Nixon v. Mr. Property Management Co. , 28 Tex. Sup. Ct. J. 384 ( 1985 )

HILL, Chief Justice.

This is an action for damages filed on behalf of a minor, R.M.V., against Mr. Property Management Company and Brett Davis. R.M.V. was raped in a vacant unit of the defendants’ apartment complex. She was not a resident or a guest at the complex. The trial court granted Mr. Property and Brett Davis’ motion for summary judgment. The court of appeals affirmed the judgment. 675 S.W.2d 585. We reverse the judgments of the courts below and remand the cause to the trial court for a trial on the merits.

Background

R.M.V., age 10, resided at the Landmark Apartments. At about 7:00 p.m. on August 7, 1981, while it was still light, a young man abducted R.M.V. from a sidewalk outside the Landmark Apartments and dragged her to the Chalmette Apartments, located diagonally across the street from the Landmark Apartments. According to R.M.V.’s affidavit, her assailant took her “directly to a vacant apartment at Chalmette Apartments.” There, he raped her, put her in the closet, told her not to leave, and disappeared. There are no other known witnesses. Chalmette Apartments learned of the incident later that night when a police officer spoke to the maintenance man and the resident manager.

There was evidence concerning the unit’s dilapidated condition. The responding officer, George Tilley, stated in his affidavit that: “The glass was broken from the windows and the front door was off its hinges. The apartment unit in question was empty, filthy, dirty and full of debris.” In his deposition, Brett Davis, the owner of Chal-mette Apartments, admitted that leaving doors off hinges and windows without panes would tend to encourage vagrants to occupy these apartments. Gene Jacobson, president of Mr. Property Management Company, stated in his deposition that one reason for securing vacant units was to prevent this type of crime from occurring. The testimony was as follows:

Q. What is the reason why you should keep doorknobs on doors of vacant apartments?

A. Numerous reasons. One, I would say, to secure — Okay_

Q. Any other reason?

A. I think there are many reasons. One of the reasons would be for the simple reason we’re here.

A Dallas City Ordinance established minimum standards for landowners:

SEC. 27-11. MINIMUM STANDARDS, RESPONSIBILITIES OF OWNER.

(a) Property standards. An owner shall:

(6) keep the doors and windows of a vacant structure or vacant portion of a structure securely closed to prevent unauthorized entry.

Revised Code of Civil and Criminal Ordinances of the City of Dallas § 27.11(a)(6).

The summary judgment evidence included a list of police incident reports concerning the Chalmette Apartments during the two years prior to the rape. Police had investigated numerous crimes committed at the complex including one attempted murder, two aggravated robberies, two aggravated assaults, sixteen apartment burglaries, four vehicle burglaries, four cases of theft, five cases of criminal mischief, and one auto theft.

Gaile Nixon, R.M.V.’s mother and next friend, filed suit alleging that Mr. Property Management Company, Inc., and Brett Davis (manager and owner, respectively, of Chalmette Apartments) and I.V. Investment, Inc. and James R. Liddle (manager and owner, respectively, of Landmark Apartments) were liable in tort for R.M. V.’s injuries. Nixon settled with the Landmark Apartment interests. Brett Davis purchased Chalmette Apartments in March of 1981. He hired Mr. Property to manage the complex near the end of that month.

Nixon contends that Mr. Property and Brett Davis (for convenience both parties will be referred to as Mr. Property) owed R.M.V. a duty of reasonable care which duty was breached. She further alleged that such breach was a proximate cause of the rape and resulting injuries because this crime was reasonably foreseeable under all the attending circumstances.

The trial court sustained Mr. Property’s motion for summary judgment and rendered judgment that Nixon take nothing. In affirming the trial court’s judgment, the court of appeals held that, since R.M.V. was on Mr. Property’s property without its knowledge and consent, R.M.V. was a trespasser and Mr. Property’s duty toward her was no greater than not to injure her willfully, wantonly, or through gross negligence. The court also held that the condition of the apartment complex was not a proximate cause of the rape because R.M. V.’s abduction and rape were not a reasonably foreseeable consequence thereof.

Summary Judgment

This is an appeal from a summary judgment. The standards for reviewing a motion for summary judgment are well established. As mandated by this court, they are:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Montgomery v, Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984); Wilcox v. St. Mary’s University of San Antonio, 531 S.W.2d 589, 592-93 (Tex.1975). See also City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671 (Tex.1979).

Duty

In this case, the question of what duty Mr. Property owed to R.M.V. is answered by the ordinance. This ordinance legislatively imposes a standard of conduct which we adopt to define the conduct of a reasonably prudent person. Moughon v. Wolf, 576 S.W.2d 603, 604 (Tex.1978); Missouri Pac. R. Co. v. American Statesman, 552 S.W.2d 99, 103 (Tex.1977). The unexcused violation of a statute or ordinance constitutes negligence as a matter of law if such statute or ordinance was designed to prevent injury to the class of persons to which the injured party belongs. Id. A reasonable interpretation of this ordinance is that it was designed to deter criminal activity by reducing the conspicuous opportunities for criminal conduct. In fact, Mr. Property’s president testified that one reason vacant apartment units should be secured is to prevent this type of criminal activity. An ordinance requiring apartment owners to do their part in deterring crime is designed to prevent injury to the general public. R.M.V. falls within this class. Since the ordinance was meant to protect a larger class than invitees and licensees, and since R.M.V. committed no wrong in coming onto the property, these premise liability distinctions are irrelevant to our analysis.

Using the mandated standard for reviewing summary judgment, we conclude that a genuine issue of material fact exists as to Mr. Property’s breach of duty. If the trier of fact concludes that Mr. Property violated the ordinance without a valid excuse, Mr. Property is negligent per se. This does not end our inquiry; we must still determine if there is a material fact issue on the question of proximate cause.

Proximate Cause

A material fact issue exists in this case as to whether Mr. Property’s negligence, if any, proximately caused R.M.V.’s injuries. The two elements of proximate cause are cause in fact and foreseeability. Missouri Pac. R. Co., 552 S.W.2d at 103.

Cause in fact denotes that the negligent act or omission was a substantial factor in bringing about the injury and without which no harm would have been incurred. Id. Viewing the summary judgment as we must, drawing all reasonable inferences in favor of R.M.V., we conclude that a reasonable inference exists that, but for Mr. Property’s failure to comply with the ordinance regarding maintenance of its apartment complex, this crime would have never taken place. There is evidence that the assailant took R.M.V. “directly to a vacant apartment,” the inference being that the assailant was acutely aware of the vacant unit’s existence and embarked upon his course of criminal conduct at this particular time and place knowing that this unit was an easily accessible place in which to perpetrate this assault in isolation.

The court of appeals misplaced its reliance on City of Mobile v. Largay, 346 So.2d 393 (Ala.1977), which had facts similar to ours. In Largay, the Alabama Supreme Court placed heavy emphasis on the fact that the assailant used the city’s building to commit the rape only as a last resort:

Clearly, the assailant did not even intend to use the building until his first plan to carry the plaintiff away was thwarted when he was unable to start her car. Only when he failed after six or seven attempts to start the car, did he resort to the unlocked cellar.

Id. at 395 (emphasis theirs).

Finally, we turn to the question of foreseeability. Foreseeability means that the actor, as a person of ordinary-intelligence, should have anticipated the dangers that his negligent act created for others. Missouri Pac. R. Co., 552 S.W.2d at 103. Usually, the criminal conduct of a third party is a superseding cause relieving the negligent actor from liability. However, the tortfeasor’s negligence will not be excused where the criminal conduct is a foreseeable result of such negligence. Texas courts follow this rule. See Castillo v. Sears Roebuck & Co., 663 S.W.2d 60 (Tex.App.—San Antonio 1983, writ ref’d n.r.e.); Walkoviak v. Hilton Hotel Corp., 580 S.W.2d 623 (Tex.Civ.App.—Houston [14th Dist.] 1979, writ ref'd n.r.e.).

The RESTATEMENT (SECOND) OF TORTS § 448 (1965) states:

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime. [Emphasis added.]

The evidence is replete with instances of prior violent crimes occurring at Chalmette Apartments. This record certainly provides evidence that further acts of violence were reasonably foreseeable. Evidence of specific previous crimes on or near the premises raises a fact issue on the foreseeability of criminal activity. See e.g., Walkoviak v. Hilton Hotel Corp., (victim of robbery sued hotel; two robberies in the vicinity of hotel in previous year); Kline v. 1500 Massachusetts Ave. Apartment Corp., 141 U.S.App.D.C. 370, 439 F.2d 477 (1970) (victim of assault sued apartment owner; 20 crimes in building in previous year); Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 281 S.E.2d 36 (1981) (victim of assault sued mall owner; 29 crimes in mall parking lot in previous year); Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982) (victim of assault sued grocery store; seven assaults in parking lot in previous year); Graham v. M & J Corp., 424 A.2d 103 (D.C.App.1980) (arson victims sued duplex owner; numerous previous acts of vandalism in foyer, one prior attempted robbery, high crime area).

In Trentacost v. Brussel, 82 N.J. 214, 412 A.2d 436 (1980), the New Jersey Supreme Court affirmed a jury award for an assault victim and against the apartment owner. On the issue of foreseeability, the court stated:

There was ample evidence that criminal activity affecting the Monroe Street building was reasonably foreseeable. More than one witness testified to the high incidence of crime in the neighborhood. Plaintiff’s own, unchallenged testimony related an attempted theft within the building. Against this background, the jury could readily view the absence of a lock on the front entrance — an area outside an individual tenant's control — as exemplifying a callous disregard for the residents’ safety in violation of ordinary standards of care. Since there was sufficient evidence for concluding that the mugging was a foreseeable result of the landlord’s negligence, the jury’s finding of liability was warranted.

Id., 412 A.2d at 441.

Drake v. Sun Bank & Trust Co., a case involving a kidnap from a bank parking lot and subsequent murder, is especially instructive on this point. In Drake, 377 So.2d 1013 (Ct. of App., Fla.1979), the court held that the widow failed to allege sufficient facts of previous crimes to meet the test of foreseeability, but it remanded to allow her to amend. When the case was again appealed, 400 So.2d 569 (Ct. of App., Fla.1981), the court said allegations that the bank was in high crime area including allegations of similar crimes on or near the facility were sufficient to state a cause of action for negligence.

Although there is no evidence that previous rapes had occurred at Chal-mette Apartments, this is not a prerequisite to finding a material fact issue on foreseeability.

[I]t is not required that the particular accident complained of should have been foreseen. All that is required is “that the injury be of such a general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.” [Cite omitted.]

Carey v. Pure Distributing Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (1939) (emphasis added). With a litany of prior crimes, including other violent and assaultive crime, at Chalmette Apartments, and with deposition testimony that vagrants frequented the area, a material fact question exists on the foreseeability of this crime as it relates to the proximate cause issue.

We reverse the judgments of the courts below and remand the cause to the trial court for trial on the merits.

SPEARS and KILGARLIN, JJ., concur with opinions. McGEE, J., dissents with opinion in which WALLACE and GONZALEZ, JJ., join.