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        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT      United States Court of Appeals
                                                     Fifth Circuit

                                                                           FILED
                                                                     September 12, 2018
                                 No. 17-50674
                                                                        Lyle W. Cayce
                                                                             Clerk
ELISABETH HENDRIKA SOPHIA MARIA SMIT, widow of M.G.H.
Craenmehr and mother of Steven Craenmehr, Individually; LIZZY JANE
FRANCIS PLUG, Individually, as Next Friend of M.C., a minor, and on
behalf of the Estate of Steven Craenmehr, deceased,

             Plaintiffs - Appellants

v.

SXSW HOLDINGS, INCORPORATED, formerly known as SXSW,
Incorporated; SXSW, L.L.C., formerly known as SXSW Transition, L.L.C.;
PATRICK LOWE; TRANSPORTATION DESIGN CONSULTANTS, L.L.C.;
CITY OF AUSTIN,

             Defendants - Appellees




                Appeal from the United States District Court
                     for the Western District of Texas


Before REAVLEY, GRAVES, and COSTA, Circuit Judges.
REAVLEY, Circuit Judge:
      The 2014 South by Southwest Festival was marred by tragedy. An
intoxicated driver fled Austin police and knowingly accelerated through a
closed city block—crowd and all—killing four people and injuring many others.
The family of one victim filed this wrongful-death suit against the festival
organizers and the City of Austin, alleging those actors failed to adequately
blockade the street and prevent the ensuing harm.
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                                       No. 17-50674
       The district court dismissed the plaintiffs’ lawsuit for failure to state a
claim under Texas law. We affirm.
                                   I. BACKGROUND 1
       Every March, the City of Austin is home to one of the largest music, film,
and interactive festivals in the world: South by Southwest (commonly referred
to as “SXSW”). SXSW takes place not at a single venue but at almost 100
separate locations across the downtown area. Festival attendees travel from
one venue to another, and they often do so on bicycles or on foot.
       SXSW’s multi-venue format requires that certain segments of streets be
closed to vehicular traffic. To that end, SXSW submits an annual application
to the City for a right-of-way permit. For the March 2014 festival, SXSW
submitted such an application and requested the closure of Red River Street
between 8th and 11th street (in other words, the 800 through the 1000 block).
The City approved the application and issued a right-of-way permit. That
permit identified a closure of Red River Street between the 800 and 1000 blocks
but included a condition that “[a]ll traffic controls must be provided in
accordance with the approved traffic control plan.”
       The subsequent traffic control plan left the 1000 block of Red River
Street open to vehicular traffic, closing instead only the 700, 800, and 900
blocks. To effectuate those closures, the organizers and the City placed “Type
III” barricades at each intersection, and a police officer stood watch.




       1 With one exception, our recitation of the facts comes from (1) the plaintiffs’ Second
and Third Amended Complaints (the live pleadings for purposes of this appeal) and
(2) exhibits attached thereto. Ruiz v. Brennan, 851 F.3d 464, 468 (5th Cir. 2017) (“In ruling
on a Rule 12(b)(6) motion, we may consider the contents of the pleadings along with any
attachments.”).
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       In the early morning hours of March 13, 2014, a police officer observed
Rashad Owens make an illegal turn onto the southbound I-35 access road. 2
The officer activated his emergency lights and attempted to stop Owens’s
vehicle, but the intoxicated Owens turned right onto 9th street. Owens then
turned north onto the 900 block of Red River Street, bypassing the barriers,
accelerating through the festival zone, and hitting multiple pedestrians.
Owens kept going and breached the barriers at the opposite end of the block.
And upon reaching the open 1000 block of Red River Street, Owens hit and
killed a bicyclist, Steven Craenmehr. Craenmehr was a music producer from
the Netherlands and a SXSW attendee.
       In all, Owens killed four people. A jury later convicted Owens of capital
murder—i.e., knowingly engaging in conduct for which death is reasonably
certain to result and causing multiple deaths in the same criminal transaction.
TEX. PEN. CODE § 19.03(a)(7)(A); see also Owens v. State, 549 S.W.3d 735, 738
(Tex. App.—Austin 2017, pet. ref’d) (affirming Owens’s conviction on appeal).
       Craenmehr’s mother and his widow (the latter on behalf of herself,
Craenmehr’s estate, and the couple’s minor child) filed a Texas diversity suit
against SXSW Holdings, Inc., SXSW L.L.C., and SXSW’s traffic consultant
(collectively, “the SXSW defendants”), along with a few other defendants not
parties to this appeal. 3 The gist of the plaintiffs’ complaint is that the risk of
an errant vehicle in downtown Austin was foreseeable, the SXSW defendants
should therefore have blockaded Red River Street with water-filled barriers


       2 The narrative of Owens’s crime comes from the plaintiffs’ Original Complaint. The
plaintiffs omitted Owens’s criminal conduct from their later complaints, but the district court
denied a motion to strike and held the plaintiffs to those earlier admissions. The plaintiffs do
not appeal that ruling here, but more fundamentally, they do not dispute that Owens’s
conduct was a crime.
       3  Several other victims filed a state-court lawsuit against the same defendants. The
district court there granted summary judgment for the defendants, and the case presently
sits on appeal. Nguyen v. SXSW Holdings, Inc., No. 14-17-00575-CV.
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                                  No. 17-50674
instead of the Type-III variety, and that failure to do so resulted in
Craenmehr’s death. The plaintiffs phrased those allegations in terms of:
(1) negligence (ordinary and gross); (2) premises liability; (3) negligence per se;
(4) breach of implied warranty; (5) public nuisance; (6) negligent undertaking;
and (7) negligent hiring.
      The SXSW defendants moved under Federal Rule of Civil Procedure
12(b)(6) to dismiss the Original Complaint for failure to state a claim, arguing
in large part that a lack of duty foreclosed tort liability. The plaintiffs amended
in response, and the SXSW defendants moved to dismiss the First Amended
Complaint. Again, the plaintiffs amended. The parties then stipulated that the
Second Amended Complaint made allegations “identical” to the First Amended
Complaint and that the district court could therefore treat the already-pending
motion to dismiss as “applying fully to the Second Amended Complaint.”
      The district court granted the SXSW defendants’ motion to dismiss,
concluding that (1) the plaintiffs’ negligence and premises-liability claims
failed because the SXSW defendants had no control over the site of
Craenmehr’s death (an open city street); (2) alternatively, those same claims
failed because the SXSW defendants had no duty to prevent Owens’s
unforeseeable criminal act; (3) the plaintiffs failed to plead negligence per se
because they did not identify a violation of any traffic-control ordinance; and
(4) Texas law supplied no basis for the implied-warranty, public-nuisance,
negligent-undertaking, or negligent-hiring claims.
      The plaintiffs amended their complaint one last time, joining the City of
Austin as a defendant. The Third Amended Complaint accuses the City of the
same sort of wrongdoing as the SXSW defendants but only under negligence
and premise-liability theories. The City moved to dismiss under 12(b)(6), and
the district court granted the motion, concluding once more that Owens’s
criminal conduct was not foreseeable.
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                                  No. 17-50674
      The district court then signed a final judgment with respect to the SXSW
defendants and the City (having severed the claims against the other
defendants). The plaintiffs appealed, briefing only their negligence, negligence
per se, premises-liability, public-nuisance, and implied-warranty claims,
thereby abandoning all others. Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir.
1994).
                          II. STANDARD OF REVIEW
      We review a dismissal under Federal Rule of Civil Procedure 12(b)(6) de
novo, “accepting all well-pleaded facts as true and viewing those facts in the
light most favorable to the plaintiff.” Bustos v. Martini Club, Inc., 599 F.3d
458, 461 (5th Cir. 2010) (quotations omitted). “To survive a motion to dismiss,
a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quotations omitted).
                                III. DISCUSSION
      We will divide our discussion between the two categories of defendants
and between the plaintiffs’ various claims.
A.    The SXSW Defendants
      1. Negligence and Premises Liability
      We agree with both parties and the district court that we should consider
the negligence and premises-liability claims together. “Premises liability is a
special form of negligence where the duty owed to the plaintiff depends upon
the status of the plaintiff at the time the incident occurred.” W. Invs., Inc. v.
Urena, 162 S.W.3d 547, 550 (Tex. 2005). But irrespective of the type of duty
owed, both negligence and its premises-liability cousin require “the existence
of a duty” in the first place. Id. An outright lack of duty—something courts
must decide as a question of law—would thus foreclose both claims. See Greater
Hous. Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
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      On that score, the district court held that the plaintiffs failed to plausibly
allege the SXSW defendants controlled the premises where Owens struck
Craenmehr, an open city street. We agree.
      In Texas, “[t]he duty of a premises owner or occupier to provide
protection arises from control of the premises; the duty does not extend beyond
the limits of the premises owner’s control.” Dixon v. Hous. Raceway Park, Inc.,
874 S.W.2d 760, 762 (Tex. App.—Houston [1st Dist.] 1994, no writ) (citing
Grapotte v. Adams, 111 S.W.2d 690, 691 (Tex. 1938)). As one might expect, a
city typically owns and controls its city streets to the exclusion of all others.
Hoechst Celanese Corp. v. Compton, 899 S.W.2d 215, 226–27 (Tex. App.—
Houston [14th dist.] 1994, writ. denied). The plaintiffs alleged, however, that
this situation differed:
      Defendants had a City of Austin Right-of-Way permit that made it
      the temporary legal occupier of Red River Street between 9th
      Street and 11th Street. Defendants’ Right-of-Way permit gave
      them temporary legal control over Red River Street between 9th
      Street and 11th Street. Thus Defendants were the temporary
      occupiers of the premises encompassing Red River Street between
      9th Street and 11th Street.
Of course, simply pleading the legal status of “control” or “temporary legal
occupier” does not alone suffice; “the well-pleaded facts” must make the
allegation of control a plausible one. Iqbal, 556 U.S. at 679.
      The sole factual basis for the plaintiffs’ control allegation is that the
right-of-way permit equipped the SXSW defendants with legal control of the
1000 block. Yet when an “allegation is contradicted by the contents of an
exhibit attached to the pleading, then indeed the exhibit and not the allegation
controls.” U.S. ex rel. Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 377
(5th Cir. 2004). So it is here. The right-of-way permit itself (attached to the
complaint) contains an express qualification such that “[a]ll traffic controls
must be provided in accordance with the approved traffic control plan.” The
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                                       No. 17-50674
City-approved traffic control plan (likewise attached) then left the 1000 block
open to regular vehicular traffic. The plaintiffs make no effort to reconcile
their allegation of control with the permit’s contingent-but-unexecuted
delegation.
       Without a plausible allegation that the City delegated control of the 1000
block, we arrive back at the usual course of things—in which the City controls
its open streets. Compton, 899 S.W.2d at 226–27. Under those circumstances,
Texas law generally imposes no duty on a land occupier to prevent injury to
those on an adjacent city street. 4 E.g., Dixon, 874 S.W.2d at 763 (“Because the
accident occurred on a public road outside the control of the [defendant], the
[defendant] owed no legal duty to” the victim.). The district court was therefore
correct to dismiss the negligence and premises-liability claims against the
SXSW defendants for lack of duty, and we need not reach any alternative
grounds for dismissal.
       2. Negligence Per Se
       In addressing the plaintiffs’ negligence per se claim, the district court
skipped the threshold duty question and dismissed for another flaw: failure to
allege any violation of a codified standard of conduct. Again, we agree.
        Under Texas law, “[n]egligence per se is a common-law doctrine in which
a duty is imposed based on a standard of conduct created by a penal statute
rather than on the reasonably prudent person test used in pure negligence
claims.” Smith v. Merritt, 940 S.W.2d 602, 607 (Tex. 1997). According to the
plaintiffs, the relevant standard of conduct here comes from four traffic-control


       4  We do note a line of Texas cases recognizing a limited exception to this general rule:
when a landowner’s property itself becomes a “dangerous agency” on an adjacent roadway.
See, e.g., Alamo Nat’l Bank v. Kraus, 616 S.W.2d 908, 910 (Tex. 1981) (wall of building fell
onto city street); Atchison v. Tex. Pac. Ry., 186 S.W.2d 228, 229 (Tex. 1945) (smoke from fire
drifted across adjacent road). On top of being factually different from our case, the plaintiffs
do not raise the dangerous-agency exception on appeal and thus abandon it.
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manuals: (1) the Federal Manual on Uniform Traffic Control Devices
(MUTCD); (2) the Texas MUTCD; (3) the City of Austin Transportation
Criteria Manual; and (4) the 804 Series Standard, adopted by the City.
Specifically, the plaintiffs cited portions of the manuals that either emphasize
pedestrian safety in generic terms or identify the utility of the water-filled
barriers that the plaintiffs say should have been used. Taken together, the
plaintiffs pleaded, “[t]he abundance of traffic control standards, manuals and
guidelines that establishes best practices makes SXSW’s failure to deploy
adequate traffic control measures inexcusable.”
      But nowhere does the complaint identify any provision that requires
water-filled barriers for a temporary street closure. Said in terms of negligence
per se, nowhere do the plaintiffs allege an actual breach of the various
manuals. See Mo. Pac. R. Co. v. Am. Statesman, 552 S.W.2d 99, 103 (Tex. 1977)
(explaining that negligence per se arises only when “the Legislature has
declared that a particular act shall not be done”). In fact, one of the plaintiffs’
own exhibits (the City’s Transportation Criteria Manual) countenances the
very Type-III barriers the SXSW defendants employed: “Type III Barricades
are intended to be used in temporary traffic control zones for which sections of
the roadway will be closed to traffic.” As a consequence, the plaintiffs have
failed to plead any facts making plausible their allegation of negligence per se,
and the district court was correct to dismiss that claim.
      3. Implied Warranty
      The district court properly dismissed the plaintiffs’ implied-warranty
claim. Texas courts have rejected an implied warranty to make a premises safe
(something duplicative of ordinary premises liability). E.g., Lively v. Adventist
Health Sys./Sunbelt, Inc., No. 2-02-418-CV, 2004 WL 1699913, at *5 (Tex.
App.—Fort Worth July 29, 2004, no pet.). And even if the question remained


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undecided, it would not be up to us to “create . . . state law.” Howe v. Scottsdale
Ins. Co., 204 F.3d 624, 628 (5th Cir. 2000) (quotations omitted).
        4. Public Nuisance
        Finally, the district court was correct to dismiss the plaintiffs’
public-nuisance claim. Under Texas law, when public nuisance is alleged “only
by reason of the negligent manner in which [the defendant’s conduct] is
performed or permitted, no right of recovery is shown independently of the
existence of negligence.” King v. Columbian Carbon Co., 152 F.2d 636, 638–39
(5th     Cir.   1945)   (quotations    omitted).     The   plaintiffs   ground   their
public-nuisance claim in negligence alone, and the former fails for the same
reason as the latter. Supra § III.A.1.
B.      The City
        The district court dismissed the negligence and premises-liability claims
against the City for lack of legal duty, holding that Owens’s criminal conduct
was not reasonably foreseeable under Texas law. As we will explain below, the
district court was right to do so. But the City lengthens our analytical journey
by raising a jurisdictional governmental-immunity defense for the first time
on appeal. See Calderon v. Ashmus, 523 U.S. 740, 745 n.2 (1998) (explaining
that immunity is “jurisdictional” and “can be raised at any stage of the
proceedings”).
        1. Governmental Immunity
        In Texas, governmental immunity encompasses both “immunity from
liability, which bars enforcement of a judgment against a governmental entity,
and immunity from suit, which bars suit against the entity altogether.” Tooke
v. City of Mexia, 197 S.W.3d 325, 332 (Tex. 2006). The plaintiffs’ argument
against immunity is two-pronged: (1) the City engaged in a proprietary
function for which it retains no immunity and (2) alternatively, the Legislature
waived immunity here.
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       In Texas, “[a] municipality is not immune from suit for torts committed
in the performance of its proprietary functions, as it is for torts committed in
the performance of its governmental functions.” Id. at 343. The Texas
Legislature has spelled out certain activities that qualify as governmental. See
TEX. CIV. PRAC. & REM. CODE § 101.0215(a). Among those activities are: (a)(1)
police and fire protection and control; (a)(20) warning signals; (a)(21)
regulation of traffic; and (a)(31) maintenance of traffic signals, signs, and
hazards. Id. § 101.0215(a). However you characterize the City’s alleged
involvement in controlling traffic for the festival, it fits comfortably among
those enumerated governmental functions. 5
       Proprietary actions aside, a municipality can nonetheless be liable when
the Legislature waives immunity. See Rusk State Hosp. v. Black, 392 S.W.3d
88, 93 (Tex. 2012). The plaintiffs rely on one such waiver here: “A governmental
unit in the state is liable for . . . personal injury and death so caused by a
condition or use of tangible personal or real property if the governmental unit
would, were it a private person, be liable to the claimant according to Texas
law.” TEX. CIV. PRAC. & REM. CODE § 101.021(2) (emphasis added). Because
this waiver is contingent on ultimate tort liability, the City’s immunity defense
brings us right back to what the district court evaluated: whether the plaintiffs
pleaded a valid claim.
       2. Negligence and Premises Liability
       “[C]rime may be visited upon virtually anyone at any time or place, but
criminal conduct of a specific nature at a particular location is never
foreseeable merely because crime is increasingly random and violent and may


       5 Contrary to the plaintiffs’ suggestion, the fact that the City profits from SXSW does
not diminish the governmental nature of its actions. See Tex. River Barges v. City of San
Antonio, 21 S.W.3d 347, 356–57 (Tex. App.—San Antonio 2000, pet. denied) (explaining that
a city’s motives are irrelevant when the conduct falls under an enumerated governmental
function).
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possibly occur almost anywhere, especially in a large city.” Timberwalk
Apartments, Partners v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) (alterations in
original and quotations omitted). In turn, a Texas premises owner has a duty
to protect against third-party crime only “if [the owner] knows or has reason to
know of an unreasonable and foreseeable risk of harm to the invitee.” Id.
(quotations omitted). We assess foreseeability (duty) as a question of law. Id.
      Texas has two frameworks for proving foreseeability in a case like this
one. The first is the oft-applied Timberwalk test, which requires “evidence . . .
[of] specific previous crimes on or near the premises.” Id. (quotations omitted).
More precisely, Timberwalk asks “whether any criminal conduct previously
occurred on or near the property, how recently it occurred, how often it
occurred, how similar the conduct was to the conduct on the property, and what
publicity was given the occurrences to indicate that the landowner knew or
should have known about them.” Id. at 757. Courts refer to these
considerations—recency, proximity, frequency, similarity, and publicity—as
the Timberwalk factors.
      The second framework for proving foreseeability is a narrow one outlined
in Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010). Del Lago did
not involve evidence of specific, prior crimes but rather found a duty to
intervene when a premises owner had “actual and direct knowledge” of
“imminent” criminal conduct. Id. at 769 (resort staff observed two intoxicated
groups become increasingly hostile before a brawl broke out). In finding
foreseeability, Del Lago cited the “nature and character of the premises” and
“immediately preceding conduct” as relevant factors. Id. at 768–69. But
importantly, Del Lago made explicit that “in situations where the premises
owner has no direct knowledge that criminal conduct is imminent,”
Timberwalk remains the relevant test. Id. at 768.


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       We agree with the district court that Del Lago is inapplicable here, and
the plaintiffs do not suggest otherwise with much vigor. The plaintiffs’ Third
Amended Complaint does not come close to alleging that the City had “actual
and direct knowledge” of Owens’s “imminent” crime in particular. Del Lago
tells us, then, that the plaintiffs must go about proving foreseeability by way
of Timberwalk. 6 Id.
       The plaintiffs sought to meet their burden under Timberwalk through:
(1) specific incidents; (2) general statistics about collisions and drunk driving
during the SXSW festival; and (3) the City’s pre-festival, subjective awareness
of the possibility of an event like the one that killed Craenmehr.
       In all, the plaintiffs cited twelve specific incidents, spanning nearly two
decades and across multiple states. 7 At the outset, Timberwalk’s recency and
proximity factors cut the plaintiffs’ list in half. First, we limit our review to
those crimes occurring within a “short time period,” something Timberwalk
implicitly equated with a three-to-four-year span. 972 S.W.2d at 758 & n.40.
And second, Timberwalk requires “that other crimes have occurred on the
property or in its immediate vicinity,” something we assume to cover, at the
very most, in-city crimes. Id. at 757. 8
       The remaining six incidents primarily involve intoxicated drivers,
pedestrian collisions, or both—that much they have in common with Owens’s



       6 Reading narrowly from Del Lago, the plaintiffs insinuate that they can show
foreseeability based only on the “nature and circumstances” of the alcohol-heavy SXSW
environment—that is, without establishing either Timberwalk’s prior, specific crimes or Del
Lago’s direct knowledge of imminent criminal conduct. We cannot find any Texas case
sanctioning such an approach; indeed, Del Lago itself stands firmly in the way. 307 S.W.3d
at 768.
       7   The district court assumed publicity, and the City does not contest it.
       8One could argue that Texas law requires a narrower scope—perhaps a shorter time
frame limited to Austin’s downtown sector. Ultimately, we need not settle that debate here
because the plaintiffs do not satisfy Timberwalk even under the broader scope we employ.
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crime. But while the plaintiffs are correct that those “prior crimes need not be
identical” under Timberwalk, they are mistaken to equate a shared injury (car
crash) or label (drunk driving) with sufficient similarity. Id. at 758. Instead,
Timberwalk requires that “[t]he previous crimes . . . be sufficiently similar to
the crime in question as to place the landowner on notice of the specific
danger.” Id. (emphasis added).
      Texas law instructs that such a similarity comparison gauges both the
manner and severity of the crimes. Bos v. Smith, No. 16-0341, ___ S.W.3d ____,
2018 WL 2749714, at *8 (Tex. June 8, 2018) (“The key is whether the behavior
at issue is so similar in character and severity to what came before as to be
foreseeable, or instead is so ‘extraordinarily unlike’ prior conduct that it could
not reasonably have been anticipated.”) (footnotes omitted). For instance, the
Supreme Court has held that ten violent robberies on the actual premises did
not make a murderous robbery foreseeable because the past crimes were too
infrequent and too dissimilar in their methodology and result. Trammell Crow,
267 S.W.3d at 17. And though the Court has not yet applied a Timberwalk
analysis to a vehicular crime, we find a useful comparator in the context of
intruder-perpetrated assault. Timberwalk explained that repeated burglaries
can make such attacks foreseeable, whereas “a spate of domestic violence,”
despite inflicting a similarly assaultive injury, “does not portend third party
sexual assaults or robberies.” 972 S.W.2d at 758. Why? Because burglary puts
a premises owner on notice of a specific threat to security—criminals
infiltrating the residence—that domestic violence does not. See id. (“If a
burglar may enter [an apartment], so may a rapist.”) (alterations in original
and quotations omitted). Owens’s crime represents an analogous danger: a




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driver knowingly bypassing a barrier and infiltrating a closed city street. Yet
none of the Austin-based incidents bear that similarity. 9
       Furthermore, even before Timberwalk, Texas courts had long recognized
a fundamental difference between “slight deviations from the traveled
roadway” or “momentary loss of control” and the “loss of entire control and
direction of” a vehicle. E.g. City of Dallas v. Maxwell, 248 S.W. 667, 671 (Tex.
Comm’n App. 1923, holding approved). Owens’s crime, a quadruple murder, is
an extreme version of the latter, placing it “within the domain of the unusual
and extraordinary, and therefore, in contemplation of law, of the
unforeseeable.” Id.
       Nor do the plaintiffs’ statistics—153 pedestrian collisions and 171
arrests for drunk driving within a five-year span—render Owens’s crime
foreseeable. Abstract statistics are an ill fit for Timberwalk’s threshold of
“specific” and “similar” crimes. 972 S.W.2d at 756–57; see also Park v. Exxon
Mobil Corp., 429 S.W.3d 142, 147 (Tex. App.—Dallas 2014, pet. denied)
(disregarding statistics in part because of an absence of details). This case
illustrates why: The plaintiffs made no allegation of (1) whether any of the
pedestrian collisions were indeed criminal or (2) whether any of the
drunk-driving arrests involved collisions. Without that information, the
plaintiffs have yet to point to a single recent, Austin-specific crime resembling
Owens’s, much less a repetitive pattern.
       Finally, we address the City’s pre-festival discussions. Because the City
discussed the use of water-filled barriers and planned for emergency response
in the event of a car plowing through a crowd, the argument goes, the City
“foresaw” the crime that materialized. The argument is, however, contrary to


       9 Telling is the fact that the plaintiffs’ complaint had to reach as far back as a decade
and as far away as California and Indiana to find two occasions where vehicles bypassed
barriers and careened into crowds.
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Timberwalk, which was premised on the very notion that crime “may possibly
occur almost anywhere.” 972 S.W.2d at 756. A premises owner vocalizing that
truism—i.e., “hypothesiz[ing] that criminal activity . . . could occur” or
“acknowledg[ing] that criminal activity could occur at any time”—“is neither
evidence of nor an admission of foreseeability.” Mayer v. Willowbrook Plaza
Ltd. P’ship, 278 S.W.3d 901, 920 (Tex. App.—Houston [14th Dist.] 2009, no
pet.). Timberwalk instead made a calculated decision to couch foreseeability in
a particular manner: “For a landowner to foresee criminal conduct on property,
there must be evidence that other crimes have occurred on the property or in
its immediate vicinity.” 972 S.W.2d at 757. Were the law as the plaintiffs
suggest, a premises owner would be altogether discouraged from planning for
a worst-case scenario (no matter the likelihood), lest mere planning create a
duty where none existed. Texas courts have gone a different path. See Allen v.
Connolly, 158 S.W.3d 61, 67 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
      In sum, the City’s immunity is not waived because the plaintiffs have
failed to state a valid premises claim. TEX. CIV. PRAC. & REM. CODE
§ 101.021(2). We thus affirm the judgment of dismissal in favor of the City, if
on nominally different immunity grounds.
      AFFIRMED.




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   Case: 17-50674     Document: 00514639422     Page: 16   Date Filed: 09/12/2018



                                 No. 17-50674
JAMES E. GRAVES, JR., Circuit Judge, dissenting in part:
      I disagree with the majority’s conclusion that Steven Craenmehr’s family
(Smit) is unable to establish foreseeability with regard to the City. I also
disagree with the majority regarding the City’s waiver of immunity. Instead,
because Smit pleaded a valid claim, I would reverse the district court’s
judgment of dismissal as to the City. Thus, I respectfully dissent in part.
      As the majority states, we look to the Timberwalk factors to determine
foreseeability. See Timberwalk Apartments, Partners v. Cain, 972 S.W.2d 749,
757 (Tex. 1998) (We consider “whether any criminal conduct previously
occurred on or near the property, how recently it occurred, how often it
occurred, how similar the conduct was to the conduct on the property, and what
publicity was given the occurrences to indicate that the landowner knew or
should have known about them.”).
      Here, Smit alleges 12 specific incidents of similar crashes. The majority
dismisses half of those based on Timberwalk’s recency and proximity factors.
However, regardless of whether those specific incidents were outside of a three-
to-four year span or outside the city limits, those incidents still count toward
the subjective awareness or publicity factor. Further, some of those incidents
involved drivers driving through barricades or into otherwise closed areas.
      Moreover, Smit also alleges that, during the period from 2009-2014, in
downtown Austin during SXSW, there were at least 153 collisions between
motorists and pedestrians/bicyclists, 356 arrests for public intoxication, and
171 arrests for drunk driving, along with various other incidents. This is
sufficient to establish that it was foreseeable that drunken people and vehicles
were consistently not where they were supposed to be every year in the festival
zone during SXSW and that numerous collisions had resulted. This is also
sufficient to establish that the City had subjective awareness of the possibility
of an event like the one that killed Craenmehr.
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                                 No. 17-50674
      Additionally, it is impossible to conclude that these incidents are “so
‘extraordinarily unlike’ prior conduct that it could not reasonably have been
anticipated.” Bos v. Smith, ___ S.W.3d ____, 2018 WL 2749714, at *8 (Tex.
June 8, 2018) (quoting Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d
9, 17 (Tex. 2008).
      To survive a motion to dismiss, Smit must only allege sufficient facts,
“accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal marks and citation
omitted). Smit has done that. Further, as the majority acknowledges, waiver
of immunity is contingent on tort liability. TEX. CIV. PRAC. & REM. CODE
§ 101.021(2). Because Smit has pleaded a valid claim, the City’s immunity
defense is waived.
      For these reasons, I would reverse the district court’s dismissal of the
City at this stage. Thus, I respectfully dissent in part.




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