Nixon v. Mr. Property Management Co., Inc.

• Decision Date: 13 July 1984
• Docket Number: No. 05-83-00957-CV,05-83-00957-CV
• Citation: 675 S.W.2d 585
• Parties: Gaile NIXON, Individually and as Next Friend of Rhonda Marie Vanderburg, Appellant, v. MR. PROPERTY MANAGEMENT COMPANY, INC., and Brett Davis, Appellees.
• Court: Texas Court of Appeals

Page 585

675 S.W.2d 585

Gaile NIXON, Individually and as Next Friend of Rhonda Marie Vanderburg, Appellant, v. MR. PROPERTY MANAGEMENT COMPANY, INC., and Brett Davis, Appellees.

No. 05-83-00957-CV.

Court of Appeals of Texas Dallas.

July 13, 1984.

Rehearing Denied Aug. 8, 1984.

Terry Hyatt, Law Offices of Windle Turley, Randall R. Moore, Law Offices of Windle Turley, Dallas, for appellant.

John M. Skrhak, Jr., Jackson, Walker, Winstead & Cantwell, Dallas, for appellee.

John Howard Stauffer, Dallas, ad litem.

Before CARVER, WHITHAM and STEWART, JJ.

CARVER, Justice.

Gaile Nixon, individually, and as next friend of Rhonda Marie Vanderburg, a minor, appeal from a summary judgment denying their claim for damages against Mr. Property Management Company, Inc., and Brett Davis, individually, and doing business under the trade name Chalmette Apartments, which claim urged that the owners and managers of the Chalmette Apartment were liable in tort when an unknown person abducted Rhonda elsewhere, but brought her into the Chalmette premises to rape her. We affirm.

The material facts appear from affidavits and depositions and are without substantial dispute. At about 7 p.m. on August 7, 1981, ten year old Rhonda went outside her grandmother's apartment (Landmark Apartments, across the street from the Chalmette Apartments) to summon her sister inside for supper. An unknown black man walked toward Rhonda; passed her; grabbed her from the rear; threatened to kill her if she made an outcry; walked her across the street and into Apartment 135 of Chalmette Apartments; raped her three times; and disappeared. Meanwhile Rhonda's mother and grandmother, worried about her extended absence, called the police. Officer Tilley intercepted Rhonda as she climbed out of a rear window of Apartment 135. The trial court sustained the summary judgment motion of the defense, and this appeal followed.

Nixon first complains that the trial court erred in holding that no legal duty was owed by Chalmette to Rhonda in these circumstances. Nixon concedes that Chalmette neither owed, nor breached, any traditional duties to Rhonda because she was neither (1) an "invitee" [see Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 431 (1950); Amoco Chemicals v. Sutton, 551 S.W.2d 459 (Tex.Civ.App.--Eastland 1977, writ ref'd n.r.e.); Atchison, Topeka & Sante Fe Ry. v. Smith, 563 S.W.2d 660 (Tex.Civ.App.--Waco 1978, writ ref'd n.r.e.) ]; nor (2) a "licensee" [see Rowland v. City of Corpus Christi, 620 S.W.2d 930 (Tex.Civ.App.--Corpus Christi 1981, writ ref'd n.r.e.); Lower Neches Valley Auth. v. Murphy, 536 S.W.2d 561 (Tex.1976) ]; nor even (3) a "trespasser" [Texas-Louisiana Power Co. v. Webster, 127 Tex. 126, 91 S.W.2d 302 (1936) ]. Nevertheless, Nixon argues that we should create a new duty to be owed by any property owner in a "high crime area" to exercise reasonable care toward persons on their premises, by volition not their own, to protect them against crime. Nixon cites the protection given either "invitees" or "licensees" against foreseeable crime in Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623 (Tex.Civ.App.--Houston [14th Dist.] 1979, writ ref'd n.r.e.); Morris v. Barnette, 553 S.W.2d 648 (Tex.Civ.App.--Texarkana 1977, writ ref'd n.r.e.); and Eastep v. Jack-in-the-Box, 546 S.W.2d 116 (Tex.Civ.App.--Houston [14th Dist.] 1977, writ ref'd n.r.e.); and urges that the same protection be given Rhonda who, while neither an "invitee" or "licensee" was not a "trespasser" either. We are unable to agree that Rhonda was not a trespasser merely because she entered Chalmette's property not on her own volition. Trespassing does not depend upon Rhonda's volition but upon knowledge and consent of Chalmette. In the absence of knowledge and consent by Chalmette to Rhonda's presence on their premises, Chalmette's duty toward Rhonda was no greater than not to injure her willfully, wantonly, or through gross negligence. Burton Const. & Shipbuilding Co. v. Broussard, 154 Tex. 50, 273 S.W.2d 598, 603 (1954). We decline to expand the duty of a property owner to one who, by whose ever volition, is on the owner's property without the owner's knowledge or consent because the property owner can never know when such a duty might come into existence or the extent and degree of measures reasonably necessary to discharge that duty. Here, Rhonda's abduction occurred off Chalmette's premises, but the rape apparently occurred on Chalmette's premises. The abduction and rape constituted one criminal episode, the injury from which had nothing to do with property, or properties, contributing the geography of the episode. Chalmette had no greater duty than the public generally regarding the criminal episode which commenced outside its premises and was not caused by Chalmette. See Portillo v. Housing Authority of the City of El Paso, 652 S.W.2d 568, 569 (Tex.App.--El Paso 1982, no writ).

Our holding is consistent with Totten v. More Oakland Residential Housing, Inc., 134 Cal.Rptr. 29 (Cal.App.1976) wherein a girlfriend of a tenant was in a laundry room of an apartment house when two strangers began shooting at one another, and a stray shot injured the girlfriend. Totten held:

The question presented on appeal is one of first impression. Broadly defined it poses the issue of whether a landlord may be held liable for injuries caused to a stranger, who happens to be on the premises, by the criminal attack of other strangers. A careful analysis of common law principles relating to the tort liability of the possessor of land as well as the policy considerations laid down in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 and other cases lead us to the conclusion that in the situation here present the imposition of such a duty would be entirely unwarranted. In the absence of duty, a vital element of actionable negligence (Richards...