COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-13-00433-CV 

JOEL STAINBROOK APPELLANT

V.

TEXAS CHRISTIAN UNIVERSITY APPELLEE 

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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY

TRIAL COURT NO. 096-256767-11

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MEMORANDUM OPINION1

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I. Introduction

In two issues, Appellant Joel Stainbrook appeals the granting of TCU’s noevidence motion for summary judgment, and in a separate issue, he complains 

about the court assignment of the case. We affirm.

 

1See Tex. R. App. P. 47.4.
2

II. Statement of Facts

On November 14, 2009, top-20-ranked TCU and Utah played football in 

Amon Carter stadium before a sold-out crowd, reportedly numbering over 

50,000. With a 6:40 p.m. kick-off, parking lots opened earlier than normal at 1:00 

p.m. The TCU Police Department and the Fort Worth Police Department

(FWPD) provided security, with Contemporary Services Corporation (CSC) 

providing event staffing. The two police departments furnished 113 officers, and 

CSC provided an additional 211 employees. Sergeant Paul Strittmatter and 

Officer Chris Brashear later testified that these numbers were sufficient for the 

crowd and that generally there were few fights or arrests in connection with TCU 

games in that TCU students formed a “rather sedate crowd.” Stainbrook agreed 

with this assessment and later testified that he did not recall any fights at 

previous football games that he had attended and was not aware of any publicity 

of previous crimes at TCU. Typically, when a football game ends, the officers are 

at their assigned lots, and bike patrol officers are typically the last ones to leave 

on game days, tailgating usually ending by an hour and a half after the game’s 

end.

Two TCU fraternity alumni, Adam Brown and Jared Bradley, held a tailgate 

party in Lot 2 in connection with the football game. Eleven FWPD bike patrol 

officers patrolled all of the parking lots, and Officer Phillip Vasquez policed Lot 2,

working the entrance on foot. Six CSC employees were also assigned to Lot 2. 

Incidents arose between two brothers and fellow fraternity alumni, Tim and David
3

O’Brien, and other members of the tailgate party. According to witness Jenny 

Robertson, before the game, David O’Brien tried to start a fight, which was 

resolved by police officers on bicycles. Witnesses described the O’Briens as 

“obviously . . . visibly intoxicated . . . trying to a start fight.” Although tailgate 

parties are generally empty during the game, Stainbrook returned to the tailgate 

location at the end of the third quarter because TCU was winning in a “blowout,”

the final score being 55-28. Twenty or thirty minutes after his return, he noticed a

possible second conflict between Tim O’Brien and Courtland Kilpatrick. 

Stainbrook, shocked that anyone was acting like that, stepped in and defused the 

situation. Host Jared Bradley witnessed a third conflict between Tim O’Brien and 

Thomas Corely about thirty minutes after the game ended at 10:10 p.m. 

Witnesses described the conduct of the O’Briens as “belligeren[t] and 

“aggressive[],” “yelling,” “chest bumping and pushing,” “fists clenched,” and 

offering to fight. Bradley reported the situation, and FWPD officers arrived to 

assist in halting the situation. Bradley did not ask that anyone be arrested, only 

that the O’Brien brothers leave the tailgate party. Corporal Oscar Flores 

escorted the O’Brien brothers out of the parking lot and did not believe that they 

were overly intoxicated, else he would have arrested them. Stainbrook 

witnessed Officer Flores’s actions and was not concerned that the O’Brien 

brothers would return and start a fight. Thirty to sixty minutes later, as the 

tailgate party was ending, the O’Brien brothers surreptitiously reentered Lot 2 

and assaulted multiple tailgaters, including Stainbrook. Officers Brasheer and 
4

D.J. Scott, walking through Lot 2, witnessed these fights from about fifty yards 

away and quickly arrived on the scene. Officer Flores and a second bike officer,

just north of Lot 2, arrived at the fights within thirty seconds to a minute. The 

fights ended upon the officers’ arrival.2

As a consequence of the fight, Stainbrook sustained injuries to his neck, 

back and leg. Because of a fractured tibia, Stainbrook required surgery to 

permanently place a metal rod in his leg.

As a result of the foregoing, Stainbrook filed suit against TCU, CSC, and 

three O’Brien brothers on May 3, 2010. Over a year later, TCU filed a noevidence motion for summary judgment, Stainbrook nonsuited his case, and 

refiled it in Johnson County three days later. A motion to transfer venue back to 

Tarrant County was granted in November 2011, and the case was transferred 

back to its original Tarrant County court, the 67th District Court. In February of

2012, TCU refiled its no-evidence motion for summary judgment. The basis of 

the motion was that there was no evidence of a legal duty, breach of that duty, or 

injuries and damages proximately caused by TCU. While this motion was 

pending, Stainbrook filed a “Motion to Assign the Case to the Administrative 

Judge for Random Selection in Courts Designated for the Subject Matter of the 

Litigation.” The 67th District Court trial court judge denied this motion and 

 

2

This factual background contains four separate incidents, but both parties 

to this appeal indicate that only three occurred; it may be that the second and 

third incidents recounted herein were related.
5

granted summary judgment in favor of TCU. Stainbrook then filed a motion to 

recuse that judge. The trial judge recused himself, and the regional presiding 

judge assigned the case to the 96th District Court. Following this transfer, TCU 

filed a further no-evidence motion for summary judgment as to additional claims 

Stainbrook had added while the original summary judgment motion was pending. 

In response to Stainbrook’s “Motion to Reconsider TCU’s [original] Motion for No 

Evidence Summary Judgment,” the 96th District Court judge held a hearing to 

reconsider the prior judge’s grant of summary judgment in favor of TCU as well 

as the latter-filed no-evidence motion for summary judgment regarding

Stainbrook’s later-filed claims. The 96th District Court judge made the 

determination that summary judgment was proper as to all of Stainbrook’s claims 

without specifying the basis for his ruling. Stainbrook nonsuited his claims 

against the O’Brien brothers and does not appeal the summary judgment of his 

claims against CSC. He also does not appeal the summary judgment of his 

nuisance and misrepresentation claims. Thus, the only causes of action before 

us are those pertaining to TCU, which were nonsuited in September 2013.

III. Negligence/ Premises Liability

In his first issue, Stainbrook asserts that the trial court committed

reversible error by granting TCU’s no-evidence summary judgment motion as to 

his premises liability and negligence / inadequate security causes of action 

because he offered evidence as to every element of the causes of action.
6

A. Standard of Review

After an adequate time for discovery, the party without the burden of proof 

may, without presenting evidence, move for summary judgment on the ground 

that there is no evidence to support an essential element of the nonmovant’s 

claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the 

elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286 

S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the 

nonmovant produces summary judgment evidence that raises a genuine issue of 

material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d 

425, 426 (Tex. 2008).

When reviewing a no-evidence summary judgment, we examine the entire 

record in the light most favorable to the nonmovant, indulging every reasonable 

inference and resolving any doubts against the motion. Sudan v. Sudan, 199 

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for 

evidence that would enable reasonable and fair-minded jurors to differ in their 

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168 

S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if 

reasonable jurors could, and we disregard evidence contrary to the nonmovant 

unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting 

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the 

nonmovant brings forward more than a scintilla of probative evidence that raises 

a genuine issue of material fact, then a no-evidence summary judgment is not 
7

proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc. 

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030 

(2004).

B. Inadequate Security Claims

At various places in various pleadings, Stainbrook has characterized his 

cause of action against TCU in various ways, including as a premises liability 

case, negligent security case, and negligent activity case. Regardless of how it 

is characterized, “[a] complaint that a landowner failed to provide adequate 

security against criminal conduct is ordinarily a premises liability claim.” 

Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 

1998). “We have repeatedly treated cases involving claims of inadequate 

security as premises-liability cases.” Del Lago Partners, Inc. v. Smith, 307 

S.W.3d 762, 776 (Tex. 2010). The entire focus of Stainbrook’s complaint against 

TCU was, and is, that there was inadequate security present to protect him from 

the O’Briens’ attack, and hence this is a premises liability case and will be 

analyzed as such.

Generally, a premises owner has no duty to protect invitees from 

criminal acts by third parties. We have recognized an exception 

when the owner knows or has reason to know of a risk of harm to 

invitees that is unreasonable and foreseeable.

. . . .

Whether a duty exists is a question of law for the court and turns “on 

a legal analysis balancing a number of factors, including the risk, 

foreseeability, and likelihood of injury, and the consequences of 

placing the burden on the defendant.”
8

Id., at 767 (quoting Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217, 218 (Tex. 

2008).

We first turn to the question of duty on the part of TCU and specifically 

focus on the issue of foreseeability. Our Supreme Court has given us two 

scenarios under which a failure to provide adequate security against criminal 

conduct rises to the level of a premises liability claim. Those scenarios are 

contained in Timberwalk and Del Lago. The distinction in the scenarios between 

the two cases, for purposes of our analysis in this case, is the timing of events 

giving rise to a duty on behalf of the premises owner, that is, whether those 

events occurred in the past (Timberwalk) or contemporaneous in nature (Del 

Lago).

In Timberwalk, Cain alleged that “she was raped in her apartment because

her landlord failed to provide adequate security.” 972 S.W.2d at 751. She 

alleged a history of criminal events in and around her apartment complex and a 

corresponding lack of security provided by the complex that allowed the attack to 

occur. The Supreme Court discussed at length the historical criminal activity 

factors necessary to make such an event foreseeable for purposes of imposing a 

duty on the premises owner. “These factors—proximity, recency, frequency, 

similarity, and publicity—must be considered together in determining whether 

criminal conduct was foreseeable.” Id. at 759. As to the unfortunate 

circumstances involving Cain, the court held that:
9

Applying the factors we have set out to the facts before us, we 

conclude that the risk that a tenant would be sexually assaulted was 

in no way foreseeable to Timberwalk. Therefore, as a matter of law, 

Timberwalk owed Cain no duty to provide additional security beyond 

that required by statute and by the lease.

Id.

By contrast, Del Lago addresses a situation in which there is not an 

alleged history of criminal activity but an immediacy of events leading up to 

criminal activity. The opinion specifically addresses whether Del Lago had a 

“duty to protect Smith from being assaulted by another bar customer.” 307 

S.W.3d. at 767. The court observed that “criminal misconduct is sometimes 

foreseeable because of immediately preceding conduct . . . . [T]he actor may 

have sufficient knowledge of the immediate circumstances . . . to foresee that 

party’s misconduct.” Id. at 769. Bradley Smith was a member of a fraternity 

party at the Grandstand Bar in the Del Lago resort on the shores of Lake Conroe. 

An hour-and-a-half long escalating and alcohol–fueled conflict occurred between 

the fraternity members and members of a wedding party. What began as verbal 

jousting became chest bumping and pushing and eventually erupted into an allout brawl, fueled by the bar staff continuing to serve alcohol, giving no notice to 

resort security, and herding the parties together while attempting to close the bar. 

In upholding the jury verdict finding Del Lago responsible for Smith’s injuries 

resulting from the brawl, the court observed that:

Del Lago's duty arose not because of prior similar criminal conduct 

but because it was aware of an unreasonable risk of harm at the bar 

that very night. When a landowner “has actual or constructive 
10

knowledge of any condition on the premises that poses an 

unreasonable risk of harm to invitees, he has a duty to take 

whatever action is reasonably prudent” to reduce or eliminate that 

risk.

. . . .

. . . The duty arose because the likelihood and magnitude of 

the risk to patrons reached the level of an unreasonable risk of harm, 

the risk was apparent to the property owner, and the risk arose in 

circumstances where the property owner had readily available 

opportunities to reduce it.

. . . .

. . . Del Lago's duty was to “take whatever action [was] 

reasonably prudent under the circumstances to reduce or to 

eliminate the unreasonable risk from that condition.” We have 

alternatively described the duty as requiring the premises owner to 

“either adequately warn of the dangerous condition or make the 

condition reasonably safe.

Id. at 769–71. (footnotes omitted)

We first turn our attention to the Timberwalk factors and consider whether 

there was such a history of criminal activity applicable to the situation on the day 

of the incident as to make foreseeable the occurrence that gave rise to this 

lawsuit. Stainbrook lists seven “bullet points” in his brief that he alleges are 

applicable to this question. We have set out his list in full:

 [1] Sergeant Paul Strittmatter testified to similar incidents to the

present matter, “after a game,” when invitees are “at the height of

emotion,”

Q. Have there been more problems after a game, at the height

of emotion?
11

A. Oh, there’s always some taunting going on that we

hear . . . I would be surprised to see that we averaged more

than, you know—up until this year, one—one arrest per game. 

Then there’s some games there are as many as six or seven

people arrested for different incidences.”[

3

] (emphasis supplied)

 [2] Sergeant Strittmatter also testified to knowing of prior 

similar assaultive incidences when he affirmed, “[W]e’ve had other

brawls, yes . . . yeah, where everybody knew each other.”

 [3] Strittmatter also testified when asked whether pushing and

shoving between rival groups or individuals happens “a lot” during

these football games, “Oh, yeah. Because you—you’ve got

rival people walking through the parking lots to get to the

stadium.” (emphasis supplied)

 [4] Finally, Sergeant Strittmatter also testified, “[W]e’ve had some

where there’s pushing and shoving . . . whether, you know,

somebody looked at somebody’s girlfriend wrong or—or, you know,

said something bad about TCU or another school, you know, the

rival school that’s there at the time.”

 [5] Lieutenant Paul Jwanowski testified that due to intoxication 

on average there were “one or two” arrests per game.

(emphasis supplied)

 [6] The “CSC Incident Report” reveals that there had already

been a separate “altercation” at the ESPN Compound earlier that

very same day. Page two of the Report also reveals that the CSC

staff member “notified TCU and Fort Worth PD.”

 [7] As in any sporting event, there is a well-known built-in

animosity between opposing rival fans outside in the parking lot

areas at college sporting events, as eluded to by Sergeant

Strittmatter.

 

3

The record states, 

A. Oh, there’s always some taunting going on that we hear . . . . I would 

be surprised to see that we averaged more than—up until this year . . . . one 

arrest per game. Then there’s some games . . . . we may arrest six, seven 

people on different incidents.
12

We first observe that the referenced CSC incident report, item 6, was 

objected to in connection with Stainbrook’s response to TCU’s motion for 

summary judgment. The objection was sustained by the trial court but is not 

challenged in this appeal. Thus, we will not consider it on appeal. Frazier v. Yu, 

987 S.W.2d 607, 610 (Tex. App.—Fort Worth 1999, pet. denied) (“Where 

evidence has been held to be inadmissible and that holding has not been 

challenged on appeal, this court cannot consider the excluded evidence.”) 

Additionally, with regard to Strittmatter’s comments regarding taunting in item 1, 

and rivals in items 3 and 7, this incident did not involve rivalry but in fact involved 

members of the same fraternity at TCU. Therefore, what we have as far as a 

history of similar criminal events is concerned is (1) a police officer saying that he 

would be surprised if there was more than one arrest per game on average, (2) 

Lieutenant Jwanowski’s estimate of one to two arrests per game with a maximum 

of six or seven arrests in a game, and (3) an awareness that other brawls had 

occurred in the past. We have examined cases in which the court held that the 

evidence of historical criminal activity rose to the level necessary to place a duty 

on the premises owner. See Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 657

(Tex. 1999) (concluding 190 violent crimes in area is evidence of foreseeability);

Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–50 (Tex. 1985) (holding that 

violent acts were foreseeable where an attempted murder, two aggravated 

assaults, and multiple apartment and vehicle burglaries had occurred on 
13

premises); Rivera v. S. Green Ltd P’Ship., 208 S.W.3d 12, 19–20 (Tex. App.—

Houston [14th Dist.] 2006, pet. denied) (holding that criminal conduct was likely 

foreseeable based on evidence of four robberies, six aggravated assaults, and 

four sexual assaults that had occurred within two-tenths of a mile from 

premises ); Petrie v. UDR Tex. Props., L.P., No. 14-13-00123-CV, 2014 WL 

3955074, at *4, 9 (Tex. App.—Houston [14th Dist.] Aug. 14, 2014, no pet. h.) 

(mem. op.) (holding that unreasonable risk of harm was foreseeable where 220 

violent crimes occurred in the vicinity, including one aggravated assault and three 

rapes on premises, over two year period).

In contrast, here, past criminal activity did not rise to a level that it imposed 

a duty on TCU. Turning to the factors enumerated in Timberwalk, proximity, 

recency, frequency, similarity, and publicity, it is readily apparent that the paucity

of prior undated incidents, without evidence of publicity, does not make the 

criminal conduct which occurred foreseeable. See Timberwalk, 972 S.W.2d at 

759. We hold that Stainbrook has not met his burden under Timberwalk to show

foreseeability and hence a duty on the part of TCU with regard to this incident.

We next turn to the question of when “criminal misconduct is sometimes 

foreseeable because of immediately preceding conduct.” Del Lago, 307 S.W.3d

at 769. Del Lago was found responsible under the premises liability theory 

because the likelihood and magnitude of the risk to patrons reached the level of 

an unreasonable risk of harm, the risk was apparent to the property owner, and 
14

the risk arose in circumstances in which the property owner had readily available 

opportunities to reduce it. Id. at 770.

Let us then examine the events of that day to see if the Del Lago analysis 

results in a duty being placed upon TCU. Jenny Robertson recalled that before 

the game started, David O’Brien tried to start a fight, which was resolved by 

officers from the FWPD. Hours later, after the conclusion of the third quarter, a 

second and possibly a third conflict, occurred. This incident resulted in the 

O’Brien brothers being escorted out of the parking lot by an officer who did not 

believe that they were overly intoxicated or he would have arrested them. 

Stainbrook testified that he was not concerned at that point that the O’Brien 

brothers would return and start a fight. An hour or less later, the final altercation 

occurred, which was quickly stopped by both Officer Brasheer and Scott and two 

bike officers who arrived at the scene in less than one minute. Comparing the 

facts of this case to those of Del Lago is comparing a Chihuahua to a Great 

Dane. 

In Del Lago, there was a continuous disturbance between two factions 

over an hour and a half period, which escalated in intensity over that time and 

was exacerbated by the continuous serving of alcohol by Del Lago’s employees. 

In addition, these employees failed to notify security when it obviously was called 

for and finally brought the matter to a head by forcing the parties physically 

together when telling them to exit at closing time. See West v. SMG, 318 S.W.3d 

430, 442 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (holding that evidence of 
15

bottles being thrown into crowd by band prior to a bottle striking West did not give 

actual and direct knowledge of imminent assault under Del Lago). We hold that 

the activity prior to the incident giving rise to this lawsuit had not “reached the 

level of an unreasonable risk of harm,” the risk was not “apparent to the property 

owner,” and the risk did not arise “in circumstances where the property owner 

had readily available opportunities to reduce it.” TCU therefore had no duty to 

protect Stainbrook under Del Lago. Stainbrook’s first issue is overruled.

IV. The Assigned Court

In his second issue, Stainbrook asserts that the trial court committed 

reversible error by denying his motion to have this case randomly assigned 

because Tarrant County Local Rule 1.03 dictates that transfer cases shall be 

filed by random selection and not to a specific Tarrant County court.

While this is a somewhat unique situation, in that the case had already 

been randomly assigned to a Tarrant County court, and nonsuited, refiled in 

another county, then transferred back from that county, we will assume that the 

case should have been randomly assigned rather than being reassigned to its 

original court. Stainbrook however fails to point us to harm that resulted from this 

error, if any. Nor can we envision what the harm might have been. Under the 

present local custom, to avoid court-shopping, if a case is assigned to a court 

and then nonsuited and refiled, it is assigned to its original court upon refiling. 

Were we to accept the harmful error analysis as Stainbrook alleges, this policy 
16

would be circumvented, potentially allowing forum shopping. Stainbrook’s 

second issue is overruled.

V. Conclusion

Having overruled both of Stainbrook’s issues, we affirm the judgment of 

the trial court.

/s/ Bob McCoy

BOB MCCOY

JUSTICE 

PANEL: MCCOY, MEIER, and GABRIEL, JJ.

DELIVERED: November 6, 2014