PREMISES LIABILITY UPDATE
GREGORY G. JONES State Bar of Texas-Litigation Update Institute February, 1998 Russell, Turner, Laird & Jones Fort Worth and Dallas, Texas
CHANGE IS IN THE AIR
• PREMISES LIABILITY AND SECURITY CASES • Legislative Proposals/Judicial Review • The Question of Duty • The Question of Control • The Question of Proximate Cause • The Question of Foreseeability
Introduction-Trends in Texas and Across the Country
• • • • Tougher Juries Tougher Judges Tougher Laws Tougher Insurance Companies and Defendants
Topics of Discussion
• • • • Trends in Settlements and Verdicts Trends in the Common Law Trends in Statutory Law Trends in the Behavior of Insurance Companies and Defendants
Lefmark Management Company v. Old, 946 S.W. 2d 52 (Tex. 1997)
• Justice Owen’s concurring opinion. • 1998 is here and so is Timberwalk Apartments, Partners, Inc. et al. V. Cain, No. 97-0457. 41 Tex. Sup. Ct. Jour. 1138
Duty
• A landlord who maintains control over the safety and security of the premises owes a duty to use reasonable care to protect tenants against unreasonable and foreseeable risk of harm from the acts of third parties. Centeq Realty v. Seigler, 899 S.W. 2d 195 (Tex. 1995)
Premises Liability and Criminal Acts of Third Parties
• The area of most significant developments in premises liability. • The “slip and fall” case. • General Contractors and Independent Contractors
“ THE NO DUTY RULE”
• There is no duty and therefor no liability without first establishing that there was a foreseeable risk of harm from the acts of third persons. Centeq, at p. 197 • Also noted in Lefmark, at p.53. • Yet again in Timberwalk at p. 1143 of the Tex. Sup. Ct. Jour. • NOTE: Duty is closely related to the issue of CONTROL.
CREATING DUTY
• By an affirmative act on the part of a party (creation of a hazard) • Employment / relationship of parties • Foreseeability of an incident or occurrence • Control over premises and/or activity • Statutory Duty • Restatement
STATUTORY DUTY
• Section 95.003 of Tex. Civ. Prac. & Rem. Code • Premises defect cause of action where there is injury to contractor, subcontractor, or an employee of same, which results from “failure to provide a safe workplace.” • Requires actual knowledge on part of owner of condition resulting in death, injury, damage
Statutory Duty
• 1995 legislation • Subchapter D, “Security Devices”, Texas Property Code • Section 92.153 Landlord required to provide • Section 92.157 Tenant Requested Devices • Section 92.158 Repair/Replace security devices • BUT NOT IN INADEQUATE SECURITYCASES!!
NO STATUTORY DUTY??
• “…was in intended to govern disputes disputes between landlord and tenant over repairs and not liability for personal injuries resulting from premises defects actionable under the common law.” Timberwalk at pp. 1141-42. • “…does not apply in a personal injury case and should not have been included in the charge.”
Statutory Duty Does Not Limit Other Rights of Tenant
• The tenant still has rights under the common law, or under other right, to bring an action and that is unaffected by the changes in the Property Code. Moreno v. Brittany Square Associates, L.P., 899 S.W. 2d 261 (Tex. App. --Houston [14th Dist.] 1995, writ denied)
THE RESTATEMENT (SECOND) OF TORTS
• Section 343 adopted by the state of Texas. • One who posses land will be subject to liability for physical harm to invitees by a condition the party knows or reasonably should have known existed and was an unreasonable risk of harm. Papania v. Stelly, 939 S.W. 2d 653 (Tex. App. -Beaumont 1997, no writ)
Duty and Foreseeability
• “ Whatever duty a lessor may have to protect persons injured on the leased premises against the criminal acts of third parties, that duty does not arise in the absence of a foreseeable risk of harm.” • Walker v. Harris, 924 S.W. 2d 375 (Tex. 1996)
The Requirement of a Duty
• Liability in tort requires that a duty must exist and a duty must be violated • See, Centeq, at p 197 and Greater Houston Transp. Co. v. Phillips, 801 S.W. 2d 523, 525 (Tex. 1990).
Duty
• “Whether a duty exists is a question of law for the court to decide.” Timberwalk at p. 1143.
• If there is a duty is a question to be decided by the court as a question of law based on surrounding facts.
The Duty in all Premises Cases
• A landowner who has • Invitees must be control of the premises warned of hidden must use reasonable dangers that present a care to make a risk of harm. premises safe for business invitees
Duty and Creation of Dangerous Situation
• Where the dangerous situation is created by a party and it is reasonable that the party should foresee that others may be injured when exercising their lawful rights, then a DUTY arises to take steps to prevent the injury or damage. Jacobs-Cathy Co. v. Cockrum, __ S.W. 2d __, W.L. 292622 (Tex. App. - Waco 1997, no writ)
General Information on Inadequate Security Cases
Liability Consultants Study Sudbury, Massachussetts Mr. Norman Bates and John D. Groussman
Types of Crimes
• • • • • • 39.45% Assault and Battery 26.97% Rape/Sexual Assault 15.41% Wrongful Death (Murder) 10.28% Robbery 4.04% Other 3.85% False Imprisonment
Where Crimes are Occurring
• • • • • Parking Lots Stores Apartment Units Interior Common Area Exterior Common Area • Bar • General Commercial
Type of Businesses Sued
• • • • Apartment Complex Restaurant Retail Store Security Contract Company • Bar • Property Management Company • • • • • Governmental Entity Hotel/Motel Supermarket Shopping Center Other Commercial Industry • School • Convenience Store/Gas Station
Case Results Study 1993-1995
• 51.91% Defense Verdict • 19.49% Remanded • 17.30% Plaintiff Verdict • 11.29% Settled
ELEMENTS OF THE CAUSE OF ACTION
• CONTROL OF THE PREMISES
– Centeq v. Siegler, 899 S.W. 2d 195 (Tex. 1995)
• “The right to control the premises is one of the factors that determines whether a legal duty should be imposed on the owner or possessor of the property. Id at 197
– There is still a question over the extent and nature of control needed.
CONTROL
• Lefmark Mngmnt Co. v. Old, No. 95-0983, May 16, 1997, TxSCt.
– A former property manager does not have any duty to prevent the criminal acts of others when the manager did not own, occupy or control the property on the date of the incident – BUT...
WATCH FOR THE PROGENY OF LEFMARK
• Justice Owen Concurrence:
– I do not intend to convey the impression that those articulations (the Lefmark majority opinion) have fully defined the extent of the duty owed by an employer, landlord, business owner, or possessor of property when the danger of injury or death from a violent criminal act is, in a legal sense, foreseeable.”
• Responsibility of law enforcement for police protection
What Kind of Control?
• “…a landowner or apartment manager has a duty to use ordinary care to protect against an unreasonable and foreseeable risk of harm from the criminal acts of third parties
• Cain v. Timberwalk Apartments, 942 S.W. 2d 697 (Tex. App.Houston [14th Dist.] 1997.
• “Specific control over the injury causing activity,” was necessary to impose vicarious liability. Ely v. General Moters Corp., 927 S.W. 2d 774 ( Tex. App. - Texarkana 1996, writ denied) • NOTE: Lefmark does not seem to mandate control over specific aspects of safety and/or security. Compare to the more limited view of Exxon.
Control Over the Activity Causing Injury
Adjacent Property
• The Duty to protect invitees and licensees from the criminal acts of third parties extends of those premises adjacent to public walkways. Silva v. Spohn Health System Corp. 951 S.W. 2d 91 (Tex. App. --Corpus Christi 1997, no writ)
Control: Lessors and Franchise Operations
• Exxon v. Tidwell, 867 S.W. 2d 19 (Tex. 1993) “…inquiry must focus on who had specific control over the safety and security of the premises, rather than the more general right of control over operations. • Note: This is a case where an employee of the lessee was injured • Exxon was merely the Lessor of the gas station and had a sales agreement with lessee • Restrictions and standards to protect their name and profits
Control: Lessors and Franchise Operations
• Exxon v. Tidwell, 867 S.W. 2d 19 (Tex. 1993) “…inquiry must focus on who had specific control over the safety and security of the premises, rather than the more general right of control over operations. • Note: This is a case where an employee of the lessee was injured • Exxon was merely the Lessor of the gas station and had a sales agreement with lessee • Restrictions and standards to protect their name and profits
HOW TO ATTACK ISSUES OF CONTROL
• Distinguish employee situations with guests and/or business invitees on the premises • Look for any aspect of control in franchise agreements which give the franchisor control over the franchisee • Identify any aspects of the agreement/s between the lessor-lessee/franchisorfranchisee which address issues of safety, security.
APPARENT AGENCY:
• Restatement (Second) Agency Section 267: – “One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care and skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if her were such.” (Actual reliance is required)
FRAUD
• The elements of common law fraud based upon the actions and representations of a franchise operation • How do they hold themselves out to the public? • Do they want the public to “think” the operation is another operation controlled by the national company with the national name that is franchised?
Franchise Agreements and Agency
• Texas courts have held that franchise agreements don’t create agency relationship • Requiring corporate standards to be followed does not translate into day to day control. If no such control then no liability under theory of agency for an employer, particularly where no mention of employee screening procedures.
Smith v. Foodmaker, Inc.
928 S.W. 2d 683 (Tex. App.-Fort Worth 1996, no writ)
REASONABLE FORESEEABILITY
• NO DUTY RULE • PRIOR SIMILAR INCIDENT RULE • TOTALITY OF THE CIRCUMSTANCES
The Rule in Texas: “Modified” Totality of the Circumstances?
• Before a duty arises on the part of the landowner, occupier or controller, there must be foreseeability • As applied to the issue of duty foreseeabilty is an issue of law for the court while it is a question of fact as applied to proximate cause. Exxon Corp. v. Tidwell, 816 S.W. 2d 455 ( Tex App.-Dallas, 1990) rev’ on other grounds, 867 S.W. 2d 19 (Tex. 1992)
TOTALITY OF THE CIRCUMSTANCES
• Nixon v. Mr. Property Mgt. Co., 690 S.W. 2d 546 (Tex.1985) Criminal history in the area in general, not only the specific property, is relevant to foreseeability, as is the “flavor” of the area. • BUT COMPARE... • Walker v. Harris, 924 S.W. 2d 375 (Tex. 1996) Plaintiff did not bring sufficient summary judgment evidence to raise fact issue where apartments in area of low to moderate crime; no previous similar incidents
Timberwalk and Prior Similar Incidents
• “A duty exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. P. 1143 • “…what the premises owner knew or should have known before the criminal act occurred.” p.1143 • “…must be evidence that other crimes have occurred on the property or in its immediate vicinity.” p. 1143
Timberwalk
• “The previous crime must be sufficiently similar to the crime in question as to place the landowner on notice of the specific danger.” p. 1144. • Actual notice and “knew or should have known”. • No Duty to “...regularly inspect criminal records to determine…” crime in area. (p. 1145)
Timberwalk and Submission to the Jury
• The Court did not err in charging the jury as a premises liability case rather than as negligent activity claim. • Focus on the “activity”.
Timberwalk
• • • • • • Proximity Recency Frequency Similarity Publicity All of the above must be considered to determine foreseeability of criminal conduct.
UNDER THE HEADING OF “IT’S OK TO FIGHT BACK”
– Phuong Anh Thi Truong and Duc La v. Sears Roebuck et. al. ( Ct. App.- 1st Dist, Houston No. 01-95-00683-CV, March 13, 1997)
• Duty does not arise until risk of injury foreseeable • Affidavit of owner saying he was not aware of criminal activity or acts not enough where the test is whether he knew or should have known of previous assaults • The Plaintiff was not responsible for her own injuries because she fought back. Against public policy to decide otherwise.
DAMAGES
– POST TRAUMATIC STRESS DISORDER (PTSD)
• Recognized as a diagnosis by DSM-IV • Recognized as a diagnosis by nearly all psychologists and psychiatrists
– RAPE TRAUMA SYNDROME (RTS)
• Not recognized as a diagnosis criteria by the DSM-IV • controversial • Term coined by Dr. Ann Burgess • Combine with a PTSD diagnosis as primary diagnosis. – Robinson and Havner ?