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noting that "[t]his Court conceived the Timberwalk factors as a means to aid courts in determining [the essential] foreseeability [element] specifically"
Summary of this case from Douglas v. HardyOpinion
NO. 15–0197
01-27-2017
UDR TEXAS PROPERTIES, L.P. d/b/a The Gallery Apartments, United Dominion Realty Trust, Inc., ASR of Delaware, L.L.C., and UDR Western Residential, Inc., Petitioners v. Alan PETRIE, Respondent
Raffi O. Melkonian, R. Russell Hollenbeck, Thomas C. Wright, Jeffrey L. Diamond, Jessica Z. Barger, for Petitioners. David E. Chapin, for Respondent.
Raffi O. Melkonian, R. Russell Hollenbeck, Thomas C. Wright, Jeffrey L. Diamond, Jessica Z. Barger, for Petitioners.
David E. Chapin, for Respondent.
Justice Brown delivered the opinion of the Court.
Alan Petrie sued The Gallery apartment complex and its owners (collectively, "Gallery") after he was assaulted and robbed in the complex's visitor parking lot. The trial court concluded Gallery owed no duty to Petrie to protect him but the court of appeals reversed, holding there was evidence Gallery knew or should have known of a foreseeable and unreasonable risk of harm. We reverse the court of appeals because it failed to properly consider whether the risk of harm was unreasonable; we render judgment for Gallery because Petrie offered no evidence of the burden that preventing such a crime would impose on Gallery.
I
Alan Petrie arrived at The Gallery at about two o'clock one morning to attend a party hosted by a co-worker. He parked in a visitor lot at the front of the complex. Although the complex was gated, the visitor parking lot, which spanned most of the property's street frontage, was outside the gate and accessible to the public. While Petrie made a phone call from his car, a vehicle pulled up behind his, blocking him in. Two men exited the vehicle and approached Petrie's car. One pointed a shotgun at Petrie through his window and ordered him to exit the car. Petrie complied and, when requested, surrendered his wallet and keys. But when ordered to lie down, he hesitated. So one of the men shot him in the knee and he fell to the ground. The shooter then placed the shotgun barrel to Petrie's head and pulled the trigger, but the weapon did not fire. Petrie quickly crawled under the vehicle next to him while the assailants fled.
Petrie sued Gallery, alleging it 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. Both sides presented expert witnesses at a two-day evidentiary hearing. The experts' testimony focused mainly on whether the crime against Petrie was foreseeable. The trial court concluded Gallery owed no duty to Petrie and signed a take-nothing judgment in its favor.
The court of appeals reversed, holding that "there is evidence of the foreseeability of an unreasonable risk of harm that a person on the premises would be the victim of violent criminal conduct." No. 14–13–00123–CV, 2014 WL 7174242, at *9 (Tex. App.—Houston [14th Dist.] Dec. 9, 2014) (mem. op.). The court of appeals based its conclusion exclusively on its analysis of the evidence against the factors we laid out in Timberwalk Apartments, Partners, Inc. v. Cain , 972 S.W.2d 749 (Tex. 1998). Gallery urged the court of appeals to affirm the trial court's judgment because Petrie failed to separately brief whether the risk of harm was unreasonable. In response, the court of appeals held that "[t]he 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 court of appeals added that "whether the risk of criminal conduct is both unreasonable and foreseeable is determined by assessing the five Timberwalk factors." Id. at n.2.
Gallery sought our review, arguing that the court of appeals never truly considered whether there was an unreasonable risk of harm because the Timberwalk factors apply only to foreseeability. Gallery further urges us to render judgment in its favor because Petrie failed to argue or offer any evidence on unreasonableness. We granted review.
II
Generally, property owners have no legal duty to protect persons from third-party criminal acts. See Walker v. Harris , 924 S.W.2d 375, 377 (Tex. 1996). But a property owner 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." Lefmark Mgmt. Co. v. Old , 946 S.W.2d 52, 53 (Tex. 1997). We have consistently said that a risk must be both foreseeable and unreasonable to impose a duty on a property owner. This approach is not peculiar to premises-liability cases; it is essential to the determination of duty in all of tort law. See, e.g. , Greater Houston Transp. Co. v. Phillips , 801 S.W.2d 523, 525 (Tex. 1990) (in determining existence of a duty in common-law negligence cases, "the court will consider several interrelated factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant"). Foreseeability is a "prerequisite to imposing a duty." Timberwalk , 972 S.W.2d at 756. But once foreseeability is established, "the parameters of the duty must still be determined." Id. Courts will also consider "the social utility of the actor's conduct, the consequences of imposing the burden on the actor, and any other relevant competing individual and social interests implicated by the facts of the case." Tex. Home Mgmt., Inc. v. Peavy , 89 S.W.3d 30, 33 (Tex. 2002). These considerations take into account not just the "reasonable foreseeability of harm to the person injured" but also "public policy considerations." Id. at 34. We acknowledge that "foreseeability has received the lion's share of the attention" from Texas courts considering a property owner's duty to protect invitees from third-party criminal acts. Del Lago Partners, Inc. v. Smith , 307 S.W.3d 762, 791 (Tex. 2010) (Wainwright, J., dissenting). Nonetheless, "[f]oreseeability is the beginning, not the end, of the analysis in determining the extent of the duty to protect against criminal acts of third parties." Timberwalk , 972 S.W.2d at 756 (quoting Lefmark , 946 S.W.2d at 59 ) (Owen, J., concurring).
There is no dispute here that Gallery retained control over its apartment complex or that Petrie was an invitee.
See Timberwalk, 972 S.W.2d at 756 ("The foreseeability of an unreasonable risk of criminal conduct is a prerequisite to imposing a duty ...."); Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999) ("[P]roperty owners owe a duty to those who may be harmed by the criminal acts [of third parties] only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable."); Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d 9, 12 (Tex. 2008) (A property owner "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."); Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 767 (Tex. 2010) ("[A] property owner owes invitees a duty to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition about which the property owner knew or should have known.").
The court of appeals acknowledged that unreasonableness plays a role in the duty inquiry but concluded that an evaluation of the factors we laid out in Timberwalk is dispositive of whether the risk of criminal conduct is both foreseeable and unreasonable. See 2014 WL 7174242, at *3 n.2. We disagree. This Court conceived the Timberwalk factors as a means to aid courts in determining foreseeability specifically. See Timberwalk , 972 S.W.2d at 757 ("In determining whether the occurrence of certain criminal conduct on a landowner's property should have been foreseen, courts should consider whether any criminal conduct previously occurred on or near the property, how recently it occurred, how often it occurred, how similar the conduct was to the conduct on the property, and what publicity was given the occurrences to indicate that the landowner knew or should have known about them."). Our explanation of each factor focused doggedly on foreseeability. First, proximity: "For a landowner to foresee criminal conduct on property, there must be evidence that other crimes have occurred on the property or in its immediate vicinity." Id. Second, recency and frequency: "Foreseeability also depends on how recently and how often criminal conduct has occurred in the past." Id. at 757–58. Third, similarity: "The previous crimes must be sufficiently similar to the crime in question as to place the landowner on notice of the specific danger." Id. at 758. And fourth, publicity: "The publicity surrounding the previous crimes helps determine whether a landowner knew or should have known of a foreseeable danger." Id. "These factors—proximity, recency, frequency, similarity, and publicity—must be considered together in determining whether criminal conduct was foreseeable." Id. at 759.
Moreover, when we first applied these factors in Timberwalk , we concluded only that "the risk that a tenant would be sexually assaulted was in no way foreseeable." Id. Because the lack of foreseeability was dispositive in that case, further consideration of the unreasonableness of the risk was unnecessary. Similarly, in Mellon Mortgage Co. v. Holder , we recited the standard that risk of a crime must be "both unreasonable and foreseeable" while signaling that "[w]e focus our attention in this case on ‘foreseeability.’ " 5 S.W.3d 654, 655 (Tex. 1999) (emphasis added). Again, we did not further discuss unreasonableness because it was unnecessary after concluding the criminal act was unforeseeable. See id. at 658.
Although we have yet to dispose of a post-Timberwalk case on unreasonableness grounds, the distinctiveness of the foreseeability and unreasonableness inquiries has been on full display. In Trammell Crow Central Texas, Ltd. v. Gutierrez , for instance, the Court unanimously agreed the owners of a 60–acre shopping mall owed no duty to the victim of a parking-lot shooting. 267 S.W.3d 9, 9 (Tex. 2008). But the Court split on whether that conclusion rested on unforeseeability or the unreasonableness of the risk. The majority applied the Timberwalk factors and concluded the crime was unforeseeable. See id. at 13–17. But four concurring justices would have concluded "not that the attack was unforeseeable, but that the risk of its occurrence was not unreasonable, and that the consequences of requiring premises owners to prevent this type of crime would require a measure of deterrence that is neither feasible nor desirable." See id. at 18 (Jefferson, C.J., concurring).
Similarly, a dissenting justice broke from the Del Lago majority to argue that the risk was not unreasonable even if foreseeable. See 307 S.W.3d at 791–95 (Wainwright, J., dissenting). Notably, the Del Lago majority did not dispute the distinctiveness of the unreasonableness inquiry; rather, it simply disagreed with the dissent on the unreasonableness of the risk. See id. at 770 ("[The dissent] correctly notes that a property owner's duty to invitees extends only to reduce or eliminate an unreasonable risk of harm created by a premises condition. Under the circumstances of this case, we think [the plaintiff] faced an unreasonable risk of harm.").
We designed the Timberwalk factors to measure foreseeability; their application cannot, without more, determine the reasonableness of a risk of harm. See Trammell Crow , 267 S.W.3d at 18 (Jefferson, C.J., concurring) ("[F]ocusing solely on foreseeability overlooks other factors we have held are pertinent to the existence and scope of a duty."). Unreasonableness "turns on the risk and likelihood of injury to the plaintiff ... as well as the magnitude and consequences of placing a duty on the defendant." Del Lago , 307 S.W.3d at 770 (citing Phillips , 801 S.W.2d at 525 ). A risk is unreasonable when the risk of a foreseeable crime outweighs the burden placed on property owners—and society at large—to prevent the risk. None of the Timberwalk factors compels 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.
The unreasonableness inquiry, on the other hand, explores the policy implications of imposing a legal duty to protect against foreseeable criminal conduct. 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." Trammell Crow , 267 S.W.3d at 18 (Jefferson, C.J., concurring). Accordingly, "if a premises owner could easily prevent a certain type of harm, it may be unreasonable for the premises owner not to exercise ordinary care to address the risk." Del Lago , 307 S.W.3d at 792. But "if the burden of preventing the harm is unacceptably high, the risk of the harm is not unreasonable." Id. As Chief Justice Jefferson observed:
The question is the extent to which we should require premises owners—even those who have experienced crime in the past—to provide the same level of security that airports enlist to prevent terrorism. Life in a free society carries a degree of risk. That risk can be virtually eliminated by a pervasive military presence, but the burdens—both in terms of the economic cost to premises owners and in the oppressive climate a police state spawns—would be prohibitive.
Trammell Crow , 267 S.W.3d at 19 (Jefferson, C.J., concurring).
The court of appeals erred in its conclusion that " ‘unreasonableness and foreseeability of harm’ is considered as a whole, not as separate elements requiring independent proof." 2014 WL 7174242, at *3. We have acknowledged that foreseeability and unreasonableness are not wholly independent; rather, "[t]he unreasonableness of a risk cannot be completely separated from its foreseeability." Del Lago , 307 S.W.3d at 770. But while the Timberwalk factors were designed to elicit evidence defining the risk posed by foreseeable criminal activity, they do not contemplate weighing that risk "against the consequences of placing [a] burden on the defendant," and on society, to reduce or eliminate that risk. Del Lago , 307 S.W.3d at 791 (Wainwright, J., dissenting). The court of appeals never truly considered the unreasonableness of any foreseeable risk to Petrie. And so the court erred in concluding as a matter of law that Gallery owed a legal duty of care to Petrie.
III
Gallery argues we should render judgment in its favor because Petrie offered no evidence of, and did not argue that he faced, an unreasonable risk of harm. We agree he never offered any such evidence and is without excuse for not doing so. Although we have not disposed of a post-Timberwalk case on unreasonableness grounds, our precedents are unambiguous: the foreseeability and unreasonableness inquiries are distinct. Moreover, Petrie has been on notice at every stage of this case that he must argue and offer evidence of unreasonableness. On multiple occasions, Gallery argued to the trial court that it must conclude the crime against Petrie was both foreseeable and the risk unreasonable. But Petrie exclusively relied on his expert witness's foreseeability evaluation. He offered no evidence concerning the burden on Gallery to make the property safe from foreseeable crime and whether that burden was reasonable.
In its final judgment, the trial court simply stated that "[d]efendants owed no duty to protect [Petrie] from the criminal acts of third persons." It did not explain whether it based that determination on foreseeability or unreasonableness or both. At the court of appeals, Gallery argued that by failing to address unreasonableness, Petrie failed to challenge a potential independent basis for the trial court's ruling. We agree. Petrie's briefing to the court of appeals, arguing that "the aggravated robbery was imminently foreseeable, and a duty on the part of [Gallery] was accordingly established," shows he saw foreseeability as his only challenge.
Although Petrie did raise a new argument in his briefing to the court of appeals about poor lighting in Gallery's parking lot, he presented it in the course of arguing that the crime against Petrie was foreseeable. Petrie never specifically asserted that better lighting could have prevented the crime and what the burden on Gallery would have been to improve its lighting. Moreover, Petrie offered no evidence on lighting at the trial court's evidentiary hearing and the court of appeals made no mention of it in its opinion.
To this Court, Gallery repeats its argument that Petrie's failure to address unreasonableness leaves unchallenged an independent basis for the trial court's judgment. Petrie responds that the court of appeals properly analyzed foreseeability and unreasonableness together in its Timberwalk analysis. He further argues that Gallery's awareness of crime on its premises together with "its failure to take protective action other than posting signs in the front parking lot warning that violators would be towed, demonstrate that the magnitude and consequences of imposing a duty do not outweigh the need for prevention." But we disagree. At most, this amounts to more evidence that the crime against Petrie was foreseeable and potentially establishes that the risk of harm was high. It says nothing about the burden the law should impose on Gallery to militate against that risk and whether the risk is still unreasonable in light of that burden. Petrie's briefing includes neither any suggestion of measures Gallery should take nor what cost could be justifiably imposed.
Petrie's counsel was asked at oral argument what evidence in the record shows the burden Gallery should bear to prevent crimes like this one. He responded that Gallery could have (1) improved the lighting in the visitor parking lot; (2) assigned courtesy officers living at the complex to patrol the parking lot from 10 p.m. to 2 a.m. on Friday and Saturday nights; (3) hired off-duty police officers to monitor the lot; and (4) trimmed back a row of hedges that run between the visitor parking lot and the sidewalk. Of these, only the better-lighting proposal is supported by any evidence in the record. Petrie retained a lighting expert whose report appears in the record. But Petrie failed to present either the report or the expert at the trial court's evidentiary hearing. And at no point before oral argument to this Court did Petrie propose utilizing on-premises courtesy officers, off-duty police officers, or trimming back hedges to prevent crime. When asked if there was evidence in the record on what it would cost Gallery to implement a police presence in its parking lot, Petrie's counsel conceded there is none.
Based on Gallery's arguments in both courts below and before this Court and the standard set forth by our precedents, Petrie was at least on notice that in addition to establishing foreseeability he might be required to put on evidence and argue that he faced an unreasonable risk of harm. He chose to stand on the position that the Timberwalk factors were dispositive of both foreseeability and unreasonableness, and further chose not to offer any evidence on Gallery's burden to prevent or reduce the risk from violent crime. Because he presented no evidence and made no argument on an essential element in the determination of whether a legal duty exists, judgment should be rendered in Gallery's favor.
* * *
We reverse the court of appeals because it failed to properly consider whether the risk of harm was unreasonable. We render judgment in Gallery's favor because Petrie failed to offer evidence of the burden that would be imposed on Gallery to prevent or reduce the risk from a crime like this one.
Justice Willett filed a concurring opinion, in which Justice Boyd joined.
Don R. Willett Justice, concurring
I fully join the Court's opinion. It accurately describes extant Texas law on property-owner liability for the criminal acts of third parties. The Court thoughtfully reviews and synthesizes that law, and correctly applies it to the facts presented. I write only to flag something that has long vexed me in these cases: the allocation of responsibilities between the judge and jury, and the derivative and important question of how to correctly charge the jury.
It seems the duty question as analyzed by the Court may be assigning determinations to the trial judge that are usually left to the jury. In this case, the duty question was decided after a two-day evidentiary hearing to the trial court. If the trial court, in determining duty , is to balance (1) the burden on the defendant of preventing the injury, (2) the magnitude of the injury to the plaintiff, and (3) the foreseeability of the injury, then the duty question—determined by the judge—has arguably subsumed negligence and proximate cause questions traditionally assigned to the jury.
It goes without saying that under tort law generally, questions of negligence and proximate cause are quintessential jury questions. Texas Pattern Jury Charge 4.1, for example, asks: "Did the negligence, if any, of those named below proximately cause the [injury] [occurrence] in question?" Pattern Jury Charge 2.1 defines negligence, and Pattern Jury Charge 2.4 defines proximate cause. The Third Restatement of Torts states that when "reasonable minds can differ as to whether the conduct lacks reasonable care, it is the function of the jury to make that determination." Reasonable or ordinary care is the core negligence issue, as discussed below. Duty, on the other hand, is a question of law for the court.
Comm. on Pattern Jury Charges, State Bar of Texas, Texas Pattern Jury Charges PJC 4.1 (2016).
Id. at PJC 2.1, 2.4.
Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 8 (2010).
Trammel l Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d 9, 12 (Tex. 2008).
The Court recognizes a duty on property owners "to use ordinary care to protect invitees from criminal acts of third parties" if the owner "knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee." It says the duty "is essential to the concept of legal duty in all of tort law," and turns on several "factors, including the risk, foreseeability, and likelihood of injury weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury, and the consequences of placing the burden on the defendant." The Court further states: "Unreasonableness ‘turns on the risk and likelihood of injury to the plaintiff ... as well as the magnitude and consequences of placing a duty on the defendant.’ " It balances the risk to the plaintiff and the burden on the defendant: "A risk is unreasonable when the risk of a foreseeable crime outweighs the burden placed on property owners—and society at large—to prevent the risk."
Ante at 100 (quoting Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997) ).
Ante at 101 (quoting Greater Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990) ).
Ante at 102 (quoting Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 770 (Tex. 2010) ).
Ante at 103.
I read the Court's opinion as holding that a duty is imposed on property owners to use ordinary care to protect invitees from an unreasonable and foreseeable risk of harm from third-party crimes. Unreasonableness turns on (1) the risk of injury to the plaintiff (which I take to refer to the magnitude or severity of the injury), (2) the likelihood of injury to the plaintiff, and (3) the burden on the defendant of requiring it to protect invitees. The Court notes that "foreseeability and unreasonableness of a risk are not wholly independent," because " ‘[t]he unreasonableness of a risk cannot be completely separated from its foreseeability.’ "
Ante at 103 (quoting Del Lago, 307 S.W.3d at 770 ).
But if the duty inquiry asks whether the defendant failed to use ordinary care to protect against an unreasonable risk of harm to the invitee, and if the reasonableness of the defendant's behavior turns on the magnitude and likelihood of injury to the plaintiff and the burden on the defendant of preventing the injury, then the duty inquiry isn't much different from asking whether the defendant was negligent.
For example, we recently stated as a "fundamental common-law principle [ ]" that "negligence means the failure to use ordinary care—failing to do what a reasonable person like the defendant would have done under the same or similar circumstances—to protect against unreasonable risk of harm." This definition of negligence is similar to the duty the Court today recognizes "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."
Union Pac. R.R. v. Nami, 498 S.W.3d 890, 896 (Tex. 2016).
Ante at 105 (quoting Lefmark Mgmt., 946 S.W.2d at 53 ).
The Court states that "[u]nreasonableness ‘turns on the risk and likelihood of injury to the plaintiff ... as well as the magnitude and consequences of placing a duty on the defendant.’ " That sounds an awful lot like Judge Learned Hand's well-known calculus of negligence—aka the Hand rule or Hand formula—holding that a defendant is negligent if
Ante at 102 (quoting Del Lago, 307 S.W.3d at 770 ).
B < PL,
where B is the burden on the defendant of taking adequate precautions, P is the probability of the loss to the plaintiff, and L is "the gravity" or the magnitude "of the resulting injury." I doubt the "probability" of injury in Hand's formula is much different from the "likelihood" or "foreseeability" of injury, terms we use in our duty determination, though some subtle distinction may escape me. The Hand formula, the subject of 28.1 million Google hits, is widely taught in law schools as a recognized definition of negligence, and was memorably rearticulated in Fight Club , where the narrator explains how his car-company employer decides whether to initiate a recall.
United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir. 1947).
Narrator:
A new car built by my company leaves somewhere traveling at 60 mph. The rear differential locks up. The car crashes and burns with everyone caught inside. Now, should we initiate a recall? Take the number of vehicles in the field, A, multiply by the probable rate of failure, B, multiply by the average out-of-court settlement, C. A times B times C equals X. If X is less than the cost of a recall, we don't do one.
Fight Club (20th Century Fox 1999).
Our own writings and the views of Learned Hand reflect mainstream principles of tort law. Again, under this view, the negligence question focuses on whether the defendant acted reasonably under the circumstances. The reasonableness determination considers, indeed balances, the burden on the defendant of preventing the harm against the severity and likelihood of the injury the plaintiff faces, as reflected in the Third Restatement of Torts:
A person acts negligently if the person does not exercise reasonable care under all the circumstances. Primary factors to consider in ascertaining whether the person's conduct lacks reasonable care are the foreseeable likelihood that the person's conduct will result in harm, the foreseeable severity of any harm that may ensue, and the burden of precautions to eliminate or reduce the risk of harm.
Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 3 (2010).
Further, if a foreseeability determination is left to the trial judge in making the duty determination in this context, then half of the proximate-cause determination is arguably left to the trial judge. "To recover under a negligence theory, the plaintiff must establish proximate causation, while recovery under a products liability theory requires proof of producing causation. Proximate cause and producing cause share the common element of causation in fact, with proximate cause including the additional element of foreseeability." One can debate whether foreseeability is best considered in the negligence determination or the proximate-cause determination, or both, but there is no doubt that both determinations are ordinarily treated as findings that are factual in nature, and are decided by the jury where reasonable minds could differ on whether the facts support the findings.
Bostic v. Georgia–Pacific Corp., 439 S.W.3d 332, 343 n.42 (Tex. 2014) (citing Transcon. Ins. Co. v. Crump, 330 S.W.3d 211, 222–23 (Tex. 2010) ; Borg–Warner Corp. v. Flores, 232 S.W.3d 765, 770 (Tex. 2007) ; Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex. 1995) ; Gen. Motors Corp. v. Saenz, 873 S.W.2d 353, 357 (Tex. 1993) ).
Under the Texas Pattern Jury Charges, foreseeability is included in the definition of proximate cause. Comm. on Pattern Jury Charges, State Bar of Texas, Texas Pattern Jury Charges PJC 2.4 (2014). The Third Restatement includes foreseeability in the definition of negligence. Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 3 (2010).
I do not suggest that the law in this area presents a constitutional problem in the allocation of findings assigned to the judge. The jury must still decide causation in fact and damages in these cases, and perhaps more. But I do wonder if our decisions compel the trial judge, in deciding the existence of duty in this context, to determine negligence and proximate-cause questions that are traditionally left to the jury. If the answer is yes, the result is unusual if nothing else. I also wonder whether the Court fully appreciates this result.
And if Texas law in these cases assigns questions of foreseeability—an element of proximate cause—and negligence to the judge, must these issues be decided a second time by the jury? I don't have a watertight answer. Even if this result seems unfair to the plaintiff, I suspect that her lawyer will hesitate to forgo a standard jury question on negligence and proximate cause, for fear the defendant will argue on appeal that the verdict lacks vital findings.
Nothing in today's decision creates a concern that has not existed for years. Twenty years ago, for example, we stated that "[o]ne who controls the premises does have a duty to use ordinary care to protect invitees from criminal acts if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee." Concern as to whether the duty determination coopted determinations usually left to the jury was presented about as well then as it is today.
Lefmark Mgmt., 946 S.W.2d at 53.
Further, concern that the duty determination might deprive the jury of its traditional function is not a unique problem. Similar worries, I suppose, are presented when the trial judge employs its gatekeeper function to decide, in a Robinson pretrial hearing, that the jury will not hear from a proffered expert. In Robinson , we rejected the plaintiffs' contention "that allowing the trial judge to assess the reliability of expert testimony violates their federal and state constitutional rights to a jury trial by infringing upon the jury's inherent authority to assess the credibility of witnesses and the weight to be given their testimony." We observed that the constitutional right to a jury trial "was designed to preserve the basic institution of jury trial in only its most fundamental elements, not the great mass of procedural forms and details." Nevertheless, taking away decisions historically left to the jury, for any reason, should not be taken lightly.
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995).
Id. (quoting Parklane Hosiery Co. v. Shore, 439 U.S. 322, 337, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979) ).
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At this point I am only flagging these issues. I have not formulated a grand unified theory of tort law or scripted the ideal way to instruct juries. I write only to kindle further study from the bench, bar, and academy. And I note that even if we were inclined to further explicate the role of the jury in cases involving third-party criminal conduct, this case would not be the appropriate vehicle given the absence of evidence on reasonableness noted by the Court.