     Case: 12-40319     Document: 00512012402         Page: 1     Date Filed: 10/08/2012




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

                                                                            FILED
                                                                          October 8, 2012

                                     No. 12-40319                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



MARIBEL LANDA VIVEROS; J.M., a minor,

                                                  Plaintiffs - Appellants
v.

UNITED STATES OF AMERICA,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 1:10-CV-110


Before SMITH, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Appellants Maribel Landa Viveros and J.M., her minor son appeal from
the district court’s final order that granted summary judgment in favor of the
United States (the “Government”), and dismissed Appellants’ case against the
Government for violations under the Federal Tort Claims Act (the “FTCA”), 28
U.S.C. § 2674. We AFFIRM.




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                     No. 12-40319

       In May 2010, Appellants brought negligence and premises liability claims
against the Government arising from the events surrounding Appellants’ visit
to the Brownsville Port of Entry (the “POE”) located at the Brownsville-
Matamoros International Bridge crossing in Brownsville, Texas (the “Crossing”).
Appellants accompanied another family member to the POE at the Crossing for
an FBI interview with regard to an unrelated criminal investigation. While
there, J.M., a seven-year-old, developmentally-challenged boy with a history of
seizures, went to the public men’s restroom outside of the lobby waiting area.
When J.M.’s mother went to check on him, she found him lying unconscious on
the floor of the restroom with his pants and underwear pulled down to his
ankles.
       Appellants alleged that J.M. had been physically and sexually assaulted.
Customs and Border Protection Officers as well as the Brownsville Police
Department investigated Appellants’ allegations and interviewed several
witnesses, including a man J.M.’s mother identified as exiting the restroom
immediately prior to her finding J.M. on the restroom floor. In addition, J.M.
was interviewed by trained personnel from a local child victim advocacy center,
and was physically examined at the hospital where a sexual assault kit was
prepared. No arrest was made.
       Pursuant to the FTCA, Appellants brought negligence and premises
liability claims against the Government. Specifically, Appellants alleged that
the Government had failed to take reasonable measures to provide security to
prevent violent crimes to invitees, such as J.M.,1 and that the Government knew
or had reason to know of the unreasonable and foreseeable risk of harm to
invitees. The Government moved for summary judgment, arguing that it did not


      1
         As they did for the summary judgment motion, the Government assumes that
Appellants were invitees for purposes of this appeal. Thus, since the parties agree in this
regard, we likewise treat Appellants as invitees.

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                                  No. 12-40319

owe Appellants any duty to protect them from the criminal acts of third parties
on its premises. The district court, agreeing with the Government and finding
no genuine dispute of material fact as to the Government’s actual knowledge or
the foreseeability of the risk of harm, granted summary judgment in favor of the
Government, thereby dismissing Appellants’ case.
      We have appellate jurisdiction under 28 U.S.C. § 1291. We review the
district court’s grant of summary judgment de novo, applying the same standard
as the district court did. See, e.g., Baker v. Putnal, 75 F.3d 190, 197 (5th Cir.
1996). In doing so, “[w]e view the evidence and the inferences to be drawn
therefrom in the light most favorable to the non-moving party.” Brown v. City
of Hous., Tex., 337 F.3d 539, 541 (5th Cir. 2003). However, “[u]nsubstantiated
assertions, improbable inferences, and unsupported speculation are not
sufficient to defeat a motion for summary judgment.” Id. Moreover, “[t]he
moving party is entitled to judgment as a matter of law when the pleadings,
answers to interrogatories, admissions and affidavits on file indicate no genuine
issue as to any material fact.” Miss. River Basin Alliance v. Westphal, 230 F.3d
170, 174 (5th Cir. 2000); see also FED. R. CIV. P. 56(a). Furthermore, “if the
burden at trial rests on the non-movant, the movant must merely demonstrate
an absence of evidentiary support in the record for the non-movant’s case.”
Westphal, 230 F.3d at 174. “[O]nce the moving party meets its initial burden of
pointing out the absence of a genuine issue for trial, the burden is on the
nonmoving party to come forward with competent summary judgment evidence
establishing the existence of a material factual dispute.” Clark v. Am.’s Favorite
Chicken Co., 110 F.3d 295, 297 (5th Cir. 1997).
      We agree with the parties and the district court that the Government’s
liability here under the FTCA depends on whether state law would impose
liability upon a private party in the same circumstance as the Government here.
See 28 U.S.C. §§ 1346(b), 2674. On appeal, Appellants challenge only the district

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                                       No. 12-40319

court’s conclusion that they failed to raise a material fact issue regarding the
foreseeability of this crime for premises liability purposes.
       Under Texas law, a premises owner does not have a general duty to protect
invitees from third-party criminal acts. Timberwalk Apartments, Partners, Inc.
v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). Instead, it owes such a duty only
where such crime is foreseeable. Id. Foreseeability requires not just the
knowledge that crime can occur anywhere, but specific previous crimes at or
near the premises sufficient to put the owner on notice of the need for security.
Id. Appellants’ evidence falls short of raising a fact issue under this standard.2
       We have carefully considered the record in light of the parties’ briefs and
the legal standards described above. For substantially the same reasons as
those set forth in the district court’s thorough order, we affirm the judgment of
the district court.
AFFIRMED.




       2
          We agree with the district court that Appellants’ reliance on Del Lago Partners, Inc.
v. Smith, 307 S.W.3d 762 (Tex. 2010) is misplaced. That case involved not a general claim
that crime could be anticipated but rather a specific allegation of imminent known harm on
the particular night in question when the bar management watched a drunken argument
escalate over a long period of time without doing anything at all to protect innocent bystanders
and, instead, simply sending everyone out the door at closing time. Id. at 768.

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