our first case of the day is cause number seventeen days five zero six seven four smith versus south by southwest holdings incorporated other parties ready to p felony you may proceed please the court good morning my name is scott handler i represent the appellate to the plaintiffs in the court below they were lizzie plu the widow of stephen crane mare and the mother of his minor child and representative of his estate and his mother elizabeth smit the district court applied a rule fifty six standard to decide a twelve b six motion while prohibiting any discovery in the case with an order to stay i'd like to address two issues that i think the court focused on in that regard control the premises and the foreseeability of the criminal activity the issue is not whether i can prevail at the pleading stage of whether an entitled to offer evidence in support of my claims and i respectfully submit that the district court did not permit that while at the same time a valuating the pleadings in a way that required it with regard to the control issue of the premises south by southwest is a large festival that takes over the entire central business district of austin and that is reflected on the right of way permit that they apply for where there where it's asked where is this festival the street festival going to take place so is the entire central business district right of way permit they applied for and obtained the right to control the one thousand block of red river street the permit in the ordinance implements it further required that a traffic control plan be implemented in accordance with the right of will permit the traffic control plan was then delegated to the city now in this case austin it doesn't change that fact so the traffic control plan did not close some of the streets that were subject to the right of way permit this south by southwest says well the traffic control plan then magically shrunk the right of way permit to conform to the traffic control plan and i respectfully submit that that's exactly backwards the right of way permit comes first and you apply for what street you're go close that's approved when that's approved you then devise a traffic control plan to apply to those streets that are included so they didn't close the one thousand block of red river they closed red river from the five hundred block to the where the one thousand block began and when you say today you're talking about south by southwest yes you're saying they closed it yes although what you're telling me is they delegated that responsibility to the city that's correct and so your argument hinges on the determination and that was a non delegate will do that's one aspect of my argument that hinges on that that correct now i also submit to you that the city undertook that responsibility not as a governmental function and even though that is a typical governmental function in the ordinary course of municipal management traffic control in this case the city of austin became an official co sponsor of this festival that's not something they're required to do that's not part of their municipal responsibility as a governmental entity as a co sponsor i submit that they undertook this role as a proprietary function even though it's a typically a governmental function and i recognize it's a bit of a thorny issue but if you were operating in amusement which is clearly under the texas tort claims act of proprietary function then whether you undertake something that is traditionally a governmental function in the role of  discharging the private proprietary function is that proprietary or is that governmental and i don't know the answer to that but i think you start with what is the capacity that they're undertaking the responsibility for and they're undertaking that responsibility as a festival organizer now to texas where claims act says specifically and operator of an amusement so i recognize that the city of austin does not own south by southwest but they own the spray mrs where the festival took place and then there was a co sponsor they became an operator so i think that there's a way to fit this within the proprietary function role of  over the weekend so it's not a new decision but it's something that i discovered in the course of my preparation and i believe it's relevant because it addresses this issue in quotes restatement of torts on the second on this issue that one by stat one who by statute or by administrative regulation and in this case the ordinance in the right away permit required that is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safe guards or precautions now this case was decided in the context of whether a bank was liable for an independent contractor that they sent out to repossess property that issue as to whether or not this part of the restatement applies to that set of circumstances has been criticized although it has not been overruled in this principle has repeatedly been  reaffirmed by the texas supreme court in case law and so i think it's a sound principle i think frankly it applies directly on point to our facts where there's an ordinance that requires a street traditional opinion del lago doesn't apply exactly to the situation but with the law who teaches i believe is that timber walk is not the exclusive way to determine foreseeability timber so judge post in response to your question hold on just a moment oh yes i'm going to add thirty minutes to your tap ok thank you thank you all right ed two minutes you may proceed thank you judge great judge coast in response to your question i think that the lago teaches that timber walk while it may be the primary proxy for determining foreseeability isn't the exclusive way to do it and in this case there was an acute awareness of the risk and there is evidence in the record of this and we played this that south by southwest not only had knowledge actual knowledge of all of these prior then where automobiles collided with pedestrians or bicyclists during the south by southwest festival but they rehearsed with travis county e m s how to respond to a mass casualty incident where automobile plowed into a crowd of festival goers one week prior to the incident that raises a level of awareness to that well it's not imminent in the sense of del  lago where they were observing this rocket's behavior increase in a bar and they kept serving alcohol in a fight broke out but it makes the first the ability issue  it seems to elevate it from what you're trying to accomplish in timber walk in timber rocky trying to predict was it reasonable for the seems like you're trying to say dog was sort of an exception a tender walk in this scenario should also be an exception to the normal and welcoming isn't the problem with that that we're sitting in diversity and we can't really create you know extend the common law of texas only texas yes you are correct about that and so that may be an issue that the t supreme court has to take up and i will tell you that there are parallel cases making their way through the courts of texas or the fourteen court of appeals and heard oral argument on the state cases that were just on summary judgment in this the that were other victims of the same incident and a student stake or they sued in the case claimed defendants they are the same defendant here that correct same complaint frankly we prepared the complaint in every one adopted our complain t so yes you're right you can't extend the law as court of appeal sitting in diversity but i further submit that we can we can meet the timber walk factor we can meet the timber walk factors given the opportunity to develop the evidence so there is a claim under texas law that a premises owner can be liable for criminal activity that occurs on their premises if they have reason to know that there's a risk and the risk isn't reasonable we played those things now the district court seemed to say that well we played it but we didn't develop the facts enough we didn't develop the evidence enough to and that we pled that and attach that as an exhibit to our complaint we argue that they should have implemented that which they subsequently did positive barriers k rails the kinds of things that you see around construction sites when you drive downtown these are plastic hollow positive traffic control devices that are either filled with water or sand and now they are designed and we played this is well in our complain with cut outs in the bottom so that you can slide a hand jack under it and move it very quickly ahead jack which we also played cost three hundred dollars so the cost benefit analysis of doing this weighs in favor of taking more aggressive precautions against traffic where you're going to occupy where you're going to encourage citizens to occupy the roadway for a festival when you know there's a live traffic around and because they know what streets they have to block by which streets they're going to encourage their festival goers to occupy what streets are subject to the right away permit those are the streets they have to block and that's pursuant to the ordinance wording says if you're going to apply for in obtaining a right of way permit on the streets you have to implement a traffic control plan that is corresponds to the nature of the event and the type of risk you're trying to protect against and i've heard all those examples in your complaint in the risk could happen any day of the week at any time in any street most of your examples don't have anything to do with festivals they're just terrible tragedies where a car goes on of the curb and kill well the risk came to pass during the festival when they had possession of the street where it occurred so that changes the nature of it i mean yes in austin always as the city of austin as a defendant i always under your theory have you know a duty or control of the streets that's right but ordinarily it's a governmental function the traffic control of the street in this case they're operating a festival which is an  amusement as a co sponsor that changes i think the complection of the analysis now you're right you're drearily ordinarily there are drunk drivers on the street but when you know there's going to be drunk drivers when you know you're inviting three hundred thousand additional pedestrians to concentrate in the roadway then i think the knowledge that you have of the risk is elevated and you can take precautions to block those streets where you are pedestrians in your festival goers are going to be traversing when they're entering the various venues and so forth that are part of this festival i mean this is a unique festival they say it's everywhere it's in it's in throughout the central business district and they close streets sometimes they use these positive barriers to close a street they didn't in this case they just put up a road close on now one last thing i would say to you is that in two thousand and three the same almost identical event occurred in santa monica farmer's market a elderly man drove through or passed a road closed sign ran down eighty people killed sixteen seriously injured another twenty the national transportation safety board conducted of full blown investigation and published a fifty page report about why it happened and how to prevent it in the future that was widely distributed this is a blueprint for how to deal with exactly what you're saying just really and i believe that that was something south by southwest knew about and we didn't have the opportunity to develop that knowledge thank  please the court i'm people kennedy with graves doherty here and in austin and i represent the two south by southwest defendants the plaintiffs in this case are trying to do something extraordinary which is to hold south by southwest the city and pavlo one of our contractors liable for capital murder on march thirteenth of two thousand and fourteen russia owens fled the police in a vehicle went the wrong way down a one way street and then turned right very deliberately into a traffic closed area a barricaded street the nine hundred block of red river he ran over a number of people killed too in that block and then he exited the block into the one thousand block of red river which was open to traffic and then within that block is when russia and owen was murdered mr henderson clients or his clients son stephen crane so there is no question is pled in the pleadings that mr cramer was riding a bicycle on a street that was open traffic when he was killed so judge a call was correct in dismissing the claims against south by southwest on multiple grounds but the first clear is ground is mr cranmer was in a block of the roadway which was not under south by southwest skin troll under clearly established texas law and order of state of cause of action and premises liability you have to allege facts that show that the defendant was in control of the premises where the injury occurred and in this case the pleading pled facts showing exactly the opposite so mr heller discussed the right of way permit and the traffic control plan that applied both were attached to the complaint that's the right away permit was exhibit thirty two and it is the permit that was granted to south by southwest for the festival and on every page of the permit it states as a condition that all traffic controls must be provided in accordance with the approved traffic control plan and or the texas manual on uniform traffic control devices so this is the right of way permit is limited by the traffic control plan right of way permit was issued on march sixth the a pleasurable traffic control plan was issued the next day on march seventh it was drafted by the city of austin and the traffic control plan shows that that nine hundred block of red river would be barricaded and closed but the thousand block of red river where mr kramer was located when he was killed would remain open to traffic there is no pleading other than a conclusion re allegation that south by southwest somehow controlled this plot there's no facts to suggest that south by southwest took any action to control traffic in that open street and in fact if south by southwest had done that it would have been in violation of texas law because texas law does not permit private parties to control traffic in an open street we cite the first cell in a case that holds that if we had done that what mr handler is suggesting is that south by southwest had a duty to violate texas law in order to take some steps somehow to protect people who are rioting vehicles in the street mr henry or mr cramer was on a bicycle he was in the middle of the the street riding a bicycle means he was governed by the same laws as someone driving a car  victims who were killed in the previous block where it was closed off what was the basis was that a foreseeability dismissal how did those claims get thrown out you know the story mary grounds for dismissal there was lack of foreseeability yes  preference about how the city of austin might close or barricade streets but it it there is no specific allegation that the use of the type of barricades that the city chose which are called type three austin transportation great period manual section twenty five point seven b four says that type three barricades are to be used to close treats nothing in the  water filled barricades should be used to close off or block off a street if the court looks at mr hemmer's petition you'll see there's photographs in there of his preferred type of barricades those are all placed parallel to traffic they're not used you know perpendicular to traffic to close off streets so the first ground is the simplest south by did not control the street therefore we had no duty to protect that when the plaintiff is the victim of a crime then in order to impose a duty on a third party to prevent injury from that crime the plaintiff must show that the crime was foreseeable showing actual crimes or very near the premises that were similar to the crime the proximity requirement in timber walk it's really talking about crime rates right there it was  rape an apartment complex in houston and the texas supreme court says well you need to show other violent incidents near that apartment complex because crime rates really vary throughout houston and throughout the state it doesn't seem to me that really applies to a vehicular crime like this because you don't have the same difference in which it really matters are the is the traffic concentrations similar to where these other incidents occurred not is it but you know if it occurred in dallas why wouldn't that be relevant at a festival in dallas or the one in california well because for one reason because the texas supreme court has been very clear it talks about crimes on any of their premises so that you can then predict whether something would happen there is no case i don't read the wall there are no texas case that looks at the immediate vicinity of a crime to find that a crime was foreseeable there are specific cases rejecting allegations of crimes in other areas and there are specific cases rejecting sort of vague references to crime statistics versus similar incidents there's no question this was in a cage ordinary the unusual the statistics about collisions there's actually a notation at the top of the box it's not about downtown austin it's about the entire city of austin so i'm going south by southwest during the period of south by southwest that's right  the second problem with the data is all we know is during the period of south by southwest there were a lot more collisions in austin between motorists and pedestrians and bicyclists we don't know more your honor because those are not comparative statistics those are just those are just raw statistics and even assuming that there were war time warp requires several things one is that it has to be a prior crop right instant there's no indication that any of these statistics reflect crime and it also needs to show similarities and what the actual instances that the plaintiff cites don't bear any similarity to what happened here right and what happened here is a police chase through a barricaded area that hurt a number of people and then opened back up again into open streets and so if the plaintiffs are saying what was foreseeable was a collision between vehicles and people within barricaded area during south by southwest there's no history of the vehicle ever twenty seven years of south by southwest festival there's no incident of a vehicle ever penetrating into a closed off block and injuring a person not one if what the plaintiffs are saying is that in the open streets there's more traffic and there may be a higher rate of car collisions or car bicycle collisions or car pedestrian then the issue is we don't control the open streets the city drafted the traffic control plan it elected to leave the thousand block of red river open there was nothing that we could do in the thousand block the red river to protect so either way either control or foreseeability the plaintiff's claims fail i do want to address the argument that the idea of subjective awareness of the possibility of a type of incident would support why ability on a defendant there's two problems with that one is there's no texas case l incident and therefore it was forseeable right in fact there are multiple texas cases it say the opposite we've cited these but travel crow there is an allegation that because the defendant employed security that the defendant anticipated crime and supreme court said that doesn't make crime forseeable in park versus exxon mobile the dallas court of appeals said the mere act of taking preventative measures to protect against the having a conversation about the possibility of this happening in the right well i guess so your honor but what they have to say is the incident was foreseeable the failure to take preventive measures the alleged failure to take the possibility of an incident like this it's alleged in the complaint there are so we're not denying it in this in this step there was but we have conversations about terrorist attacks we have conversations about active shooters we take all sorts of security measures if the law said that are taking those measures or considering the possibility of events would then turn those events into being for seal that would flip texas law on its head and it would create a negative incentive for festival organizers or cities to look into possibilities that haven't occurred yet so at the time that the alleged tabletop exercises place no one had ever driven into a crap and had never happened before twenty seven years had so the fact that south five was allegedly involved in this tabletop exercise suggests that it is looking at possibilities to then flip it around and say the fact that you're practicing for potential tragedies would then make us live will turn  into the insurer of everybody who attends the festival from crime and in the texas supreme court has been very clear that premises owners are not the insurers against criminal activity and that the only time that a property owner is liable for criminal activity of the third part is when it's foreseeable based on two methods one under timber walk prior incidents and multiple prior incidences that are the same or under del lago which i think mr handler ceded doesn't apply which applies only to a particular time when a party has secure knowledge that violence is about to break out that was a hotel bar where there was a fight that was about to break out and defend it to about it and did nothing to prevent so delegate as implies i think mr has conceded so my time is up it please the court chris adverts for the city of boston in my five minutes perhaps it would be best to respond to some of the questions that were posed relevant to the city and that is that yes the city of a did control the street at the point of this accident i believe mr heller has submitted a demonstrative today of the traffic control plan this accident was outside of the area he has drawn it  was north of eleven street which is outside the area he has drawn as where the right of way permit was issued to south by southwest so the city of austin did control the street there are three cases that are clickable here and i think responsive to your questions two of them just last year in january of twenty seventeen is the case of u d r petri that's a texas supreme court case where they talked about not only the first the ability but also the unreasonable ness of the risk and i think that goes to your point justice revelator were you were discussing about the possibility is what would the city of austin have to do this could happen on any street and what this case has not gone to isn't either the state case or the federal case is the second step of timber walk timber walk not only recourse for sea ability but an unreasonable risk and that did not go to this in this case today so this court would have to find both that the risk was forseeable and that the city of austin should have recognized that rate risk based on the second step unreasonable in this and this is something which the plaintiff has never addressed and has petri stated in the last year was because they never briefed it it's waived so they've never addressed the fact that the second factor of temper walk there's another case last year and that is the city of austin the frame in may twenty seven thousand and two your point judge cost about not changing texas law  in that case that is actually an incident that the plaintiff for lies on as a similar incident they complain of an incident where the hike in bike trail on the on first street in the city of austin is paralleled by first street and they complain that a driver jumped over the curb killed one man and seriously injured another which is exactly what happened while mr rizal is in that case was convicted of aggravated assault with a deadly weapon which the deadly weapon being the vehicle and the third court of appeals did a very good job of analyzing what has not been thoroughly addressed by the plaintiff or discussed today which is our governmental immunity the city has governmental immunity in this case on a number of i think you raise that in front of judge a call it what i understand and i understand we still have to look at that of its jurisdiction but just seems if it's such an obvious defense why wouldn't it be asserted in the trial court is the first line of defense  it was asserted indirectly it was not briefed just thoroughly as it was in the in the state court case judge costa i have substituted in for oral argument but you're right it could have a been addressed more briefly but i think the point i would make is that governmental immunity is never way and can be raised for the first time on appeal i don't believe that it was but it can be i think the reason it wasn't more thoroughly briefed is because the plaintiffs never claimed there was a waiver of governmental muti they've never gone to the issues that you've heard without claiming that the city had waived governmentally but they don't go well i mean i don't want to belabor but i don't know why they'd have to overcome something that you don't wait and it's your defense that's correct that's right  what i can say is the third court of appeals in frame was very clear that these choices of what barrier to use is totally discretionary in frame that plaintiff also said we should have erected different types of barriers to protect runners on the on the on the trail and the frame kay said no the discretion is within the city of austin on what type of barriers the only other case that i would point to wentzell and that is most similar to this case as far as the argument that somehow this was not a governmental function that it was proprietary in that's not true wenzel was also taking place during a festival in new braunfels texas the motivation of the city if we were the co sponsor doesn't change the fact that this is a governmental function and immunity is not way for governmental functions if there's any further killed north of tenth street not north of eleventh street it was just a few meters north of eleven tenth where he was standing stationary on a bicycle adjusting something that's what the evidence will be that's what the witnesses will testify about when he was struck from behind so he's not riding in the middle of the road he was on the side of the road and he was stop judge coast with respect to the issue you raised when i was addressing you earlier about whether a court sitting in diversity can  expand the law and i would say no you can't expand the law but what i would say is it del lago gave the court license to consider other alternatives and i'd like to just read you a brief statement from de la go when a property owner by reason of location mode of doing business or observation or past experience should reasonably anticipate criminal conduct on the part of third persons the owner is a duty to take precautions against this duty is recognized because the party with the power to control is in the best position to protect against the harm and that's the law go at seven sixty nine three zero seven seven thirty seven sixty nine i would also  point out to you that we did lead the issue raised in petri we specifically addressed the young reasonable n'est of the risk of being run down by an automobile and we demonstrated that a cost benefit analysis weighs in favor of taking more aggressive precautions by using water filled barricades by using a henjak that can move them very easily with what a feel barricade stop a car yes according to the traffic the manual on uniform traffic control devices and in particular the requirements of the city of austin is adopted adopts the manual in uniform traffic control devices and this is an involved analysis the manual says you have to look at the circumstances that you are implementing the traffic control devices for so it's one thing if you're close on the street because there's nothing in the manual record on appeal one thirty two to one thirty four i believe addresses this issue the the manual states that where pedestrians are going to come into contact with traffic you should use positive barriers and you can use these k rails either waterfield ones or concrete ones you see on the highway now concrete may not be as practical for a temporary installation for a week or two weeks but what if the about barriers will deflect an automobile from breaching the zone and so if that is a de minimus cost and it was used by south by southwest in other parts two blocks away for a different purpose to channel traffic into a garage so that the practicality of using it is not unreasonable it's not an unreasonable burden to impose on south by southwest petri also addresses public policy considerations and i submit to you that allowing the plaintiffs to develop the evidence in this case and proceed will help the ordinance is on the books have to be followed they were not complied with and we pled that now if at the end of the day on summary judgment our evidence isn't substantial enough to see ability clearly is a fact issue it ultimately has to be decided by the court and whether that substantial nuff for duty but in the state courts a substantial amounts of crime data were submitted which i amended and added into the claims when i when i added the city into the case so that evidence could be developed the control issue the right of way permit clearly state that the one thousand block of red river where mr kramer was i was under south by southwest control thank you counsel your time is expired thank you