## In the Court of Appeals Second Appellate District of Texas at Fort Wo rth

___________________________ No. 02

- 21

- 00320

- CV

___________________________

On Appeal from the 48th District Court Tarrant County, Texas Trial Court No. 048

- 316423

- 20
Before Kerr, Bassel, and Walker, JJ. Memorandum Opinion b y Justice Bassel Concurring and Dissent ing Mem orandum Opinion by Justice Walker 

### K EITH 

### D. A IKENS 

### , Appellant

V


### . C HARLENE 

### K. D UELING 

### , Appellee2 ME MORANDUM OPINION
I. Introduction In a single issue, Appellan t Keith D. A i kens challenge s the trial court ’ s order granting Appellee Charlene K. Dueling ’ s traditional and n o

- evidence m otion for
summary judgment and ordering that Keith t ake nothing on his claims for negligence,
gross negligence, and pr emises liabilit y . Because we hold that Charlene ow e d no duty
to Keith and because all thr ee claims require the existe nce of a legal duty , we affirm
the trial court ’ s summary

- judgm en t order.
I I. Background The parties were formerly in a romantic relationship

. After their romantic relationship ended, Keith and Charlene continued living together in Charlen e ’s hom e , and he paid f or the u tilities

. After so me time, the parties began dating other people. Charlene be gan dating
Mr. Johnny W. Pettway. When Charlene informed Mr. Pettway that Keith lived in her home, Mr. Pettway ex pres s ed di spleasure regarding the fact that she was all ow ing a for me r romantic partner to reside in her home. According to Ke ith ’ s amended
p etition , Mr. Pettwa y became increasingly volatile regarding the living situation, and, on at least one o ccasion , threatened to “hur t [ Kei th ] real bad.” On information, b eli ef , and material evidence, [Charlene] , at all relevant times, was aw are and had kno wledge of Mr. Pettw ay’s threat against [Keith]

. Before the incident, Mr. Pettway clearly informed [Char lene] t hat he was a violent perso n b y telling [her that] he had be en ar rested at least twice for assault. On at least one occasion, [Cha rlene’s] respon se to3 such a statem ent was, “I knew you had bad boy in you[,]” egging on Mr

. Pettway’s anger towa rd [Ke ith] , al l without the knowle dge of [K e ith]

. On information and bel ief , despite her knowledge, [Charlene] continued to invite Mr. Pettway into the [r] esi dence, without rega rd to Mr. Pettway’s apparent anger problems with the living situation.
On the da y in question, Keit h returned to the residenc e after work , ope ne d t he garage door , and found Mr. Pettway in the garage. Mr. Pettway had a taser and
discha rged it, hitting Keith in the chest ; Mr. Pettway a lso hit Keith with a police
baton

. Keith retriev ed his pistol from his pocket and shot Mr. Pe ttwa y in the
stomach

. Kei th spent three days in t h e hospital due to the injuries tha t he sustained ; Mr. Pettway died several days after the shooting.
Instea d of suing Mr. Pe ttway’s estate, Keith filed suit against Cha rl ene, alleging

causes of action for negligen ce, premises lia b i lit y, and gross ne gligence. Keith alleged
that Charlene knew of Mr. Pettway’s hostil ity toward Keith and d id not tak e reasonable prec autions to mitigate the danger to Keith but in stead i nvite d Mr. Pettway
to th e residence. Keith furth er alleged that Char le ne’s negligent acts were the proximate cause of his severe personal injuries.
Charlene filed a c ombin ed traditional and no

- evidence motion for summary judgme nt on all ca uses of action pleade d by Keith. 1 Charl ene argued that Keith’ s case

1 Although Keith filed an amen ded petition after Ch arlene filed her summa ry

judgment motion , he di d not add any a dditional independently viab le causes of action to the l awsuit t h a t would hav e necessitated Cha rlen e ’ s am ending her summary

judgment motion

. See generally Haferkamp v. SSC Waco Gre envi ew Operating Co. , N o. 10

- 1 0

- 001 71

- CV, 2012 WL 851679 , at *2 ( Te x. App.

— Wac o Mar. 1 4 , 2012, pet. denied ) (mem. op. ) (setting forth general rule requiri ng a movant to amend or supplement a4 was built entir ely on speculation, that she did not owe a duty to Keith, that her actions

were not t he pr oximate cause of Keith’s damages, and that this is not a p r emises

lia bility case because there was no “state of being o f t he property its elf” th at posed an
unreasonab le risk of harm. A response, a reply, and supplemental briefing were filed

. 2
Keith also lodged various objectio ns to Charlen e ’ s summary

- judgment evidence , and
Charlen e responded ; the trial cou rt over ruled Keith ’ s objections. After hearing the motion, th e trial co urt sign ed a final order grant ing Charlene’s summa ry

- judgment
motion , stating t ha t Keith take nothing, and dismissing with prejudice all of Keith ’ s claims again st Char lene

. Keith t h en perfected this appeal.
I I I . Analysis
In his so le issue , Keit h ar gues that th e t rial court erred by granting Charlene ’ s motion f or summary judgment. Keith ’ s claims

— n e gligence, gross neglige n ce, and premis es liability

— all hinge on the existence of a legal duty, which we hold is not

pending summary

- judgm ent motion to address newly added claims in a su bsequent pet ition and holding t hat newly add ed theories of h o w appellee s h ad bre a c h e d their dut y to appellant did not bar s ummary judgment when appell ees c onclusively established that their alleged breach was not the proximate cause of appellant ’ s inju ries ).

2 Keith also filed a ninety

- f ive

- page sur

- reply, but t he trial court stat ed th a t i t would not consider that d oc ument because Keith did not seek leave of court to file a sur

- reply

.5 present in t he facts b efore us

. 3 Accordingly, as we explain below, summary judgmen t

w as proper. A. Standard of Revie w We review a summary judgment d e novo. Tr ave l ers Ins. v. Joachim , 315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the light mo st favor able
to the nonmovant, crediting evidence favorable to the no nm o vant if reasonable jurors
could , and disregarding evidence contr ary to the non m ovant unless reason able jurors
could not. Mann Frankfo rt Stein & Lipp Advisors, Inc. v. Fielding , 289 S. W.3d 844 , 848 (Tex. 2009). We indulge every reasonable inference and re solve any doubts in the

3 The di ssent concludes that Keith presented no argument on appeal that Charlen e had a duty under a genera l negligence theory and w ould hol d that Keith wai ved by inadeq uate briefing any complaint regarding the trial court ’ s grant of summary judgment on his neglige nce and gross

- negligence claims

. W hile Keith ’ s brief is not a model of clarity because it does no t present his arguments b ased on t he the or ies he alleged but r ather attacks elements

— many of which are the same for both his negligence claim and his premises

- liab ility cl aim

— Keith specifically mentions hi s negligence claim in his summary of the argument , stating that Charlene att acked hi s negli gence gro und in her su mmary

- judgment motion based on no gene ral duty between roman tic partners. Char lene appear s to have conclude d that this was enough to demonst rate that Keith was attackin g the negligence issue on appeal . She sta tes in h er brief that t his ap peal “ involves a straightforward appli cation of common law negligence claims and tort el ements ” and then argu es that “ [a] ny claim [Keith] alleged is contingent upon a duty that [Charlene] owed him. ” She t heref ore did not believe that Keith had faile d to chal lenge the trial court ’ s grant of summary judgment on his negligence claims. Because duty is an element in each of the claims pleaded by Keith and because the duty element is challenge d on appeal, we th e refo re conclude that Keith di d not waive his challenge to the summary judg ment on his negligence claim.
Charlene did , however , point out that Keith ’ s brief ’ s sole ment ion of his gross

negligence claim is in his prayer. As discussed be l ow, b ased on our dispos itio n of Keith ’ s n egligen ce claim, his gross- negligen ce claim must also fail. W e therefore discuss the two claims together.6 nonmova nt’s favor. 20801, Inc. v. Parke r , 249 S.W

. 3d 3 92, 399 (Tex. 2008) . A
defendant who conclusively nega tes at least one essential ele ment of a plaintif f

’s cause
of action is entitled to summary judgment on that claim under R u le 166a(c)

. Frost Nat’l Bank v. Fernandez , 315 S .W.3d 494, 508 (Tex. 2010); see Te x. R. Civ. P. 1 66a(b), (c). After an adequate time for discovery, the party without the burden of p roof
may, without p re senting evidence, move for summary judgment under R u le 166 a (i) on the ground that no evidence supports an essential elem ent of the nonmovant’s claim
or de fe nse. Te x . R

. Civ. P. 166a(i). The m otion must specifically state t he element s for whic h no evide nc e exists. Id. ; T impte Indus., Inc. v. Gish , 286 S. W .3d 306, 310 (Tex. 2009). The trial court must grant the motion unl ess the nonmovant produces
summary

- j udgment e vid e nce that raises a genuine, material fact issue. See Te x. R. Civ. P. 166a(i ) & 1997 c mt .; B.C. v. Steak N Shake Operations, Inc. , 598 S. W. 3 d 256, 259 (Tex. 2020)

. When reviewing a no

- evidence summary judgme nt, we examine the entire
record i n the ligh t mo s t favorable to the nonmovant, indulging every reasonabl e inferenc e and reso lving any do ubts against the motion. Sudan v. Sudan , 199 S.W .3 d 291, 292 (Tex. 2006). W e review a no

- evidence summary judgment for evidence that
would enable reason able and f a ir

- m inded jurors to differ in their conclusions.
Hamilton v. Wilson , 249 S.W.3 d 425, 426 ( Tex. 2008) (citin g City of Keller v. Wilson , 168
S. W .3d 802, 822 (Tex. 2005)) . We credit evidence favorable to the nonm ovant if reasonable jurors could, and we dis r ega r d evidence contrary to the nonmovant unless7 reasonable jurors cou ld not. T impte Indu s. , 286 S.W.3d at 3 10 (citing Mack Trucks, Inc.

v. Ta m ez , 206 S.W.3d 572, 582 ( Tex. 2006)). If the nonmovant brings forwa rd more than a scintilla of probat ive eviden c e t h at raises a genuine issue of material fact, then a

no

- e vidence su mmary judg ment is no t proper. Smith v. O’Donnell , 288 S.W.3d 417,
424 (T e x. 2009); King Ranch, Inc . v. Chapman , 118 S.W.3d 742, 751 (Tex. 200 3). When a party moves for summary judgment u nde r both Rules 166a(c) and 166a(i), we will first review t he trial c ourt’s jud gment unde r the standards of Rule 166a(i). Ford Motor Co. v. R i dgway , 135 S.W.3d 598, 600 (Tex. 2004). If the appellant failed to produce more than a scintilla of e vidence under t hat burden, the r e is no n eed to analyze whether the appellee’s su mmary

- judg ment proof s atisfied the Rule 166a(c)
burden. Id.
B. No Evidence of Duty to Support Negligence and Gross

Negligence Claim s We begin by addr essing Keith ’ s negligence and g ross

- negl igence claims. “The
elements of a ne gligence cause of action are the exis tence of a l egal duty, a breach of
th at duty, and damages proximately caused by the breach.” IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason , 143 S .W.3d 794, 798 (Tex. 2004)

. Charlene obtained summary judgmen t on, among other things, the absence of a legal duty. The Tyle r Court of A ppeals, in an employ ment case that Charlene relies on in her brief, explains
the legal

- duty element :8 Legal Duty Whether a duty exists is a threshold inquiry. Kroger Co. v. E lwood , 197 S.W.3d 7 93, 794 (Tex . 2006). A p arty who h as no duty cannot be lia b le for negligence. Id. The existence of a duty is a question of law determined based on the facts surrounding the occ urrence. Pagayon v. Exxon Mobil Corp. , 536 S.W.3d 499, 50 3 (Tex. 2017).
No general duty to control o thers curr ently exists in Texas

. . . . See id. at 504.

. . . Douglas v. Hardy , 600 S.W.3d 358, 367 (Tex. App.

— Tyler 2019, no pet.)

. In determining whether a common

- law negligence duty exists, w e consider
several factors , including foreseeab il ity. S ee Pagayon , 536 S. W.3d at 503

– 04

. As the Tyle r Court of A p peals further explained in Douglas , T he question of foreseeabili t y, and proxi mate cause generally, involves a practical inq u iry based on “common experienc e applie d to huma n conduct.” [ Doe v. Boys Cl ub of Greater Dall

. , Inc. , 907 S.W.2d 472,] 478 [ (Tex. 1995)]

. It a sks whether the injury “might reasonably have been contemplated” as a result of the defendan t’ s conduct. I d. H arm is f

oreseeable i f a person of ordinary intelligence should have antici pa te d the dange r create d by an act or om ission. Bos v. Smith , 556 S.W .3d 293, 303 (Tex. 2018). The exact sequence of events need not be foreseeable, but the conduct must be su ffici ently s i milar to giv e the defendant notice of the general nature of the da ng er . Id. How ever, foreseeability req u ires more than someone, viewing the facts in retrospect, theorizing an extraordinary sequence of events whereby the defend ant ’ s conduct b rings about t he injury. Doe , 907 S.W.2d at 478. The foreseeability req uiremen t “p rotects the owners and controlle rs o f land from liability for crim es that are so random, extraordinary, or otherwise disconnected from them that they could not reasonably be expe cted to foresee or p revent the crimes.” Trammell Crow Cent. Tex., Ltd. v. Gut ierrez , 267 S.W.3d 9, 17 (Tex. 20 08)

. 600 S.W.3d at 36 8– 69

.9 Here , Keith argues that Charl ene fomented co nflict between Keith and
Mr

. Pett way and the confrontation that occurred because “[t]he evidence show [ ed ] that she loved two men simultaneously, wa s je al ous of [K eith’s] new love interest, and was unwilling to let eith e r of them go, resulting in her ignorin g the clear signs that
Mr. Pett way was a risk to [Keith].” In essence, this theme suggests that Charlene
orchestrated the confrontatio n be tw een the two men. Pl acing such a florid theme on
Charlene’s cond u c t is not supported by the record, whi ch contains evidence that
Charlene told Keith in advance of Mr. Pett way ’s visit and that she was unaware of his plans to attack Keith. With regard to K ei th ’ s negligence clai m, the evidence that h e submitted to
attemp t t o rebut Charlene ’ s moti on for summa ry judgment included Charlene ’ s deposition , text messages b etween Charlen e and Mr. Pettway , text mess ages between
C h arlene ’ s son and Mr. Pettway, and Kei th ’ s deposition

. Afte r additiona l discovery
was condu cte d, Charlene filed a supplemental brief in support of her motion an d
attached the deposition from the detecti ve who investigated the shooting

. The recor d reflects that Charlene sta rt ed dat ing Mr. Pettway in S e ptember 2019

an d t hat he was not ple ase d after learning on their first da te tha t her ex

- boyfriend
Keith was living with her. The text messages between Charlene and Mr. Pettway
reflect th e followi ng e xc ha nges on October 3, 2019, which w as one month be for e the
November 3 , 2019 incident when Mr. Pett way used a taser on Keith : [Mr. Pettway :] Who will ye ll at yo u? Oh the pissant David!10 [Charlene :] Y es that pissant[.] [Mr. Pettway :] You k now what ? He ’ s going to fo rce me to hurt him real bad. [Char len e:] No no don ’ t even go th ere. It ’ s my fault I let this go on for so long. I never want it to jeopardize [] us as it already did. But God was persistent and made us happen. T h at ’ s all I care abo ut. This is my las t outin g planne d with the [motorcycl e] group until Jul y . If I ’ m even involved anymore at that time. [Mr . Pettway :] Then stop taking his shit ! He ’ s not going anywhere. [Charlene:] Yes Dear . . . [.] [Mr. Pettway:] I don ’ t take no shit [ , and ] neither d oes m y woman! Get like a mo m ma be ar with cu bs. Pis s ant is not going anywhere. [P ]ut a stop to this bullshit right now. [Charlene :] 10

- 4[.] [Y]ou [ ’ re] the wind beneath my wings[ .] [Mr. Pettway:] I have been arrested [] tw o differ ent times for
assau lt. FY I. [C h a rlene: ] Oh no . . . [

. ] [Charlene:] I knew you had bad boy in yo u lol [.] [Mr. Pettway: ] I don ’ t like it ! But I can be a mean motherfucker. [Charlene:] Enough of this[,] ok?
At her deposition in May 2021 , Charlene was asked about her knowledge of
Mr . Pettway ’ s assaults. She testified t h at Mr. Pettway never told her when t he arrest s had occurred and said that they could have happened whe n he was in high school.
Keith delved into the arrests and found that one involved domestic vio lence

.11 Keith t estified that Cha rlene exp ressed to him sev e ra l times h ow much
Mr. Pettway hated him. K eith also testified about events that occurred d uring the
week bef ore the i nciden t . He said that on S und a y, October 27 ( exactly one week
before the incident) , C h arlen e told Mr. Pettway th at Keith an d her son we r e fighting over her motorcycle that she had wrecked; according to Keith, Mr. Pettway told
C h arlene that she wa s her family ’ s worst nightmare and b rok e up with her “ for about
the fourth or fifth t ime. ” Two d ays later , o n the T uesday preceding the i ncident , Charlene told Ke ith that “ this ha [d] escalated way fa st er than [she ] thought ” an d that
Mr. Pettwa y wanted Keith out of th e house immedi ately. Charl ene instructed Keith

to rent a stora ge room so that she could maybe calm down Mr. Pettway. Keith did

not l ease a storage facility but did purchase st orage boxes so that he could start
p ack i ng his belongings because he planned to move out

. 4 On the Thu rs day befor e the incident , Charlene asked Keith what he was doing fo r the weekend; he responded that he was go i ng hunting. Charl ene then said that Mr . P e ttway was coming for the
weekend. Keith said that he interpre te d what Ch arlene had told him to mean that there would be physical viol ence. Keith t old C h arlene, “ [H ]e ’ s coming here to get to

4 On that same Tu esda y , Mr. Pettway texted Char lene ’ s son ’ s girlfriend to say that when Charlene ’ s son was r e ady to go “ take care of ” Ke ith regarding t he mot orcycle inciden t ( i.e., Keit h had offered to purchase Charlen e ’ s wrecked
m otorcycle for $800, but her son thought it was worth more and did not ap preciate Keith ’ s low offer), then Charl en e ’ s son should call M r. Pettway ; Mr. Pettw ay sta ted that he “ wo uld ta ke off work and he would go with him and have his back. ” Keith did not learn about this text until a fter he was released from the hospital following the November 3 in cident

.12 me. ” Ch arl e ne respo n ded, “ He ’ s not going to hurt you , ” but Keith said, “ Charlene,
the m an is co ming here after me. ” Keith testified that Cha rl en e went and picked up Mr. Pettway on Friday and brought him to the re sidence, “ knowing that he hate d [ K eith] , that he meant [Keith ] harm. ”
B u t Keith testified that he had no evidence that at the time of th e incident
Charlene knew that Mr. Pettway was in the garage. Keith furthe r testified that he h ad

n o evidence that Charlen e knew that Keith was home and near the garage at the time

o f the inci dent. Keith admitted that Mr. Pettway was a bigge r part of the incident
than Charlene.
Duri n g Charlene ’ s de pos ition, she testifi ed t hat she had told Keith the week prior that she was bringing Mr. Pettway to the residen ce . W hen she brought Mr.
Pe ttw ay to th e residence on Friday evening, Keith was working , and they di d not see him on Sat urday because they “ h ad a lot of stuff to do on Saturday , and then Sunday
is when all that went down. ”
C h ar lene explained that on Sunday morning, Mr. Pe ttway was al rea dy up when she woke up. He t old her that he was irri ta ble, that he n eeded coffee, and that he wanted them to go get breakfa st. Ch arlene sa id that she needed to fix her hair, so she
left the kitch en and returned to her bathroom. Wh ile she wa s in the b ath room curling
her hair , s h e heard four pops

. 5

5 Keith t e stified that he sh ot Mr. Pe ttway “ one time

. ”13 Charlene testified that she ha d no idea or any re ason to believe that
Mr. Pettway had brought an y weapons to her home and only lear ned after the incident
that Mr. Pettway ’ s over night bag contained w eap ons ( in ad dition to the taser and the
baton that he used ) and that he had not packe d any cloth es . 6 Charlen e also did not have any idea on that Sunday morning that Mr. Pett w ay was going to attack Ke ith ; Mr. Pe ttw ay did not ever tell her that he was going t o attac k K eith , and the two men
had nev er even spoke n to each other prior to th e shooting

. Sh e further testified that
she d id not have any reason to believe th at Mr. Pettway was ca pable of attac king another person

. D etect iv e John Tham investigated the incident a nd never listed Charlene as a suspect because he did not believe that she had helped Mr . Pett way plan the at tack on
Keith. Detective Tham concluded that Cha rlene was unaware of Mr. Pettway ’ s inten ti on to harm Keith. Detective Tham said that none of the t e xt s between Charlene and Mr. Pettway explicitly mentioned an assau lt on Keith and that there was

no ev ide nce that Charlene had pushed Mr. Pettway to assault Keith

. D etective Tham

s aw the text in which Mr. Pettway had threatened to harm Keith , but Det ecti ve Tham

6 C harlene testified that so metimes M r . Pet tway carried a taser when they went

“ bike riding ” ; that ever ybody took a gun or some weapon when they were on the road ; and that when they were not riding, the taser “ ju st lai d on the sto ve. ” Charlene said that M r. Pett way did not have a ta ser on his pers on on Sa turd a y because they

“ weren ’ t on the bike ” a nd that she did not recall seeing the taser on M r . Pett way ’ s person on Sunda y morning. Keith , however, testified that Charlene had told him that Mr. Pettway carried a ta ser “ like a pistol i n a hol ster on his hip at al l times ” and that

“ everywhere they went[,] h e carried that li ke a pisto l. ”14 did not see that as an active threat. Moreove r, Keith told D etective Tham that th e d ay before the offense , Mr. Pettway came to the house t o spend time with C h arlen e ; h e (Keith) went to his room after he got home from work that morning and did not have any in teractions with Charlene and Mr. Pettway ; a nd he (Keith ) l eft for work that

eve nin g without any issue

. Detective Tham testified that this was evi dence that bo th

m en had been in the home at the same time without any incident or alter cation on
Sa turday.
Des pite Keith ’ s allegations that Charl ene orchestrated the confro nta tion, the question instead turns on whether the blustering statements made by Mr. P et t way in early Oc tober m ade it reasonab ly foreseeable that Mr. Pett way would bring his taser
and a police b aton, as well as other weapons, to Charlene’s and use them on Kei th
one month later when the two men had never spoken to each other prior to the
sho ot ing and had co

- e xisted in the home the day prior to the incident w ithout any
words or altercati ons. W e ca nnot say that Keith brought forwa rd more than a scintilla
of prob ative eviden c e that raises a genuine issue of material fact on w hether Charlene

o we d a legal duty to pr event Keith from bei ng a ssaulted by Mr . Pettway with a taser and a police bat on because such assault was not reasonably foreseeable

. See generally
W atan abe v. Summit Path Partners, LLC , No. 01

- 19

- 00302

- CV, 2021 WL 3501542, at *9 (Tex. Ap p.

— Houston [1st Dist.] Aug. 10, 2021, no pet.) ( “ Only after fores eeability
has been established

. . . will a court determine th e parameters of the defendant ’ s duty. ” ( ci ting Timberwalk Apart ments, Partners, Inc. v. Cain , 972 S.W.2d 749, 75 7 (Tex.15 1998 ) ))

. We h old that Charlene o wed Keith no duty to prevent M r. Pettway ’ s assault
on Keith because the general rule of no duty to contr ol others appli es here t o relieve
Ch a rlen e of any duty to cont rol the actions of he r then

- boyfriend

— Mr. Pettway. C f. Dougla s , 600 S.W.3d at 371 ; Hani v. Jimenez , 264 S.W.3d 881, 886 (Tex. App .— Dallas 2008, pet. denied) ( “[ A] lthough s pouses and family memb ers may have a moral duty
to exercise ca r e toward one another, a legal duty to prevent harm does not arise from
the familial r elat ionship

. ”)

. With out a legal duty, Charlene cannot be liable f or Keith ’ s negligence cla im as a matter of law. Moreover, w ithou t evidence of n egligence, there can be n o g ross negli gence to support exe mplary damages. Douglas , 6 00 S.W.3d at 372

. See g en erally Boerjan v. Rodriguez , 436 S.W.3d 307, 311 (Tex. 2014) ( sett ing forth g ross

- negligence elem ents ).
Acc ordingly , we hold that the trial cour t properly granted sum mary j udgment on
Keith ’ s negl igence and gross

- negligence claims.
C. No Evidence to Supp or t Premises

- Liability Claim
Keith also a sserted a premises

- liabilit y claim against Char lene , seeki ng to hold
Charlene liab le i n her role as a land owner for an alleged d uty ba sed on Mr. Pettway ’ s actions as a third party who committed criminal act s against K eith while on Charlen e’ s property. As exp lained below, n o evidence s u pports the e xistence of any pre mises

l iability clai m. We ag ain borrow fro m Do ugla s , which su mm ar ized the law on premises -l iability
claims :16 In a premises liabili ty case, the plaintiff must establish a duty owed to the plaintiff, breach of that duty, and damages proximately caused by the breac h. Del Lago Partners [ , In c. v. Smith ] , 3 07 S.W.3d [762,] 76 7 [ ( Tex. 2010)]

. Generall y, a pr emises owner has no duty to pro te ct invitees, s uch as tenants, from criminal acts by third parties. See Timberwalk , 972 S.W.2d at 756

. B ut th ere is an e xcep tion wh e n the owner k nows or has reason to kno w of a risk of harm to invitees tha t is both unreaso nable and foreseeable. Id. Fo re seeability require s that the general danger, and not necessarily the exact sequence of events that pr oduc ed th e harm, be fore seeable

. See id. Wh en the “general danger” i s the risk of injury f rom crimi nal activity b y third parties, the evidence must rev ea l specific prev ious crimes on or near the premises to establish foreseeability. Id. The supreme cou rt h as re cognized th at “ crime i s increasingly random and violent and m ay occur anywhere” and rejected the impositio n of a general duty on landlords to pr ot ect tenants whene ver crime might occur. See Del Lago Partners , 307 S.W.3d at 76 8

. When t he premises owner has no direct knowledge t h at criminal conduct is imminent, the plaintiff must present evidence showing past crimina l conduct made similar condu ct in the future foresee able. See id. Whether past incidents of crimi nal condu ct make future incidents foreseeable depends u pon factors s uch as proxi mity, recency, freque ncy, similarity, and publi city. Id.
600 S. W.3d at 372

– 73

. Keith argues that he was an invite e to whom Charlene owed a legal duty . As noted above, a premises ow ner has n o duty to prote ct invitees f rom crimina l acts by

t h ird parties unless the ow n er k nows or has rea son to know of a risk of harm to
invit ees that is both unreaso nable and foreseeable ; in o ther words, the evidence must reveal specific prev ious crimes on or nea r the premises to establish foreseeabil ity

. See
i d

. The record in this case show s t hat Kei th p resented no evidence of any recent cri minal
activities on or near Charlene ’ s premis es similar to the incident in question . Therefore , the t r

ial court co r rectly granted summar y judgment in Charlene ’ s favor on t he Timberwalk premis es

- liab ility theory. See id

. at 373 (citing Timber wal k , 9 72 S.W .2d at 756).17 Keith also appears to argue that C harlene owed a duty to him under the analysis set forth by the Tex as Suprem e Court in Del Lago

. In Del Lago , the supreme

cou rt a sserted that “ c rimi na l mis conduct is sometimes foreseeable because of
immediatel y preceding conduct ” ; fo r example, “ when a property owner [] by reason of
. . . ob s ervation o r p ast ex perience [] should reasonably anticipate cr iminal conduct on the part of thi rd pers ons, ” then t he p ro pe rty owner “ has a duty to take precau tions against it. ” 307 S .W.3d at 76 9. “ Th is duty is recognized because [] the party with the
power of control or e x pulsio n is in the bes t position to protect aga inst the harm. ” Id.
But h ere , there is no evidence tha t Charlene had direct knowledge of a n imminent
confront ation between Mr. Pettway an d Keith as the two men had never spoken t o each other prior to the s hoo ting. No r w as there any evidence th at Cha rlene had the
time o r the means to defuse the situation when it occurred . The evidence reflects that although Char lene was in the home on the da y o f the incident, she was in her
bath room fixing her hair and d id no t know that Mr. Pettw ay was in the garage waiting
for K eith to arrive hom e fr om work so that he co uld assault him

. The evidence
further reflects that Charle ne did not k now that Keith had returned home from work
until he came in sid e to te ll her that Mr. Pettw ay had attacked him

. Moreover, despite
Mr. Pettway ’ s prior t ext mes sa ges to Charlene expres sing his disapproval of her living
situation with Keith, su ch messages did not impar t to Charlene direc t knowledg e of
an immine nt c onflic t ; she did not know that Mr. Pettway had brought weapons to her
house and di d not know that Mr. P ettway was going to attack K eith on Sunday18 mo rning after she brought Mr. Pettway to the resid ence on Friday evening

. And
Detective T ham did no t view Mr. Pett way ’ s prior texts to C h arlene as an active threat.
A c co rdingly, we hold that the analys is in Del L ago is ina pplicable as a matter of law.
See Do uglas , 600 S.W.3d at 373 ; Taylor v. L ou is , 349 S.W.3d 72 9, 732, 736

– 37 (Tex.
A p p.

— Hou s ton [14 th Dist.] 2011, no pet. ) (ho lding that facts bore no resemblanc e to Del L ago when boyfriend wa s as s aulted in girlfri end ’ s home by her ex

- husband without warning, boyfriend was not a n invitee, th e atta ck was not preceded by an

ex tended period of thre aten in g an d ag gressive be havior, an d there was no evidence
that homeowner had am ple tim e and means to d ef use the situation)

. 7

7 The dissent states that the Timberwalk factors are inapplic able whe n the property owner has direct knowledge that criminal cond uct is imminent and conte nds that we sho uld ins tead a pply the Del Lago fac t ors . Conc urring and Dissenting Op . at 5. As explained in our ana lysis, we conclude that Charlene did n ot have d irect knowledge that criminal conduct was imminent ; t hus, we properl y u sed the Timberwalk fac tors t o guide o ur anal ysis. Additionally , the di s sent ’ s analy sis of the Del Lago factors, which characterizes “ the nature and charac ter of the premises ” as
“ impor tant, ” omits that there is no evidence that Charlene ’ s house was a p lace of frequent skirmish es and speculat es as to what coul d happen there b a sed merely on th e parties ’ living ar rangement , which “ would be a s ource of turmoil in a re lationship bet ween the two men, ” while ignoring that the two men had never met or spok en to each other until after t he assault. Id

. at 7

– 8

. Mo reover, the record nega t es the d issent ’ s conten tion that “ [i ]t is reasonable to infer tha t , had Keith kno wn of the violent ris k posed b y Mr. Pett way, he would not have come to the house at all knowing th at Mr. Pettway was also t here. ” Id. at 10

. The reco rd demonstrates that Ch a rlene warned Keith that Mr. Pettway would be in the home on the we ekend in question and that u pon hear ing just that news ( and not knowing about Mr. Pettway ’ s prior arrests) , Keith repeatedly expressed con cern about his safety, but h e did not attempt to av o i d the ho me that weekend. Thus, even if we were to assume that Ch arlene owed a duty to Keith, we woul d conclu de that she fulfilled such duty by giving Keith advance notice that M r. Pettway was coming to the home on the19 Fu rthermore, as ide fr om Charlen e ’ s alleged duties as a premise s owne r to prevent foreseeable crimi nal acts , it appears that Keith also ar g ues that Charl ene owed
him a general duty “ to make the condition reas ona bly safe ” for him whil e he wa s a t the resid ence . Keith ’ s injuries , however, did no t arise f rom a “ condition ” on the
p rope rty

— w hich focuses on the st ate o f bein g of the proper ty itself as op posed to negligent activity. See Do u glas , 600 S.W.3d at 374 (citing 4Front E ngin eered Sols., Inc. v. Rosales , 505 S.W.3d 90 5, 912 (Tex. 2016)). Mr. Pettway ’ s act io n in usin g a taser on Keith is not a co ndition o f Charlene ’ s premi ses t hat cr e a ted an unreas onable risk of
harm apart from the Tim berwalk and Del Lago premises claims a nd d oes not support a n inde pende nt premises

- liabil ity claim as a matter of law. See i d.
Acc ordin gly, we hold that t he trial co urt properly granted summar y jud gment

o n Keith ’s prem i ses

- liability claim

. IV. Conclusi on Having held that the trial court prope r ly granted summary j udgment on all of
Keith ’ s cla ims, we overrule his sole issue and af firm th e trial court ’ s summa ry judgment

. /s/ Dabney Bassel
D abney Bassel Justice
De liver ed: August 25, 202 2
weekend in q uestion such that Keith had the opportunity to choose to stay aw ay from the home during th at time

.