Mellon Mortgage Co. v. Holder, 090999

• Decision Date: 12 January 1999
• Parties: (Tex. 1999) MELLON MORTGAGE COMPANY, PETITIONER v. ANGELA N. HOLDER, F/K/A ANGELA N. HAMILTON, INDIVIDUALLY AND A/N/F FOR NICHOLAS C. LASKE, RESPONDENT NO. 97-1187
• Court: Texas Supreme Court

Page 654

5 S.W.3d 654 (Tex. 1999)

MELLON MORTGAGE COMPANY, PETITIONER v. ANGELA N. HOLDER, F/K/A ANGELA N. HAMILTON, INDIVIDUALLY AND A/N/F FOR NICHOLAS C. LASKE, RESPONDENT

NO. 97-1187

IN THE SUPREME COURT OF TEXAS

ARGUED on January 12, 1999

DELIVERED: September 9, 1999.

REHEARING Overruled December 2, 1999

ON PETITION FOR REVIEW FROM THE COURT OF APPEALS FOR THE FOURTEENTH DISTRICT OF TEXAS

Justice ABBOTT, delivered a plurality opinion, in which Justice HECHT and Justice OWEN join.

While driving late one night in the downtown Houston area, Angela Holder was stopped for an alleged traffic violation by Calvin Potter, an on-duty Houston police officer. Potter took Holder's insurance and identification cards and told her to follow his squad car. Holder followed Potter several blocks to a parking garage owned by Mellon Mortgage Company. Once inside the garage, Potter sexually assaulted Holder in his squad car.

Holder sued Mellon and the City of Houston but did not sue her attacker. The trial court granted summary judgment for Mellon and the City on all of Holder's claims. The court of appeals affirmed the summary judgment in favor of the City on the basis of sovereign immunity. With regard to Holder's claims against Mellon, the court of appeals affirmed the summary judgment on Holder's negligence per se claim, but reversed on the negligence, gross negligence, and loss of consortium¹ claims. On petition for review to this Court, Mellon claims, among other things, that it owed no legal duty to Holder. Because we hold that it was not foreseeable to Mellon that a person would be accosted several blocks from Mellon's garage and forced to drive to that garage where she would be sexually assaulted, Mellon owed no duty to Holder to prevent the attack. Accordingly, we reverse the court of appeals' judgment and render judgment that Holder take nothing.²

I.

With regard to criminal acts of third parties, property owners owe a duty to those who may be harmed by the criminal acts only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). We focus our attention in this case on "foreseeability." For most premises liability cases, the foreseeability analysis will be shaped by determining whether the plaintiff was an invitee, a licensee, or a trespasser. Because Holder was an unforeseeable victim regardless of her status, it is unnecessary to determine into which of the three categories she falls. Instead, we focus on general foreseeability principles that limit the scope of the defendant's duty in this case.³

We have repeatedly stated that "[f]oreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable." Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); see also Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 551 (Tex. 1985). We have also frequently stated a two-prong test for foreseeability:

[I]t is not required that the particular accident complained of should have been foreseen. All that is required is [1] "that the injury be of such a general character as might reasonably have been anticipated; and [2] that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen."

Id. at 551 (citations and emphasis omitted); see also Texas Cities Gas Co. v. Dickens, 168 S.W.2d 208, 212 (Tex. 1943); San Antonio & A. P. Ry. Co. v. Behne, 231 S.W. 354, 356 (Tex. Comm'n App. 1921, judgm't adopted). Thus, we consider not only the foreseeability of the general 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.

This duty analysis has been widely embraced since Chief Judge Cardozo penned the seminal Palsgraf opinion. See Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y. 1928). Palsgraf teaches that the duty question properly considers the foreseeability of the injured party. Mrs. Palsgraf was standing on a platform at the defendant's railroad waiting for a train. Some distance away, porters tried to help a passenger board a train. As they assisted him, they dislodged a package of fireworks he was carrying. The package fell to the rails and exploded, knocking over scales and injuring Mrs. Palsgraf. See id. at 99.

The court held that, regardless of whether the railroad might have acted in a generally wrongful manner, it was not negligent with regard to Mrs. Palsgraf. See id. As Chief Judge Cardozo explained, "What the plaintiff must show is 'a wrong' to herself; i.e., a violation of her own right, and not merely a wrong to some one else . . . ." Id. at 100. Because the plaintiff was not so situated to the wrongful act that her injury might reasonably have been foreseen, the defendant did not owe a duty to protect her from the resulting injury. "'Proof of negligence in the air, so to speak, will not do.' . . . The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension." Id. at 99, 100 (emphasis added). Because the railroad owed no duty to Mrs. Palsgraf, it was unnecessary to consider any question of proximate cause.

The Palsgraf dissent, however, illustrates the counter view that duty is owed generally and any limitations on liability should be through "proximate cause," in which "foreseeability" must necessarily play a greater role than in the duty analysis. Writing for the dissent, Judge Andrews rejected the court's view that the duties owed by a defendant were the particularized product of a relationship determined in part by foreseeability. "Every one owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others. Such an act occurs. Not only is he wronged to whom harm might reasonably be expected to result, but he also who is in fact injured, even if he be outside what would generally be thought the danger zone." Id. at 103 (Andrews, J., dissenting). The Palsgraf dissent, like the dissent in this case, appears to contend that consideration of a particular plaintiff's relation to an alleged wrongful act is better considered under the guise of proximate cause.

Although judges and scholars have long debated the relative merits of the two views, the gist of Chief Judge Cardozo's duty analysis has been widely embraced. Compare 3 HARPER ET AL., THE LAW OF TORTS 18.2, at 654-55 (2d ed. 1986); RESTATEMENT (SECOND) OF TORTS 281 cmt. c (1965); Zipursky, Rights, Wrongs, and Recourse in the Law of Torts, 51 VAND. L. REV. 1, 3-5 (1998); and Green, Proximate Cause in Texas Negligence Law, 28 TEX. L. REV. 471, 472 (1950); with KEETON ET AL., PROSSER AND KEETON ON THE LAW OF TORTS 43, at 287 (5th ed. 1984). The Restatement (Second) of Torts states:

In order for the actor to be negligent with respect to the other, his conduct must create a recognizable risk of harm to the other individually, or to a class of persons - as, for example, all persons within a given area of danger - of which the other is a member. If the actor's conduct creates such a recognizable risk of harm only to a particular class of persons, the fact that it in fact causes harm to a person of a different class, to whom the actor could not reasonably have anticipated injury, does not make the actor liable to the persons so injured.

RESTATEMENT (SECOND) OF TORTS 281 cmt. c (1965); see also 4 HARPER ET AL., supra, 20.5, at 138 (the scope of a duty is limited to "(1) those persons that are likely to be endangered by the act or omission, and (2) harm (to such person or interest) from a risk the likelihood of which made the act or omission negligent"). The result of this analysis is that "[a] plaintiff has no right of action unless there was a wrong relative to her or a violation of her right, and there is no such relational wrong or personal-rights violation in a negligence case where the duty to avoid foreseeable risk to the plaintiff has not been breached." Zipursky, supra, at 15; see also Nixon, 690 S.W.2d at 551. A wrong in general is not enough; the plaintiff herself must be wronged. See Zipursky, supra, at 12.

When we consider whether a particular criminal act was so foreseeable and unreasonable as to impose a duty upon a landowner, we first examine the particular criminal conduct that occurred in light of "specific previous crimes on or near the premises." Walker, 924 S.W.2d at 377. If, after applying the Timberwalk factors of similarity, recency, frequency, and publicity, see Timberwalk, 972 S.W.2d at 756-57, we determine that the general danger of the criminal act was foreseeable, we then apply the second prong of the foreseeability analysis and determine whether it was foreseeable that the injured party, or one similarly situated, would be the victim of the criminal act. In essence, we consider whether the plaintiff was within the range of the defendant's apprehension such that her injury was foreseeable. See Palsgraf, 162 N.E. at 99-100. Only when we have analyzed the criminal act within the context in which it occurred can we determine whether the landowner owed a duty to the injured party. See, e.g., Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995) (when determining whether a duty lies, we must consider all "the facts surrounding the occurrence in question").

Applying the Timberwalk factors, it was not unforeseeable as a matter of law that a rape might occur in the parking garage. Although no similar violent crimes had occurred in the parking garage before the attack on Holder, the summary judgment evidence shows that in the two years preceding the incident, 190 violent crimes,...