Nixon v. Mr. Property Management Co.

*555 McGEE, Justice,

dissenting.

There were four defendants in the trial court. The suit against Landmark Apartments and its management company has been settled. The question in this cause is whether the Chalmette Apartments and Mr. Property Management Company may be held liable for the rape of a minor originating at the Landmark Apartments, but accomplished in a vacant unit of the Chal-mette Apartments. The question is answered by determining whether the alleged negligence of the Chalmette Apartments and Mr. Property was a proximate cause of the injury. I would hold that the rape of R.M.V. was not proximately caused by any act or omission of these defendants as a matter of law. Rather, the criminal conduct of an unknown person in this case was unforeseeable, and a superseding cause. Therefore, I dissent.

CAUSE IN FACT

The two elements of proximate cause are cause in fact and foreseeability. Clark v. Waggoner, 452 S.W.2d 437, 439 (Tex.1970). In Kerby v. Abilene Christian College, 503 S.W.2d 526 (Tex.1973), this court adopted a “but for” test to determine cause in fact. Under Kerby , the alleged negligence is not a cause in fact unless “but for the conduct the accident would not have happened.” 503 S.W.2d at 528 .

The majority’s analysis of cause in fact is premised on the fact that R.M.V. was taken “directly to a vacant apartment at the Chal-mette Apartments.” The majority views City of Mobile v. Largay, 346 So.2d 393 (Ala.1977), as a cause in fact case. The majority states that in Largay , the assailant did not take Largay directly to the city museum. It is upon this basis that the majority attempts to distinguish Largay . I find Largay indistinguishable and would follow it in the present cause.

In Largay , the plaintiff was abducted on a public street beside a vacant city museum. As Largay was leaving her car, an unknown man approached her, pulled a knife, and forced her back into her own ear. The assailant attempted to start the car and subsequently “dragged her down the sidewalk and through an open cellar door into the vacant city museum building owned by the City of Mobile.” 346 So.2d at 394 . The Largay court did not place “heavy emphasis” on the assailant’s use of the building as a last resort. Indeed, the case did not, and could not, turn on the unknown subjective intent of the assailant. Rather, the Largay court based its opinion on foreseeability and held “as a matter of law, that the use of the unlocked cellar for perpetration of rape was not a reasonably foreseeable consequence of the City’s failure to maintain the building.” 346 So.2d at 395 . (Emphasis in original). Thus, the facts and reasoning of Largay recognize that the occurrence of the rape in the city museum was unforeseeable.

Although Largay is premised on foreseeability and cause in fact was not discussed, I view Largay as support for the position that the alleged negligence of the Chal-mette Apartments was not a cause in fact of the rape. Largay and the case at bar are distinguished from numerous other cases in that both plaintiffs were dragged onto the premises. In Largay , the rapist, having failed to abduct the plaintiff or consummate the crime in the plaintiff’s car, merely utilized the nearest available instrumentality. In the event that the city museum had been locked, the rape could have occurred in a temporarily unoccupied automobile, business, or unfenced vacant lot.

Largay is squarely on point with the case at bar in that here, had the rape not occurred in a vacant unit of the Chalmette Apartments, the nearest available place of solitude would have afforded a suitable location for the crime. Had R.M.V. been abducted from a private apartment building and dragged into an unlocked city pickup truck, would the City of Dallas be liable for the rape? Had R.M.V. been abducted from a city street and dragged into an unlocked private garage, would the landowner be liable for the rape? Had R.M.V. been abducted from a neighborhood store and dragged to a neighbor’s backyard, would the neighbor be liable? I think not.

*556 A missing or unlocked door at the Chal-mette Apartments was not a cause in fact of R.M.V.’s rape. Under the facts presented here, the criminal’s fortuitous choice of venue is not sufficient to satisfy the “but for” test announced in Kerby .

FORESEEABILITY

I would also hold that the rape was not a foreseeable result of the alleged failure to maintain a properly secured door on a vacant unit of the Chalmette Apartments. RESTATEMENT (SECOND) OF TORTS § 448 (1965), provides that an intentional tort or crime is not a superseding cause if-“the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.” The majority cites Castillo v. Sears Roebuck & Co., 663 S.W.2d 60 (Tex.App.—San Antonio 1988, writ ref’d n.r.e.); and Walkoviak v. Hilton Hotel Corp., 580 S.W.2d 623 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref’d n.r. e.), for the broad proposition that a tort-feasor’s negligence is not excused in the case of foreseeable criminal conduct. I do not agree with the majority’s statement that “Texas courts follow this rule,” or Restatement § 448 in a case such as this.

In Castillo , the plaintiffs were approached in a Sears store, told to step outside, and assaulted on the parking lot. The Castillo opinion was not based on Restatement § 448. Rather, the court focused on the duty owed to the public by a possessor of land who holds the premises open to the public for business purposes. RESTATEMENT OF TORTS (SECOND) § 344 (1965). Indeed, the Castillo court expressly refused to impose liability based on section 344:

[I]t is our opinion that it would be patently unfair and unjust to impose the vague duty of section 344, RESTATEMENT OF TORTS (SECOND) (1966) on the shopkeepers and merchants of Texas to exercise reasonable care to discover the sudden criminal acts of unknown and unidentified persons....

663 S.W.2d at 66 . In Walkoviak , the plaintiff was assaulted in the parking lot of the Shamrock Hilton Hotel. The suit was premised on Restatement § 344 and the innkeeper’s alleged failure to supply adequate security protection or guards. 580 S.W.2d at 625 . Morris v. Barnette, 553 S.W.2d 648, 649 (Tex.Civ.App.—Texarkana, 1977, writ ref’d n.r.e.), and Eastep v. Jack-in-the-Box, Inc., 546 S.W.2d 116 (Tex.Civ.App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.), are also both grounded on section 344. Our courts of appeals are split on the question of whether a landowner, under section 344, has a duty to foresee and guard against criminal conduct occurring on the premises. In addition, this court has never recognized the application of either section 344 or section 448. Therefore, liability due to the criminal acts of unknown third persons is far from the settled rule of law which the majority suggests.

The distinction between liability based on sections 344 and 448 is significant. Under section 344, the innkeeper or business owner who throws his premises open to the public has a higher duty to exercise reasonable care because of the purpose for which the public has entered. It is a significant extension to hold that under section 448, a landowner may be held liable if he fails to foresee and guard against criminal attacks originating off the premises, but accomplished on the landowner’s property. Indeed, section 448 is not limited to landowners, but by its express terms applies to any negligent tortfeasor. I would refuse to apply section 448 in this cause because, assuming that it should be adopted, the criminal attack on R.M.V. was unforeseeable as a matter of law.

Under Restatement § 448, liability is imposed only if the actor (1) realized, or (2) should have realized the likelihood of the commission of an intentional tort or crime by a third person. Under the facts of this cause, neither the realized nor should have realized prong of Restatement § 448 has been met.

*557 The first prong of section 448 has not been met because there is no showing in the record that the Chalmette Apartments actually realized the possibility of a rape occurring on its premises because of its knowledge of other specific instances of crime. The president of Mr. Property stated in a deposition that he was not aware of any specific reported instances of crime in the Chalmette Apartments. Davis, the owner of Chalmette Apartments, stated that he was not aware of any criminal activity, rapes, assaults, or burglaries occurring at the Chalmette Apartments prior to the rape of R.M.V. Neither the apartment owner nor manager had knowledge of other instances of crime from which they realized the possibility of rape. Therefore, the first prong of Restatement § 448 cannot be the basis for liability in this cause.

Thus, the foreseeability issue in this cause is reduced to an analysis of the second prong of Restatement § 448. Should the Chalmette Apartments have realized the possibility that a young girl would be abducted off the premises, dragged into a vacant apartment, and raped?

The majority assigns “deposition testimony that vagrants frequented the area” as one of the two reasons for the existence of “a material fact question ... on the foreseeability of this crime.” I find the evidence presented in City of Mobile v. Largay to be much more compelling than the facts of the present cause. In Largay , the court' stated that

[tjhere was some testimony which indicated that prior to this incident the building had been broken into on several occasions. According to other testimony, “winos” and derelicts slept in the cellar area of the building; wine and whiskey bottles littered the area in and around the building; and cars parked in the vicinity of the building had been broken into. Photographs [demonstrated the] state of disrepair.

346 So.2d at 394 . However, in spite of these facts, the Largay court held that no “reasonable inference in support of plaintiff’s case on the issue of proximate cause” was established as a matter of law. Id. at 395 . I agree with the Largay court that this evidence does not raise a fact issue on foreseeability.

The second reason relied on by the majority for the existence of a fact question is the occurrence of numerous instances of prior violent crime at the Chalmette Apartments. The majority states that the rape in the present cause was foreseeable because in the two years prior to the rape of R.M.V., “one attempted murder, two aggravated robberies, two aggravated assaults, sixteen apartment burglaries, four vehicle burglaries, four cases of theft, five cases of criminal mischief, and one auto theft” occurred at the Chalmette Apartments. Deposition testimony shows that the Chalmette Apartments were purchased by Davis in March of 1981. Mr. Property assumed management of the complex on March 27, 1981. Crimes which occurred prior to the purchase and assumption of management cannot possibly be imputed to these defendants so as to put them on notice of the possible rape of R.M.V. Can it be said that through the purchase of a home or building, a landowner is on notice of every crime occurring on the premises since the date of construction? Under the majority’s analysis, the owner is chargeable with such knowledge, and therefore may be held liable for a crime occurring years later on the same premises.

I view the majority opinion as unsupportable, and indeed, the majority can cite no case which supports the proposition that knowledge of crimes occurring before purchase may be imputed to the present landowner. Therefore, the majority analysis is fundamentally flawed in failing to recognize the indisputable proposition that the only crimes relevant in this cause are those occurring after the purchase of the Chal-mette Apartments in March, 1981. Taken in proper context, the record reflects that the majority’s “litany of prior crimes, including other violent and assaultive crime” is reduced to only one “assault,” four property related burglaries, and one case of criminal mischief.

*558 The “assault” involved a dispute between common law spouses in which the husband kicked and choked the wife, causing minor scrapes and scratches to the body. The wife refused to press charges. The ease of criminal mischief involved the removal of a mailbox door. As a result of the burglaries, a total of five television sets, four stereos, two radios, one clock, and one telephone were stolen from residents of the Chalmette Apartments. With the exception of the intra-family “assault,” not one of the crimes which occurred after March of 1981 was even remotely concerned with bodily harm. All were non-assaultive, property related crimes. No rapes, murders, robberies, aggravated assaults, muggings, or other violent conduct indicating a likelihood of future personal harm occurred on the premises.

Applying the majority’s own test, as set out in Carey v. Pure Distributing Corp., 133 Tex. 31, 35 , 124 S.W.2d 847, 849 (1939), the “general character” of this violent crime could not “reasonably have been anticipated” as a result of property crimes or domestic disputes. Property crimes and domestic disputes are not of the same general character as a rape. Murders, rapes, aggravated assaults, assaults, robberies, or other violent crime between non-family members are crimes of the same general character as the rape of R.M.V. If evidence of other violent crimes was included in 'the summary judgment proof, I might agree that a fact question for the jury would exist under Carey . However, there is no evidence of other crimes of the same general character as the rape of R.M.V.

We have held that the non-movant, in order to overcome a motion for summary judgment due to the nonexistence of a material fact “must present summary judgment proof when necessary to establish a fact issue.” City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex.1979). It was “necessary” for the plaintiff to offer summary judgment proof in this cause establishing a fact issue on foreseeability. The plaintiff was under a duty to raise a fact issue through evidence of the existence of other crimes of the same general character as the rape of R.M.V. No such evidence was offered. Viewing the plaintiffs evidence in the light most favorable to her, I find it impossible to think that because of the occurrence of a domestic dispute and non-violent property crimes, the Chalmette Apartments should have realized the possibility that a violent rape might originate off the premises, but be accomplished in a vacant apartment unit. Foreseeability does not exist in this cause as a matter of law. The trial court correctly granted the motion for summary judgment filed by the Chalmette Apartments and Mr. Property.

The majority opinion sets dangerous precedent and shuns legal support in holding that the plaintiff is entitled to a jury trial. Therefore, I reject the majority’s result, as well as the rationale underlying it. Under the majority opinion, the Chal-mette Apartments and Mr. Property are forced to defend a lawsuit because the plaintiff has been criminally assaulted in a vacant apartment unit. In future cases which are similar to the present cause, the plaintiff need only offer proof of repeated incidents of shoplifting, theft, or other property crime in order to overcome a motion for summary judgment. This is the evidence offered in the present cause. The crimes need not occur at a time when the defendant owned the property. The crimes need not be of the same general character as that perpetrated upon the plaintiff. Under the majority opinion, any crime occurring on the premises is competent summary judgment evidence. The majority opinion does great violence to our summary judgment practice under Rule 166-A and I fear the implications. In Clear Creek, this court stated that “[t]he pre-1978 summary judgment rule had a chilling effect on the willingness of trial courts to utilize the intended benefits of the procedure.... The new rule attempts to encourage the trial court to utilize the summary judgment in appropriate cases.” 589 S.W.2d at 676 . The majority opinion will discourage rather than encourage the use of summary judgments in appropriate cases such as the one *559 before us. I cannot agree with such an analysis in the present cause. I will not agree with the majority’s analysis in the many cases which will follow from it.

Not one of seven cases cited by the majority is on point or in support of its position. No case cited by the majority deals with an off-premises abduction of the plaintiff. No case cited by the majority is premised on Restatement § 448. No case deals with the inference of foreseeable violent crime merely because of the occurrence of prior nonviolent property crimes and domestic disputes. No such cases are cited by the majority because City of Mobile v. Largay, the only case which can be cited, stands squarely against the majority’s position that this attack was foreseeable.

The majority does cite Walkoviak as an example of a case where two robberies in the vicinity of the hotel established the foreseeability of criminal activity. However, the majority overlooks additional facts presented in Walkoviak . The Wal-koviak court specifically noted that because the two “victims came or were brought to the hotel for help, the hotel was then aware of facts” which gave the hotel specific knowledge of past crimes, and therefore, made the hotel aware of the likelihood of future crime on the premises. 580 S.W.2d at 626 . Thus, Walkoviak , as well as four other cases cited by the majority are all based on the landowner’s actual knowledge of specific instances of crime in the past. See Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477, 479 (D.C.Cir.1970) (“The landlord had notice of these crimes and had in fact been urged by appellant Kline herself prior to the events leading to the instant appeal to take steps to secure the building.”); Foster v. Winston-Salem Joint Venture, 303 N.C. 636 , 281 S.E.2d 36, 40 (1981) (“Defendants acknowledged that these incidents had been reported and that they were aware of them.”); Trentacost v. Brussel, 82 N.J. 214 , 412 A.2d 436, 439 (1980) (plaintiff at other times “had notified the landlord of the presence of unauthorized persons in the hallways. Plaintiff claimed the defendant had promised to install a lock on the front door_”); and Graham v. M & J Corp., 424 A.2d 103, 105-06 (D.C.App.1980) (“The tenants frequently complained to the landlord about the absence of an outer door lock. They explained to the rental agent that intruders and strangers entered the foyer through the open door and committed acts of vandalism ... [plaintiff] told the rental agent of an attempted burglary through her window.”). In cases where the landowner has actual knowledge, fewer criminal acts of the same general character will suffice to make the landowner aware of the likelihood of a criminal assault. In this cause we do not have actual knowledge of criminal acts. We do not have crimes of the same general character as a rape. We have no crimes from which these defendants should have realized the possibility of rape. Therefore, these cases simply have no application in an analysis of the facts of this cause.

In Drake v. Sun Bank & Trust Co., 400 So.2d 569 (Fla.Ct.App.—1981), the court merely stated that because of other similar crimes occurring on the property, the landowner should have known of the chance of an assault against a customer on the premises. Drake is not “instructive” on the point of foreseeability because the court did not state the number of other crimes, the frequency of occurrence, the type or general character of crimes, nor how long the criminal acts had been occurring on the property.

In Butler v. Acme Markets, Inc., 89 N.J. 270 , 445 A.2d 1141 (1982), the court held that an assault on the plaintiff was foreseeable when five muggings were committed during the preceding four months. However, the facts presented in Butler are far from the facts presented in the instant cause. The assault suffered by the plaintiff in Butler was of the same general character as the muggings previously occurring on the premises. Therefore, the assault in Butler was foreseeable because the past history of muggings made a future mugging probable and predictable, not merely conceivable or possible.

*560 Any injury suffered by a member of our society may be said to be possible. Yet, in order for an injury to be compensable, it must to a degree be said to be the probable result of a negligent act or omission of the defendant. Indeed, the difference between an injury which to some degree is probable and one which is merely possible is the difference between liability and exoneration from liability. The facts in this cause demonstrate that it is possible for a young girl to be abducted, dragged across a public street, and raped in a vacant unit of the Chalmette Apartments. However, I would hold that this possibility was not to any degree a probable consequence of the alleged failure to secure an apartment door. The Chalmette Apartments should not have realized the likelihood of rape merely because of the occurrence of a domestic dispute and five prior property crimes.

I would adhere to the foreseeability analysis set out by the court in City of Mobile v. Largay, 346 So.2d 393 (Ala.1977). The Largay court held that the criminal assault was unforeseeable as a matter of law. The criminal conduct of an unknown assailant in this cause was also unforeseeable as a matter of law. The injury to R.M.V. was neither caused in fact nor a foreseeable result of the alleged negligence of these defendants. I would hold that proximate cause was disproved as a matter of law because the criminal assault by an unknown assailant was a superseding cause.

I would affirm the judgments of the trial court and court of appeals.

WALLACE and GONZALEZ, JJ., join in this dissenting opinion.