# Holder v. Mellon Mortgage Co.

> Texas Court of Appeals, 14th District (Houston) · November 26, 1997 · 954 S.W.2d 786

URL: https://www.frixlaw.com/law-library/cases/9773919

## Case

- **Full name:** Angela N. HOLDER, Formerly Known as Angela N. Hamilton, Appellant, v. MELLON MORTGAGE COMPANY and City of Houston, Appellees
- **Court:** Texas Court of Appeals, 14th District (Houston)
- **Decided:** November 26, 1997
- **Citations:** 954 S.W.2d 786; 1997 WL 461982
- **Precedential status:** Published
- **Opinion:** Dissent by Hudson
- **Judges:** Yates, Hudson, Fowler
- **Cited by:** 41 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by Mellon Mortgage Co. v. Holder, 5 S.W.3d 654 (1999).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9773919

## How later opinions describe it (automated extraction)

- holding plaintiff sexually assaulted by police officer in city vehicle failed to state claim under TTCA because officer's use of vehicle was not direct cause of plaintiff's injury and, instead, plaintiff was injured by officer’s intentional assault
- holding that a police car did not cause the plaintiff's sexual assault by a police officer, even though the assault was committed in the car and the officer used the car to pull the plaintiff over
- holding that a police car did not cause the plaintiffs sexual assault by a police officer, even though the assault was committed in the car and the officer used the car to pull the plaintiff over
- recognizing Texas Supreme Court’s indication that actions for negligent employment and entrustment could provide basis for liability under TTCA
- declining to apply Union Pump to premises liability action and finding causation was not ‘too attenuated’ in negligence case against owner of isolated and unattended parking garage where police officer brought motorist to sexually assault

## Opinion text

HUDSON, Justice,
dissenting.
Appellant was kidnapped and sexually assaulted by Calvin Potter, a Houston Police Officer. Although Potter initially encountered his victim on a public street, he transported her to the third floor of Mellon’s parking garage where he perpetrated the offense in the interior of his patrol car. The direct, immediate, and primary cause of appellant’s injury was Calvin Potter. The majority contends, however, that there is some evidence to show appellant’s injury was also caused by Mellon’s failure to prevent vehicular traffic from entering its garage during the evening hours. If Potter had not been able to hide his police car inside the confines of the garage, the majority claims appellant might not have been assaulted. Because Mellon breached no duty to appellant and its conduct was not a proximate cause of appellant’s injury, I dissent.
The duty owed by a property owner to another person depends upon the status of the injured party. The law assumes that a property owner bears a greater responsibility toward one whom he has invited upon his property than to one whom he has not invited. The status of the injured party, therefore, is determined by the actions of the property owner and his relationship with the injured party. Although appellant entered the garage in submission to Potter’s authority as a police officer, she entered without any right, lawful authority, express or implied invitation, consent, or acquiescence by Mellon. She was, therefore, a trespasser. Rowland v. City of Corpus Christi 620 S.W.2d 930, 933 (Tex.Civ.App.—Corpus Christi 1981, writ refd n.r.e.). Mellon’s only duty to appellant was not to injure her willfully or wantonly or through gross negligence. Williams v. Bill’s Custom Fit, Inc., 821 S.W.2d 432, 433 (Tex.App.—Waco 1991, no writ). To find appellant was not a trespasser because her entry upon the property was involuntary would permit a third party, i.e., Potter, who is not under the control of the property owner, to alter the status of the injured party.
The majority concludes that Holder was a gratuitous licensee because Mellon failed to erect a barrier across the entrance of its garage and thereby acquiesced in her entry onto the property. However, a licensee is a person who is privileged to enter and remain on the premises by the express or implied permission of the owner. Peerenboom v. HSP Foods, Inc., 910 S.W.2d 156, 163 (Tex. App.—Waco 1995, no writ). No such express or implied permission is presented here. Unlike a parking lot, where a pedestrian might be tempted to cut across the property to shorten his journey to a particular destination, a multi-level parking garage offers no “short cuts.” While it may have been foreseeable that vagrants would seek shelter in such an edifice, there was no reason to anticipate vehicular traffic in the structure during non-business hours.
However, even if Mellon should have anticipated that cars would enter and park within the garage during non-business hours, and even if appellant was a gratuitous licensee by virtue of Mellon’s acquiescence, no duty to appellant was breached. The duty owed a licensee is not to injure willfully, wantonly, or through gross negligence and to warn of or make safe dangerous conditions actually known. Lower Neches Valley Authority v. Murphy, 536 S.W.2d 561 (Tex.1976); State v. Tennison, 509 S.W.2d 560 (Tex.1974). 1 The *809 majority contends Mellon had a duty to make safe a known “dangerous condition,” i.e., the possibility of criminal misconduct.
Unfortunately, criminal activity is pervasive in our society and there is scarcely any refuge from it. In this sense it is foreseeable that crime may occur any place and at any time. Some property, by virtue of its location in depressed areas of high crime, is more likely to be the site of criminal activity. However, a property owner cannot transport his real estate to a more desirable part of the city, and the mere location of property should not be regarded as a “dangerous condition.” I believe property becomes “dangerous” in the context of criminal activity only when it possesses some special quality which fosters or attracts criminal activity that makes it more dangerous than other property in the immediate area.
Here, Mellon’s property was not a particularly attractive site for criminal activity. Crimes against persons such as homicide, robbery, kidnapping, and assault do not occur where people are not present. The first prerequisite for a predatory criminal act is a victim, and while the garage was vacant, no dangerous condition could endure. Indeed, in this case, the criminal episode began not in the garage, but upon the street. Further, in cases of sexual assault, the offense can be perpetrated in any darkened or reasonably private area where the perpetrator will not be discovered—many, if not most, occur in the victim’s own home. In this respect, Mellon’s parking garage was not inherently dangerous. What made the garage attractive in this instance was that Potter could not abandon his patrol car, even temporarily, without attracting the suspicion of other officers. He needed not so much a place to perpetrate the offense, but a place to conceal his vehicle while he carried out the assault.
Mellon might have reasonably anticipated that its garage would attract vagrants during the evening hours. It was even foreseeable that it might be an attractive site for substance abuse and vandalism. However, only under the bizarre and unusual facts of this case could Mellon have anticipated that its facility would be an attractive edifice for crimes perpetrated against a person during non-business hours. Because Mellon could not have reasonably foreseen the unusual circumstances which would make its garage an attractive site for criminal activity, it had no duty to make the condition safe by blocking vehicular traffic.
Moreover, even if Mellon should have closed the entrance to its garage to prevent any criminal conduct from occurring on its premises, I do not believe this failure or omission can be deemed a proximate cause of appellant’s injury. At some point in the causal chain, conduct will become too remotely connected to be considered a cause in fact. Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995). Here, the record contains some proof that “but for” Mellon’s failure to exclude vehicular traffic from its garage, no assault would have occurred because there was no other nearby location which could have provided the necessary concealment for Potter’s patrol car. 2 While this *810 provides some nexus in the philosophical sense, legal cause is not established if the defendant’s conduct does no more than furnish the condition that made the plaintiff’s injury possible. Id., at 776 .
The majority distinguishes Union Pump by noting that it was not a case of premises liability. I fail to see how this qualifies as a distinguishing factor. “Negligent activity” and “premises liability” are both negligence-based theories of liability. 3 Both theories rest upon the premise that the defendant should pay because he is morally responsible for the injury. In fact, the whole concept of liability, both civil and criminal, is derived from a common passion for vengeance to correct a moral outrage. 4 This is why the law imposes a requirement of foreseeability'—there can be no blame associated with a sequence of events which a prudent and morally responsible person could not have reasonably foreseen.
It is not surprising, therefore, that the same definition of proximate cause is used in cases of negligent activity and premises liability. 5 There may be more than one legal cause for an injury, and cause in fact is certainly not synonymous with sole cause. Nevertheless, cause in fact means that the defendant’s act or omission was a substantial factor in bringing about the injury which would not otherwise have occurred. Union Pump, 898 S.W.2d at 775 . 6
The direct and, I believe, superseding cause of appellant’s injury in this ease was the criminal act of Calvin Potter. While the assault might not have occurred if Potter had been unable to drive his car into the garage, the accessability of Mellon’s garage hardly constitutes a cause in fact for appellant’s injury except in the most attenuated and philosophical sense.
For these reasons, I respectfully dissent.
. In contrast, the standard of conduct required of a premises occupier toward his invitees is the *809 ordinary care that a reasonably prudent person would exercise under all pertinent circumstances. Corbin v. Safeway Stores, 648 S.W.2d 292 (Tex. 1983).
. The "but for” test is, I believe, valid only when used as a standard of exclusion, not inclusion. For example, where the plaintiff stopped to fix a malfunctioning sign and was struck by a passing vehicle, the sign manufacturer was not liable for the injury even though the plaintiff would not have been injured but for the defective sign. See Lear Siegler, Inc. v. Perez, 819 S.W.2d 470 (Tex. 1991).
In Wheaton Van Lines, Inc. v. Mason, 925 S.W.2d 722 (Tex.App.—Fort Worth 1996, writ denied) the defendant made certain misrepresentations which caused the plaintiff to employ a particular moving company. While moving the plaintiff’s property, one of the workmen stole a box of music compact discs. After the moving company had terminated the workman on account of the theft, the workman went to the plaintiff’s home and assaulted him. Although the assault would never have occurred "but for” defendant's original misrepresentations, the connection between the misrepresentation and the assault was too remote to constitute a legal cause.
Moreover, while the defendant in Doe v. Boys Clubs of Greater Dallas, Inc., 868 S.W.2d 942 (Tex.App.—Amarillo 1994), aff'd, 907 S.W.2d 472 (Tex.1995) may have incorrectly represented to the plaintiffs that its volunteer workers had been investigated, this misrepresentation was not the legal cause of the sexual abuse perpetrated by one of the volunteer workers on the victim/plaintiff.
*810 Finally, in Riojas v. Lone Star Gas Co., 637 S.W.2d 956 (Tex.App.—Fort Worth 1982, writ ref’d n.r.e.) the defendant gas company failed to send a monthly bill to plaintiffs for four months. During this period, the plaintiffs called and repeatedly requested a bill. When the defendant finally sent a bill, it was too large for the plaintiff to pay. Defendant refused to permit installment payments on the bill and terminated service. Plaintiffs were injured by carbon monoxide poisoning when they burned charcoal inside their home. Although plaintiffs would never have been injured "but for” the defendant's negligence in permitting four months of bills to accumulate, this negligence was not the legal cause of plaintiffs injuries.
. Ramirez v. H.E. Butt Grocery Co., 909 S.W.2d 62, 67 (Tex.App.—Waco 1995, writ denied).
. This is illustrated in Roman law by the fact that the offended citizen was forced to choose between a civil remedy or a criminal indictment. Flavius Justinian, The Institutes of Justinian 171-72 (J.B. Moyle trans., 5th ed.1913). See also O.W. Holmes, Jr., The Common Law 2-3 (1881). While the desire for revenge can be readily appreciated in the context of intentional torts, it is less obvious when applied to accidental injuries arising in connection with inanimate objects. There arose in antiquity, however, the notion that liability attaches to the body doing damage whether it be animate or inanimate, and Holmes observed that even a civilized man will kick a door when it pinches his finger. Holmes, supra at 11-12. To satisfy the desire for vengeance, the object “responsible” for the injury was at first surrendered to the plaintiff. In later times, the owner of the offending object was extended the privilege of making a substitutionary payment of money as a way of buying off the vengeance and permitting him to retain the property. Eventually, "[wjhat had been the privilege of buying off vengeance by agreement, of paying the damage instead of surrendering the body of the offender, no doubt became a general custom.” Holmes, supra at 15.
. The two elements of proximate cause are cause in fact and forseeability. Union Pump, 898 S.W.2d at 775 ; Nixon v. Mr. Property Management, 690 S.W.2d 546, 549 (Tex.1985).
. "Through all the diverse theories of proximate cause runs a common thread; all agree that defendant's wrongful conduct must be a cause in fact of plaintiff's injury before there is liability. This notion is not a metaphysical one but an ordinary, matter-of-fact inquiry into the existence or nonexistence of a causal relation as laymen would view it.” 2 Fowler V. Harper and Fleming James, Jr , The Law of Torts § 20.2 at 1110 (1956).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9773919. Public record. Not legal advice.