Reverse and Render and Opinion Filed July 3, 2018




                                             S In The
                                 Court of Appeals
                          Fifth District of Texas at Dallas
                                        No. 05-17-00372-CV

                 AVPM CORP. D/B/A STONELEIGH PLACE, Appellant
                                     V.
               TRACY L. CHILDERS AND MARY RUTH TROUT, Appellees

                       On Appeal from the 101st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DC-15-00556

                              MEMORANDUM OPINION
                           Before Justices Francis, Brown, and Stoddart
                                    Opinion by Justice Francis
       AVPM Corp. d/b/a Stoneleigh Place appeals a judgment rendered against it following a

jury trial. AVPM brings five issues generally contending the jury’s answers to several questions

are not supported by legally sufficient evidence and the trial court abused its discretion in admitting

certain evidence. For the reasons that follow, we reverse the trial court’s judgment and render

judgment that Tracy L. Childers and Mary Ruth Trout take nothing by their claims.

       This suit arises out of a criminal assault that occurred in Childers’s apartment at Stoneleigh

Place in Garland, Texas. Childers moved into the apartment in February 2014. At that time, she

conducted an inspection during which she noted problems with the latches on one of the living

room windows. The latch on the left side of the window would only partially engage and the one

on the right side would not engage at all.
       After receiving Childers’s inspection report, AVPM maintenance personnel entered

Childers’s apartment while she was at work and attached thumb screws to the window as additional

security. The workers left a work order in the apartment confirming the repairs and Candida

Contreras, an AVPM employee, left Childers a voicemail informing her the work had been done.

Childers made no further complaints about the window.

       Several months later, on June 22, a man entered Childers apartment through the living room

window and sexually assaulted Childers and Trout. The intruder, Jared Alan Wade, was later

arrested and pleaded guilty to the crime. Wade stated he entered the apartment through an

unlocked window. Childers and Trout contend the window was not properly repaired which

allowed Wade to force his way in.

       Childers filed suit, later joined by Trout, alleging claims against AVPM and Contreras for

negligence and premises defect. The case was tried to a jury. The court’s charge instructed the

jury on Texas law requiring exterior windows be equipped with a latch and requiring a landlord to

repair or replace a security device on request or notification by a tenant that the device is inoperable

or in need of repair. The charge did not state that a violation of the law constituted negligence.

Instead, the charge instructed the jury that negligence meant a failure to use the degree of care that

would be used by a person of ordinary prudence under the same or similar circumstances.

       The jury found AVPM, Childers, and Wade all engaged in negligent conduct that

proximately caused the occurrence. Responsibility was assessed at 40% for AVPM, 10% for

Childers, and 50% for Wade. Contreras was not submitted as a potentially responsible party.

Appellees were awarded compensatory damages, interest, and costs.

       AVPM filed a motion for judgment notwithstanding the verdict asserting, among other

things, it was entitled to judgment as a matter of law because no evidence was presented at trial to

show the foreseeability of third-party criminal acts and, therefore, there was no evidence to

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establish duty or proximate cause. Appellees responded that AVPM owed them a legal duty by

virtue of the Texas statutes requiring functional window latches and violation of the statutes was

negligence per se. Appellees further argued “foreseeability is contemplated” by the statute

requiring landlords to repair or replace security devices because the statute is “designed to protect

lessees and their guests from intruders.” Following a hearing, the trial court denied AVPM’s

motion for JNOV. AVPM then brought this appeal.

       In its first issue, AVPM argues the trial court erred in denying its motion for JNOV because

the evidence is legally insufficient to support the jury’s finding that AVPM breached a duty owed

to appellees or that any such breach proximately caused the damages they suffered. In reviewing

the legal sufficiency of the evidence, including a ruling on a motion for JNOV, we consider all the

evidence before the jury, crediting evidence in support of the verdict if reasonable jurors could,

and disregarding evidence contrary to the verdict unless reasonable jurors could not. See Am.

Eurocopter Corp. v. CJ Sys. Aviation Grp., 407 S.W.3d 274, 281 (Tex. App.—Dallas 2013, pet.

denied). If there is more than a scintilla of evidence to support the finding, the evidence is legally

sufficient. Id. When the evidence offered to prove a vital fact is so weak as to do no more than

create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in

legal effect, amounts to no evidence. Id.

       In a premises liability case, the plaintiff must establish a duty owed to the plaintiff, breach

of that duty, and damages proximately caused by the breach. Del Lago Partners, Inc. v. Smith,

307 S.W.3d 762, 767 (Tex. 2010). Generally, a premises owner has no duty to protect invitees,

such as tenants, from criminal acts by third parties. See Timberwalk Apartments, Partners, Inc. v.

Cain, 972 S.W.2d 749, 756 (Tex. 1998). But there is an exception when the owner knows or has

reason to know of a risk of harm to invitees that is both unreasonable and foreseeable. Id.




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       AVPM contends appellees failed to present legally sufficient evidence of foreseeability to

establish either a duty or proximate cause. Appellees respond that AVPM’s duty in this case was

established by statute. They rely on section 92.153 of the Texas Property Code which requires

exterior windows on a dwelling be equipped with an operable window latch without the necessity

of a tenant request. TEX. PROP. CODE ANN. § 92.153 (West 2014). They argue AVPM violated

this statute and the violation constituted negligence per se.

       Negligence per se is a tort concept whereby a legislatively imposed standard of conduct is

adopted by the civil courts as defining the conduct of a reasonably prudent person. Carter v.

William Sommerville & Son, Inc., 584 S.W.2d 274, 278 (Tex. 1979). Even if we were to accept

appellees’ contention that section 92.153 establishes a duty for which civil liability may be

imposed, appellees did not submit their case to the jury under a negligence per se theory of liability.

       In a negligence per se case, the jury is not asked to determine if the defendant acted as a

reasonably prudent person would have acted under the same or similar circumstances. Id. Instead,

the statute itself provides what a reasonably prudent person would have done. See Durham v.

Zarcades, 270 S.W.3d 708, 718 (Tex. App.—Fort Worth 2008, no pet.). Unless an excuse for the

statutory violation is offered, the jury decides only whether the statute was violated and, if so,

whether the violation was a proximate cause of the injury. See Thomas v. Uzoka, 290 S.W.3d 437,

445 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). Here, the jury was not asked to

determine whether AVPM violated the statute, but instead only if it exercised ordinary prudence.

Although the jury was instructed on the statute’s requirements regarding window latches, the

charge did not require the jury to find AVPM failed to use ordinary prudence if it found a statutory

violation.

       More importantly, even under a negligence per se theory of liability, appellees were still

required to show that AVPM’s conduct was a proximate cause of their damages which includes

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presenting evidence of foreseeability. See Durham, 270 S.W.3d at 718–19. Proximate cause has

two components: cause-in-fact and foreseeability.        Id. at 719.    These elements cannot be

established by mere conjecture, guess, or speculation. See W. Invs., Inc. v. Urena, 162 S.W.3d

547, 551 (Tex. 2005). If appellees failed to present legally sufficient evidence of foreseeability,

this is dispositive of their claims regardless of whether their theory of liability was negligence or

negligence per se. See Durham, 270 S.W.3d at 720; Garza v. Sancen, No. 05-15-00666-CV, 2016

WL 1469345, *2 (Tex. App.—Dallas Apr. 14, 2016, pet. denied) (mem. op.).

       Foreseeability requires only the general danger, not the exact sequence of events that

produced the harm, be foreseeable. See Timberwalk, 972 S.W.2d at 756. When the “general

danger” is the risk of injury from criminal activity, the evidence must reveal specific previous

crimes on or near the premises to establish foreseeability. Id. The supreme court has recognized

that “crime is increasingly random and violent and may occur anywhere” and has rejected the

imposition of a general duty on landlords to protect tenants whenever crime might occur. See Del

Lago Partners, 307 S.W.3d at 768. When the premises owner has no direct knowledge that

criminal conduct is imminent, which appellees have not alleged, the plaintiff must present evidence

showing past criminal conduct made similar conduct in the future foreseeable. See id. Whether

past incidents of criminal conduct make future incidents foreseeable depends upon factors such as

proximity, recency, frequency, similarity, and publicity. Id. These factors are known as the

Timberwalk factors. See Timberwalk, 972 S.W.2d at 759.

       The record in this case shows, and counsel for appellees conceded during oral argument,

that appellees presented no evidence at trial of any recent criminal conduct in the area of Stoneleigh

Place similar to the incident in question. Appellees make several arguments that such evidence

was unnecessary. First, they argue the Timberwalk factors apply only to establish duty, not

proximate cause.     They contend because duty was established by statute in this case, the

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Timberwalk factors are irrelevant. Again, even assuming AVPM’s duty was established by statute,

appellees’ argument is unavailing.

       Although the court in Timberwalk discussed evidence of previous crimes in connection

with establishing a duty, the analysis of foreseeability is the same for both duty and proximate

cause. See Del Lago, 307 S.W.3d at 774. Even if duty is established by statute, a defendant’s

conduct cannot be the proximate cause of the plaintiff’s injuries unless the injuries were

foreseeable.   The foreseeability of injuries resulting from third-party criminal conduct is

established through evidence of specific previous crimes on or near the premises. See Timberwalk,

972 S.W.2d at 756.

       In a substantially similar case to the one presented here, the court in Durham v. Zarcades

analyzed the Timberwalk factors in connection with the defendants’ failure to ensure an apartment

door was equipped with a keyless bolting device – another requirement of section 92.153. See

Durham, 270 S.W.3d at 719–20. The plaintiffs sued some prior owners of their apartment complex

for negligence, premises liability, negligence per se, and negligent conduct after they were held

hostage and sexually assaulted in their apartment. Id. at 711. The court concluded that, even under

a negligence per se theory of liability, the plaintiffs’ claims failed because there was no evidence

to show the defendants could have foreseen that type of criminal conduct would occur and,

therefore, there was no evidence of proximate cause. Id. The same is true here.

       Appellees next argue that, by enacting the statute, “the legislature has already determined

that injuries are a foreseeable consequence of violating the statute.” In making this argument,

appellees attempt to conflate duty and proximate cause. Although a statute may create a legal

duty, a jury is not compelled to conclude a statutory violation was the proximate cause of the

damages claimed. See Thomas, 290 S.W.3d at 445. The requirement that a dwelling be equipped

with certain security devices, including a functional window latch, is not evidence that AVPM

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should have foreseen the attack on appellees. See Garza, 2016 WL 1469345 at *3 (ordinance

requiring owners to keep dogs restrained not evidence that attack by unrestrained dog was

foreseeable). To conclude otherwise would make every landlord a general insurer of its tenants’

safety from criminal acts. Such a result is not dictated by the language of the statute and is

specifically what Timberwalk sought to avoid. See Timberwalk, 972 S.W.2d at 756–57; Durham,

270 S.W.3d at 719–20.

       Appellees additionally argue it would be improper to overturn the jury’s verdict based on

the absence of Timberwalk evidence because the jury was not provided with a definition of

proximate cause that included the Timberwalk factors. Appellees cite no authority that such a

definition was required, and we decline to create the requirement here. Timberwalk does not create

elements upon which specific findings must be made. It merely provides guidance on the type of

evidence that is relevant to establish foreseeability of third-party criminal conduct.

       The jury in this case was instructed that, “to be a proximate cause, the act or omission

complained of must be such that a person using ordinary care would have foreseen that the

occurrence, or some similar occurrence, might reasonably result therefrom.” This instruction is

appropriate for cases that require Timberwalk evidence. See Dickinson Arms–REO, L.P. v.

Campbell, 4 S.W.3d 333, 337 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). Timberwalk

does not change the inquiry to the jury. The decision means without evidence of specific previous

crimes, a finding of foreseeability is inherently, and improperly, based on conjecture, guess, or

speculation.

       Finally, appellees contend foreseeability is uniquely a fact issue for the jury and should

only be set aside under the most exceptional circumstances. See Defterios v. Dallas Bayou Bend,

Ltd., 350 S.W.3d 659, 665 (Tex. App.—Dallas 2011, pet. denied). We agree. But the complete

absence of evidence to show foreseeability in a negligence case is the type of exceptional

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circumstance requiring the verdict be overturned. See Timberwalk, 972 S.W.2d at 758 (no

evidence of previous crimes negates foreseeability element); see also City of Keller v. Wilson, 168

S.W.3d 802, 810 (Tex. 2005) (JNOV appropriate when there is complete absence of a vital fact).

       We conclude the trial court erred in denying the motion for JNOV and we resolve AVPM’s

first issue in its favor. We do not address AVPM’s remaining issues. We reverse the trial court’s

judgment and render judgment that Childers and Trout take nothing by their claims.




                                                  /Molly Francis/
                                                  MOLLY FRANCIS
                                                  JUSTICE




170372F.P05




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                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 AVPM CORP D/B/A STONLEIGH                          On Appeal from the 101st Judicial District
 PLACE, Appellant                                   Court, Dallas County, Texas
                                                    Trial Court Cause No. DC-15-00556.
 No. 05-17-00372-CV         V.                      Opinion delivered by Justice Francis.
                                                    Justices Brown and Stoddart participating.
 TRACY L. CHILDERS AND MARY
 RUTH TROUT, Appellees

    In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and judgment is RENDERED that:
    TRACY L. CHILDERS and MARY RUTH TROUT take nothing by their claims.

        It is ORDERED that appellant AVPM CORP D/B/A STONLEIGH PLACE recover its
costs of this appeal from appellees TRACY L. CHILDERS and MARY RUTH TROUT.


Judgment entered July 3, 2018.




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