Margaret Nicholas v. Tanglewood Manor Apartments, Westwinds Group, L.C., Jon R. Kubas, and Amy Kubas ( 2006 )

Affirmed and Memorandum Opinion filed February 7, 2006

Affirmed and Memorandum Opinion filed February 7, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00864-CV

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MARGARET NICHOLS, Appellant

V.

TANGLEWOOD MANOR APARTMENTS, WESTWINDS GROUP, L.C.,

JON R. KUBAS, AND AMY KUBAS, Appellees

________________________________________________________

On Appeal from the 149th District Court

Brazoria County, Texas

Trial Court Cause No. 19669*RM02

________________________________________________________

M E M O R A N D U M O P I N I O N

In this appeal stemming from a negligence action brought by appellant Margaret Nichols against Tanglewood Manor Apartments (AManor Apartments@) and Westwinds Group, L.C., Jon R. Kubas, and Amy Kubas (collectively, ATanglewood@), we examine the propriety of the trial court=s grant of summary judgment in favor of appellees.  Because we conclude that Tanglewood did not owe Nichols a duty and did not proximately cause her injuries, we affirm the trial court=s judgment.

I.  Factual and Procedural Background

In 2000, the Kubases purchased Manor Apartments, an apartment complex in Angleton, Texas.  The property had been vacant for approximately 18 months.  Before the purchase, the Kubases examined the Manor Apartments and found that there had been various instances of vandalism and that the complex was generally in an uninhabitable state.  The Kubases then retained an expert to research and report on the crime level in the area.  The expert reported that the area was safe.  After the Kubases purchased Manor Apartments, they endeavored to restore the property to leasing condition; however, when the project became more extensive than expected, renovation efforts became sporadic and eventually ceased.

Before and after the Kubases= purchase, Manor Apartments allegedly had a reputation in the community as a haven for vagrants and criminal activity.  Although neighbors had called law enforcement authorities on several occasions, the police never found anyone on the Manor Apartments premises.  The Kubases lived in Houston and visited the Manor Apartments approximately once weekly, only during daytime hours, and never saw anyone on the premises during their visits.

In 2001, Nichols was living at her mother=s house, which was located on property adjoining the Manor Apartments. Nichols alleges that, on June 18, 2001, she went into her backyard and was grabbed by a person she describes as a vagrant.  She stated that she recognized him as the man she had reported to police several days earlier as living at Manor Apartments.  Nichols alleges that the assailant pulled her into her mother=s home, where he tied her hands and feet, and hit her in the mouth, before attempting to rape her.  When he was unsuccessful, he stole items from the house and left.  Nichols reported the incident to police and, during the investigation, underwent hypnosis by police to recollect details of the assault. While under hypnosis, Nichols remembered seeing her assailant at a nearby convenience store before the assault, but did not report having seen him at the Manor Apartments.  Tanglewood was not notified of this incident.

On August 5, 2001, the same man allegedly returned to Nichols=s home.  He came into her bedroom and sexually assaulted or raped her at gunpoint. Nichols reported the incident to police, but investigating officers found insufficient evidence to pursue the matter.

Shortly thereafter, an Angleton newspaper published an article describing certain conditions at Manor Apartments; namely, ongoing problems with vagrants living at the property and criminal conduct extending back over the preceding two years. The article stated that neighbors, police, and city officials were frustrated with problems at the Manor Apartments premises.  The article contained pictures of bedding and empty cups found in rooms at Manor Apartments. The article also included an interview with Carol Holland, Tanglewood=s office manager, who stated that she had called the police on several occasions but that police never found anyone at Manor Apartments.

Nichols filed a common law negligence action suit against Tanglewood for Acreating the dangerous conditions that resulted in the assaults.@  Tanglewood moved for a traditional summary judgment, asserting that it did not owe Nichols a duty and that Tanglewood=s conduct was not the proximate cause of Nichols=s injuries. The trial court granted summary judgment in favor of Tanglewood and this appeal ensued.

II.  ISSUE PRESENTED

Nichols presents a single issue, arguing that the trial court erred in granting the motion for summary judgment.  In her brief, Nichols concedes that whether one person owes a duty to another is generally a question of law, but argues that it becomes a question of fact where the determination of the existence of a duty depends upon disputed facts regarding the foreseeability of injury.  Nichols argues that the summary judgment evidence raised a material fact issue as to whether injury to a resident of an adjoining property was foreseeable to the landowner,^[1] and should therefore be submitted to a jury as a matter of law.

III.  Standard of Review

In a traditional motion for summary judgment, the movant 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.  Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).  When reviewing a summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor.  Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).  Under Texas Rule of Civil Procedure 166a(c), a party moving for traditional summary judgment bears the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.  Id.  We affirm the summary judgment if any of the theories presented to the trial court is sufficient to sustain the judgment.  Id.  Traditional summary judgment for a defendant is proper only when the defendant negates at least one element of each of the plaintiff=s theories of recovery, or pleads and conclusively establishes each element of an affirmative defense.  Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997); Castillo v. Westwood Furniture, Inc., 25 S.W.3d 858, 860 (Tex. App.CHouston [14th Dist.] 2000, no pet.).

IV.  Analysis

Nichols contends on appeal that Tanglewood failed to establish as a matter of law that it is entitled to summary judgment on her negligence claim. A common law negligence cause of action requires proof that (1) the defendant owed a legal duty to the plaintiff, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff=s injury.  D. Houston Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002).  The threshold issue in a negligence action is duty.  Greater Houston Transport v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).  Whether a duty exists is a question of law for the court to determine.^[2]  Tri v. J.T.T., 162 S.W.3d 552, 563 & n.25 (Tex. 2005).

Nichols relies on several cases applying the general rule that a person who affirmatively creates an unreasonable risk of harm owes a duty to foreseeable victims to prevent the harm. See, e.g., El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex. 1987) (stating, Athe common law recognizes the duty to take affirmative action to control or avoid increasing the danger from another's conduct which the actor has at least partially created@); Golden Spread Council, Inc. No. 562 of Boy Scouts of America v. Akins, 926 S.W.2d 287, 292B93 (Tex. 1996) (finding a duty to use reasonable care in recommending a potential scoutmaster to a church to prevent an unreasonable risk of harm to those who would be affected by his conduct). But, these cases are inapplicable here, because there is no legal or factual basis on which to conclude that Tanglewood affirmatively created a risk that Nichols or any similarly-situated person would be sexually assaulted.

Duty is not based on foreseeability alone.  Factors a court may consider in determining whether a duty exists include whether one party has superior knowledge of the risk, and whether a party has a right to control the actor whose conduct precipitated the harm. Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993).  Here, Nichols had superior knowledge because she knew of an alleged attempted sexual assault by the same perpetrator, against the same victim, and on the same propertyCher own.  There is no evidence that Tanglewood had such knowledge, or that even if it had such knowledge, it could have prevented the assault. 

Generally, Aa person has no legal duty to protect another from the criminal acts of a third party.@  Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998).  However, under certain circumstances, an exception exists in that one who controls property has a duty to use ordinary care to protect against foreseeable criminal acts on the premises.  Allen v. Rogers, 977 S.W.2d 733, 735B36 (Tex. App.CFort Worth 1998, pet. denied) (emphasis added).  That exception has no application here, where the crime occurred on the victim=s own property.

A.        Was the danger of the particular criminal conduct foreseeable?

We determine whether the criminal conduct was so foreseeable to the landowner as to impose a duty by first examining Athe particular criminal conduct that occurred in light of >specific previous crimes on or near the premises.=@  Mellon Mortgage Co. v. Holder, 5 S.W.3d 654, 656 (quoting Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996)).  Only Athe general danger, [and] not the exact sequence of events that produced the harm [must] be foreseeable.@  Walker, 924 S.W.2d at 377.

Tanglewood contends that it had no reason to know of a general danger of violent criminal conduct because it had no notice of any such incidents. Tanglewood=s summary judgment evidence consists of the depositions of Jon Kubas, Nichols, and Steven McEntire, a neighbor of Nichols.  In his deposition, Kubas states that he had no knowledge of alleged vagrants living at the Manor Apartments nor of any criminal conduct afoot.  Kubas said that he traveled to the building once weekly, during the day, and never saw anything beyond debris in the units.  Further, Kubas stated that no one had ever reported any problems to Tanglewood. In her deposition, Nichols admitted she had never contacted Tanglewood and had not reported the first assault to them. Nichols testified that neighbors had made numerous calls to the police about vagrants living at the Manor Apartments, but also states that, to her knowledge,  police never found anyone at the Manor Apartments and had never arrested anyone on the premises.  McEntire testified that he had called police in the past regarding activities at Manor Apartments.  However, the thefts McEntire allegedly suffered occurred in the years before the Manor Apartments closed.  Past incidents do not make future crime foreseeable unless the property owner knows or should have known that the incidents occurred.  Timberwalk, 972 S.W.2d at 759.

In response to Tanglewood=s motion for summary judgment, Nichols introduced evidence consisting of her own deposition; the depositions of Jon Kubas and Steven McEntire; a newspaper article; and the affidavit of Edmund J. Pankau, a licensed private investigator and security consultant.  In his affidavit, Pankau attests that he examined the records of the Angleton Police Department and that those records reflect that there have been Afrequent calls for police services in the vicinity of Tanglewood Manor Apartments.@  Call reports, however, are not necessarily probative of actual crimes. See Tex. Real Estate Holdings, Inc. v. Quach, 95 S.W.2d 395, 399 (Tex. App.CHouston [1st Dist.] 2002, pet. denied) (A[c]all reports include hang-up calls, mistake calls, missing person calls, information calls, calls for medical assistance, and calls to report suspected criminal activity@).  More importantly, Pankau does not explain  the nature, frequency, and recency of these alleged crimes.  See Timberwalk, 972 S.W.2d at 757B58 (requiring these elements as factors in the analysis because foreseeability depends on establishing that the landowner had notice of the danger).  Pankau asserts that, had Tanglewood inspected police records, it would have known about the incidents.  But, A[l]andowners have no duty to regularly inspect criminal records to determine the risk of crime in the area.@  Id. at 759.  Nevertheless, if the occurrences are widely publicized, a landlord can be expected to have knowledge of such crimes.  Id. Here, Nichols=s summary judgment evidence includes an article in the local paper reporting a criminal element at Manor Apartments and ongoing efforts to curb the problem by neighbors, police, and city officials.  The article, however, is dated August 26, 2001, which is after the alleged attacks on Nichols.  Whether a risk was foreseeable is not determined in hindsight; rather, it is determined in light of what the property owner knew or should have known before the criminal act occurred.  Id. at 757. 

A matter is conclusively established if reasonable minds cannot differ as to the conclusion to be drawn from the evidence.  Triton Oil & Gas Corp. v. Martinez Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982).  After examining the evidence presented and indulging every reasonable inference in favor of Nichols, we agree with the trial court that reasonable minds cannot differ in concluding that Tanglewood could not have foreseen an unreasonable risk of danger of violent crime, such as the sexual assault or rape that occurred here, based on this evidence.  Once Tanglewood provided sufficient evidence to establish a right to summary judgment on the duty element of Nichols=s claim, the burden shifted to Nichols to produce sufficient evidence to raise a fact issue.  Walker, 924 S.W.2d at 377.  Nichols failed to raise such fact issue.

B.        Was it foreseeable that Nichols, or one similarly situated, would be the victim of the criminal act?

Even assuming Tanglewood knew that vagrants frequented Manor Apartments and was aware that criminal conduct was occurring on the premises, this does not suggest that Tanglewood should have had reason to believe that Nichols, or a person similarly situated, would be subjected to a sexual assault away from the premises.  Tanglewood asserts that it had no control over the premises where the criminal conduct occurred (Nichols=s residence), and had no knowledge of or control over the alleged assailant.

In support of its motion for summary judgment, Tanglewood cites LaFleur v. Astrodome-Astrohall Stadium Corp., 751 S.W.2d 563 (Tex. App.CHouston [14th Dist.] 1988, no writ).  In LaFleur, a news reporter brought a negligence action against the owner of a stadium after she was assaulted while leaving the grounds. Id. at 563.  The incident occurred across the street from the stadium. Id.  The owner argued that it did not own, occupy, or otherwise control the property where the assault occurred and, therefore, it did not owe a duty to the reporter.  Id. at 564.  The trial court rendered summary judgment in favor of the owner because it found that there was no duty to protect the reporter from an incident that occurred away from the owner=s premises.  Id. The appellate court agreed, holding that Aliability for a third-party=s criminal acts requires a showing of the defendant=s control of [the] premises.@  Id. Here, as in LaFleur, Tanglewood conclusively showed by deposition testimony that it did not own, occupy, or otherwise control the premises where the third-party assault occurred.  Id. at 565B66 (holding that any duty does not extend beyond the limit=s of the landowner=s control).

Nichols counters with a general assertion that, because several reports of criminal activity had been filed with Angleton Police Department, a fact issue was raised as to whether Tanglewood knew or should have known of the risk of injury to residents of adjoining properties.  However, as stated above, there are no such reports in the record, and no evidence regarding the nature of any such criminal activity, such as the similarity of any such crimes to the crime alleged here, whether arrests resulted from the reports, where the conduct occurred in relation to the Manor Apartments, or the frequency or recency of violent criminal activity.  See Timberwalk, 972 S.W.2d at 757B58.  Further, as noted, Tanglewood had no duty to inspect police records.  Id. at 759.  In addition, Nichols failed to report the first assault to Tanglewood.

Nichols refers this court to a series of cases holding landowners liable for injuries that occur away from their premises; however, these cases involve actors over whom the landowners had some right of control, such as an employee who caused harm that eventually befell an invitee after leaving the premises.  Duty is Acommensurate with the right of control.@ Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53B54 (Tex. 1997).  In addition, Nichols cites Nixon v. Mr. Property Management Co. for the proposition that the owner of a vacant apartment building owes a duty to public. 690 S.W.2d 546, 549 (Tex. 1985). In Nixon, a vacant apartment building was left unsecured and the units were filled with dirt and debris.  Id. at 548.  Police had investigated numerous crimes committed on the premises. Id.  When a minor was abducted from a sidewalk, taken to a unit at the complex, and raped, her mother brought suit on her behalf against the owner of the building.  Id. at 547.  The suit alleged that the owner owed the child a duty of reasonable care, which it breached.  Id. at 548.  The Texas Supreme Court reasoned that the purpose of keeping vacant buildings secure is to prevent injury to the general public and that, in allowing the vacant complex to erode into such a dilapidated condition, the premises became a conspicuous opportunity for crime.^[3]  Id. at 549. However, Nichols cites no authority, and we find none, for the proposition that a landowner can be held accountable for the actions of an unidentified assailant that occur away from the landowner=s premises.  Nothing in Nichols=s summary judgment evidence suggests that Tanglewood could have reasonably foreseen that an assailant would enter Nichols=s home, away from the premises of Manor Apartments, and commit a sexual assault or rape.  She provides no evidence of a foreseeable risk in relation to her to refute Tanglewood=s  assertions. See Mellon, 5 S.W.3d at 658.

In sum, because Tanglewood established a right to summary judgment on the duty element of Nichols=s claim, the burden shifted to Nichols to raise a fact issue. Walker, 924 S.W.2d at 377. We conclude that Nichols=s evidence failed to raise such fact issue and that the risk that Nichols or a similarly situated person would be sexually assaulted was in no way foreseeable to Tanglewood.  Hence, we hold that as a matter of law, Tanglewood did not owe a duty to Nichols and was entitled to summary judgment.

C.  Was the Condition that Harmed Nichols Created on Tanglewood=s Property?

Nichols argues that a person can be held liable Afor the conduct created on their premises@ that causes harm off the premises.  See, e.g., D. Houston, Inc., 92 S.W.3d at 457 (employer could be responsible for drunk-driving accident where it encouraged independent contractor to get drunk as part of her job); Texas Home Mgmt., Inc. v. Peavey, 89 S.W.3d 30, 33B39 (Tex. 2002) (owner/manager of a mental health/mental retardation facility had a duty not to allow a resident known to have a lengthy history of assaults, theft, and weapons violations to be unsupervised on visits to other cities); El Chico, 732 S.W.2d at 314 (bar owner could be found responsible for serving alcohol to intoxicated patron who caused accident); Otis Eng=g Corp. v. Clark, 668 S.W.2d 307, 311 (Tex. 1983) (employer could be found negligent for putting a drunk employee on the roadway where he caused an accident); Atchison v. Tex. Pac. Ry. Co., 143 Tex. 466, 474, 186 S.W.2d 228, 232 (1945) (railroad company could be liable for accident caused in part by smoke from grass fire on its property that obscured vision of drivers on adjacent road); Silva v. Spohn Health Sys. Corp., 951 S.W.2d 91, 93B97 (Tex. App.CCorpus Christi 1997, writ den=d) (landowner could be liable for accidents occurring on the street adjacent to its property if it had the power to control and expel third‑party wrongdoers).  It is her position that the sexual assault was Aconduct created on [Tanglewood=s] premises,@ thereby giving rise to a duty.

None of these cases, however, address a special set of inchoate Aconduct created on [the landowner=s] premises@ as suggested by Nichols.  In Otis, El Chico, and D. Houston, Inc., the conduct of the defendant on his own premises foreseeably rendered another person more dangerous; there is no such evidence here.  To the contrary, there is no evidence Tanglewood knew of the existence of the alleged assailant or did anything to render him more dangerous. In Atchinson, no Aconduct@ was created at all; rather, a dangerous physical condition on the premises was not contained to the premises.  Nichols does not claim to have been injured by a physical condition of Tanglewood=s premises.  In Texas Home Mgmt. and in Silva, the defendants had voluntarily undertaken to exercise control over specific people or specific areas where the injury actually occurred.  None of these conditions are present in the instant case.  Here, Tanglewood had no right to control the instrumentality (the attacker), the conduct (the assault), or the premises where the harm occurred (Nichols=s home).

D.        Was Tanglewood=s Alleged Conduct a Proximate Cause of Nichols Injury?

Even if we were to assume that Tanglewood owed Nichols a duty to obtain police reports and investigate the status of criminal conduct in the area, there is no evidence that a breach of that duty proximately caused the assaults on Nichols.

Proximate cause requires (1) cause in fact, and (2) foreseeability. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005).  Cause in fact requires a showing that Athe act or omission was a substantial factor in causing the injury without which the harm would not have occurred.@  Id. The defendant=s negligence must have done more than simply furnish a condition that made injury possible.  Id. Here, Nichols asserts that Tanglewood should have been more expedient with renovations, should have better repaired its fencing, and should have kept abreast of criminal conduct in the area.  However, Nichols has not shown that any of these measures would have prevented the alleged perpetrator from coming into her home and assaulting her.  As to the second element, we have already determined that there was no evidence of a foreseeable risk to Nichols.  See Mellon, 5 S.W.3d at 659 (holding that the foreseeability analysis is the same for both duty and proximate cause).

Accordingly, we overrule Nichols=s sole issue.

V.  Conclusion

Nichols places her reliance primarily upon two classes of cases: those in which the plaintiff was injured by a person under the defendant=s control, and those in which the plaintiff was injured by or on the property itself.  There is no such nexus in the present case.            Having concluded that the trial court did not err in granting summary judgment in favor of Tanglewood because (1) Tanglewood provided sufficient evidence that it owed no legal duty to Nichols and was not the proximate cause of Nichols=s injuries, and (2) Nichols has failed in her evidence to raise a material fact issue on the elements of duty and proximate cause, we affirm the trial court=s judgment.

/s/        Eva M. Guzman

Justice

Affirmed and Memorandum Opinion filed February 7, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman.

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^[1]  Nichols states in her brief that her suit is not to be considered a premises liability action; rather, she brought her suit as a common law negligence action.

^[2]  Nichols initially contends that summary judgment should be reversed because an exception to this threshold rule applies. Nichols argues that the Texas Supreme Court has recently recognized that Aif the essential facts about foreseeability as an element of . . . duty are disputed, the question is a fact issue for the jury.@  Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002).  We find the exception inapplicable here.  In Humble Sand & Gravel Inc. v. Gomez, the Texas Supreme Court explained that there are some instances in which Aissues may turn on facts that cannot be determined as a matter of law and must instead be resolved by the factfinder,@ but also stated Awe have actually identified only one such instance.@  146 S.W.3d 170, 182 & n.22 (Tex. 2004) (citing Fort Bend County Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 395 (Tex. 1991)).  Fort Bend makes the same statement but does not apply it; instead the Court supported its statement by relying on Mitchell v. Missouri-Kansas-Texas R.R. Co., 786 S.W.2d 659, 662 (Tex. 1999) (a Federal Employers= Liability Act (AFELA@) case), overruled on other grounds by Union Pacific R.R. v. Williams, 85 S.W.3d 162, 168B69 (Tex. 2002) (another FELA case).  See Fort Bend, 818 S.W.2d at 395.  In Humble, the Court explained that Awhile the issue of >whether a legal duty exists, including the foreseeability element, is typically a legal question [in FELA actions in Texas courts] . . . , if the essential facts about foreseeability are disputed, the question is a fact for the jury.=@ Humble, 146 S.W.3d at 182 (citing Union Pacific, 85 S.W.3d at 166).  The Court further stated that it had not had Aoccasion to consider how the burden of proving facts related to the existence of a duty should be assigned when those facts are in dispute. . . . when the foreseeability of harm is an element of duty and factually disputed, . . . we have put the burden on the plaintiff.  Id. at 182B83.  Humble examined the duty to warn and remanded the case for a new trial because the record was undeveloped on an issue that the court opined was crucial and the court was unable to draw any inferences. Id. at 195.  This is not the case here.  Tanglewood produced evidence establishing that the assault was not foreseeable, and the evidence submitted by Nichols was insufficient to raise a question of fact.

^[3]  In Nixon, the Court found that a duty existed based on the violation of a city ordinance that specifically required a property owner to keep the doors and windows of a vacant structure closed to prevent unauthorized entry.  In contrast, there is no evidence that Tanglewood was subject to any similar law, nor were the premises the scene of the alleged crime.