Timberwalk Apartments, Partners, Inc. v. Cain

• Decision Date: 03 July 1998
• Docket Number: No. 97-0475,97-0475
• Parties: 41 Tex. Sup. Ct. J. 1138 TIMBERWALK APARTMENTS, PARTNERS, INC., Timberwalk Apartments Ltd., and Sovereign National Management, Inc. d/b/a Sovereign/LBI, Petitioners, v. Tammie Rene CAIN a/k/a Tammy Cain, Respondent.
• Court: Texas Supreme Court

Page 749

972 S.W.2d 749

41 Tex. Sup. Ct. J. 1138

TIMBERWALK APARTMENTS, PARTNERS, INC., Timberwalk Apartments

Ltd., and Sovereign National Management, Inc.

d/b/a Sovereign/LBI, Petitioners, v. Tammie Rene CAIN a/k/a Tammy Cain, Respondent.

No. 97-0475.

Supreme Court of Texas.

Argued Jan. 7, 1998.

Decided July 3, 1998.

Wayne Adams, Diane M. Guariglia, Jack McKinley, Houston, for petitioners.

Thomas M. Stanley, Morris Tabak, Houston, for respondent.

HECHT, Justice, delivered the opinion of the Court, in which PHILLIPS, Chief Justice, GONZALEZ, ENOCH, OWEN, BAKER, ABBOTT and HANKINSON, Justices, joined.

Plaintiff alleges she was raped in her apartment because her landlord failed to provide adequate security. The principal issues are whether plaintiff alleges a negligent activity or a premises defect, whether chapter 92, subchapter B of the Property Code applies to personal injury actions, and whether the risk that a tenant would be sexually assaulted was reasonably foreseeable to defendants. The district court rendered judgment on a verdict for defendants, and the court of appeals reversed. ¹ We reverse in part and affirm in part the judgment of the court of appeals and remand the case to the district court for further proceedings.

I

Tammy Rene Cain was raped in the bedroom of her Houston apartment by an intruder, Peter Saenz, about 3:00 a.m. one Sunday. Saenz was ultimately convicted of that sexual assault and seven others that followed, and sentenced to prison. Cain brought suit for her personal injuries against the owners of the 300-apartment complex, Timberwalk Apartments, Partners, Inc. and Timberwalk Apartments Limited (together, "Timberwalk"), and their management company, Sovereign National Management, Inc., alleging that they negligently failed to provide adequate security, including "charley" bars or pin locks for sliding glass doors, alarm systems in the apartments, access gates to the complex, proper lighting, routine surveillance, and guards. Cain also alleged violations of the Deceptive Trade Practices-Consumer Protection Act. ² Cain claimed actual and punitive damages.

Many issues at trial were sharply disputed. Saenz told police that he met Cain previously in the parking lot, but Cain stated that she did not remember the encounter. Saenz also told police that Cain admitted him through the front door to use the telephone, but Cain denied this. She and the investigating officer testified that Saenz entered through the sliding glass door, as evidenced by his palm prints on that door. Cain testified that the sliding glass door was locked, but there was no sign of forced entry. Cain's expert testified that the sliding glass door could be opened while locked, but he and others tried to do it without success. Cain had a broomstick that she sometimes, but not always, used as a "charley" bar, and it is not clear whether she used it the night of the assault. Cain's apartment had an alarm system, but it was not operating at the time. Cain's roommate believed that defendants charged an additional fee to operate the alarm, but defendants asserted that Cain and her roommate could have had an operating code for the asking. Cain contends defendants never told her or her roommate this. Cain claimed that there should have been security guards watching the apartments, but defendants asserted that they told Cain's roommate that the only guard was an officer who lived in one of the apartments. An access gate on the side of the complex where Cain lived did not work, and Cain understood that it would be fixed, but defendants asserted that Cain's understanding was based on representations of the prior owner of the complex and that they never promised to fix the gate. Cain's roommate complained when the gate remained broken and asked to move to the other side of the complex where the access gate worked but was told that there was a six-month waiting list for those units. There was evidence that Saenz was living at the time with his common law wife in the same apartment complex, so that he would have been entitled to access whether the gate worked or not. However, there was also evidence that Saenz was still living with a girl friend elsewhere.

One of the few issues on which the evidence was essentially undisputed was the incidence of criminal activity at the Timberwalk Apartments, at nearby complexes, and in the surrounding area. Cain admitted that she had not heard of any criminal activity at the Timberwalk Apartments during the six months she had stayed there, except when her roommate's ex-boyfriend slashed the tires on her roommate's car. Sovereign's manager of the complex for over a decade testified that she had never heard of another sexual assault at the complex. In fact, the only serious crimes ever reported from the Timberwalk Apartments were the burglary of one car and the theft of another. During the year preceding the assault on Cain, police had received eleven calls from within a one-mile radius of Timberwalk reporting sexual assaults. Four of these calls originated in apartment complexes, one of which bordered Timberwalk. But these were only calls, not actual crimes. Incident reports showed that only one of the eleven callers reported an actual crime, and it did not involve rape. The year preceding the assault on Cain, statistics showed that sexual assault occurred in Houston 0.72 times per 1,000 people. The year before that, the rate of occurrence in Timberwalk's census tract was 0.58 sexual assaults per 1,000 people, while the statewide rate was only slightly lower, 0.534 per 1,000 people. The total of all assault-type crimes in all apartment complexes in the Timberwalk area the year preceding Cain's sexual assault was six, a figure defendants' expert characterized as "astonishingly low".

The jury found that Cain's injuries were caused only by her own negligence, and failed to find that defendants violated the DTPA. The district court rendered judgment on the verdict for defendants, and Cain appealed, but only on her negligence claim and not her DTPA claim.

The court of appeals reversed and remanded for a new trial, holding that the district court erred in defining negligence with respect to defendants as in a premises liability case, viz, the "failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier knows about or in the exercise of ordinary care should know about." ³ The court concluded that this instruction "probably kept the jury from considering the gravamen of Cain's complaint, that the apartment complex had a duty to, but did not, provide adequate security measures to protect its tenants." ⁴ Cain argued that the jury should have been instructed that negligence with respect to defendants means "failure to use ordinary care; that is to say, failure to do that which a person of ordinary prudence would have done under the same or similar circumstances, or doing that which a person of ordinary prudence would not have done under the same or similar circumstances." ⁵

The appeals court also held that the jury should not have been charged as follows:

You are instructed that a landlord shall make a diligent effort to repair or remedy a condition if the tenant specifies the condition in a notice to the person to whom or to the place where rent is normally paid and the condition materially affects the physical health or safety of an ordinary tenant. The tenant's notice must be in writing only if the tenant's lease is in writing and requires written notice. ⁶

The court concluded that this instruction "limited the landlord's duty to the duty to repair a condition and did not include the duty to take precautions to prevent foreseeable criminal acts of a third party." ⁷ The court of appeals remanded the case for a new trial without reaching Cain's third complaint, that the district court erred in not declaring a mistrial or granting a new trial after Timberwalk's counsel violated an order on motion in limine by referring to another lawsuit Cain had filed. ⁸

Timberwalk and Sovereign filed separate petitions for writ of error in this Court. We granted both. ⁹ Both argue that there was no error in the jury charge. If they are correct, then Sovereign is entitled to rendition of judgment, but Timberwalk is entitled only to a remand to the court of appeals for consideration of Cain's additional complaint not previously addressed. However, Timberwalk also argues that as a matter of law it owed Cain no duty of care because Saenz's criminal attack on her was unforeseeable. If this argument is correct, then Timberwalk, too, is entitled to rendition of judgment. Therefore, we must consider both the charge arguments and the duty argument. We consider the charge arguments first.

II

A

Defendants contend that the district court did not err in charging the jury as on a premises liability claim rather than a negligent activity claim. We agree. In Keetch v. Kroger Co., ¹⁰ we explained the difference between liability for negligent activity and liability for failing to remedy an unreasonable risk of harm due to the condition of premises. "Recovery on a negligent activity theory requires that the person have been injured by or as a contemporaneous result of the activity itself rather than by a condition created by the activity." ¹¹ Negligence in the former context means simply doing or failing to do what a person of ordinary prudence in the same or similar circumstances would have not done or done. ¹² Negligence in the latter context means "failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition which the owner or occupier [of land] knows about or in the exercise of ordinary care should know about." ¹³ This is the instruction the district court gave in the present case.

A complaint that a landowner failed to provide adequate security against criminal conduct is ordinarily a...