tex. Sup. Ct. J. 577

LEFMARK MANAGEMENT COMPANY, Petitioner, v. Winona OLD, Individually and a/n/f of Phillip Albert

Fults-Old, Respondent.

No. 95-0983.

Supreme Court of Texas.

Argued Sept. 3, 1996.

Decided May 16, 1997.

Mike Morris, Houston, for petitioner.

Andrew L. Drapkin, Houston, for respondent.

CORNYN, Justice, delivered the opinion for a unanimous Court.

In this premises liability case, we decide whether a shopping center's former property manager owed a legal duty to a tenant's customer who was killed during an armed robbery. Winona Old, whose husband was shot and killed at Shipley Do-Nuts & Flour Supply Company, Inc., sued Shipley Do-Nuts, the Fairbanks Shopping Center, and Lefmark Management Company, the former property manager hired by the shopping center's owner.

The trial court granted summary judgment for Lefmark and then severed that judgment. The court of appeals reversed and remanded for trial on the merits. 908 S.W.2d 16. We determine that Lefmark owed no legal duty to Old under the circumstances of this case. Accordingly, we reverse the judgment of the court of appeals and render judgment for Lefmark.

From 1991 to 1993, a variety of crimes, including several robberies and burglaries, occurred at the Fairbanks Shopping Center, located in Harris County, Texas. On January 19, 1993, the risk manager at a Kroger Food Store located in the same shopping center wrote to Lefmark asking that it conduct a security risk assessment for the property. Before the shopping center's owner terminated its services on April 13, 1993, Lefmark had not conducted such an assessment.

On June 27, 1993, about two months after the owner terminated Lefmark, an armed robbery occurred at the Shipley Do-Nuts in the shopping center. Shipley's was robbed again on July 13, 1993, and during this incident Old's husband was shot and killed.

Old claims that Lefmark knew or should have known that the prevalence of criminal activity, coupled with other physical conditions on the shopping center's premises, was a dangerous condition that exposed her deceased husband to an unreasonable risk of harm. Old alleged that Lefmark breached its duty of due care by failing to eliminate, protect against, or warn others of this condition. Old further alleged that Lefmark created a dangerous condition on the premises because it did not (1) conduct the security risk assessment Kroger Food Stores requested; (2) notify the successor management company about the Kroger letter and the criminal activity at the shopping center; (3) establish a satisfactory security program for the center; and (4) repair a hole in the fence behind Shipley's that allowed criminals easy access to the property.

In its motion for summary judgment, Lefmark claimed that it owed no duty to protect against criminal acts of third parties because when Old's husband was killed, Lefmark did not own, occupy or control the premises. In response, Old contended that even if Lefmark was not in control of the premises on the date in question, Lefmark nevertheless created the dangerous condition, failed to remedy the condition, and failed to give notice of the condition to its successor.

Tort liability depends on both the existence of and the violation of a duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). Whether a duty exists is a question of law for the court to decide under the facts surrounding the occurrence in question. Centeq Realty, 899 S.W.2d at 197.

As a general rule, a landowner or one who is otherwise in control of the premises must use reasonable care to make the premises safe for the use of business invitees. See Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 431 (1950). This duty includes warning invitees of known hidden dangers that present an unreasonable risk of harm. City of Beaumont v. Graham, 441 S.W.2d 829, 834 (Tex.1969). Ordinarily, this duty does not include the obligation to prevent criminal acts of third parties who are not subject to the premises occupier's control. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996); Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993); El Chico Corp. v. Poole, 732 S.W.2d 306, 313-14 (Tex.1987). This rule, however, is not absolute. One 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. Centeq Realty, 899 S.W.2d at 197; Exxon, 867 S.W.2d at 21; Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 550 (Tex.1985). This duty, we have emphasized, is commensurate with the right of control over the property. See Exxon, 867 S.W.2d at 21.

Under certain circumstances, however, even one not in control of the property at the time of the injury may owe a duty to make the premises safe. One who agrees to make safe a known dangerous condition of real property owes a duty of due care. City of Denton v. Page, 701 S.W.2d 831, 835 (Tex.1986) (citing Gundolf v. Massman-Johnson, 473 S.W.2d 70 (Tex.Civ.App.--Beaumont 1971), writ ref'd n.r.e., 484 S.W.2d 555 (Tex.1972) (per curiam)). And a person who creates a dangerous condition owes the same duty. Id. (citing Strakos v. Gehring, 360 S.W.2d 787 (Tex.1962)).

The summary judgment evidence reveals that until April 13, 1993, Lefmark was the property manager for the Fairbanks Plaza Shopping Center. In that capacity, we assume that Lefmark had sufficient control over the premises for a duty of care to arise to invitees like Old. See City of Denton, 701 S.W.2d at 835. But on the date of the incident, Lefmark did not own, occupy, manage, possess or otherwise have any control of the shopping center. Absent the essential element of control on the date in question, Lefmark owed no duty under the general rule to keep the shopping center safe. For a duty to exist, Lefmark must have owed a duty under some exception to the general rule.

The court of appeals held that, although Lefmark was no longer in control of the premises, it owed a duty to disclose to the subsequent management company any dangerous conditions affecting the shopping center, including the prevalence of criminal activity, and the contents of the Kroger letter. For this holding, the court of appeals relied on the RESTATEMENT (SECOND) OF TORTS § 353 (1965), which provides:

(1) A vendor of land who conceals or fails to disclose to his vendee any condition, whether natural or artificial, which involves unreasonable risk to persons on the land, is subject to liability to the vendee and others upon the land with the consent of the vendee or his subvendee for physical harm caused by the condition after the vendee has taken possession, if

(a) the vendee does not know or have reason to know of the condition or the risk involved, and

(b) the vendor knows or has reason to know of the condition, and realizes or should realize the risk involved, and has reason to believe that the vendee will not discover the condition or realize the risk.

(2) If the vendor actively conceals the condition, the liability stated in Subsection (1) continues until the vendee discovers it and has reasonable opportunity to take effective precautions against it. Otherwise the liability continues only until the vendee has had reasonable opportunity to discover the condition and to take such precautions.

Even though Lefmark was not a "vendor," the court of appeals held that Lefmark nevertheless "transferred" the right of possession and control to the new management company without disclosing the dangerous condition, thereby breaching its duty to disclose under section 353. 908 S.W.2d at 20.

We disagree with this conclusion for several reasons. First, we have never adopted section 353, even though it has been cited by and relied upon by several courts of appeals. See First Fin. Dev. Corp. v. Hughston, 797 S.W.2d 286, 290-91 (Tex.App.--Corpus Christi 1990, writ denied); Davis v. Esperado Mining Co., 750 S.W.2d 887, 888 (Tex.App.--Houston [14th Dist.] 1988, no writ); Moeller v. Fort Worth Capital Corp., 610 S.W.2d 857, 861 (Tex.Civ.App.--Fort Worth 1980, writ ref'd n.r.e.); Beall v. Lo-Vaca Gathering Co., 532 S.W.2d 362, 365 (Tex.Civ.App.--Corpus Christi 1975, writ ref'd n.r.e.); see also Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367-68 (Tex.App.--Houston [1st Dist.] 1994, writ denied) (citing First Financial, 797 S.W.2d at 291).

But even assuming that we were to adopt section 353, it does not apply to these facts. Section 353 is limited in application to "vendors" of land. While section 353 does not define "vendor," other sections of the RESTATEMENT employing that term refer only to a former owner of land. See RESTATEMENT (SECOND) OF TORTS § 354 (discussing the applicability of the rules stated in RESTATEMENT (SECOND) OF TORTS §§ 351-53). As we have noted, Lefmark never owned the premises in question.

Old nevertheless urges us to adopt a more expansive meaning of the term "vendor" to include any "transferor" of land. She argues that because Lefmark transferred possession and control of the premises to its successor, it should be liable under section 353. None of the Texas cases citing section 353 supports this contention. Those cases involve either former owners, Roberts, 886 S.W.2d at 366; First Financial, 797 S.W.2d at 290-91; Davis, 750 S.W.2d at 888; Moeller, 610 S.W.2d at 858, or former occupiers who transferred exclusive physical possession, use, and control of the land back to the owner. Beall, 532 S.W.2d at 365. In contrast, Lefmark was not an owner or occupier with exclusive possession of the property.

Nor is Lefmark a "transferor" in the sense that Old urges and in the sense used by the courts of appeals cited above. For example, unlike Beall, in which a lessee was held liable for failing to warn the owner of a dangerous condition when the lessee transferred...