## IN THE SUPREME COURT O F TEX AS

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O N P E T I T I O N F O R R E V I E W F R O M T H E C O U R T O F A P P E A L S F O R T H E F O U R T E E N T H D I S T R I C T O F T E X A S

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Argued Septem ber 15, 2016

J U S T I C E B R O W N delivere d the opinion of the Court. J U S T I C E W I L L E T T filed a c oncurr ing opinion, in which J U S T I C E B O Y D joined.

A la n Pe tr ie sued The Galler

y apar tment complex and its owner s (col le c ti v e ly , “ G a ll e r y ” ) a f te r he was assaulted and robbed in the complex’s visitor parking lot. The trial court conclude d Galler y owed no duty to Petrie to protec t him but the court of appea ls reve rsed, holding there was evidenc e Galler y knew or should have known of a fore seea ble and unrea sonable risk of harm. We reve rse the court of appea ls beca

use it failed to prope rly

consider w hether

the risk of ha

rm was unr easona

ble;

we rende r judgme nt for Galler y beca use Petrie offe red no evidenc e of the burden that preve nti n g such a c rime would impose on Galler y .I

Alan Petrie arr ived at The Galler y at about two o’cloc k one morning to attend a party hosted by a co-w orker

. He parke d in a visitor lot at the fr o n t of the complex. Although the complex was g ated, the visitor parking lot, which spanned most of the proper ty ’s street frontag e, was outside the g ate and acc essible to the public. Whil e Petrie ma de a phone call fr om his car, a vehicle pulled up behind his, blocking him in. Two men exit ed the vehicle and approa ched Petrie’s car . One pointed

a shotgun at Petrie throug h his window and order ed him to exit the car . Petrie complied and, when reque sted, surre ndere d his wallet and key s. But when ordere d to lie down, he hesitated. S o one of the men shot him in the kne e and he fell to the g round. The shooter then plac ed the shotg un barr el
to Petrie’s head and pulled the trig g er, but the wea pon did not fire. Petrie quickly cra wled under the vehicle ne x t to him whil e the a ssailants fled. Petrie sued Galler

y , alleg ing it knew or should have known about the high crime rate on its premises and in the surrounding are a y et failed to use ordinary car e to make the complex safe

. Both sides prese nted expert witnesses at a two-day evidentiar

y hear ing. The e x perts’ te stimony focuse d mainly on whether the crime ag ainst Petrie was fore seea ble. The trial court conclude d Galler y owed no duty to Petrie and sig ned a ta

ke-nothing judgme nt in its favor

. The court of appea ls reve rsed, holding that “ther e is evidence o f t he fore seea bility of an

un re asonable risk of harm that a person on the premises would be the victim of violent criminal conduct.” No. 14-13-00123- CV, 2014 WL 7174242, at *9 (Tex. A pp.—Houston [14t h Dist.] Dec

. 9, 2014) (mem. op.). The court of appea ls based its conclusion ex clus ively on its analy sis of the evidenc e ag ainst t h e fa ctors we laid out in Timberwalk Apartments, Partners, Inc. v. Cain , 972
2S.W .2d 749 (Tex. 1998). Galler y urg ed the court of appea ls to aff irm the tr i al court’s judgme nt beca use Petrie failed to separ ately brief whether the risk of harm was unrea sonable. I n response , the
court of appea ls held that “[t] he potential unrea sonablene ss and fore seea bility of harm is considere d

as a whole, not as separ ate elements requiring indepen d ent proof.” 2014 WL 7174242, at *3 (interna l quotations omitted). The court of appea ls added that “whe ther the risk of criminal conduct is both unrea sonable and fore seea ble i s deter

mined by assess i n g t he five Timberwalk fac tors.” Id. at n.2. Galler

y soug ht our revie w, arg uing that the court of appea ls never truly considere d whether there was an unrea sonable risk of harm beca use the Timberwalk fac tors apply only to fore seea bility

. Galler y further urges u s to rende r j udg ment in its favor beca use P etrie failed to arg ue or offe r any evidenc e on unre asonable ness. We g rante d revie w. II Gene rally , proper

ty owner s have no le g al duty to protect pe rsons from third-par ty criminal
acts. See W

alker v. Harris , 924 S.W .2d 375, 377 (Tex. 1996). But a proper ty owner who “contr ols
t h e p re m ises does have a duty to use ordinary car e to protec t invitees from criminal acts of thir d parties if he knows or has rea son to know of an unrea sonable and fore seea ble risk of harm to the invitee.” Lefmark Mgmt. Co. v. O ld , 946 S.W .2d 52, 53 (Tex. 1997). 1

T h e r e i s n o d i s p u t e h e r e t h a t G a l l e r y r e t a i n e d c o n t r o l o v e r i t s a p a r t m e n t c o m p l e x o r t h a t P e t r i e w a s a n i n v i t e e . 1 3We have consistently said that a risk must be both f orese eable and unrea sonable to impose

a duty on a proper

ty owner . This approa ch is not peculiar to premises-liability case s; it is essential

2
to the deter

mination of duty in all of tort law. See, e.g. , Greater Houston Transp. Co. v. Phillips , 801 S.W .2d 523, 525 (Tex. 1990) (in deter mining exis tence of a duty in common-law neg lige nce case s, “the court will consider sever al interre lated fac tors, including the risk, fore seea bility , and likelihood of i n j u ry we i gh ed ag ainst the social utilit y of the actor ’s conduct, the mag nitude of the burden of g uarding against the injury , and the conseque nces of placing the burden on the defe ndant”)

. For esee ability is a “pre requisite to imposing a dut y . ” T i mberwalk , 972 S.W .2d at 756. But once fore seea bility is established, “the pa

rame ters of the duty

must sti ll be deter

mined.” Id. Courts will also consider “the social utilit y of the actor ’s conduct, the conseque nces of imposing the burden on the actor , and any other rele vant competing individual and social interests implicated by the fac ts of the case .” Tex. Home Mgmt., Inc. v. Peav y , 89 S.W .3d 30, 33 (Tex. 2002). These considerations take into account not just the “re asonable fore seea bility of harm to the person injure d” but also “public policy considerations.” Id. at 34. We acknow ledg e that “for esee ability has rec eived the lion’s share of t h e attention” from Texas courts considering a proper ty owner ’s duty to protec t invitees from third-par ty criminal acts. Del Lago Partners, Inc. v. Smith , 307 S.W .3d 762 , 7 9 1 (T ex. 2010)

S e e T i m b e r w a l k , 9 7 2 S

. W

. 2 d a t 7 5 6 ( “ T h e f o r e s e e a b i l i t y o f a n u n r e a s o n a b l e r i s k o f c r i m i n a l c o n d u c t i s a 2 p r e r e q u i s i t e t o i m p o s i n g a d u t y . . . . ” ) ; M e l l o n M o r t g . C o . v . H o l d e r , 5 S

. W

. 3 d 6 5 4 , 6 5 5 ( T e x . 1 9 9 9 ) ( “ [ P ] r o p e r t y o w n e r s o w e a d u t y t o t h o s e w h o m a y b e h a r m e d b y t h e c r i m i n a l a c t s [ o f t h i r d p a r t i e s ] o n l y w h e n t h e r i s k o f c r i m i n a l c o n d u c t i s s o g r e a t t h a t i t i s b o t h u n r e a s o n a b l e a n d f o r e s e e a b l e . ” ) ; T

r a m m e l l C r o w C e n t

. T

e x . , L t d

. v . G u t i e r r e z , 2 6 7 S

. W

. 3 d 9 , 1 2 ( T e x . 2 0 0 8 ) ( A p r o p e r t y o w n e r “ w h o c o n t r o l s t h e p r e m i s e s d o e s h a v e a d u t y t o u s e o r d i n a r y c a r e t o p r o t e c t i n v i t e e s f r o m c r i m i n a l a c t s o f

t h i r d p a r t i e s i f

h e k n o w s o r h a s r e a s o n t o k n o w o f a n u n r e a s o n a b l e a n d f

o r e s e e a b l e r i s k o f

h a r m . ” ) ; D e l L a g o P a r t n e r s , I

n c . v . S m i t h , 3 0 7 S

. W

. 3 d 7 6 2 , 7 6 7 ( T e x . 2 0 1 0 ) ( “ [ A ] p r o p e r t y o w n e r o w e s i n v i t e e s a d u t y t o u s e o r d i n a r y c a r e t o r e d u c e o r e l i m i n a t e a n u n r e a s o n a b l e r i s k o f h a r m c r e a t e d b y a p r e m i s e s c o n d i t i o n a b o u t w h i c h t h e p r o p e r t y o w n e r k n e w o r s h o u l d h a v e k n o w n . ” )

. 4(Wainwrig ht, J ., dissenting)

. Nonethele ss, “[f]oreseea bility is the beg inning, not the end, of the analy sis in deter

mining the extent of the duty to protec t ag ainst cr iminal acts of third parties.” Timberwalk , 972 S.W .2d at 756 (quoting Lefmark , 946 S.W .2d at 59) (O wen, J., concurr ing)

. The court of appea ls acknow ledg ed that unrea sonablene ss play s a role in the duty inquiry but conclude d that an evalua tion of the fac tors we laid out in Timberwalk is dispositi ve of whether the risk of criminal conduct is both fore seea ble and unrea sonable. See 2014 WL 7174242, at *3 n.2. We disag ree . This Court conce ived the Timberwalk fac tors as a means to aid courts in deter mining fore seea bility specific ally

. See Timberwalk , 972 S.W .2d at 757 (“ I n d eter mining whether the

occur renc e of cer

tain criminal conduct on a landowner ’s proper ty should have been fore seen, courts

s h o u l d consider whether any criminal conduct previously occur red on or near the proper ty , ho w

rec entl y i t occur

red, how often it occur

red, how simil ar the conduct was to the conduct on the proper ty , and what publicity was g iven the occur renc es to indicate that the landowner knew o r should have known about them.”). Our explanation of eac h fac tor focuse d dog g edly on fore seea bility

. First, proxi mity : “F or a landowner to fore see criminal conduct on proper ty , there must be evidence that other crimes have occur

red on the proper

ty or in i t s immediate vicinity .” Id

. Second, rec ency and fre qu en cy : “F o rese eability also depends on how rec ently and how often criminal conduct has

occur red in the past.” Id. at 757–58. Third, simil arity : “The previous crimes m u s t be sufficie ntly simil ar to the crime in question as to place the landowner on notice of the specific dang er.” Id. at 758. And fourth, publicity : “The publicity surrounding the previous crimes helps deter mine whether

a landowner knew or should ha ve known of a fore seea

ble dang er.” Id

. “The se fac tors—proxi mity ,

5rec ency , fre quency , simil arity , and publicity —must be considere d toge ther in deter mining whether criminal conduc t was for esee able.” Id. at 759. Moreove r, when we first applied these fac tors in Timberwalk , we c oncluded only that “the risk that a tenant would be sex ually assaulted was in no way fore seea ble.” Id. Be cause the l ack of fore seea bility was dispositi ve in that case , further consideration of the unrea sonablene ss of the risk

was unnece ssary . Simi larly , in Mellon Mortgage Co. v. Holder , we rec ited the standard that risk of

a crime must be “ both unrea sonable and fore seea ble” while signa ling that “[w]e focus our attention in this case on ‘for esee ability .’” 5 S.W .3d 654, 655 (Tex. 1999) (emphasis added ). Ag ain, we did not further

discuss unrea sonablene ss beca use i t was unnecessa

ry afte r concluding the criminal ac t was unfor esee able. See id. at 658. Although w e have y et to dispose of a post- Timberwalk case on unrea sonablene ss gr ounds, the distinctiveness of the fore seea bility and unrea sonablene ss inquiries has been on full display

. I n Trammell C

r o w Central Texas, Ltd. v. Gutierrez , for instance, the Court unanimously ag ree d the

owner s of a 60-ac re shopping mall owed no duty to th e v i ct im of a parking -lot shooting. 267 S.W .3d 9, 9 (Tex. 2008). But the Court split on whe t her that conclusion rested on

u n foreseea

bility or t he unreasonable ness of the risk. The majority applied the Timberwalk fa ct o rs and conclude d the crime was unfore seea ble. See id. at 1 3

– 17. But four concur ring justices would have conclude d “not t h at t h e attack was unfore seea ble, but that the risk of its occur renc e was not

unrea sonable, and that the conseque nces of requiring premises owner s to preve nt this ty pe of crime would require a measure of deter renc e that is neither fea sible nor desirable .” See id. at 18 (Jeffer son, C.J ., concur

ring ).
6Simi larly , a dis senting justice broke from the Del Lago majority to arg ue that the risk was

not unrea sonable even if fore seea ble. See 307 S.W .3d at 791–95 (Wainwrig ht, J ., dis s enting ). Notably , the Del Lago majority did not dispute the distinctiveness of the unrea sonablene ss inquiry ; rathe r, it simply disag ree d with the dissent on the unrea sonablene ss of the risk. See id. at 770 (“[The dissent] corr ectly notes that a proper ty owner ’s duty to invitees extends only to reduc e or eliminate

an unrea sonable risk of harm cre ated by a premises condition. Under the circ umstances of this case , we think [the plaintiff] faced a n unrea sonable risk of ha rm.”). We desig ned the Timberwalk fac tors to measure fore seea bility ; their application cannot, without more, deter

mine the reasonablene ss of a risk of harm. See Trammel Crow , 267 S.W .3d at 18 (Jeffer son, C.J ., concur ring ) (“[F]ocusing s o le ly o n f o rese eability overlooks other fac tors we have held ar e per

tinent to the exi stence and scope of a duty .”). U nrea sonablene ss “turns on the risk and likelihood of injury to the plaintiff

. . . as well as the mag nitude and conseque nces of placing a duty

on the def

en d an t.” Del Lago , 307 S.W .3d at 770 (citing Phillips , 801 S.W .2d at 525). A risk is

unrea sonable when the risk of a fore s eea ble crime outweig hs the burden place d on proper ty

owner s—and society at larg e—to preve nt the risk. None of the Timberwalk fac t o rs co m p els any consideration of what burdens a proper ty owner would nece ssarily incur to preve nt or reduc e the risk of a crime. L ikewise, the fac tors do not addre ss whether , as a matter of public policy , it is pref era ble to impose such burdens or , instead, ac cept the r isk that a crime w ill occur. The unrea sonablene ss inquiry , on the other hand, ex p l o res the policy implications of imposing a leg al duty to protec t ag ainst fore seea ble criminal conduct. This includes whether a duty would “re quire ‘conspicuous secur ity ’ at ever y point of potential contac t b et we en a patron and a
7criminal” or require adoption of “extraordinar y measure s to preve nt a simil ar o cc u rr ence in the future.” Trammel Crow , 267 S.W .3d at 18 (Jeffer son, C.J ., concur ring ). Acc ording ly , “if a premises

owner could easily preve nt a certain ty pe of harm, it may be unreasonable for the premises owner
not to exercise ordinary car e to a ddress the risk.” Del Lago , 307 S.W .3d at 792. But “if the burden of preve nting the harm is unacc eptably high, the risk of the harm is not unrea sonable.” Id. As Chief J ustice Jeffer son observe d: The question is the extent to which we should require premises owner s—even those who have e x perie nced c rime in the past—to provide the same level of secur ity that airports enlist to preve nt terror ism. L ife in a fre e society car ries a deg ree of risk. That risk can be virtually eliminated by a p er v as i ve milit ary prese nce, but the burdens—both in terms of the economic co s t t o p re mises owner s and in the oppressive c limate a police sta te spawns—would be prohibitive. Trammel Crow , 267 S.W .3d at 19 (Jeffer son, C.J ., concur ring ). The court of appea ls err ed i n its conclusion that “‘unr easona bleness and fore seea

bility of harm’ is considere d as a whole, not as separ ate elements requiring independe nt p ro o f.” 2014 WL 7174242, at *3. We have acknow ledg ed t h at fo re seea bility and unrea sonablene ss are not wholly independe nt; rathe r, “[t] he unrea sonablene ss of a risk cannot be completely separat ed fr om its fore seea bility .” Del Lago , 307 S.W .3d at 770. But while the Timberwalk fac tors wer e desig ned to elicit evidenc e d efining the risk posed by fore seea ble criminal activity , they do not contemplate weig hing that risk “ag ainst the conseque nces of placing [a] burden on the defe ndant,” and on society , to reduc e or eliminate that risk. Del Lago , 307 S.W .3d at 791 (Wainwrig ht, J ., dissenting)

. The court of appea ls never truly considere d the unrea sonablene ss of any fore seea ble risk to Petrie. And so the
court e rre d in concluding as a ma tter of law that Galler

y owed a leg al duty

of ca re to Petrie.

8III

Galler y arg ues we should rende r judgme nt in its favor beca use Petrie offe red no evidenc e of, and did not arg ue that he fac ed, an unrea sonable risk of harm. We ag ree he never offe red any such

ev i dence and is without excuse for not doing so. Although we have not disposed o f a p o s t

Timberwalk case on unrea sonablene ss g rounds, our prec edents are unambig uous: the fore seea bility and unreasonable ness i nquiries ar e d i s t i nct. M oreove r, P etrie has been on notice at ever y stag e of this case that he must arg ue and offe r evidenc e of unrea sonablene ss. On multipl e occa sions, Galler y arg ued to the trial court that it must conclude the crime ag ainst Petrie was both fore seea ble and the risk unrea sonable. But Petrie exclusively relied on his expert witness’s fore seea bility evalua tion. He offe red no evidenc e concer ning the burden on Galler y to make the proper

ty safe from foresee able crime a nd whether

that burden w as re asonable

. I n its final judgme nt, the trial court simply stated that “[d] efe ndants owed no duty to protec t [P etrie] from the criminal acts of third persons.” I t did n o t ex plain whether it based that deter mination on fore seea

bility or unrea sonablene ss or both. At the court of appea ls, Galler y arg ued that by failing to addre ss unrea sonablene ss, Petrie failed to challeng e a potential independe nt basis for the trial court’s ruling

. We agre e. Petrie’s briefing to the court of appea ls, arg uing that “the ag g rava ted robber y was imminently fore seea ble, and a duty on the part of [Gallery ] was acc ording ly established,” show s he saw f orese eability

as his only

challeng e. 3

A l t h o u g h P e t r i e d i d r a i s e a n e w a r g u m e n t i n h i s b r i e f i n g t o t h e c o u r t o f a p p e a l s a b o u t p o o r l i g h t i n g i n 3 G a l l e r y ’ s p a r k i n g l o t , h e p r e s e n t e d i t i n t h e c o u r s e o f a r g u i n g t h a t t h e c r i m e a g a i n s t P e t r i e w a s f o r e s e e a b l e . P e t r i e n e v e r s p e c i f i c a l l y a s s e r t e d t h a t b e t t e r l i g h t i n g c o u l d h a v e p r e v e n t e d t h e c r i m e a n d w h a t t h e b u r d e n o n G a l l e r y w o u l d h a v e b e e n t o i m p r o v e i t s l i g h t i n g . M o r e o v e r , P e t r i e o f f e r e d n o e v i d e n c e o n l i g h t i n g a t t h e t r i a l c o u r t ’ s e v i d e n t i a r y h e a r i n g a n d t h e c o u r t o f a p p e a l s m a d e n o m e n t i o n o f i t i n i t s o p i n i o n . 9To this Court, Galler y repe ats its arg ument that Petrie’s failure to addre ss unrea sonablene ss leave s unchalleng ed an independe nt basis for the trial court’s judgme nt. Petrie respon d s t h at the
court of appea ls pr operly analy zed f orese eability and unre asonable ness tog ether in its Timberwalk

an aly sis. He further arg ues that Galler y ’s awa rene ss of crime on its premises toge ther with “it s failure to take protec tive action other than p o s t i n g s igns in the front parking lot war ning that violators would be towed, demonstrate that the mag nitude and conseque nces of imposing a duty do
not outweig h the need for preve ntion.” But we disag ree . At most, this amounts to more evidenc e that the crime ag ainst Petrie was fore seea ble and potentially establishes that the risk of harm was high. I t sa y s nothing about the burde n the law should impose on Galler y to mili tate ag ainst that risk and whether the risk is still unrea sonable in light o f t hat burden. Petrie’s briefing includes neither any sug g estion of measur es Ga llery should take nor what cost could be justifiably imposed. Petrie’s c ounsel was a sked at oral arg ument what evidence in the r ecor d shows the burde n Galler y should bear to preve nt crimes like this one. He re s p o nded that Galler y could have (1) improved the lighting in the visitor parking lot; (2) assig ned courte sy office rs living at the complex
t o p at ro l the parking lot from 10 p.m. to 2 a.m. on Fr iday and Saturday nights; (3) hired off- dut y police office rs to monitor the lot; and (4) trimmed back a row of hedg es that run betwee n the visitor parking lot and the sidewalk. Of these, only the better- lighting proposal is supported by any evidenc e in the rec ord. Petrie reta ined a lighting expert whose repor t a ppear s in the rec ord. But Petrie failed
to prese nt either the repor t or the expert at t h e t ri al court’s evidentiar y hear ing. And at no point be f o r e o r a l a r g u me n t to this Court did Petrie propose utiliz ing on-pre mises courte sy office rs, off- duty police office rs, or trimming back hedg es to preve nt crime. When asked if there was evidenc e in the
1 0rec ord on what it would cost Galler y to implement a police p re s ence in its parking lot, Petrie’s counsel c oncede d there is none. Ba sed on Ga llery ’s ar g uments in both courts below and before this Court and the standard
set forth by our prec edents, Petrie was at least on notice that in addition to establishing fore seea bility he mi g ht be required to put on evidenc e and arg ue that he face d an unreasonable risk of har m. He chose to stand on the position that the Timberwalk fac tors wer e dispositi ve of both fore seea bility and

unrea sonablene ss, and further chose not to offe r any evidenc e on Ga llery ’s burden to preve nt or reduc e the risk from violent crime. Be cause he prese nted no evidenc e and made no arg ument on an essential element in the deter mination of whether a leg al duty exis ts, judgme nt should be rende red in Gallery ’s fa vor. * * * We reve rse the court of appea ls beca use it failed t o p roperly consider whether the risk of harm was unrea sonable. We rende r judgme nt in Galler y ’s favor b ec au s e Petrie failed to offe r evidenc e of the burden that would be imposed on Galler y to preve nt or reduc e the risk from a crime like this one.

_____________________________ J eff rey V. B rown J ustice OPI NI ON DEL I VERED: J anuar y 27, 2017

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