Daily Development for Tuesday, February 13, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

LANDLORD/TENANT; LANDLORD’S LIABILITY FOR INJURIES TO GUESTS; CRIMINAL ATTACKS: Texas appeals court lowers the bar for proof of prior acts  - prior robberies become reason to anticipate murder that was apparently retaliatory.  Shopping center landlords must provide “deterrent” - highly visible - security guard persence.

Trammell Crow Central Texas, Ltd. v. Gutierrez, 2006 Westlaw 3725248 (12/20/06) (not yet approved for final publication - petition for review filed)

The jury here returned a verdict of over $6 million against the landlord for a wrongful death in which the landlord was charged with providing inadequate security at its mall.  The verdict later was reduced to over $5 million. 

The victim had recently been arrested in connection with his activities in fencing the spoils of some “smash and grab” burglaries.  His confederates in those burglaries became aware that he was cooperating with the police in return for a lighter sentence, and started leaving his threatening phone messages.  He was sufficiently concerned to ask the police for money to relocate, which money he had recently received.  Nevertheless, he elected to attend a late movie with his wife.

As he was leaving the movie, the victim was shot at, chased, and eventually killed with three two bullets in the shoulder, one in the back, and one in the back of the head.   Allegedly, his wallet was taken, but other valuable items were not, and there is even some substantial doubt about the wallet.  Nevertheless, the appeals court, 4-3, concluded that it was appropriate for the jury to conclude that a robbery was intended, and not a targeted “hit” to prevent the defendant from testifying against his confederates.

The court pointed to a series of robberies involving some level of violence and threat during the prior to years.  There had been no murders, and indeed no shootings, and little actual violence.  Nevertheless, the court concluded that there was a sufficient basis from which the jury could conclude that there was a history of violent crimes so that the landlord should anticipate that a murder was likely to occur and to provide adequate security protection.

Although the landlord routinely provided security in the form of two off duty policemen, the court noted that the policeman patrolled often in unmarked cars.  Although they testified that they put their arms on the window sill so that their police insignia could be seen, the court pointed to expert witness testimony to the effect that this was not sufficiently “deterrent” security, and instead was “preventive” security, which was inadequate for the situation at hand.  The court noted that Wal-Mart operated a security system with golf carts with flashing lights that constituted a very visible deterrent.

A stinging dissent argued that the result ran counter to established precedent in Texas that required clear evidence of prior similar crimes in order to support the finding of a duty to protect against violent crimes.  The two opinions are worth reading.  They certainly provide two very different views of the same facts.

Comment: As there doesn’t seem to be any allocation of damages here - the landlord appears to be held liable for the whole $5 million, one must wonder just where the courts are going.  Where there are lots of people, there will be crimes.  Landlords can’t prevent all of them The jury will look at the injury, and at the deep pockets of the defendant, and that’s it.  The result is that a great deal of wasted money and effort will be invested in security measures that are highly unlikely to prevent this kind of crime, but otherwise will have the impact of intruding on shopping  experience and adding to the costs of shopping, and expense borne by all.  This kind of situation cries out for responsible judges monitoring runaway juries.  In the editor’s view, we didn’t get that here. 

Items reported here and in the ABA publications
are for general information purposes only and
should not be relied upon in the course of
representation or in the forming of decisions in
legal matters.  The same is true of all
commentary provided by contributors to the DIRT
list.  Accuracy of data and opinions expressed
are the sole responsibility of the DIRT editor
and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality


DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 to 15 messages per work day.

Daily Developments are posted every work day.  To
subscribe, send the message

subscribe Dirt [your name]



To cancel your subscription, send the message
signoff DIRT to the address:


for information on other commands, send the message
Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only
commercial and general real estate matters but also focuses specifically upon
residential real estate matters.  Because real estate brokers generally find
this service more valuable, it is named “BrokerDIRT.”  But residential
specialist attorneys, title insurers, lenders and others interested in the
residential market will want to subscribe to this alternative list.  If you
subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as
BrokerDIRT carries all DIRT traffic in addition to the residential discussions.

To subscribe to BrokerDIRT, send the message

subscribe BrokerDIRT [your name]



To cancel your subscription to BrokerDIRT, send the message
signoff BrokerDIRT to the address:


DIRT is a service of the American Bar Association
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law.  Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.

DIRT has a WebPage at:


Your e-mail address will only be used within the ABA and its entities. We do not sell or rent e-mail addresses to anyone outside the ABA.

To change your e-mail address or remove your name from any future general distribution e-mails you can call us at 1-800-285-2221, or write to: American Bar Association, Service Center, 321 N Clark Street, Floor 16, Chicago, IL 60610

If you are an ABA member, log in to the ABA Web site at https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://www.abanet.org/abanet/common/MyABA/home.cfm to edit your member profile. Otherwise, complete the form located at https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=https://www.abanet.org/members/join/coa2.html

To review our privacy statement, go to https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=http://www.abanet.org/privacy_statement.html.

If you have any problems, please contact the list owner at