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Affirmed and Opinion Filed August 28, 1998

In The Court of Appeals T\ftl| Btstrtr/t of Qkxas at Dallas

No. 05-96-00941-CV IUANITA OROZCO and NATTVIDAD OROZCO, SR., Individually and as Next Friends of CHRISTOPHER STEVEN OROZCO and BENJAMIN TAMES, Minors, and RICHARD OROZCO, Appellants

V. THE DALLAS MORNING NEWS, INC. d/b/a THE DALLAS MORNING NEWS, and THE CITY OF DALLAS, Appellees
On Appeal from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. 94-05705-D

OPINION Before Justices Chapman, Morris, and Wright Opinion By Justice Morris On a winter evening in 1992, Debra Orozco Tames and her yonng son, Christopher, 

### were gunned down in their home by nnknown gang members in retaliation for a mnrder 

### auegediycommittedby herbrotherseveral days earlier. The Orozco family snedthe Dallas MorningNews innegligencefor publishinginformationindicatingthelocationoftheirhome. 

### They also suedthe City ofDallas in negligence for the mannerin which the policehandledemergency 911 calls made from the Orozco home on the day of the shooting. The trial
court granted summary judgment to the News and the City. We must decide whether anewspaper can be held liable in negligence for publishing the street name and block number of a criminal suspect's home. We must also decide whether the City is immune from liability in this case. We conclude the News had no legal duty to refrain from publishing the address and, therefore, the Orozcos' negligence claim fails. We also conclude the City cannot be held liable because ofits governmental immunity.

We affirm the trial court's summary judgment.

Factual Background The facts are not disputed. Debra Orozco Tames lived in her parents' house with her children and her brother, Natividad Orozco, Jr. In late November 1993, the police arrested Natividad for the murder of Victor Alvarez. Alvarez had been killed earlier in a "drive-by" gang-related shooting involving ared Pontiac. The Pontiac belonged to the

mother of Debra and Natividad, Jr. On December 2,1993, the Dallas Morning News published anewspaper article about the Alvarez murder. The article identified Natividad as one ofthe suspects who had been arrested for the murder. The article gave the street and block number, but not the specific
address, of the Orozco home. On the same daythe newspapercirculated, anonymous callers telephoned the Orozco residence and threatened to retaliate for the Wvarez murder. Debra, who was home alone 

### with her youngest child, contacted another brother, Richard. Richard came to the Orozco

-2-residence to be with Debra. He called the police to report the harassing telephone calls,
but no patrol car was sent to the residence. Later that evening, Debra's mother came home from work and parked her Pontiac in front of the house. The car had not been parked there for long when shots were fired at the Orozco house. Richard Orozco again called police. Police officers came to the house and searched the neighborhood but found nothing. Some time later, the Orozcos' doorbell rang, and Debra went to answer the door. Upon opening the door, she and her son were hit with gunfire. Debra died from her wounds, and her son was injured.

Discussion Appellants challenge the summary judgment granted in favor of both defendants. Summary judgment may be rendered in favor of adefendant if as amatter of law the plaintiffcould not succeed on any of the theories pled. See Delgado v. Burns, 656 S.W.2d 428, 429 (Tex. 1983). Specifically, for a defendant to prevail on summaryjudgment, it must either disprove at least one element of the plaintiffs' theory of recovery or plead and conclusively establish each essential element ofan affirmative defense, thereby rebutting the 

### plaintiff's cause ofaction. SeeInternational Union UAWLocal 119 v. Johnson Controls, Inc., 813 S.W.2d 558, 563 (Tex. App.-Dallas 1991, writ denied). Here, the Dallas Morning News moved for summaryjudgment seeking to disprove plaintiffs' theory ofrecovery. The 

### City ofDallas, on the other hand, sought summaryjudgment on its affirmative defense of governmental immunity. The standards for reviewing asummaryjudgment are well established. Nixon v. Mr. 

### Proper? Manapmau Co., 690 S.W.2d 546, 548 (Tex. 1985). Where, as here, the summary

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judgment does not state the grounds upon which it was granted, an appellant must show on appeal that each independent ground alleged is insufficient to support the summary judgment granted. Thomson v. Norton, 604 S.W.2d 473, 476 (Tex. Civ. App.-Dallas 1980,

no writ). In this case, appellants asserted negligence claims. The elements of anegligence
cause of action are aduty, abreach of that duty, and damages proximately caused by the breach ofthe duty. Doe v. Boys Clubs ofGreater Dallas. Inc., 907 S.W.2d 472, 477 (Tex. 

### 1995). Duty is the threshold inquiry. Ifa duty does not exist, a defendant cannot establish liability in tort. See El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987). We turn first to appellants' attack on the summaryjudgment signed in favor ofthe Dallas Morning News. The News argued in its motion for summaryjudgment that it owed 

### no duty to appellants. Appellants maintainthatthe News had a duty to exercisereasonable
care in deciding whether to publish the Orozcos' home address. They contend, therefore, 

### that summary judgment was improper because they asserted avalid cause of action for

common law negligence. Generally, the existence of aduty is aquestion of law decided from the facts 

### surrounding the occurrence in question. See Way v. Boy Scouts ofAm., 856 S.W.2d 230, 233-34 (Tex. App.-Dallas 1993, writ denied). We determine whether aduty exists by 

### applying a risk-utility balancing test. «. a. 234. The test balances several interrelated factors, including "the risk, foreseeability, andlikelihoodofinjury weighedagainstthe social 

### utility ofthe actor's conduct, the magnitude ofthe burden ofguarding against the injury, and the consequences ofplacing the burden on the defendants." U. Foreseeability is themost significant factor when using the risk-utility test. See id. Foreseeability is "what one should under the circumstances reasonably anticipate as consequences ofhis conduct." Id. (quoting McCullough v. Amstar Corp., 833 S.W.2d 312, 315 (Tex. App.-Amarillo 1992, no
writ)). Appellants argue that the Dallas Morning News should have foreseen the shooting at the Orozco home because, in the year prior to the shooting, the newspaper printed several articles and editorials describing and decrying retaliatory violence between rival gang members and, specifically, their families. After reviewing the facts in the light most favorable to appellants, we conclude otherwise. We are directed to no case imposing under Texas law aduty upon anewspaper to refrain from publishing what is atrue, public, facially harmless, and newsworthy fact. We find instructive, however, the Fifth Circuit Court ofAppeals' opinion inEimann, which held that the Soldier of Fortune magazine "owed no duty to refrain from publishing afacially innocuous classified advertisement when the ad's con.ex.-at most-made its message 

### ambiguous." See Eimann v. Soldier ofFortune Magazine, Inc., 880 F.2d 830, 834 (5,h Cir. 1989), cert, denied, 493 U.S. 1024 (1990). The advertisement published by the magazine in Eimann offered the service of performing "high risk assignments." Through the ad, a 

### man contacted and hired ahit man to kill his wife, and the wife's mother later sued the 

### magazine for negligently publishing the advertisement. The evidence showed that the magazine editors were aware that certain other classified advertisements in the magazine
were connectedwith criminal activity. Because ofthis evidence, the Fifth Circuit concluded 

### that the probability and gravity of the threatened harm was high but that, due to the>:r.:Y-;..^li>'£^^f.^;^:''f.'K

ambiguous nature ofthe advertisement in question, the burden ofpreventing harm was also high. See id. at 835-36. Despite the editors' knowledge that other advertisements were connected to criminal activity, the court concluded the magazine had no duty to refrain from publishing the advertisement made the basis of the claim. The record here presents astronger case for concluding that no duty exists. Even taking all the evidence and allegations in favor of appellants, nothing indicates that the Dallas Morning News should have foreseen that the publication of the street and block number would lead to aretaliatory shooting at the Orozco home. The prior coverage of retaliatory gang violence by the News cannot itself transform the fundamentally innocuous and inoffensive nature of the information that appellants claim triggered the shooting of Debra Orozco Tames and her son into information from which the News should have reasonably anticipated violence. In short, the News' prior publication of articles depicting gang violence is not a rational method ofgauging the likelihood that a particular later piece of information will foster specific criminal activity. Unlike the criminally-connected advertisements in Eimann, there is no evidence here that any of the previously reported 

### gang violence was triggered by information published in the Dallas Morning News. We also note that, with the exception that both events occurred on the same day, there is no evidence that the publication ofthe Orozco street and block number did have, 

### in fact, anything to do with the shooting ofDebra OrozcoTames and her son. The evidence does not even show whether the people responsible for the shooting had access to the 

### newspaper article in question. In contrast, the presence ofthe red Pontiac was sufficient

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itself to identify the Orozco home to anyone in the area intent on avenging the Alvarez

murder. We acknowledge that the gravity of the harm is high in this case. However, the probability that a person, even a gang member, would be induced to shoot innocent family members afterreading acriminal suspect's general address in the newspaper is low-lower, certainly, than the probability that a man responding to aSoldier ofFortune advertisement soliciting "high risk assignments" would hire ahit man to kill his wife. As the opinion in Davidson v. Tone Warner, Inc. succinctly put it. the evidence illustrates the common sense difference betweenEimann and this case. SeeDavidson v. Time Warner, Inc., No. V-94-006, 1997 WL 405907, at «11 (S.D. Tex. Mar. 31, 1997). In Eimann. at least seven classified advertisements were tied to crimes or criminal plots. Eimann, 880 F.2d a. 832. Here, there is no evidence that publication ofa criminal suspect's street name andblocknumber inspires 

### retaliatory crime. We conclude, therefore, that the likelihood ofinjury in this case is low. Conversely, the burden ofguarding against injury and the consequences ofplacing ,ha. burden on the Dallas Morning News are very high. The reporting ofcrimes and arrests 

### is an important newspaper function, and the public has the right under Texas law to be informed about criminal activity and criminal suspects, including where they reside. See 

### Hogan v. Hears, Corp.. 945 S.W.2d 246, 250 (Tex. App.-San Antonio 1997, nowrit) (arrest records, including the accused's address, are public records unless their release would 

### impedeanongoinginvestigationorendangera confidentialinformant). Moreover,requiring a

newspaperto omit a criminal suspect's streetname andblocknumber from news articles WOuld accomplish little in the way of preventing an intentional criminal act ofrevenge: a

-7-- • .. •„ I.. ... • . •.:,.-.. »..,••-? i ,.•:.-?»••.-:.-••,!••• •! suspect's address may be obtained easily from an arrest report, as it was in this case, or 

### even a telephone directory, ifthe suspect's name is available. Given the facially inoffensive nature ofthe information published in this case, it would be unduly burdensome to require 

### anewspaper to edit aU neutral facts in an effort to prevent revealing a criminal suspect's
identity or whereabouts. As an alternative theory for summary judgment, the Dallas Morning News also 

### asserted that imposing liability in this case would violate the freedom ofpress provided by the FirstAmendment and article I, section 8 oftheTexas Constitution. U.S. Const, amend. 

### ,; Tax. Const, art. I, §8. Appellants challenge this ground on appeal. Although we need not reach the freedom of press arguments, we consider, as other courts have, the First Amendment's impact on the risk-utility analysis, given that its infringement may be a 

### consequence ofplacing the burden to prevent injury on the News. See Eimann, 880 F.2d

at 836-37; Way, 856 S.W.2d at 236. 

### Several holdings in the Texas courts reflect society's keen interest in apress free to 

### report newsworthy facts. For example, the Firs. Amendment immunizes the reporting of true private facts in a newspaper when discussed in connection with matters tha, are of 

## legitimate public interest. McNamara v. freedom Newspapers. Inc.. 802 S.W.2d 901, 904 (Tex. App.- Corpus Christi 1991, writ denied). Moreover, once information is made a ma.terofpublicrecord, the protection accordedfreedom ofspeech andpress may prohibit 

### recoveryfor injuriescausedbythefurtherdisclosure ofandpublicitygiventhatinformation. 

## Hogan 945 S.W.2d at 250. As we have already noted, acriminal suspect's address contained in an arrest report is considered public information. Id. Additionally, the.^^^iSs^Sfei^S***^ :$;K?*r<s& S^W^B**^^*'
protection provided to the press under article I, section 8 ofthe Texas Constitution is no less than that provided by the First Amendment. McNamara, 802 S.W.2d at 904. For all these reasons, we conclude the protection afforded by the First Amendment and Article I, section 8ofthe Texas Constitution weighs heavily in favor ofthe Dallas Morning News and against
appellants. We conclude that the risk, foreseeability, and likelihood of injury in this case are outweighed by the social utility ofcrime reporting, the burden that would be borne by the News to prevent injury, and the consequences of placing that burden on the News. In summary, the Dallas Morning News had no duty to refrain from publishing Natividad Orozco, Jr.'s street name and block number. We overrule appellants' first point of error and need not reach their second or third point of error. Appellants having failed to show each and every ground for summary judgment was improper, we affirm the summary judgment signed in favor of the Dallas Morning News. We now turn to appellants' attack on the summaryjudgment signed in favor of the 

### City ofDallas. The City's motion for summaryjudgment urged, among other things, that the suit was barred as amatter of law by the doctrine of governmental immunity. 

### A city is immune from liability for its governmental actions unless that immunity is waived. City ofLaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995). The Texas Tort Claims Actwaives governmental immunity for injury and death causedby employees acting 

### within the scope of employment or caused by the condition or use oftangible personal or 

### real property. See Thx. Civ. Pkac. ft Rhm. Cooh Ann. §101.021 (Vernon 1997). The act does not apply, however, to a claim arising "from the failure to provide or the method of

-9-providing police or Are protection." See id. §101.055(3). Thus, the government is immune from liability if the negligence that causes injury lies in the formulation ofpolicy, such as whether and how to provide police protection, but the government might be liable if an officer acts negligently in carrying out that policy. This provision was intended to avoid 

### judicialreview ofthe discretionary policy decisions thatgovernments mustmake in deciding how much, ifany, police or Sre protection to provide for a community. See State v. Terrell,
588 S.W.2d 784, 786-87 (Tex. 1979). 

### The City urges that the evidence conclusively establishes that the police officersactions conformed a, all times with aU applicable policies of the police department. Therefore, the City contends appellants' lawsuit is actually a claim arising "from the failure 

### to provide or the method ofproviding police or fire protection" and is barred by section 101.055(3) ofthe tort claims act. Conversely, appellants maintain in their fourth point of
error that material fact issues exist with respect to whether the claim arose from the 

### negligent implementation ofexistingpolice policies. In theirfifth pointoferror, appellants contend summaryjudgment was improper for the additional reason that the City did no. 

### nega.e .he allegation that injury was caused by the "condition or use oftangible persona,
property." 

### The City, being the party that moved for summary judgment on an affirmative 

### there is no genuine issue ofmaterialfact. SeeTex. R. Ctv. P. 166a(c); Roar,v. Stallvortn Oil 4 Gas, inc., 813 S.W.2d 492, 495 (Tex. 1991). Once the defendantproduces sufficient evidence to establish a right to summaryjudgment, the plaintiff must set forth sufficient

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evidence to give rise to agenuine issue of material fact. See Pinckley v. Gallegos, 740 S.W.2d 529, 531 (Tex. App.-San Antonio 1987, writ denied). The City's summary judgment proof consists of affidavits from one patrol officer, 

### several police department employees, and an executive assistant chiefofpolice, in addition 

### ,o police departmentgeneral orders, standardoperatingprocedures, a trainingbulletin, and records of the 911 calls made from the Orozco residence on the day of the shooting. Viewed as a whole, the evidence shows that the police department employees responded to the 911 calls in accordance with departmental procedure. 

### In response, appellants presented the affidavits of Richard Orozco and James 

### Gringer, a police agency consultant. Neitherofthese affidavits, however, raises a factissue 

### with respect to whetherthe DaUas police violated existingpolicies orprocedures. Orozco's affidavit merely states thathe initially called the police department's gang unitto reportthe 

### threatening telephone calls his sisterhadreceived, butthe gang unittold Orozco to call 911 instead. There is no evidence that this response was contrary to police procedure. 

### Gringer's affidavit makes several conclusions in an attempt to raise a material fact issue aboutwhetherthe actionsofpolicedepartmentemployees compliedwithdepartmental 

### procedure. Gringerfirs, concludes thatthe policedepartment'sgangunitpolicies fall short ofnationally established standards and practices. This is merely a challenge to the existing 

## policy and is explicitly prohibited by section 101.055(3) ofthe tort claims act. As such, it raises no material fact issue that would prevent summary judgment. 

### Next, Gringer asserts thatthe gang unitfailed to complywith existing departmental 

## policies pertaining to threats reportedby Richard Orozco to the gang unit. Gringerlists.••...••..•'.••. * .'," •'.
twenty-one separate alleged failures. But his statements are mere conclusions and he 

### neglects, moreover, to provide proofof the policies themselves. As such, the affidavit is insufficient as amatter of law to raise afact issue with respect to whether gang unit 

### employees compliedwith the gangunit's procedure. SeeTex. R. Crv. P. 166a(f); Menchaca

v. Menchaca, 679 S.W.2d 176, 178 (Tex. App.-El Paso 1984, no writ). In his affidavit, Gringer also asserts that the Dallas Police Department failed to train 

### and supervise members of the department's communications section in accordance with 

### existing policies. Gringer asserts this lack of training caused personnel to schedule "erroneously" aserious, gang-related event for handling by the telephone expediter unit rather than the police gang unit. This allegation fails .o raise a ma.eria. fact issue affecting 

### summaryjudgment because it merely challenges the City's method ofhandling reports of telephone harassment that are gang-related. The uncontroverted evidence shows that, currently, the City does not distinguish between telephone harassment and gang-related 

### telephone harassment. Thus, Gringer's affidavit does no, raise afact issue regarding whether the telephone harassment complaint was handled according to the current departmental policy. 

### Gringer next asserts that patrol personnel failed to comply with Roll Call Training Bulletin93-2, entitled "RandomGunfireResponseProcedures." First, Gringerfails to raise an issue relating to the City's evidence that the bulletin is suggestive, rather than a 

### mandatory departmental procedure. Second, assuming the bulletin is mandatory, it only 

## prohibits officersfromusingthe "N-code System" on "6G-RandomGunfire" calls. Gringer asserts the department N-Coded two "calls" from Richard Orozco on December 2, 1993.-,,,,,,,„-..,,••-.-
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### This fails to show non-compliance with the bulletin's prohibition because Gringer does no, claim those calls were, in fact, »6G-Random Gunfire" calls. 

### Finally, Gringergenerallyassertsthatthepolicedepartmentfailedtotakereasonable 

## andprudentactioninresponsetofrequently andclearlyreportedthreatstothesafetyofthe 

## occupants a,theOrozcohome. Thisis a genera, conclusion,lacks anyassertionoffact, and therefore raises no genuine materia, fact issue thatmightprevent summatyjudgment. See Sorrells v. Gioerson, 780 S.W.2d 936, 938 (Tex. App.-Austin 1989, writ denied). 

### The City me. itsburdentoproveits governmentalimmunity defenseby showingthat 

## ponceprotection. Appellants'summaryjudgmentevidenceraisesnomateria,factissuewith respect to whether their Cairn arose from the neghgentimpiementation ofexisting ponce policies. Accordingly, we overrule appellants' fourth point oferror.



### ,„theirfifth pointoferror, appellantscontendthatsummaryjudgmentwasimproper 

## becausetheCitydidnotpresentanyevidenceto negatethe allegation,ha,theinjurieswere 

## causedbytheconditionoruse oftangible persona,proper,. As already noted, theTexas Tort Cairns Ac, waives governmenta, immunity for injury and death causedby employees 

## actingwithinthescopeofemploymentorcausedbytheconditionoruseoftangiblepersona,

providing" police protection. See id. §101.055(3). 

# p^eorthemethodofpro.dingpoliceprotectionand.assuch.tfieCityreta.nsimmunity' ' •!'•• !


### under section 101.055(3). Therefore, we need not address whether the evidence shows a 

### viable cause of action under section 101.021, which by force of section 101.055(3) is not 

## applicable. See Zacharie , City ofSan Antonio, 952 S.W.2d 56, 59 (Tex. App.-San Antonio 1997, no writ). We overrule appellants' fifth point of error. We affirm the trial court's summary judgment.

Publish Tex. R. App. P. 47 960941F.P05

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