                                           ^•^i^^^^i^^^m^^-^^4^^^^*-




Affirmed and Opinion Filed August 28, 1998




                                         In The

                                Court of Appeals
                     T\ftl| Btstrtr/t of Qkxas at Dallas
                                  No. 05-96-00941-CV


       IUANITA OROZCO and NATTVIDAD OROZCO, SR., Individually and as
 Next Friends of CHRISTOPHER STEVEN OROZCO and BENJAMIN TAMES, Minors,
                          and RICHARD OROZCO, Appellants

                                            V.


    THE DALLAS MORNING NEWS, INC. d/b/a THE DALLAS MORNING NEWS,
                         and THE CITY OF DALLAS, Appellees


                     On Appeal from the 95th Judicial District Court
                                   Dallas County, Texas
                            Trial Court Cause No. 94-05705-D

                                     OPINION

                       Before Justices Chapman, Morris, and Wright
                                 Opinion By Justice Morris
         On awinter evening in 1992, Debra Orozco Tames and her yonng son, Christopher,
  were gunned down in their home by nnknown gang members in retaliation for amnrder
  auegediy committed by her brother several days earlier. The Orozco family sned the Dallas
  Morning News in negligence for publishinginformation indicating the locationoftheir home.
   They also sued the City ofDallas in negligence for the manner in which the police handled
emergency 911 calls made from the Orozco home on the day of the shooting. The trial
court granted summary judgment to the News and the City.
      We must decide whether anewspaper can be held liable in negligence for publishing
the street name and block number of a criminal suspect's home. We must also decide
whether the City is immune from liability in this case. We conclude the News had no legal
duty to refrain from publishing the address and, therefore, the Orozcos' negligence claim
fails. We also conclude the City cannot be held liable because of its governmental immunity.
We affirm the trial court's summary judgment.

                                   Factual Background


       The facts are not disputed. Debra Orozco Tames lived in her parents' house with
 her children and her brother, Natividad Orozco, Jr. In late November 1993, the police
 arrested Natividad for the murder of Victor Alvarez. Alvarez had been killed earlier in a
 "drive-by" gang-related shooting involving ared Pontiac. The Pontiac belonged to the
 mother of Debra and Natividad, Jr.
        On December 2,1993, the Dallas Morning News published anewspaper article about
  the Alvarez murder. The article identified Natividad as one of the suspects who had been
  arrested for the murder. The article gave the street and block number, but not the specific
  address, of the Orozco home.
          On the same day the newspapercirculated, anonymous callers telephoned the Orozco
   residence and threatened to retaliate for the Wvarez murder. Debra, who was home alone
   with her youngest child, contacted another brother, Richard. Richard came to the Orozco

                                               -2-
residence to be with Debra. He called the police to report the harassing telephone calls,
but no patrol car was sent to the residence.
       Later that evening, Debra's mother came home from work and parked her Pontiac
in front of the house. The car had not been parked there for long when shots were fired
at the Orozco house. Richard Orozco again called police. Police officers came to the house
and searched the neighborhood but found nothing. Some time later, the Orozcos' doorbell
rang, and Debra went to answer the door. Upon opening the door, she and her son were
 hit with gunfire. Debra died from her wounds, and her son was injured.
                                         Discussion


        Appellants challenge the summary judgment granted in favor of both defendants.
 Summary judgment may be rendered in favor of adefendant if as a matter of law the
 plaintiff could not succeed on any of the theories pled. See Delgado v. Burns, 656 S.W.2d
 428, 429 (Tex. 1983). Specifically, for adefendant to prevail on summary judgment, it must
 either disprove at least one element of the plaintiffs' theory of recovery or plead and
 conclusively establish each essential element of an affirmative defense, thereby rebutting the
 plaintiff's cause of action. See International Union UAWLocal 119 v. Johnson Controls, Inc.,
  813 S.W.2d 558, 563 (Tex. App.-Dallas 1991, writ denied). Here, the Dallas Morning
  News moved for summary judgment seeking to disprove plaintiffs' theory of recovery. The
  City of Dallas, on the other hand, sought summary judgment on its affirmative defense of
   governmental immunity.
          The standards for reviewing asummary judgment are well established. Nixon v. Mr.
   Proper? Manapmau Co., 690 S.W.2d 546, 548 (Tex. 1985). Where, as here, the summary
                                                -3-
                                        *S.'^'.^£"f'^V^''*''




judgment does not state the grounds upon which it was granted, an appellant must show on
appeal that each independent ground alleged is insufficient to support the summary
judgment granted. Thomson v. Norton, 604 S.W.2d 473, 476 (Tex. Civ. App.-Dallas 1980,
no writ).

       In this case, appellants asserted negligence claims. The elements of a negligence
cause of action are aduty, abreach of that duty, and damages proximately caused by the
 breach of the duty. Doe v. Boys Clubs of Greater Dallas. Inc., 907 S.W.2d 472, 477 (Tex.
 1995). Duty is the threshold inquiry. If aduty does not exist, adefendant cannot establish
 liability in tort. See El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987).
        We turn first to appellants' attack on the summary judgment signed in favor of the
 Dallas Morning News. The News argued in its motion for summary judgment that it owed
 no duty to appellants. Appellants maintain that the News had aduty to exercise reasonable
  care in deciding whether to publish the Orozcos' home address. They contend, therefore,
  that summary judgment was improper because they asserted avalid cause of action for
  common law negligence.

            Generally, the existence of aduty is aquestion of law decided from the facts
  surrounding the occurrence in question. See Way v. Boy Scouts ofAm., 856 S.W.2d 230,
  233-34 (Tex. App.-Dallas 1993, writ denied). We determine whether aduty exists by
   applying arisk-utility balancing test. «. a. 234. The test balances several interrelated
   factors, including "the risk, foreseeability, and likelihood of injury weighed against the social
   utility of the actor's conduct, the magnitude of the burden of guarding against the injury,
    and the consequences of placing the burden on the defendants." U. Foreseeability is the
most significant factor when using the risk-utility test. See id. Foreseeability is "what one
should under the circumstances reasonably anticipate as consequences of his conduct." Id.
(quoting McCullough v. Amstar Corp., 833 S.W.2d 312, 315 (Tex. App.-Amarillo 1992, no
writ)).

          Appellants argue that the Dallas Morning News should have foreseen the shooting
at the Orozco home because, in the year prior to the shooting, the newspaper printed
several articles and editorials describing and decrying retaliatory violence between rival gang
 members and, specifically, their families. After reviewing the facts in the light most
 favorable to appellants, we conclude otherwise.
          We are directed to no case imposing under Texas law a duty upon a newspaper to
 refrain from publishing what is atrue, public, facially harmless, and newsworthy fact. We
 find instructive, however, the Fifth Circuit Court of Appeals' opinion in Eimann, which held
 that the Soldier of Fortune magazine "owed no duty to refrain from publishing afacially
  innocuous classified advertisement when the ad's con.ex.-at most-made its message
  ambiguous." See Eimann v. Soldier ofFortune Magazine, Inc., 880 F.2d 830, 834 (5,h Cir.
  1989), cert, denied, 493 U.S. 1024 (1990). The advertisement published by the magazine
  in Eimann offered the service of performing "high risk assignments." Through the ad, a
  man contacted and hired ahit man to kill his wife, and the wife's mother later sued the
   magazine for negligently publishing the advertisement. The evidence showed that the
   magazine editors were aware that certain other classified advertisements in the magazine
   were connected with criminal activity. Because of this evidence, the Fifth Circuit concluded
   that the probability and gravity of the threatened harm was high but that, due to the
                                  >:r.:Y-;..^li>'£^^f.^;^:''f.'K




ambiguous nature of the advertisement in question, the burden of preventing harm was also
high. See id. at 835-36. Despite the editors' knowledge that other advertisements were
connected to criminal activity, the court concluded the magazine had no duty to refrain from
publishing the advertisement made the basis of the claim.
       The record here presents a stronger case for concluding that no duty exists. Even
taking all the evidence and allegations in favor of appellants, nothing indicates that the
Dallas Morning News should have foreseen that the publication of the street and block
number would lead to aretaliatory shooting at the Orozco home. The prior coverage of
 retaliatory gang violence by the News cannot itself transform the fundamentally innocuous
 and inoffensive nature of the information that appellants claim triggered the shooting of
 Debra Orozco Tames and her son into information from which the News should have
 reasonably anticipated violence. In short, the News' prior publication of articles depicting
 gang violence is not arational method of gauging the likelihood that aparticular later piece
 of information will foster specific criminal activity. Unlike the criminally-connected
  advertisements in Eimann, there is no evidence here that any of the previously reported
  gang violence was triggered by information published in the Dallas Morning News.
         We also note that, with the exception that both events occurred on the same day,
  there is no evidence that the publication of the Orozco street and block number did have,
  in fact, anything to do with the shooting ofDebra Orozco Tames and her son. The evidence
  does not even show whether the people responsible for the shooting had access to the
   newspaper article in question. In contrast, the presence of the red Pontiac was sufficient

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                       .... •:•,.   ,• • ••••'•;.   • !••••:'.•   •:••   S,.lff,-rt.. .,i ........




itself to identify the Orozco home to anyone in the area intent on avenging the Alvarez
murder.

      We acknowledge that the gravity of the harm is high in this case. However, the
probability that aperson, even agang member, would be induced to shoot innocent family
members after reading acriminal suspect's general address in the newspaper is low-lower,
certainly, than the probability that aman responding to aSoldier of Fortune advertisement
soliciting "high risk assignments" would hire ahit man to kill his wife. As the opinion in
Davidson v. Tone Warner, Inc. succinctly put it. the evidence illustrates the common sense
 difference betweenEimann and this case. SeeDavidson v. Time Warner, Inc., No. V-94-006,
 1997 WL 405907, at «11 (S.D. Tex. Mar. 31, 1997). In Eimann. at least seven classified
 advertisements were tied to crimes or criminal plots. Eimann, 880 F.2d a. 832. Here, there
 is no evidence that publication ofacriminal suspect's street name and block number inspires
 retaliatory crime. We conclude, therefore, that the likelihood of injury in this case is low.
         Conversely, the burden of guarding against injury and the consequences of placing
  ,ha. burden on the Dallas Morning News are very high. The reporting of crimes and arrests
  is an important newspaper function, and the public has the right under Texas law to be
   informed about criminal activity and criminal suspects, including where they reside. See
  Hogan v. Hears, Corp.. 945 S.W.2d 246, 250 (Tex. App.-San Antonio 1997, no writ) (arrest
  records, including the accused's address, are public records unless their release would
   impedeanongoinginvestigation orendangeraconfidentialinformant). Moreover,requiring
   anewspaper to omit acriminal suspect's street name and block number from news articles
   WOuld accomplish little in the way of preventing an intentional criminal act of revenge: a
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       -   • .. •„ I.. ... • .   •.:,.-..»..,••-? i ,.•:.-?»••.-:.-••,!•••   •!




suspect's address may be obtained easily from an arrest report, as it was in this case, or
even atelephone directory, if the suspect's name is available. Given the facially inoffensive
nature of the information published in this case, it would be unduly burdensome to require
anewspaper to edit aU neutral facts in an effort to prevent revealing acriminal suspect's
identity or whereabouts.
        As an alternative theory for summary judgment, the Dallas Morning News also
 asserted that imposing liability in this case would violate the freedom of press provided by
 the First Amendment and article I, section 8of the Texas Constitution. U.S. Const, amend.
 ,; Tax. Const, art. I, §8. Appellants challenge this ground on appeal. Although we need
 not reach the freedom of press arguments, we consider, as other courts have, the First
 Amendment's impact on the risk-utility analysis, given that its infringement may be a
  consequence of placing the burden to prevent injury on the News. See Eimann, 880 F.2d
  at 836-37; Way, 856 S.W.2d at 236.
                 Several holdings in the Texas courts reflect society's keen interest in apress free to
  report newsworthy facts. For example, the Firs. Amendment immunizes the reporting of
  true private facts in anewspaper when discussed in connection with matters tha, are of
   legitimate public interest. McNamara v. freedom Newspapers. Inc.. 802 S.W.2d 901, 904
    (Tex. App.- Corpus Christi 1991, writ denied). Moreover, once information is made a
    ma.ter of public record, the protection accorded freedom ofspeech and press may prohibit
     recovery for injuries causedby the further disclosure of and publicitygiven that information.
     Hogan 945 S.W.2d at 250. As we have already noted, acriminal suspect's address
      contained in an arrest report is considered public information. Id. Additionally, the
                                              :$;K?*r<s&S^W^B**^^*'
                         .^^^iSs^Sfei^S***^




protection provided to the press under article I, section 8of the Texas Constitution is no less
than that provided by the First Amendment. McNamara, 802 S.W.2d at 904. For all these
reasons, we conclude the protection afforded by the First Amendment and Article I, section
8of the Texas Constitution weighs heavily in favor of the Dallas Morning News and against
appellants.

        We conclude that the risk, foreseeability, and likelihood of injury in this case are
outweighed by the social utility of crime reporting, the burden that would be borne by the
News to prevent injury, and the consequences of placing that burden on the News. In
summary, the Dallas Morning News had no duty to refrain from publishing Natividad
 Orozco, Jr.'s street name and block number. We overrule appellants' first point of error
 and need not reach their second or third point of error. Appellants having failed to show
 each and every ground for summary judgment was improper, we affirm the summary
 judgment signed in favor of the Dallas Morning News.
         We now turn to appellants' attack on the summary judgment signed in favor of the
  City of Dallas. The City's motion for summary judgment urged, among other things, that
  the suit was barred as amatter of law by the doctrine of governmental immunity.
         Acity is immune from liability for its governmental actions unless that immunity is
   waived. City of LaPorte v. Barfield, 898 S.W.2d 288, 291 (Tex. 1995). The Texas Tort
   Claims Act waives governmental immunity for injury and death caused by employees acting
   within the scope of employment or caused by the condition or use of tangible personal or
   real property. See Thx. Civ. Pkac. ft Rhm. Cooh Ann. §101.021 (Vernon 1997). The act
   does not apply, however, to aclaim arising "from the failure to provide or the method of
                                                         -9-
providing police or Are protection." See id. §101.055(3). Thus, the government is immune
from liability if the negligence that causes injury lies in the formulation of policy, such as
whether and how to provide police protection, but the government might be liable if an
officer acts negligently in carrying out that policy. This provision was intended to avoid
judicial review of the discretionary policy decisions that governments must make in deciding
how much, if any, police or Sre protection to provide for acommunity. See State v. Terrell,
 588 S.W.2d 784, 786-87 (Tex. 1979).
        The City urges that the evidence conclusively establishes that the police officers-
 actions conformed a, all times with aU applicable policies of the police department.
 Therefore, the City contends appellants' lawsuit is actually aclaim arising "from the failure
 to provide or the method of providing police or fire protection" and is barred by section
 101.055(3) of the tort claims act. Conversely, appellants maintain in their fourth point of
  error that material fact issues exist with respect to whether the claim arose from the
  negligent implementation of existing police policies. In their fifth point oferror, appellants
  contend summary judgment was improper for the additional reason that the City did no.
   nega.e .he allegation that injury was caused by the "condition or use of tangible persona,
   property."
          The City, being the party that moved for summary judgment on an affirmative

    there is no genuine issue of material fact. See Tex. R. Ctv. P. 166a(c); Roar, v. Stallvortn
    Oil 4Gas, inc., 813 S.W.2d 492, 495 (Tex. 1991). Once the defendant produces sufficient
     evidence to establish aright to summary judgment, the plaintiff must set forth sufficient
                                                 -10-
                            rtW*WMf«*«"«*W«**




evidence to give rise to agenuine issue of material fact. See Pinckley v. Gallegos, 740
S.W.2d 529, 531 (Tex. App.-San Antonio 1987, writ denied).
      The City's summary judgment proof consists of affidavits from one patrol officer,
several police department employees, and an executive assistant chief of police, in addition
,o police department general orders, standard operating procedures, atraining bulletin, and
records of the 911 calls made from the Orozco residence on the day of the shooting.
Viewed as awhole, the evidence shows that the police department employees responded to
 the 911 calls in accordance with departmental procedure.
        In response, appellants presented the affidavits of Richard Orozco and James
 Gringer, apolice agency consultant. Neither of these affidavits, however, raises afact issue
 with respect to whether the DaUas police violated existing policies or procedures. Orozco's
 affidavit merely states that he initially called the police department's gang unit to report the
 threatening telephone calls his sister had received, but the gang unit told Orozco to call 911
  instead. There is no evidence that this response was contrary to police procedure.
         Gringer's affidavit makes several conclusions in an attempt to raise amaterial fact
  issue aboutwhether the actions ofpolice department employees compliedwith departmental
   procedure. Gringer firs, concludes that the police department's gang unit policies fall short
   of nationally established standards and practices. This is merely achallenge to the existing
   policy and is explicitly prohibited by section 101.055(3) of the tort claims act. As such, it
    raises no material fact issue that would prevent summary judgment.
           Next, Gringer asserts that the gang unit failed to comply with existing departmental
    policies pertaining to threats reported by Richard Orozco to the gang unit. Gringer lists
        .••...••..•'.••.   *   .'," •'.




twenty-one separate alleged failures. But his statements are mere conclusions and he
neglects, moreover, to provide proof of the policies themselves. As such, the affidavit is
insufficient as a matter of law to raise a fact issue with respect to whether gang unit
employees complied with the gang unit's procedure. See Tex. R. Crv. P. 166a(f); Menchaca
v. Menchaca, 679 S.W.2d 176, 178 (Tex. App.-El Paso 1984, no writ).
        In his affidavit, Gringer also asserts that the Dallas Police Department failed to train
 and supervise members of the department's communications section in accordance with
 existing policies. Gringer asserts this lack of training caused personnel to schedule
 "erroneously" aserious, gang-related event for handling by the telephone expediter unit
  rather than the police gang unit. This allegation fails .o raise ama.eria. fact issue affecting
 summary judgment because it merely challenges the City's method of handling reports of
 telephone harassment that are gang-related. The uncontroverted evidence shows that,
  currently, the City does not distinguish between telephone harassment and gang-related
  telephone harassment. Thus, Gringer's affidavit does no, raise afact issue regarding
  whether the telephone harassment complaint was handled according to the current
   departmental policy.
          Gringer next asserts that patrol personnel failed to comply with Roll Call Training
   Bulletin 93-2, entitled "Random Gunfire Response Procedures." First, Gringer fails to raise
   an issue relating to the City's evidence that the bulletin is suggestive, rather than a
    mandatory departmental procedure. Second, assuming the bulletin is mandatory, it only
    prohibits officers from using the "N-code System" on "6G-Random Gunfire" calls. Gringer
    asserts the department N-Coded two "calls" from Richard Orozco on December 2, 1993.
              -,,,,,,,„-..,,••-.-   -




This fails to show non-compliance with the bulletin's prohibition because Gringer does no,
claim those calls were, in fact, »6G-Random Gunfire" calls.
       Finally, Gringer generallyasserts that the police departmentfailed to take reasonable
and prudent action in response to frequently and clearlyreported threats to the safety ofthe
occupants a, the Orozco home. This is agenera, conclusion, lacks any assertion offact, and
therefore raises no genuine materia, fact issue that might prevent summaty judgment. See
 Sorrells v. Gioerson, 780 S.W.2d 936, 938 (Tex. App.-Austin 1989, writ denied).
         The City me. its burden to prove its governmental immunity defense by showing that

  ponceprotection. Appellants' summaryjudgmentevidenceraises nomateria,factissuewith
  respect to whether their Cairn arose from the neghgent impiementation of existing ponce
  policies. Accordingly, we overrule appellants' fourth point of error.
          ,„ their fifth point oferror, appellants contend that summaryjudgmentwas improper
   becausethe City did notpresent any evidence to negate the allegation,ha, theinjurieswere
   caused by the condition or use of tangible persona, proper,. As already noted, the Texas
   Tort Cairns Ac, waives governmenta, immunity for injury and death caused by employees
    actingwithinthescopeofemploymentorcausedbytheconditionoruseoftangiblepersona,


     providing" police protection. See id. §101.055(3).
      p^eorthemethodofpro.dingpoliceprotectionand.assuch.tfieCityreta.nsimmunity
                           '   '   •!'••   !




under section 101.055(3). Therefore, we need not address whether the evidence shows a
viable cause of action under section 101.021, which by force of section 101.055(3) is not
applicable. See Zacharie , City of San Antonio, 952 S.W.2d 56, 59 (Tex. App.-San
Antonio 1997, no writ). We overrule appellants' fifth point of error.
       We affirm the trial court's summary judgment.




 Publish
  Tex. R. App. P. 47
  960941F.P05




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