Protecting Against Criminal Activity and the Reasonableness Test
In UDR Tex. Props., L.P. v. Petrie the Texas Supreme Court recently disposed of a premises liability case on the grounds of the unreasonableness of failing to take steps to make a property safe and not on the traditional grounds of foreseeability. 2017 Tex. LEXIS 107 (Tex. Jan. 27, 2017).
In UDR Tex. Props., Alan Petrie (“Mr. Petrie”) was assaulted and robbed in The Gallery apartment complex’s visitor parking lot. The apartment complex itself was gated; however, the visitor parking lot was located outside the gate and was accessible to the public. Mr. Petrie sued The Gallery apartment complex and its owners (collectively “Gallery”) and argued that Gallery knew or should have known about the high crime rate on its premises and in the surrounding area yet failed to use ordinary care to make the complex safe.
The trial court held that Gallery owed no duty to Mr. Petrie to protect him. The court of appeals reversed the trial court’s holding on grounds that Gallery knew or should have known of a foreseeable and unreasonable risk of harm. In reversing the trial court’s ruling, the court of appeals relied exclusively on the factors established in Timberwalk: proximity, regency, frequency, similarity, and publicity. Timberwalk Apts. v. Cain, 972 S.W.2d 749, 759 (Tex. 1998). Gallery urged the court of appeals to affirm the trial court ruling due to Mr. Petrie’s failure to separately brief the issue of whether the risk of harm was unreasonable. The court of appeals held that the “potential unreasonableness and foreseeability of harm is considered as a whole, not as separate elements requiring independent proof.” 2014 WL 7174242, at *3 (internal quotations omitted).
The Texas Supreme Court granted review and began its opinion discussing the Timberwalk factors. The Court indicated that the Timberwalk factors are used to measure foreseeability and are applicable to determine the reasonableness of a risk of harm. See Trammel Crow Central Texas, Ltd. v. Gutierrez, 267 S.W.3d 9, 18 (Tex. 2008). The Timberwalk factors do not compel any “consideration of what burdens a property owner would necessarily incur to prevent or reduce the risk of a crime. Likewise, the factors do not address whether, as a matter of public policy, it is preferable to impose such burdens or, instead, accept the risk that a crime will occur.” UDR Tex. Props., L.P.at 9.
The Court then discussed the issue of unreasonableness in failing to take steps to make a property safe. The Court found that the unreasonableness inquiry imposes a legal duty to protect against foreseeable criminal conduct. The Court added that this includes “whether a duty would ‘require conspicuous security at every point of potential contact between a patron and a criminal’ or require adoption of ‘extraordinary measures to prevent a similar occurrence in the future.’” Trammel Crow, 267 S.W.3d at 18; UDR Tex. Props., L.P.at 9. The Court recognized that it had never before disposed of a case on unreasonableness grounds since handing down its opinion in Timberwalk; however, the Court emphasized the importance of distinguishing between the foreseeability and the unreasonableness inquiries.
Additionally, the Court noted that Mr. Petrie had at every stage of the case been on notice that he had to argue and offer evidence of unreasonableness and had failed to do so. At no time had Mr. Petrie offered evidence pertaining to Gallery’s burden to make the property safe from foreseeable crime and whether that burden was reasonable. Due to Mr.Petrie’s failure to offer evidence on the element of unreasonableness in the determination of whether a legal duty exists in a premises liability case, the Texas Supreme Court rendered judgment in Gallery’s favor.