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.
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