Park, Chan v. Elaine McKeon & Exxon Mobil Corporation , 2014 Tex. App. LEXIS 3460 ( 2014 )

AFFIRM; and Opinion Filed March 28, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-12-00856-CV
CHAN PARK, Appellant
V.
EXXON MOBIL CORPORATION, Appellee
On Appeal from the County Court at Law No. 4
Dallas County, Texas
Trial Court Cause No. CC-11-02026-D
OPINION
Before Justices O'Neill, Myers, and Brown
Opinion by Justice Brown
At issue in this premises liability case is whether Exxon Mobil Corporation owed Chan
Park the duty to protect him from the criminal acts of third parties. After Park was shot at an
Exxon Mobil station, he sued Exxon Mobil for negligence. The trial court granted Exxon
Mobil’s motion for summary judgment, in which it asserted it owed no duty to Park because the
crime against him was not foreseeable. In six issues, Park contends the trial court erred in
granting the motion for summary judgment. Because we conclude as a matter of law that the
shooting was not foreseeable, we affirm the trial court’s judgment.
At about 2 a.m. on July 15, 2009, Park was on his way home from work at a convenience
store he owned. He stopped to get gas at an Exxon Mobil station located at 1607 Inwood Road
in Dallas. As was his custom, Park had change and small bills from his store in a paper bag on
the floor on the passenger side of his car. He had larger bills from the store in his pants pockets.
As Park prepared to get gas, a man got out of another car and shot him. The man then went into
Park’s car, removed something from the passenger’s side, and got back into the getaway vehicle.
The entire incident took about ten seconds. The police found many quarters scattered on the
ground at the scene. Park was treated at a hospital and survived his injuries.
Park sued Exxon Mobil for negligence, asserting it owed a duty to protect him, as a
business invitee, from the foreseeable criminal acts of third parties. 1 Park alleged that Exxon
Mobil knew or should have known of a pattern of criminal activity in the area that posed a
foreseeable risk of harm and did not take reasonable steps to prevent the danger. Among other
things, he asserted Exxon Mobil was negligent in failing to: provide additional security in the
parking lot late at night, provide fencing to limit escape routes, and retain a security patrol or a
security guard.
Exxon Mobil filed a traditional and no evidence motion for summary judgment on
grounds that it owed Park no duty as the incident in question was not foreseeable. The trial court
granted Exxon Mobil’s motion. This appeal followed.
In his first four issues, Park contends the trial court erred in granting Exxon Mobil’s
motion for summary judgment because there is a fact issue on the issue of duty. Specifically,
Park contends there is a fact issue regarding whether the crime committed against him was
foreseeable. We disagree.
We will review the trial court’s order as a ruling on a traditional motion for summary
judgment, which we review de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005). The standard for reviewing a traditional motion for summary judgment under rule
166a(c) is well established. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.
1
Park also sued Elaine McKeon, owner of the land on which the gas station is located. McKeon moved for summary judgment on grounds
that she owed no duty to Park because she leased the premises to Exxon Mobil and thus did not control security or safety. Park does not appeal
the trial court’s summary judgment for McKeon.
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1985); see TEX. R. CIV. P. 166a(c). 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. Nixon, 690 S.W.2d at 548-49. In deciding whether a material fact issue exists,
evidence favorable to the non-movant will be taken as true. Id. at 549. Every reasonable
inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Id.
Duty
The existence of a duty is a question of law determined by the court. Trammell Crow
Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d 9, 12 (Tex. 2008); Timberwalk Apartments, Partners,
Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). Generally, there is no duty to protect others from
the criminal acts of third parties. Trammell Crow, 267 S.W.3d at 12; Timberwalk, 972 S.W.2d at
756. However, one who controls the premises does have a duty to use ordinary care to protect
invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable
and foreseeable risk of harm to the invitee. Trammell Crow, 267 S.W.3d at 12. A duty exists
only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable.
Timberwalk, 972 S.W.2d at 756.
Foreseeability Based on Previous Crimes and the Timberwalk Factors
Foreseeability is established through evidence of specific previous crimes on or near the
premises. Trammell Crow, 267 S.W.3d at 12; Timberwalk, 972 S.W.2d at 756. Foreseeability
requires only that the general danger, not the exact sequence of events that produced the harm, be
foreseeable. Timberwalk, 972 S.W.2d at 756. Foreseeability is not determined in hindsight, but
rather in light of what the owner knew or should have known before the criminal act occurred.
Id. at 757. To determine whether the risk of criminal conduct is foreseeable, a court weighs the
evidence of prior crimes using the following five factors: proximity, publicity, recency,
frequency, and similarity. Trammell Crow, 267 S.W.3d at 15; Timberwalk, 972 S.W.2d at 759.
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These factors have come to be known as “the Timberwalk factors.” See Taylor v. Louis, 349
S.W.3d 729, 736 (Tex. App.—Houston [14th Dist.] 2011, no pet.). In Timberwalk, the Texas
Supreme Court analyzed these factors and held that an apartment complex owed no duty to
provide additional security to a tenant who was sexually assaulted in her apartment by an
intruder when no violent crime had occurred at the apartment complex for the preceding ten
years. Timberwalk, 972 S.W.2d at 759.
Ten years later, the supreme court examined the Timberwalk factors again in its opinion
in Trammell Crow Central Texas, Inc. v. Gutierrez, and that opinion provides the framework by
which we examine the issue of foreseeability in this case. Trammell Crow involved a shooting
death in the parking lot of the Quarry Market mall in San Antonio. Like Park in this case, the
plaintiffs alleged the property manager, Trammell Crow, negligently failed to provide adequate
security at the mall. In determining whether previous crimes at the mall made the shooting
foreseeable, the supreme court limited its review to the instances of violent crime that took place
at the Quarry during the two years prior to the incident in question. Trammell Crow, 267 S.W.2d
at 13. After analyzing ten violent crimes in terms of their proximity, publicity, recency,
frequency, and similarity, the court held that Trammell Crow could not have reasonably foreseen
or prevented the crime and thus owed no duty. 2 Id. at 17.
Here, there were five instances of violent crime at or adjacent to the Exxon Mobil station
in the two years prior to Park’s shooting in July 2009:
2
Park contends Trammell Crow has no application in this case for the following reasons: 1) in Trammell Crow there was a trial on the
merits; 2) the premises at issue in each case are “wholly dissimilar” - an upscale shopping mall versus a gas station on the interstate; 3) Park was
an innocent victim, while in Trammell Crow there was some evidence the victim was targeted in retaliation for providing information to the
police on a series of burglaries in which he was involved; 4) the crime in Trammell Crow was murder, whereas in this case it was aggravated
robbery; 5) Trammell Crow only considered prior criminal activity at the shopping mall and did not address crimes near the mall; and 6)
Trammell Crow’s expert offered statistical evidence to show the rate of violent crime at the Quarry was significantly lower than for the City of
San Antonio in general. We do not find these reasons to disregard Trammell Crow persuasive. The difference in procedural posture is irrelevant.
Although there was a judgment on a jury verdict in Trammell Crow, the supreme court reversed and rendered a take-nothing judgment in favor of
the property manager. In that case, as here, whether a duty existed is a matter of law for the court to decide. While there are facts distinguishing
this case from Trammell Crow, this does not change the fact that Trammell Crow provides a reference point for analyzing foreseeability in these
kinds of cases.
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1. November 18, 2007 at 1:15 a.m. - As the complainant was walking on the street near
the Exxon Mobil, two men approached him. One man pulled out a pocket knife. The men tried
to take his property. When the complainant fought back, the other man hit him with his fist. The
complainant suffered a minor scrape on his hand from the knife. The suspects took the
complainant’s money and fled on foot.
2. April 5, 2008 at 10:11 p.m. - A suspect entered the Exxon Mobil store and purchased
some gum and a soft drink. When he paid for the items, he handed the clerk a note stating,
“Give me the money or I will shoot you.” The suspect did not present a weapon, and the
employee did not see one. The suspect immediately grabbed his purchases and the note off the
counter and ran out of the store.
3. July 2, 2008 at 5:40 a.m. - Two men entered the Exxon Mobil store. One walked up
to the cashier, displayed a small handgun, and demanded she open up the cash register and put
the money in a sack. After another employee opened the register, the cashier put the money in a
sack. The second man ordered the other employee to open another register and put that money in
a sack. The men ran out of the store and were apprehended nearby.
4. October 21, 2008 at 12:20 a.m. - The complainant was pumping gas at the Exxon
Mobil station when a suspect cut him with a pocket knife on his hand and tried to take his keys.
5. December 19, 2008 at 11:45 p.m. - The complainant was in line inside the Exxon
Mobil store when a man started harassing him. When the complainant walked outside the store,
the man continued to harass him, and the two men started to exchange punches. Another man
got out of a car and cut the complainant’s arm and back with a pocket knife. He also stabbed the
complainant in the arm with the knife.
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Proximity and Publicity
We first examine the Timberwalk factors of proximity and publicity as they relate to this
case. Proximity means crimes occurring on the property in question or in its immediate vicinity.
Timberwalk, 972 S.W.2d at 757. The publicity surrounding previous crimes helps determine
whether a landowner knew or should have known of a foreseeable danger. Id. at 758. Property
owners bear no duty to regularly inspect criminal records to determine the risk of crime in the
area. Id. at 759. When the occurrence of criminal activity is widely publicized, however, an
owner can be expected to have knowledge of such crimes. Id.
There is no dispute that the five violent crimes recounted above occurred at or
immediately adjacent to the Exxon Mobil station and that Exxon Mobil was aware or should
have been aware of them. In addition to these crimes, Park urged the trial court to consider
evidence of “a substantial pattern of major criminal activity” in the area near the Exxon Mobil
station. Park presented evidence that in the three-and-a-half year period from January 1, 2006 to
July 15, 2009, there were a total of 353 violent crimes reported within a one-mile radius of the
Exxon Mobil station. Two of these crimes were murders, 160 were robberies, and 147 were
aggravated assaults. There is no evidence to show any details of these crimes or to show what
publicity was given to them to indicate that Exxon Mobil knew or should have known about any
of them.
Recency and Frequency
Although the five foreseeability factors present distinct considerations, the supreme court
has considered recency and frequency together. A criminal act is more likely foreseeable if
numerous prior crimes are concentrated within a short time span than if few prior crimes are
diffused across a long time span. Trammell Crow, 267 S.W.3d at 15. In Trammell Crow, the
court considered the fact that the Quarry was home to ten violent crimes committed over a
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twenty-three-month period before the murder, equating to one violent crime every sixty-nine
days. Id.; cf. Mellon Mort. Co. v. Holder, 5 S.W.3d 654, 657 (Tex. 1999) (rape foreseeable in
area that witnessed one violent crime every four days). Here, the Exxon Mobil station saw five
violent crimes in the twenty-month period preceding Park’s shooting, for a rate of one violent
crime every 121 days. No violent crimes were committed at the station in the six months before
Park’s shooting.
Similarity
A court must also consider the similarity of the past crimes to the criminal conduct in
question. Trammell Crow, 267 S.W.3d at 16. Foreseeability does not require the exact sequence
of events that produced the harm to be foreseeable. Id. Rather, previous crimes need only be
sufficiently similar to the crime in question to put the owner on notice of the specific danger. Id.
Crimes fitting one category can relate to or result in crimes of another category. For example, a
string of violent crimes such as robberies or assaults can make other violent crimes like murder
or rape foreseeable. Id.
Here, four of the five violent crimes at the Exxon Mobil station in the two years prior to
Park’s shooting were robberies. In two of these robberies, suspects robbed the store, not its
customers. Another robbery involved a non-customer on the street adjacent to the gas station. A
pocket knife was used in that crime and the complainant sustained only minor injuries. In the
one robbery involving a customer, a pocket knife was again used and the injuries the victim
sustained were minor. The fifth crime on the property was an assault with a knife after a
disagreement between customers. Only once in the two years preceding the robbery of Park was
a gun used to commit a crime at or adjacent to the gas station. And in that instance the gun was
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displayed to a store clerk, not fired. At no time in the preceding two years was anyone shot at
the Exxon Mobil station. 3
Considering the five Timberwalk factors, we conclude as a matter of law that the
aggravated robbery of Park was not foreseeable based on evidence of prior crimes. Cf. Trammell
Crow, 267 S.W.3d at 17 (ten violent crimes in two years preceding shooting death at mall
insufficient to put property owner on notice that murder would occur as part of robbery on
premises). Regarding the crimes within a one-mile radius of the gas station, there is nothing in
the record to show any of those crimes were publicized such that Exxon Mobil should have been
aware of them. And the previous crimes at the property were not sufficiently frequent and
similar to give rise to a duty in this case.
Other Summary Judgment Evidence
Apart from the evidence of prior violent crimes, Park contends that other summary
judgment evidence raised a fact issue on foreseeability. See Del Lago Partners, Inc. v. Smith,
307 S.W.3d 762, 768 (Tex. 2010) (“The Timberwalk factors are not the only reasons that a
criminal act might be deemed foreseeable.”). Specifically, Park refers to the following evidence:
the fact that the manager of the Exxon Mobil in question had requested security guards, the fact
that Exxon Mobil barred its employees from going outside the store late at night, the existence
of, and failure to follow, procedures designed to assess the risk of criminal activity, and opinions
from two expert witnesses that Park’s shooting was foreseeable.
Chris Beckner, a territory manager for Exxon Mobil, testified in his deposition that at one
time prior to Park’s shooting he had requested security guards and was told it would not happen.
3
Park presented evidence that two customers had previously been shot at this Exxon Mobil station. Those shootings occurred in June 2004
and August 2005, four and five years before Park was shot and well outside the two-year timeframe used in Trammell Crow. Neither the court of
appeals nor the supreme court in Trammell Crow indicated how it arrived at this two-year timeframe other than it appears that was how the
evidence was presented in that case. See Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 200 S.W.3d 33 (Tex. App.—San Antonio 2006), rev’d,
267 S.W.3d 9 (Tex. 2008). The supreme court referred to two years as a “reasonable time,” and we agree. See Trammell Crow, 267 S.W.3d at
17. Further, in Mellon, which involved a rape in a parking garage, the supreme court also looked at the rate of violent crime near the garage for
the two years preceding the rape. Mellon Mort. Co., 5 S.W.3d at 657.
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The record reflects that Beckner’s request for security guards was not specific to the Inwood
location. He stated, “[W]e needed security guards at some of these stores because of
panhandling incidents.” Also, the fact that an owner employs security guards, or that one of its
employees wants to employ them, does not necessarily mean that a crime was foreseeable. The
mere act of taking preventative measures to protect against the possibility of future crime is not
the same as foreseeing that criminal activity. Allen v. Connolly, 158 S.W.3d 61, 67 (Tex. App.—
Houston [14th Dist.] 2005, no pet.). We note that security guards were employed and on duty at
the Quarry Market in the Trammell Crow case. Trammell Crow, 267 S.W.3d 12-13. We cannot
conclude that a denied request for security guards to deter panhandlers raises a fact issue about
whether the shooting of a customer was foreseeable.
Adana Kersa, the sales associate at work the night of Park’s shooting, testified that it was
company policy for store employees to not go outside during the night shift (from 10 p.m. to 6
a.m.) for safety reasons. Beckner’s testimony suggests that this policy was not specific to the
Inwood location. Again, taking measures to protect against the possibility of future crime is not
the same as foreseeing that criminal activity. Allen, 158 S.W.3d at 67.
Park also relies on Exxon Mobil’s January 2006 “US CORS Retail Site Security
Program,” which consists of operational guidelines “to help deter and reduce the probability of
security incidents.” One provision was that security advisors are expected to conduct a security
threat assessment to determine what additional security equipment was needed beyond the
minimum. Further, the CORS Standard Operating Procedures, dated October 2007, provided
that “Night Ride Inspections” must be performed monthly by a manager to ensure proper
procedures are followed on the night shifts. Park presented evidence that James Copeland,
operation manager for Exxon Mobil, was not aware of any threat assessments being performed
for the gas station in question for the five years before the shooting. Copeland also testified that
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night rides were not performed during the time he was operation manager. Beckner stated in his
deposition that night rides stopped at the end of 2007.
Assuming these policies and procedures were still in effect at the time of the 2009
shooting, their mere existence does not raise a fact issue on foreseeability. See id. (installation of
alarm system at office is not evidence of foreseeability of future crimes). Further, we have
concluded that the previous crimes at or in the immediate vicinity of the Exxon Mobil station
were not sufficiently frequent and similar to make the crime against Park foreseeable. Thus,
even if Exxon Mobil had followed its procedures for evaluating the risk of criminal activity in
the area, there is no reason to believe this would have made the crime against Park foreseeable.
Any failure by Exxon Mobil to follow its procedures for assessing the risk of criminal activity at
the station does not raise a fact issue on foreseeability.
Finally, Park provided testimony from two experts in law enforcement, William Rathburn
and Harold Warren. Both experts examined the crime statistics for a one-mile radius around the
Exxon Mobil station for the five years preceding Park’s shooting, as well as evidence of nine
violent crimes committed at the Exxon Mobil in this same timeframe. Rathburn concluded that
based on the number of similar violent crimes at the gas station, Exxon Mobil knew or had
reason to know there was a foreseeable risk of harm to its customers. Likewise, Warren stated in
an affidavit that, in his opinion, the crimes committed against Park were reasonably foreseeable.
The existence of a legal duty is a matter for the court, rather than an expert witness, to decide.
Boren v. Texoma Med. Ctr., Inc., 258 S.W.3d 224, 229 (Tex. App.—Dallas 2008, no pet.).
Expert testimony is insufficient to create a duty where none exists at law. Id.; Allright San
Antonio Parking Inc. v. Kendrick, 981 S.W.2d 250, 255 (Tex. App.—San Antonio 1998, no pet.).
For these reasons, we cannot conclude this other evidence raises a fact issue on
foreseeability. We resolve Park’s first four issues against him. Because we have concluded
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Exxon Mobil owed no duty to Park as a matter of law, we need not address his remaining two
issues regarding his entitlement to punitive damages for Exxon Mobil’s gross negligence.
We affirm the trial court’s judgment.
/Ada Brown/
ADA BROWN
JUSTICE
120856F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
CHAN PARK, Appellant On Appeal from the County Court at Law
No. 4, Dallas County, Texas
No. 05-12-00856-CV V. Trial Court Cause No. CC-11-02026-D.
Opinion delivered by Justice Brown.
EXXON MOBIL CORPORATION, Justices O'Neill and Myers participating.
Appellee
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee EXXON MOBIL CORPORATION recover their costs of
this appeal from appellant CHAN PARK.
Judgment entered this 28th day of March, 2014.
/Ada Brown/
ADA BROWN
JUSTICE
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