Lizzy Plug v. SXSW Holdings, Incorporated

Case: 17-50674 Document: 00514639422 Page: 1 Date Filed: 09/12/2018

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

September 12, 2018

No. 17-50674

Lyle W. Cayce

Clerk

ELISABETH HENDRIKA SOPHIA MARIA SMIT, widow of M.G.H.

Craenmehr and mother of Steven Craenmehr, Individually; LIZZY JANE

FRANCIS PLUG, Individually, as Next Friend of M.C., a minor, and on

behalf of the Estate of Steven Craenmehr, deceased,

Plaintiffs - Appellants

v.

SXSW HOLDINGS, INCORPORATED, formerly known as SXSW,

Incorporated; SXSW, L.L.C., formerly known as SXSW Transition, L.L.C.;

PATRICK LOWE; TRANSPORTATION DESIGN CONSULTANTS, L.L.C.;

CITY OF AUSTIN,

Defendants - Appellees

Appeal from the United States District Court

for the Western District of Texas

Before REAVLEY, GRAVES, and COSTA, Circuit Judges.

REAVLEY, Circuit Judge:

The 2014 South by Southwest Festival was marred by tragedy. An

intoxicated driver fled Austin police and knowingly accelerated through a

closed city block—crowd and all—killing four people and injuring many others.

The family of one victim filed this wrongful-death suit against the festival

organizers and the City of Austin, alleging those actors failed to adequately

blockade the street and prevent the ensuing harm.

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The district court dismissed the plaintiffs’ lawsuit for failure to state a

claim under Texas law. We affirm.

I. BACKGROUND 1

Every March, the City of Austin is home to one of the largest music, film,

and interactive festivals in the world: South by Southwest (commonly referred

to as “SXSW”). SXSW takes place not at a single venue but at almost 100

separate locations across the downtown area. Festival attendees travel from

one venue to another, and they often do so on bicycles or on foot.

SXSW’s multi-venue format requires that certain segments of streets be

closed to vehicular traffic. To that end, SXSW submits an annual application

to the City for a right-of-way permit. For the March 2014 festival, SXSW

submitted such an application and requested the closure of Red River Street

between 8th and 11th street (in other words, the 800 through the 1000 block).

The City approved the application and issued a right-of-way permit. That

permit identified a closure of Red River Street between the 800 and 1000 blocks

but included a condition that “[a]ll traffic controls must be provided in

accordance with the approved traffic control plan.”

The subsequent traffic control plan left the 1000 block of Red River

Street open to vehicular traffic, closing instead only the 700, 800, and 900

blocks. To effectuate those closures, the organizers and the City placed “Type

III” barricades at each intersection, and a police officer stood watch.

1 With one exception, our recitation of the facts comes from (1) the plaintiffs’ Second

and Third Amended Complaints (the live pleadings for purposes of this appeal) and

(2) exhibits attached thereto. Ruiz v. Brennan, 851 F.3d 464, 468 (5th Cir. 2017) (“In ruling

on a Rule 12(b)(6) motion, we may consider the contents of the pleadings along with any

attachments.”).

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In the early morning hours of March 13, 2014, a police officer observed

Rashad Owens make an illegal turn onto the southbound I-35 access road. 2

The officer activated his emergency lights and attempted to stop Owens’s

vehicle, but the intoxicated Owens turned right onto 9th street. Owens then

turned north onto the 900 block of Red River Street, bypassing the barriers,

accelerating through the festival zone, and hitting multiple pedestrians.

Owens kept going and breached the barriers at the opposite end of the block.

And upon reaching the open 1000 block of Red River Street, Owens hit and

killed a bicyclist, Steven Craenmehr. Craenmehr was a music producer from

the Netherlands and a SXSW attendee.

In all, Owens killed four people. A jury later convicted Owens of capital

murder—i.e., knowingly engaging in conduct for which death is reasonably

certain to result and causing multiple deaths in the same criminal transaction.

TEX. PEN. CODE § 19.03(a)(7)(A); see also Owens v. State, 549 S.W.3d 735, 738

(Tex. App.—Austin 2017, pet. ref’d) (affirming Owens’s conviction on appeal).

Craenmehr’s mother and his widow (the latter on behalf of herself,

Craenmehr’s estate, and the couple’s minor child) filed a Texas diversity suit

against SXSW Holdings, Inc., SXSW L.L.C., and SXSW’s traffic consultant

(collectively, “the SXSW defendants”), along with a few other defendants not

parties to this appeal. 3 The gist of the plaintiffs’ complaint is that the risk of

an errant vehicle in downtown Austin was foreseeable, the SXSW defendants

should therefore have blockaded Red River Street with water-filled barriers

2 The narrative of Owens’s crime comes from the plaintiffs’ Original Complaint. The

plaintiffs omitted Owens’s criminal conduct from their later complaints, but the district court

denied a motion to strike and held the plaintiffs to those earlier admissions. The plaintiffs do

not appeal that ruling here, but more fundamentally, they do not dispute that Owens’s

conduct was a crime.

3 Several other victims filed a state-court lawsuit against the same defendants. The

district court there granted summary judgment for the defendants, and the case presently

sits on appeal. Nguyen v. SXSW Holdings, Inc., No. 14-17-00575-CV.

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instead of the Type-III variety, and that failure to do so resulted in

Craenmehr’s death. The plaintiffs phrased those allegations in terms of:

(1) negligence (ordinary and gross); (2) premises liability; (3) negligence per se;

(4) breach of implied warranty; (5) public nuisance; (6) negligent undertaking;

and (7) negligent hiring.

The SXSW defendants moved under Federal Rule of Civil Procedure

12(b)(6) to dismiss the Original Complaint for failure to state a claim, arguing

in large part that a lack of duty foreclosed tort liability. The plaintiffs amended

in response, and the SXSW defendants moved to dismiss the First Amended

Complaint. Again, the plaintiffs amended. The parties then stipulated that the

Second Amended Complaint made allegations “identical” to the First Amended

Complaint and that the district court could therefore treat the already-pending

motion to dismiss as “applying fully to the Second Amended Complaint.”

The district court granted the SXSW defendants’ motion to dismiss,

concluding that (1) the plaintiffs’ negligence and premises-liability claims

failed because the SXSW defendants had no control over the site of

Craenmehr’s death (an open city street); (2) alternatively, those same claims

failed because the SXSW defendants had no duty to prevent Owens’s

unforeseeable criminal act; (3) the plaintiffs failed to plead negligence per se

because they did not identify a violation of any traffic-control ordinance; and

(4) Texas law supplied no basis for the implied-warranty, public-nuisance,

negligent-undertaking, or negligent-hiring claims.

The plaintiffs amended their complaint one last time, joining the City of

Austin as a defendant. The Third Amended Complaint accuses the City of the

same sort of wrongdoing as the SXSW defendants but only under negligence

and premise-liability theories. The City moved to dismiss under 12(b)(6), and

the district court granted the motion, concluding once more that Owens’s

criminal conduct was not foreseeable.

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The district court then signed a final judgment with respect to the SXSW

defendants and the City (having severed the claims against the other

defendants). The plaintiffs appealed, briefing only their negligence, negligence

per se, premises-liability, public-nuisance, and implied-warranty claims,

thereby abandoning all others. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.

1994).

II. STANDARD OF REVIEW

We review a dismissal under Federal Rule of Civil Procedure 12(b)(6) de

novo, “accepting all well-pleaded facts as true and viewing those facts in the

light most favorable to the plaintiff.” Bustos v. Martini Club, Inc., 599 F.3d

458, 461 (5th Cir. 2010) (quotations omitted). “To survive a motion to dismiss,

a complaint must contain sufficient factual matter, accepted as true, to state a

claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quotations omitted).

III. DISCUSSION

We will divide our discussion between the two categories of defendants

and between the plaintiffs’ various claims.

A. The SXSW Defendants

1. Negligence and Premises Liability

We agree with both parties and the district court that we should consider

the negligence and premises-liability claims together. “Premises liability is a

special form of negligence where the duty owed to the plaintiff depends upon

the status of the plaintiff at the time the incident occurred.” W. Invs., Inc. v.

Urena, 162 S.W.3d 547, 550 (Tex. 2005). But irrespective of the type of duty

owed, both negligence and its premises-liability cousin require “the existence

of a duty” in the first place. Id. An outright lack of duty—something courts

must decide as a question of law—would thus foreclose both claims. See Greater

Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).

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On that score, the district court held that the plaintiffs failed to plausibly

allege the SXSW defendants controlled the premises where Owens struck

Craenmehr, an open city street. We agree.

In Texas, “[t]he duty of a premises owner or occupier to provide

protection arises from control of the premises; the duty does not extend beyond

the limits of the premises owner’s control.” Dixon v. Hous. Raceway Park, Inc.,

874 S.W.2d 760, 762 (Tex. App.—Houston [1st Dist.] 1994, no writ) (citing

Grapotte v. Adams, 111 S.W.2d 690, 691 (Tex. 1938)). As one might expect, a

city typically owns and controls its city streets to the exclusion of all others.

Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 226–27 (Tex. App.—

Houston [14th dist.] 1994, writ. denied). The plaintiffs alleged, however, that

this situation differed:

Defendants had a City of Austin Right-of-Way permit that made it

the temporary legal occupier of Red River Street between 9th

Street and 11th Street. Defendants’ Right-of-Way permit gave

them temporary legal control over Red River Street between 9th

Street and 11th Street. Thus Defendants were the temporary

occupiers of the premises encompassing Red River Street between

9th Street and 11th Street.

Of course, simply pleading the legal status of “control” or “temporary legal

occupier” does not alone suffice; “the well-pleaded facts” must make the

allegation of control a plausible one. Iqbal, 556 U.S. at 679.

The sole factual basis for the plaintiffs’ control allegation is that the

right-of-way permit equipped the SXSW defendants with legal control of the

1000 block. Yet when an “allegation is contradicted by the contents of an

exhibit attached to the pleading, then indeed the exhibit and not the allegation

controls.” U.S. ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 377

(5th Cir. 2004). So it is here. The right-of-way permit itself (attached to the

complaint) contains an express qualification such that “[a]ll traffic controls

must be provided in accordance with the approved traffic control plan.” The

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City-approved traffic control plan (likewise attached) then left the 1000 block

open to regular vehicular traffic. The plaintiffs make no effort to reconcile

their allegation of control with the permit’s contingent-but-unexecuted

delegation.

Without a plausible allegation that the City delegated control of the 1000

block, we arrive back at the usual course of things—in which the City controls

its open streets. Compton, 899 S.W.2d at 226–27. Under those circumstances,

Texas law generally imposes no duty on a land occupier to prevent injury to

those on an adjacent city street. 4 E.g., Dixon, 874 S.W.2d at 763 (“Because the

accident occurred on a public road outside the control of the [defendant], the

[defendant] owed no legal duty to” the victim.). The district court was therefore

correct to dismiss the negligence and premises-liability claims against the

SXSW defendants for lack of duty, and we need not reach any alternative

grounds for dismissal.

2. Negligence Per Se

In addressing the plaintiffs’ negligence per se claim, the district court

skipped the threshold duty question and dismissed for another flaw: failure to

allege any violation of a codified standard of conduct. Again, we agree.

Under Texas law, “[n]egligence per se is a common-law doctrine in which

a duty is imposed based on a standard of conduct created by a penal statute

rather than on the reasonably prudent person test used in pure negligence

claims.” Smith v. Merritt, 940 S.W.2d 602, 607 (Tex. 1997). According to the

plaintiffs, the relevant standard of conduct here comes from four traffic-control

4 We do note a line of Texas cases recognizing a limited exception to this general rule:

when a landowner’s property itself becomes a “dangerous agency” on an adjacent roadway.

See, e.g., Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981) (wall of building fell

onto city street); Atchison v. Tex. Pac. Ry., 186 S.W.2d 228, 229 (Tex. 1945) (smoke from fire

drifted across adjacent road). On top of being factually different from our case, the plaintiffs

do not raise the dangerous-agency exception on appeal and thus abandon it.

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manuals: (1) the Federal Manual on Uniform Traffic Control Devices

(MUTCD); (2) the Texas MUTCD; (3) the City of Austin Transportation

Criteria Manual; and (4) the 804 Series Standard, adopted by the City.

Specifically, the plaintiffs cited portions of the manuals that either emphasize

pedestrian safety in generic terms or identify the utility of the water-filled

barriers that the plaintiffs say should have been used. Taken together, the

plaintiffs pleaded, “[t]he abundance of traffic control standards, manuals and

guidelines that establishes best practices makes SXSW’s failure to deploy

adequate traffic control measures inexcusable.”

But nowhere does the complaint identify any provision that requires

water-filled barriers for a temporary street closure. Said in terms of negligence

per se, nowhere do the plaintiffs allege an actual breach of the various

manuals. See Mo. Pac. R. Co. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex. 1977)

(explaining that negligence per se arises only when “the Legislature has

declared that a particular act shall not be done”). In fact, one of the plaintiffs’

own exhibits (the City’s Transportation Criteria Manual) countenances the

very Type-III barriers the SXSW defendants employed: “Type III Barricades

are intended to be used in temporary traffic control zones for which sections of

the roadway will be closed to traffic.” As a consequence, the plaintiffs have

failed to plead any facts making plausible their allegation of negligence per se,

and the district court was correct to dismiss that claim.

3. Implied Warranty

The district court properly dismissed the plaintiffs’ implied-warranty

claim. Texas courts have rejected an implied warranty to make a premises safe

(something duplicative of ordinary premises liability). E.g., Lively v. Adventist

Health Sys./Sunbelt, Inc., No. 2-02-418-CV, 2004 WL 1699913, at *5 (Tex.

App.—Fort Worth July 29, 2004, no pet.). And even if the question remained

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undecided, it would not be up to us to “create . . . state law.” Howe v. Scottsdale

Ins. Co., 204 F.3d 624, 628 (5th Cir. 2000) (quotations omitted).

4. Public Nuisance

Finally, the district court was correct to dismiss the plaintiffs’

public-nuisance claim. Under Texas law, when public nuisance is alleged “only

by reason of the negligent manner in which [the defendant’s conduct] is

performed or permitted, no right of recovery is shown independently of the

existence of negligence.” King v. Columbian Carbon Co., 152 F.2d 636, 638–39

(5th Cir. 1945) (quotations omitted). The plaintiffs ground their

public-nuisance claim in negligence alone, and the former fails for the same

reason as the latter. Supra § III.A.1.

B. The City

The district court dismissed the negligence and premises-liability claims

against the City for lack of legal duty, holding that Owens’s criminal conduct

was not reasonably foreseeable under Texas law. As we will explain below, the

district court was right to do so. But the City lengthens our analytical journey

by raising a jurisdictional governmental-immunity defense for the first time

on appeal. See Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998) (explaining

that immunity is “jurisdictional” and “can be raised at any stage of the

proceedings”).

1. Governmental Immunity

In Texas, governmental immunity encompasses both “immunity from

liability, which bars enforcement of a judgment against a governmental entity,

and immunity from suit, which bars suit against the entity altogether.” Tooke

v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). The plaintiffs’ argument

against immunity is two-pronged: (1) the City engaged in a proprietary

function for which it retains no immunity and (2) alternatively, the Legislature

waived immunity here.

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In Texas, “[a] municipality is not immune from suit for torts committed

in the performance of its proprietary functions, as it is for torts committed in

the performance of its governmental functions.” Id. at 343. The Texas

Legislature has spelled out certain activities that qualify as governmental. See

TEX. CIV. PRAC. & REM. CODE § 101.0215(a). Among those activities are: (a)(1)

police and fire protection and control; (a)(20) warning signals; (a)(21)

regulation of traffic; and (a)(31) maintenance of traffic signals, signs, and

hazards. Id. § 101.0215(a). However you characterize the City’s alleged

involvement in controlling traffic for the festival, it fits comfortably among

those enumerated governmental functions. 5

Proprietary actions aside, a municipality can nonetheless be liable when

the Legislature waives immunity. See Rusk State Hosp. v. Black, 392 S.W.3d

88, 93 (Tex. 2012). The plaintiffs rely on one such waiver here: “A governmental

unit in the state is liable for . . . personal injury and death so caused by a

condition or use of tangible personal or real property if the governmental unit

would, were it a private person, be liable to the claimant according to Texas

law.” TEX. CIV. PRAC. & REM. CODE § 101.021(2) (emphasis added). Because

this waiver is contingent on ultimate tort liability, the City’s immunity defense

brings us right back to what the district court evaluated: whether the plaintiffs

pleaded a valid claim.

2. Negligence and Premises Liability

“[C]rime may be visited upon virtually anyone at any time or place, but

criminal conduct of a specific nature at a particular location is never

foreseeable merely because crime is increasingly random and violent and may

5 Contrary to the plaintiffs’ suggestion, the fact that the City profits from SXSW does

not diminish the governmental nature of its actions. See Tex. River Barges v. City of San

Antonio, 21 S.W.3d 347, 356–57 (Tex. App.—San Antonio 2000, pet. denied) (explaining that

a city’s motives are irrelevant when the conduct falls under an enumerated governmental

function).

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possibly occur almost anywhere, especially in a large city.” Timberwalk

Apartments, Partners v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) (alterations in

original and quotations omitted). In turn, a Texas premises owner has a duty

to protect against third-party crime only “if [the owner] knows or has reason to

know of an unreasonable and foreseeable risk of harm to the invitee.” Id.

(quotations omitted). We assess foreseeability (duty) as a question of law. Id.

Texas has two frameworks for proving foreseeability in a case like this

one. The first is the oft-applied Timberwalk test, which requires “evidence . . .

[of] specific previous crimes on or near the premises.” Id. (quotations omitted).

More precisely, Timberwalk asks “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.” Id. at 757. Courts refer to these

considerations—recency, proximity, frequency, similarity, and publicity—as

the Timberwalk factors.

The second framework for proving foreseeability is a narrow one outlined

in Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010). Del Lago did

not involve evidence of specific, prior crimes but rather found a duty to

intervene when a premises owner had “actual and direct knowledge” of

“imminent” criminal conduct. Id. at 769 (resort staff observed two intoxicated

groups become increasingly hostile before a brawl broke out). In finding

foreseeability, Del Lago cited the “nature and character of the premises” and

“immediately preceding conduct” as relevant factors. Id. at 768–69. But

importantly, Del Lago made explicit that “in situations where the premises

owner has no direct knowledge that criminal conduct is imminent,”

Timberwalk remains the relevant test. Id. at 768.

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We agree with the district court that Del Lago is inapplicable here, and

the plaintiffs do not suggest otherwise with much vigor. The plaintiffs’ Third

Amended Complaint does not come close to alleging that the City had “actual

and direct knowledge” of Owens’s “imminent” crime in particular. Del Lago

tells us, then, that the plaintiffs must go about proving foreseeability by way

of Timberwalk. 6 Id.

The plaintiffs sought to meet their burden under Timberwalk through:

(1) specific incidents; (2) general statistics about collisions and drunk driving

during the SXSW festival; and (3) the City’s pre-festival, subjective awareness

of the possibility of an event like the one that killed Craenmehr.

In all, the plaintiffs cited twelve specific incidents, spanning nearly two

decades and across multiple states. 7 At the outset, Timberwalk’s recency and

proximity factors cut the plaintiffs’ list in half. First, we limit our review to

those crimes occurring within a “short time period,” something Timberwalk

implicitly equated with a three-to-four-year span. 972 S.W.2d at 758 & n.40.

And second, Timberwalk requires “that other crimes have occurred on the

property or in its immediate vicinity,” something we assume to cover, at the

very most, in-city crimes. Id. at 757. 8

The remaining six incidents primarily involve intoxicated drivers,

pedestrian collisions, or both—that much they have in common with Owens’s

6 Reading narrowly from Del Lago, the plaintiffs insinuate that they can show

foreseeability based only on the “nature and circumstances” of the alcohol-heavy SXSW

environment—that is, without establishing either Timberwalk’s prior, specific crimes or Del

Lago’s direct knowledge of imminent criminal conduct. We cannot find any Texas case

sanctioning such an approach; indeed, Del Lago itself stands firmly in the way. 307 S.W.3d

at 768.

7 The district court assumed publicity, and the City does not contest it.

8One could argue that Texas law requires a narrower scope—perhaps a shorter time

frame limited to Austin’s downtown sector. Ultimately, we need not settle that debate here

because the plaintiffs do not satisfy Timberwalk even under the broader scope we employ.

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crime. But while the plaintiffs are correct that those “prior crimes need not be

identical” under Timberwalk, they are mistaken to equate a shared injury (car

crash) or label (drunk driving) with sufficient similarity. Id. at 758. Instead,

Timberwalk requires that “[t]he previous crimes . . . be sufficiently similar to

the crime in question as to place the landowner on notice of the specific

danger.” Id. (emphasis added).

Texas law instructs that such a similarity comparison gauges both the

manner and severity of the crimes. Bos v. Smith, No. 16-0341, ___ S.W.3d ____,

2018 WL 2749714, at *8 (Tex. June 8, 2018) (“The key is whether the behavior

at issue is so similar in character and severity to what came before as to be

foreseeable, or instead is so ‘extraordinarily unlike’ prior conduct that it could

not reasonably have been anticipated.”) (footnotes omitted). For instance, the

Supreme Court has held that ten violent robberies on the actual premises did

not make a murderous robbery foreseeable because the past crimes were too

infrequent and too dissimilar in their methodology and result. Trammell Crow,

267 S.W.3d at 17. And though the Court has not yet applied a Timberwalk

analysis to a vehicular crime, we find a useful comparator in the context of

intruder-perpetrated assault. Timberwalk explained that repeated burglaries

can make such attacks foreseeable, whereas “a spate of domestic violence,”

despite inflicting a similarly assaultive injury, “does not portend third party

sexual assaults or robberies.” 972 S.W.2d at 758. Why? Because burglary puts

a premises owner on notice of a specific threat to security—criminals

infiltrating the residence—that domestic violence does not. See id. (“If a

burglar may enter [an apartment], so may a rapist.”) (alterations in original

and quotations omitted). Owens’s crime represents an analogous danger: a

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driver knowingly bypassing a barrier and infiltrating a closed city street. Yet

none of the Austin-based incidents bear that similarity. 9

Furthermore, even before Timberwalk, Texas courts had long recognized

a fundamental difference between “slight deviations from the traveled

roadway” or “momentary loss of control” and the “loss of entire control and

direction of” a vehicle. E.g. City of Dallas v. Maxwell, 248 S.W. 667, 671 (Tex.

Comm’n App. 1923, holding approved). Owens’s crime, a quadruple murder, is

an extreme version of the latter, placing it “within the domain of the unusual

and extraordinary, and therefore, in contemplation of law, of the

unforeseeable.” Id.

Nor do the plaintiffs’ statistics—153 pedestrian collisions and 171

arrests for drunk driving within a five-year span—render Owens’s crime

foreseeable. Abstract statistics are an ill fit for Timberwalk’s threshold of

“specific” and “similar” crimes. 972 S.W.2d at 756–57; see also Park v. Exxon

Mobil Corp., 429 S.W.3d 142, 147 (Tex. App.—Dallas 2014, pet. denied)

(disregarding statistics in part because of an absence of details). This case

illustrates why: The plaintiffs made no allegation of (1) whether any of the

pedestrian collisions were indeed criminal or (2) whether any of the

drunk-driving arrests involved collisions. Without that information, the

plaintiffs have yet to point to a single recent, Austin-specific crime resembling

Owens’s, much less a repetitive pattern.

Finally, we address the City’s pre-festival discussions. Because the City

discussed the use of water-filled barriers and planned for emergency response

in the event of a car plowing through a crowd, the argument goes, the City

“foresaw” the crime that materialized. The argument is, however, contrary to

9 Telling is the fact that the plaintiffs’ complaint had to reach as far back as a decade

and as far away as California and Indiana to find two occasions where vehicles bypassed

barriers and careened into crowds.

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Timberwalk, which was premised on the very notion that crime “may possibly

occur almost anywhere.” 972 S.W.2d at 756. A premises owner vocalizing that

truism—i.e., “hypothesiz[ing] that criminal activity . . . could occur” or

“acknowledg[ing] that criminal activity could occur at any time”—“is neither

evidence of nor an admission of foreseeability.” Mayer v. Willowbrook Plaza

Ltd. P’ship, 278 S.W.3d 901, 920 (Tex. App.—Houston [14th Dist.] 2009, no

pet.). Timberwalk instead made a calculated decision to couch foreseeability in

a particular manner: “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.” 972 S.W.2d at 757. Were the law as the plaintiffs

suggest, a premises owner would be altogether discouraged from planning for

a worst-case scenario (no matter the likelihood), lest mere planning create a

duty where none existed. Texas courts have gone a different path. See Allen v.

Connolly, 158 S.W.3d 61, 67 (Tex. App.—Houston [14th Dist.] 2005, no pet.).

In sum, the City’s immunity is not waived because the plaintiffs have

failed to state a valid premises claim. TEX. CIV. PRAC. & REM. CODE

§ 101.021(2). We thus affirm the judgment of dismissal in favor of the City, if

on nominally different immunity grounds.

AFFIRMED.

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JAMES E. GRAVES, JR., Circuit Judge, dissenting in part:

I disagree with the majority’s conclusion that Steven Craenmehr’s family

(Smit) is unable to establish foreseeability with regard to the City. I also

disagree with the majority regarding the City’s waiver of immunity. Instead,

because Smit pleaded a valid claim, I would reverse the district court’s

judgment of dismissal as to the City. Thus, I respectfully dissent in part.

As the majority states, we look to the Timberwalk factors to determine

foreseeability. See Timberwalk Apartments, Partners v. Cain, 972 S.W.2d 749,

757 (Tex. 1998) (We 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.”).

Here, Smit alleges 12 specific incidents of similar crashes. The majority

dismisses half of those based on Timberwalk’s recency and proximity factors.

However, regardless of whether those specific incidents were outside of a three-

to-four year span or outside the city limits, those incidents still count toward

the subjective awareness or publicity factor. Further, some of those incidents

involved drivers driving through barricades or into otherwise closed areas.

Moreover, Smit also alleges that, during the period from 2009-2014, in

downtown Austin during SXSW, there were at least 153 collisions between

motorists and pedestrians/bicyclists, 356 arrests for public intoxication, and

171 arrests for drunk driving, along with various other incidents. This is

sufficient to establish that it was foreseeable that drunken people and vehicles

were consistently not where they were supposed to be every year in the festival

zone during SXSW and that numerous collisions had resulted. This is also

sufficient to establish that the City had subjective awareness of the possibility

of an event like the one that killed Craenmehr.

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Case: 17-50674 Document: 00514639422 Page: 17 Date Filed: 09/12/2018

No. 17-50674

Additionally, it is impossible to conclude that these incidents are “so

‘extraordinarily unlike’ prior conduct that it could not reasonably have been

anticipated.” Bos v. Smith, ___ S.W.3d ____, 2018 WL 2749714, at *8 (Tex.

June 8, 2018) (quoting Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d

9, 17 (Tex. 2008).

To survive a motion to dismiss, Smit must only allege sufficient facts,

“accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal marks and citation

omitted). Smit has done that. Further, as the majority acknowledges, waiver

of immunity is contingent on tort liability. TEX. CIV. PRAC. & REM. CODE

§ 101.021(2). Because Smit has pleaded a valid claim, the City’s immunity

defense is waived.

For these reasons, I would reverse the district court’s dismissal of the

City at this stage. Thus, I respectfully dissent in part.

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