1 District Judge of the Western District of Louisiana,

sitting by designation.

1 2 United States Court of Appeals,

Fifth Circuit.

No. 94-10786.

Joe Frank WASHINGTON, Plaintiff-Appellant,

v.

RESOLUTION TRUST CORPORATION, as Receiver of Independent American

Savings Assoc., etc., et al., Defendants,

Resolution Trust Corporation, as Receiver of Independent American

Savings Assoc., etc., Defendant-Appellee.

Nov. 10, 1995.

Appeal f rom the United States District Court for the Northern

District of Texas.

Before HIGGINBOTHAM and PARKER, Circ uit Judges, and TRIMBLE 1

, District Judge.

ROBERT M. PARKER, Circuit Judge:

Appellant Joe Washington ("Washington") appeals the summary

judgment dismissal of his state law negligence action against the

Resolution Trust Corporation ("RTC"). Washington argues that the

district court misapplied Texas negligence law to the summary

judgment evidence and abused its discretion in not allowing him to

supplement the record after judgment. Because we find that the

district court erred in its analysis of Texas negligence law, and

because Washington did not have adequate notice of that portion of

the summary judgment ent ered s ua sponte, we reverse the summary

judgment and remand for further proceedings.

FACTS2

Washington was an employee at NuLook Dry Cleaners ("NuLook"),

located at the Bruton Masters Retail Center ("Retail Center"), a

strip shopping center in Dallas, Texas. The store fronted on a

common area and parking lot owned and controlled by the Retail

Center. John Kapdia, NuLook's owner, privately leased the area

inside NuLook. In the late afternoon of May 14, 1992, three men

entered NuLook as part of a robbery. During the crime, Washington

was shot in the head.

Washington filed suit in state court against Kapdia, P. O'B.

Montgomery & Company, the property management company, and

Independent American Savings Association ("IASA"), the one-time

owner of the Retail Center. He claimed that IASA should be liable

because they had not provided adequate security. As IASA had

failed, howev er, its assets at the time of suit were held by the

RTC. The RTC removed the case to federal court and sought summary

judgment on the ground that it owed no duty to protect Washington

from third-party intentional torts occurring within NuLook's

premises.

Washington settled or dismissed his claims against Kapdia and

the management company. The district court then granted summary

judgment for RTC against Washington because it concluded that

Washington had not shown that the Retail Center attracted or

provided a climate for crime, a showing which, according to the

district court's analysis, was necessary to prove that the RTC owed

a duty of care under a premises liability theory. The district

court also found that Washington had not submitted sufficient3

evidence to establish a fact question on breach or proximate cause.

Washington then moved to supplement the record and have the

district court reconsider its judgment. This motion was denied.

RTC'S DUTY TO WASHINGTON UNDER TEXAS LAW

a. Standard of review

We review a grant of summary judgment de novo, applying the

same standard as the district court. H anks v. Transcontinental Gas

Pipe Line Corp., 953 F.2d 996, 997 (5th Cir.1992). Summary

judgment is appropriate "if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law." F ED .R.C IV .P. 56(c).

We begin our determination by consulting the applicable Texas

substantive law to determine what facts and issue s are material.

See United States v. Muniz, 374 U.S. 150, 153, 83 S.Ct. 1850, 1853,

10 L.Ed.2d 805 (1963) (holding that substantive state law applies

in civil actions against the United States under Federal Torts

C laims Act); s ee also 28 U.S.C. § 1346(b) (1993) (Federal Torts

Claims Act). We then review the evidence relating to those issues,

viewing the facts and inferences in the light most favorable to the

non-movant. T ranscontinental Gas Pipe Line Corp., 953 F.2d at 997.

If the non-movant sets forth specific facts in support of each

allegation essential to his claim, a genuine issue is presented.

Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 2555,

91 L.Ed.2d 265 (1986).2 Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817,

82 L.Ed. 1188 (1938).

4 b. Washington's relationship to RTC

No Texas court has decided whether a duty exists in this

unique fact situation. We are therefore charged with making an

Erie 2 prediction concerning what the Texas courts would do if they

were faced with the question before us.

As a preliminary matter, we must determine Washington's

relationship to the RTC at the time of the shooting. The district

court held, and the parties do not dispute, that Washington was a

business invitee. An invitee is one who enters onto another's land

with the owner's knowledge and for the mutual benefit of both

parties. R osas v. Buddies Food Store, 518 S.W.2d 534, 536

(Tex.1975); R onk v. Parking Concepts of Tex., Inc., 711 S.W.2d

409, 4 11 (Tex.Civ.App.—Ft. Worth 1986, writ ref'd n.r.e.). RTC

knew that NuLook would have someone in charge of the dry cleaning

operations. Washington, as an employee of NuLook who benefitted

NuLook and in turn benefitted RTC, was a business invitee under

Texas law, according to the district court's analysis. It is well

settled Texas law that an occupier of land owes a duty of ordinary

care to make and keep the premises safe for his invitees.

Atchison, Topeka and Santa Fe Railroad Co. v. Smith, 563 S.W.2d 660

(Tex.Civ.App.—Waco 1978, writ ref'd n.r.e.).

However, regardless of whether Washington was a busin ess

invitee, he enjoyed a landlord-tenant relationship with RTC. A

landlord is generally not liable to a tenant for injuries caused by5

an unsafe condition, which can include the unreasonable risk of

harm from criminal intrusions, unless the landlord was aware of the

c ondition at the time the premises were let. E xxon C orp. v.

Tidwell, 867 S.W.2d 19, 21 (Tex.1993). But when the landlord

retains some possession or control over a portion of the premises,

it is charged with the duty of ordinary care to the tenant and its

employees in maintaining the portion retained. I d. In such a

situation the duties owed by the landlord to an employee of the

tenant are the same as th ose owed by the landlord to the tenant.

Id., citing Flynn v. Pan Am. Hotel Co., 143 Tex. 219, 183 S.W .2d

446, 449 (1944). Because the duty of ordinary care owed to an

invitee is the same under Texas law as that owed to a tenant in so

far as it pertains to the common area controlled by the landlord,

we cannot say that the district court erred in applying invitee law

to Washington's claims.

c. The nature of the duty owed

Generally, a landowner has no duty to prevent criminal acts

of third parties who are not under the landowner's supervision or

control. S ee El Chico Corp. v. Poole, 732 S.W.2d 306, 313

(Tex.1987). A landowner does, however, have a duty to protect

invitees on the premises from criminal acts of third parties if the

landowner knows or has reason to know of an u nreasonable risk of

h arm to the invitee. E xxon Corp. v. Tidwell, 867 S.W.2d 19

(Tex.1993). This duty developed out of the premise that the party

with the "power of control or expulsion" is in the best position to

protect against the harm, and when that party, by reason of6

location, observation or past experience, should reasonably

anticipate criminal conduct on the part of third persons, that

p arty has a duty to take precautions against it. I d. at 21. In

this context, Texas courts weigh risk, foreseeability, and

likelihood of injury against the social utility of the actor's

conduct, the magnitude of the burden of guarding against the injury

and the consequences of placing that burden on the defendant. O tis

Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983). Among the

Otis Eng'g factors, foreseeability has long bee n considered the

most significant. Corbin v. Safeway Stores, Inc., 648 S.W.2d 292

(Tex.1983). While the existence of a duty is a question of law for

the court to decide, if foreseeability requires resolution of

disputed facts or inferences, these questions are inappropriate for

legal resolut ion. K endrick v. Allright Parking, 846 S.W.2d 453,

458 (Tex.App.—San Antonio 1992, writ denied).

There was evidence that this tenant alone h ad ten prior

robberies and RTC had in fact taken precautions against such

incidents by hiring part time security guards. If the fact finder

concludes that RTC had recognized the danger and responded to it,

the factual basis of foreseeability must be resolved against RTC.

In premises liability cases, control is also a central factor

in deciding the question of duty. When an employee attempts to

hold someone with contractual ties to both the land and his

employer liable for negligence in failing to prevent harm inflicted

by a third party which would not have occurred but for the

o peration of the business, we must examine whether the defend ant7

had the right of control over the security defects which allegedly

led to the injury. B rooks v. National Convenience Stores, Inc.,

897 S.W.2d 898 , 903 (Tex.App.—San Antonio 1995, n.w.h.), c iting

Exxon Corp. v. Tidwell, 867 S.W.2d 19 (Tex.1993). Texas courts

look to t he written agreement governing the relationship between

the landowner and the lessee, as well as any evidence of actual

exercise of contr ol by either party. T idwell, 867 S.W.2d at 22.

It is undisputed in the record on appeal that RTC exercised actual

control over the safety and security of common area. While the

bedrock issue is right of control, evidence of actual control is

relevant insofar as it shows a right of control not manifested by

the agreements between the parties, or even in derogation of the

written agreements. Id. at 21 n. 3 and 22.

The district court relied on Castillo v. Sears, Roebuck &

Co., 663 S.W.2d 60 (Tex.Civ.App.—San Antonio 1983, writ ref'd

n.r.e.), a twelve yea r old intermediate appellate court opinion,

which states:

There is no duty upon the owners or operators of a shopping

center, individually or collectively, or upon merchants and

shopkeepers generally, whose mode of operation of their

premises does not attract or provide a climate for crime, to

guard against the criminal acts of a third party, unless they

know or have reason to know that acts are occurring or are

about to occur on the premises that pose imminent probability

of harm to an invitee; whereupon a duty of reasonable care to

protect against such act arises.

Id. at 66. Based on this articulation of the Texas law of duty,

the district court concluded that W ashington's summary judgment

evidence failed because it did not raise a genuine issue of

material fact concerning whether RTC's operation of the Retail3 The question of whether RTC "at least partially created"

the danger that resulted in Washington's injury by negligently

failing to adequately provide for safety and security of the area

is a problem of causation rather than duty. In the event this

case survives for trial, Washington must prove that any such

negligence was causally connected to his injuries and damages.

Causation is not before us. Consequently, we do not reach that

question.

8 Center "attracted or provided a climate for crime" or that RTC knew

or had reason to know that "c riminal acts were occurring or were

about to occur that posed imminent probability of harm to an

invitee." The district court's ruling is in error.

The common law of torts, including the conc ept of duty,

evolves in light of the changing conditions a nd circumstances of

society. El Chico Corp., 732 S.W.2d at 310-11. Texas courts now

recognize that violent crime has become a significant and pervasive

social problem and have imposed a duty to take affirmative action

t o control or avoid increasing the danger from another's cond uct

that the actor has at least partially created. 3 B erly v. D & L

Sec. Serv. & Investigation, Inc., 876 S.W.2d 179, 188

(Tex.App.—Dallas 1994, writ denied). This is a broader duty than

the Castillo court recognized in 1983. However, it is at least

arguable that the facts of this case may meet the Castillo test as

well.

The record on appeal contains evidence that the lease was

silent regarding who was responsible for providing security in the

par king lot/common area, but that RTC had assumed that

responsibility by hiring an off duty police officer a few hours a

week. There is also evidence that NuLook had been robbed ten times9

prior to Washington's injury and that the budget devoted to

security had more than tripled between 1989 and 1992. Further, it

is undisputed that the person who shot Washington gained access to

NuLook from the common area. Based on this evidence, we find that

Washington created a genuine issue of material fact concerning both

foreseeability and control. A rational fact finder could conclude

that the hist ory of repeated robberies in NuLook committed by

individuals who gained access to NuLook's leased premises from the

common area, combined with a rapidly growing budget devoted to

providing premises security over this same time period established

that a crime problem at the Retail Center directly affecting NuLook

was foreseeable. A rational fact finder could further conclude

that by setting the security budget and deciding the type and

amount of security to provide, the RTC controlled the center's

safety and security response to that problem. We therefore hold

that the district court's grant of summary judgment for RTC on the

question of duty was error.

BREACH AND CAUSATION

The district court went on to hold that even assuming that RTC

had a duty to provide security, Washington failed to submit

evidence that raised a fact issue as to breach or causation.

Washington moved to supplement the record and to have the district

court reconsider the summary judgment. Because RTC's motion for

summary judgment was based on the issue of duty, Washington argued

that he did not have notice that the district court would reach the

questions of breach and causation, and for that reason did not10

submit summary judgment evidence on those questions. RTC opposed

the motion, taking the position that the district court's ruling on

d uty mooted Washington's claims on breach and causation, and the

district court denied the motion without a discussion of its

reasons. On appeal, Washington contends that the district court

erred in denying him the opportunity to supplement his summary

judgment record prior to ruling on breach and causation. We agree.

District courts can enter summary judgment s ua sponte, s o

long as the losing party has ten days notice to come forward with

all of its evidence. J udwin Properties, Inc. v. United States Fire

Ins. Co., 973 F.2d 432, 436-37 (5th Cir.1992). The record on

appeal supports Washington's contention that he did not have notice

as required by Rule 56 of the Federal Rules of Civil Procedure. We

review such failure for harmless error. L eatherman v. Tarrant

County Narcotics Intelligence & Coordination Unit

, 28 F.3d 1388,

1398 (5th Cir1994). In this case, we cannot say that the lack of

notice was harmless. The focus of the motion for summary judgment

and the district court's order w as the issue of duty. When

Washington moved to submit more evidence, the RTC's response again

focused on the fact that without a finding of duty, b reach and

causation were moot. Breach and causation, far from being moot,

may be the central controlling issues of Washington's claim. The

evidence should be fully developed on summary judgment or at trial

before the court is called upon to decide them. RTC contends that

it had no duty to Washington because he was not within the common

area controlled by RTC at the time of the shooting. Clearly RTC11

had no duty to provide security inside NuLook. However, rather

than duty, Washington's location inside NuLook creates a problem of

establishing a causal connection between any breach of duty on the

part of RTC to adequately provide for the safety and security of

the common area and the criminal activity occurring within NuLook.

To summarize, Washington must prove that RTC breached its duty

to him as an employee of a tenant (NuLook) by negligently failing

to provide adequate security in the common area and that such

failure was a proximate cause of his injuries and damages.

CONCLUSION

For the foregoing reason we REVERSE the summary judgment

granted by the district court to RTC, and REMAND for further

proceedings consistent with this opinion.