Opinion filed August 31, 2012




                                           In The


   Eleventh Court of Appeals
                                         __________

                                    No. 11-10-00240-CV
                                        __________

                          JEREMY MCDANIEL, Appellant

                                              V.

          TRIO HOLDINGS, LLC D/B/A TRIO WIRELESS, Appellee


                          On Appeal from the 244th District Court

                                     Ector County, Texas

                                Trial Court Cause No. C-126,788


                           MEMORANDUM OPINION

       Jeremy McDaniel sued Trio Holdings, LLC d/b/a Trio Wireless as a result of injuries
McDaniel sustained when he was a business invitee on Trio’s premises. McDaniel alleged that
Trio and its employees were negligent and breached a duty of reasonable care by failing to make
the premises safe.   Trio moved for summary judgment, asserting that it owed no duty to
McDaniel because the criminal act was unforeseeable. The trial court granted Trio’s motion for
summary judgment and entered judgment that McDaniel take nothing on his claims against Trio.
McDaniel appeals. We affirm.
       In a single issue on appeal, McDaniel contends that the trial court erred in granting Trio’s
motion for summary judgment. Trio filed a traditional motion for summary judgment pursuant
to TEX. R. CIV. P. 166a(c). Thus, as the moving party, Trio had the burden of showing that there
was no genuine issue as to any material fact and that it was entitled to judgment as a matter of
law. Rule 166a(c). To be entitled to summary judgment, a defendant must either conclusively
negate at least one of the essential elements of each of the plaintiff’s causes of action or con-
clusively establish an affirmative defense. Frost Nat’l Bank v. Fernandez, 315 S.W.3d 494, 508
(Tex. 2010). In reviewing a summary judgment, we must consider all of the evidence in the light
most favorable to the nonmovant, indulging every reasonable inference in favor of the
nonmovant and resolving any doubts against the movant. Goodyear Tire & Rubber Co. v.
Mayes, 236 S.W.3d 754, 756 (Tex. 2007). We must consider whether reasonable and fair-
minded jurors could differ in their conclusions in light of all of the summary judgment evidence
presented, and we may not ignore undisputed summary judgment evidence that cannot be
disregarded. Id. at 755, 757.
       McDaniel’s contention on appeal is that Trio was not entitled to summary judgment
because it owed a duty to McDaniel pursuant to Del Lago Partners, Inc. v. Smith, 307 S.W.3d
762 (Tex. 2010). The court in Del Lago addressed the duty owed to a bar customer to protect
him from being assaulted by another bar customer. 307 S.W.3d at 767. The court recognized
the general law that whether a duty exists is a question of law for a court, which “turns ‘on a
legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of
injury, and the consequences of placing the burden on the defendant.’” Id. (quoting Gen. Elec.
Co. v. Moritz, 257 S.W.3d 211, 218 (Tex. 2008)). As a general rule, a premises owner has no
duty to protect invitees from criminal acts committed by third parties. Id.; Timberwalk
Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). However, a premises
owner does have a duty to protect an invitee when the owner knows or has reason to know of a
risk of harm that is unreasonable and foreseeable. Del Lago, 307 S.W.3d at 767; Timberwalk,
972 S.W.2d at 756.      The foreseeability of an unreasonable risk of criminal conduct is a
prerequisite to imposing on the owner of a premises a duty of care to protect others on the
premises from the risk. Timberwalk, 972 S.W.2d at 756.
       In Timberwalk, a tenant who was raped in her apartment by an intruder sued her landlord
for failing to provide adequate security. Id. at 751. The Timberwalk court set out the following

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factors that courts “should consider” when addressing the element of foreseeability: whether any
criminal conduct previously occurred on or near the premises, how recently that conduct
occurred, how often it occurred, how similar was the conduct, and how much publicity was given
to the prior conduct. Id. at 757. The supreme court applied the above factors and held as a
matter of law that the landlord owed no duty to the tenant to provide additional security. Id. at
759.
       The court in Del Lago found that the Timberwalk factors were not applicable in Del Lago
because of the nature and character of the premises, which was a bar located in the conference
center of the 300-acre resort, and because of the immediately preceding conduct in the bar that
night, which made the criminal misconduct foreseeable. Del Lago, 307 S.W.3d at 765, 768–69.
The court in Del Lago considered that the fight occurred in a bar at closing time following ninety
minutes of heated altercations between two rival groups of intoxicated patrons and that the
premises owner did nothing during the ninety minutes of heated altercations other than serve the
patrons more alcoholic beverages. Id. at 769. The court held that the premises owner had a duty
to protect the patron that was assaulted “because Del Lago had actual and direct knowledge that
a violent brawl was imminent between drunk, belligerent patrons and had ample time and means
to defuse the situation.” Id.
       In the present case, the summary judgment evidence shows that Trio leased space in a
shopping center in Odessa, Texas, for a wireless telecommunications store. McDaniel and his
father went to the store on the morning of December 30, 2006, to renew their contract. They
waited for a store employee to arrive and open the store for business. A female employee arrived
and began to assist McDaniel and his father. Four men came into the store. One of the men
walked to the counter where the employee was “and began to cuss this lady out, threatening her,
using profanity and all kinds of things of this nature.” The man was apparently upset because the
employee would not answer her phone when he called or call him back. When the man was
finished berating the employee, he headed toward the door but turned around and said to
McDaniel, “Do you have a problem with that?” McDaniel responded in the affirmative, stating,
“I don’t think anybody should be treated that way.” The man then began “cussing” McDaniel.
McDaniel felt threatened, decided that there was no need for the situation to get physical, and
began to step back away from the threshold where he had been standing to make room for the
man to exit the store. However, the man blindsided McDaniel with a beer bottle “upside the

                                                3
face,” busting McDaniel’s front teeth out. The man then swung at McDaniel with the broken
bottle, lacerating the left side of McDaniel’s head and leaving McDaniel’s left ear hanging by a
little piece of skin. The man attempted a third swing with the bottle, but McDaniel pushed him
out the door and to the ground and took the beer bottle away. At that time, McDaniel realized
how badly he was bleeding and decided that he needed to get help. McDaniel got off the man,
went back into the store, and asked the employee where the bathroom was. McDaniel went to
the bathroom to tend to his wounds, and McDaniel’s father told the employee to call 911. The
employee called 911, and an ambulance arrived shortly thereafter. According to McDaniel, the
altercation between the man and McDaniel took “no more than a few seconds,” and the whole
exchange took less than a minute.
       The president of Trio knew of no criminal activity occurring at the store prior to or after
McDaniel being assaulted by an unknown individual. A record from the City of Odessa Police
Department indicated that, at the shopping center in which Trio’s store was located, no violent
crimes were reported to the police from January 1, 2003, to December 31, 2008, except for the
aggravated assault of McDaniel.
       Based upon the undisputed facts as set out in the summary judgment evidence, we hold
that Trio owed no duty to protect McDaniel from the assault because the assault that occurred in
this case was not foreseeable under the parameters of either Timberwalk or Del Lago. The trial
court did not err in granting Trio’s motion for summary judgment.           McDaniel’s issue is
overruled.
       The judgment of the trial court is affirmed.




                                                            JIM R. WRIGHT
                                                            CHIEF JUSTICE


August 31, 2012
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




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