     Case: 14-20609   Document: 00513356906    Page: 1   Date Filed: 01/26/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                  United States Court of Appeals
                                                                           Fifth Circuit
                                No. 14-20609                             FILED
                                                                  January 26, 2016

SHANNON JENKINS,                                                    Lyle W. Cayce
                                                                         Clerk
             Plaintiff–Appellant,

v.

C.R.E.S. MANAGEMENT, L.L.C.; JTL PROPERTIES, L.L.C.; CRES
REALTY, L.L.C.,

             Defendants–Appellees.




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


Before REAVLEY, OWEN, and HIGGINSON, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      An unknown assailant shot Shannon Jenkins in the doorway of Jenkins’s
apartment. Jenkins sued the premises owner, C.R.E.S. Management, L.L.C.,
and related entities (collectively, C.R.E.S.), alleging C.R.E.S. had a duty to
protect him from unreasonable and foreseeable harm due to the criminal acts
of third parties. The district court granted summary judgment in favor of
C.R.E.S., concluding that the apartment complex’s criminal history was
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                                  No. 14-20609
insufficient to render foreseeable the assault against Jenkins. We reverse and
remand.
                                        I
      Jenkins worked as a courtesy officer for the Fountains of Westchase
apartment complex in Houston, Texas.            To compensate Jenkins, C.R.E.S.
provided him with a rent-free apartment. Jenkins’s duties included, among
other things, responding to reports of criminal activity on the premises by
calling the police or verifying such reports.
      The assault occurred at approximately 3:00 a.m.           Jenkins awoke to
someone pounding on his apartment door. Thinking that a resident needed
assistance, Jenkins opened the door. In the hallway stood two men, whom
Jenkins did not recognize. The shorter of the men aimed a handgun at Jenkins,
who raised his arms in self-defense. Without warning or explanation, the man
shot Jenkins in the elbow. Jenkins “fell down and played like [he] was dead.”
Following the shooting, the assailants immediately fled the scene; they did not
enter Jenkins’s apartment. The police investigated the incident but never
located the perpetrators.
      Jenkins filed the instant premises liability suit against C.R.E.S. in Texas
state court. C.R.E.S. removed the case to federal court on diversity-jurisdiction
grounds. The district court referred the case to a magistrate judge.
      Following discovery, C.R.E.S. moved for summary judgment on the
ground that Jenkins failed to demonstrate that his assault was foreseeable in
light of the apartment complex’s criminal history. According to the complex’s
crime log, the following criminal activity occurred on the premises in the year
preceding the assault: seven aggravated assaults, fourteen residential
burglaries, seven motor vehicle burglaries, six thefts, four auto thefts, and one
sexual assault. Jenkins also presented evidence of a robbery-shooting that
occurred approximately one-and-a-half years prior to the assault. In his report
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                                        No. 14-20609
and recommendation, the magistrate judge limited the foreseeability review to
crimes with “violent characteristics,” thereby excluding all crimes except the
aggravated assaults, the sexual assault, and the robbery-shooting, from the
analysis. The magistrate judge ultimately recommended that the district court
grant summary judgment in favor of C.R.E.S. because the complex’s criminal
history did not render foreseeable Jenkins’s assault. Jenkins timely objected
arguing, inter alia, that the magistrate judge erred in excluding the residential
burglaries from the foreseeability analysis.
      The district court adopted the magistrate’s recommendation over
Jenkins’s objection:
            This Court agrees . . . that the foreseeability analysis must
      be limited to those crimes with violent characteristics because
      Jenkins’s stabbing [sic] was a violent crime. . . . Property crimes,
      including theft and burglary, are excluded from the foreseeability
      analysis when analyzing the foreseeability of a personal crime,
      such as the shooting at issue in this case.
The district court granted summary judgment in favor of C.R.E.S. Jenkins
timely appealed.
                                               II
      Texas law governs in this diversity case. 1 To determine Texas law, we
look first to the final decisions of the Supreme Court of Texas. 2
      “[W]e review ‘a grant of summary judgment de novo, applying the same
standards as the district court.’” 3 Summary judgment is appropriate “if the
movant shows that there is no genuine dispute as to any material fact and the




      1   See Austin v. Kroger Tex. L.P., 746 F.3d 191, 196 (5th Cir. 2014) (per curiam).
      2   Id. at 196.
      3  Meadaa v. K.A.P. Enters., L.L.C., 756 F.3d 875, 880 (5th Cir. 2014) (quoting EEOC
v. Agro Distrib., LLC, 555 F.3d 462, 469 (5th Cir. 2009)).


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                                        No. 14-20609
movant is entitled to judgment as a matter of law.” 4 “[A]ll facts and inferences
must be construed in the light most favorable to the non-movant.” 5
                                             III
       In Timberwalk Apartments, Partners, Inc. v. Cain, 6 the Supreme Court
of Texas explained that while an individual normally has no legal obligation to
protect others from the criminal acts of third parties, “[o]ne who
controls . . . 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.” 7 C.R.E.S. does not
dispute that it owned the Fountains of Westchase apartment complex, that
Jenkins was an invitee, or that unreasonable harm befell him. The only issue
is whether the assault against Jenkins was foreseeable. When evaluating
foreseeability, Texas courts first narrow the relevant criminal history to be
included in the foreseeability analysis. 8            The courts then compare that
narrowed criminal history with the crime in question based on the five
Timberwalk factors: proximity, publicity, recency, frequency, and similarity. 9
       Jenkins, relying on Timberwalk, argues that the district court erred in
considering only some of the complex’s criminal history as part of its
foreseeability analysis. In Timberwalk, the plaintiff alleged that she was



      4   FED. R. CIV. P. 56(a).
      5 Meadaa, 756 F.3d at 880 (quoting Kirschbaum v. Reliant Energy, Inc., 526 F.3d 243,
248 (5th Cir. 2008)).
      6   972 S.W.2d 749 (Tex. 1998).
      7  Id. at 756 (alterations in original) (quoting Lefmark Mgmt. Co. v. Old, 946 S.W.2d
52, 53 (Tex. 1997)).
      8   See Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267 S.W.3d 9, 13-15 (Tex. 2008).
      9 See id. at 15 (citing Timberwalk, 972 S.W.2d at 759); Del Lago Partners, Inc. v.
Smith, 307 S.W.3d 762, 768 (Tex. 2010).


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                                       No. 14-20609
raped in her apartment because her landlord failed to provide adequate
security measures. 10 The only serious crimes ever reported at the apartment
complex were a car burglary and a car theft. 11 In the year preceding the
assault, police received eleven calls reporting sexual assault and originating
within a one-mile radius of the complex. 12 Only one of the callers formally
reported a crime, which did not involve rape. 13 The court held that because
the number of reported crimes committed at or near the complex were
dissimilar to sexual assault and few in number, they did not render foreseeable
the plaintiff’s rape. 14 Jenkins is correct that in Timberwalk, the Supreme
Court of Texas did not explicitly narrow the universe of relevant crimes prior
to analyzing foreseeability. 15
      But in a more recent decision, Trammell Crow Central Texas, Ltd. v.
Gutierrez, 16 the court did exclude irrelevant crimes prior to analyzing
foreseeability. 17 In Trammell Crow, unknown assailants shot and killed a man
in a shopping mall parking lot. 18 The plaintiffs introduced evidence of 227
reported crimes that had occurred at the mall during the preceding two years
including 203 property crimes, thirteen simple assaults, one instance of
unlawful weapon possession, and ten robberies. 19 The court identified the


      10   Timberwalk, 972 S.W.2d at 751.
      11   Id. at 752.
      12   Id.
      13   Id.
      14   Id. at 759.
      15   See id. at 756.
      16   267 S.W.3d 9 (Tex. 2008).
      17   See id. at 13.
      18   Id. at 11.
      19   Id. at 13.


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                                         No. 14-20609
robberies as part of a category of violent crimes, which also included murder,
manslaughter, rape, and aggravated assault. 20 Prior to analyzing this criminal
history under the Timberwalk factors, the court categorically excluded as
irrelevant the property crimes, simple assaults, and weapon possession
offense:
             Although criminal conduct is difficult to compartmentalize,
       some lines can be drawn. For instance, we have held that reports
       of vandalism, theft, and neighborhood disturbances are not enough
       to make a stabbing death foreseeable. Similarly, although the
       repeated occurrences of theft, vandalism, and simple assaults at
       the [mall] signal that future property crimes are possible, they do
       not suggest the likelihood of murder. Accordingly, like the court of
       appeals, we limit our review to the ten instances of violent crime
       that took place at the [mall] during the two years prior to [the
       victim’s] death. 21
The court then used the Timberwalk factors to determine foreseeability by
comparing the crime in question with the ten violent crimes. 22 Texas appellate
courts routinely follow Trammell Crow’s framework by limiting their review of
criminal history. 23 The district court did not err in limiting its review to
relevant crimes.
       The district court erred, however, in excluding the burglaries as
irrelevant to the foreseeability analysis.              The district court stated that
“[p]roperty crimes, including theft and burglary, are excluded from the


       20   Id.
        Id. (footnotes omitted) (citing Timberwalk Apartments, Partners, Inc. v. Cain, 972
       21

S.W.2d 749, 758 (Tex. 1998); Walker v. Harris, 924 S.W.2d 375, 377-78 (Tex. 1996)).
       22   See id. at 15-17.
       23 See Park v. Exxon Mobil Corp., 429 S.W.3d 142, 146 (Tex. App.—Dallas 2014, pet.
denied) (limiting review to categorically similar crimes); Perez v. DNT Global Star, L.L.C.,
339 S.W.3d 692, 702-04 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (same); Mayer v.
Willowbrook Plaza Ltd. P’ship, 278 S.W.3d 901, 919-22 (Tex. App.—Houston [14th Dist.]
2009, no pet.) (same).


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                                       No. 14-20609
foreseeability analysis when analyzing the foreseeability of a personal crime.”
This statement fails to account for Trammell Crow’s admonition that “crimes
fitting one category can relate to or result in crimes of another category: a
string of violent crimes such as robberies or assaults can make other violent
crimes like murder or rape foreseeable; a thief entering a dwelling to steal
property may also commit personal crimes.” 24 Plainly, the Trammell Crow
court did not call for a rigid categorical analysis; it accepted the notion that
residential burglaries could suggest the likelihood of personal crime. The
Timberwalk court also accepted this premise:
       Property crimes may expose a dangerous condition that could
       facilitate personal crimes, as when apartments are targeted
       repeatedly by thieves. “If a burglar may enter [an apartment], so
       may a rapist.” An apartment intruder initially intent upon
       stealing may decide to assault a tenant discovered inside, even if
       the tenant avoids confrontation. 25
Numerous Texas state court decisions support this notion. 26 Texas law is
clear: residential burglaries, by their very nature, may suggest the
foreseeability of violent crime. Accordingly, we hold that while the district


       24   Trammell Crow, 267 S.W.3d at 16 (citing Timberwalk, 972 S.W.2d at 758).
       25Timberwalk, 972 S.W.2d at 758 (alteration in original) (footnote omitted) (quoting
Aaron v. Havens, 758 S.W.2d 446, 448 (Mo. 1988) (en banc)).
       26 See Walker v. Harris, 924 S.W.2d 375, 377-78 (Tex. 1996) (concluding that
apartment complex owners had no reason to foresee that a stabbing would occur in the
absence of a history of violent crime at the complex, noting that “[n]o one was ever
burglarized”); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548, 550-51 (Tex. 1985)
(concluding that a fact question existed as to the foreseeability of a rape at an apartment
complex, despite the lack of a history of sexual violence at the complex, because of the
complex’s history of violent crime, burglaries, and vagrancy); see also Jai Jalaram Lodging
Grp., L.L.C. v. Leribeus, 225 S.W.3d 238, 241, 245-46 (Tex. App.—El Paso 2006, pet. denied)
(concluding no foreseeability existed as to an aggravated assault, armed robbery, and
kidnapping in a motel parking lot because, inter alia, the burglaries that had occurred at the
motel and nearby homes “were [not] occurring with any notable frequency” and “were [not]
of the kind that would have facilitated the violent personal crimes committed”); Fields v.
Moore, 953 S.W.2d 523, 525 (Tex. App.—Texarkana 1997, no pet.) (“Burglary of a habitation
is a dangerous crime that sometimes leads to violence if the habitation is occupied . . . .”).
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court did not err in refining the complex’s relevant criminal history prior to
analyzing foreseeability, it did err in categorically excluding the residential
burglaries from its foreseeability analysis.           The occurrence of fourteen
residential burglaries within the twelve months preceding the incident in
which Jenkins was injured, and C.R.E.S.’s knowledge of these crimes, when
considered in conjunction with the other crimes that the district court
denominated violent crimes relevant to its analysis, raises a fact question as
to whether that incident was reasonably foreseeable.
                               *        *         *
      For the foregoing reasons, we REVERSE the judgment of the district
court and REMAND the case for further proceedings consistent with this
opinion.




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