Scope

Premises liability is one of the largest categories within the broad field of tort law and personal injury law involving, in particular, negligence. This paper will selectively discuss some of the general principles of premises liability, and then will focus specifically on liability of the Texas landowner for criminal activity occurring on his/her property.

Liability for harm caused by the condition of the premises, as well as liability for activity upon the premises are significant areas of concern to landowners. In the past twenty years, a landowner’s liability for actions of a third party that are criminal, and are harmful to customers or tenants, has received particular attention by the courts. Significant case law and secondary sources provide the basis for the discussion.

Principles of Premises Liability

"Probably no area of the law is saddled with history as much as property law and hence premises liability law. The rights of property owners have been a focal area of the courts and of governments since the origins of civilization."¹ Even the Book of Exodus, a history of ancient Israel and one of the first five books known as the Pentateuch of the Jewish and Christian Scriptures, includes a law requiring a landowner to make restitution when an animal is injured on his property.²

Traditionally, in English common law, and thus in many jurisdictions of the United States that follow the English law, the focus of premises liability has been on the status of the injured party, i.e. the "entrant," and on the duty owed by the owner to the entrant. It was the status of the entrant, whether invitee, licensee, or trespasser, that determined the duty owed by the owner or occupier of the premises. More recent Texas case law has, however, brought the three elements of 1) control of the premises, 2) knowledge of danger, and 3) foreseeability of that danger to the forefront. The determination of duty owed, one of the essential elements of negligence and premises liability, has, at least in Texas, become entangled with the ability of the landowner to foresee the danger, especially a danger that leads to a criminal act.

Categories of Entrants and Duty Owed

The three traditional categories of entrant are invitee, licensee, and trespasser.

These categories have been recognized throughout the United States for decades. "The distinctions which the common law draws between licensee and invitee were inherited from a culture deeply rooted to the land, a culture which traced many of its standards to a heritage of feudalism." ³ These distinctions were introduced into the United States over one hundred years ago in Sweeney v. Old Colony & Newport R.R.⁴ Since that time, most American jurisdictions, including Texas, have incorporated the entrant categorization system into substantive tort law.⁵

Various legal sources have lengthy discussions of the three categories for entrants.⁶ Here, selected case law and the definitions in Nick Roberts’ Texas Personal Injury Guide are cited. ⁷

Invitee—An invitee is a person who enters the premises of another in answer to the express or implied invitation of the owner or the occupant, or the business of the owner or occupant, or for their mutual advantage.⁸ An invitee is a public invitee or a business visitor as defined in Restatement (Second) of Torts, Section 332 (1965). A public invitee is one invited to enter and/or remain on the land as a member of the public for a purpose for which the land is open to the public. A business visitor is one invited to enter and/or remain on the land for a purpose directly or indirectly connected with business dealings with the owner/possessor of the land.

The duty owed by the owner/occupier to an invitee is one of reasonable or ordinary care to have his premises in a reasonably safe condition for use by the invitee. According to Roberts, who cites the Restatement (Second) of Torts, Section 343 (1965), a possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and fails to exercise reasonable care to protect them against the danger.

Licensee—"Licensee" means a person who is on the premises with the express or implied permission of the possessor. He is permitted by the owner/occupier, so that he is not a trespasser, but he is there without express or implied invitation. There has been no enticement, allurement, or inducement to enter held out to him by the owner/occupier; and he is there in his own interest, for his own purposes, benefits, convenience or pleasure.⁹

A distinguishing factor for determining whether one is an invitee or a licensee is whether the property is public or private.¹⁰ However, even a social guest on private property does not enjoy the status of invitee and is often described as a gratuitous licensee. Thus, a host is held to owe a social guest only the duty owed to other licensees, i.e. not to injure him by wilful, wanton or gross negligence. A host is not liable for ordinary negligence.¹¹

Other licensees include children on a playground, gratuitous parking lot users, door- to-door salesmen not yet invited into the home, swimmers in the town’s swimming hole, and children under the control of a host. A fireman [or other professional] who enters on a premises to perform duties as a fighter [or duties related to a specific profession] is a licensee with respect to the duty of the owner or occupier to keep the premises in a safe condition.¹² The duty owed by the owner/occupier to the licensee, as mentioned above, is not to injure him wilfully, wantonly or through gross negligence, and to warn of, or make safe, dangerous conditions of which he has actual knowledge.

Trespasser—A person is a trespasser where he enters upon the property of another without any right, lawful authority, or express or implied invitation, permission or license. He is not in the performance of any duty to the owner or person in charge, or on any business of such person, but merely for his own purposes, pleasure, or convenience, or out of curiosity, and without any enticement, allurement, inducement, or express or implied assurance of safety from the owner or person in charge.¹³ If a licensee or invitee exceeds the limits of authority provided by the license or invitation, he becomes a trespasser. The privilege to enter the land by special restriction or condition extends only so far as the condition or restriction is honored.¹⁴

A landowner has no duty to maintain the premises in a safe condition for strangers entering without authorization. He has no expectation that others will cross his boundaries uninvited. Trespassers must take the premises as they find them, and, if they are injured by unexpected dangers, the loss is their own.¹⁵

In Texas, the "doctrine of attractive nuisance" provides an exception to the general rule of "no duty" to trespassers. When children sixteen years of age and younger are involved, a duty is imposed. If the landowner knows of a dangerous and artificial condition in an area where children are likely to trespass, then he may be liable for harm to the children if

1. the owner knows the harm involves an unreasonable risk of death or serious bodily injury, and

2. the children, because of their youth, do not discover the condition or realize the risk, and

3. the burden to the landowner of either maintaining the condition or eliminating the danger is slight compared with the risk to the children.

Liability arises when the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.¹⁶

Statutory Limitations on Liability of Texas Landowner

The Texas Civil Practice and Remedies Code, Section 75.002 addresses the limitation of a landowner’s liability. While not excusing wilful, wanton or gross negligence on the part of any landowner, the statute does protect certain categories of landowners:

1. an owner, lessee or occupant of agricultural land owes no duty to a trespasser;

2. an owner, lessee or occupant of agricultural land who gives permission to another or invites another to enter the premises for recreation (as defined in the Act) does not have to assure that the premises are safe for that purpose; nor does he owe to the person permitted or invited a greater degree of care than is owed to a trespasser; nor is he liable in any way for acts of the permitee or invitee which may cause harm;

3. an owner, lessee or occupant of real property other than agricultural land who gives permission to another to enter the premises for recreation (as defined in the Act) does not assure that the premises are safe for that purpose; nor does he owe a greater degree of care than is owed to a trespasser; nor is he liable in any way for injurious acts of the one permitted to enter the land.

Dissatisfaction with Categories of Entrants

Traditional as these categories of entrants may be, they have not been without controversy. Over the years, there has been dissatisfaction in the courts with the categories and, as early as 1957, there were statutory changes in Britain that abolished the distinction between the duties owed by a landowner to licensees and those owed to invitees. By 1971, in the United States, Connecticut was the first state to legislate a change in the classification system: social guests were to enjoy the same duty of care as that owed by the landowner to invitees.¹⁷

In the 1950’s and 1960’s, courts in the United States at both the state and federal levels also broke with tradition. The landmark decision came in 1968 with the California Supreme Court’s decision in Rowland v. Christian.¹⁸ The court concluded that, in accordance with the California Civil Code, the proper test to be applied is whether the landowner has acted as a reasonable man with regard to the probability of injury to others.¹⁹ For a while, courts in approximately fourteen jurisdictions throughout the United States followed California’s lead and also abandoned the traditional view,²⁰ but Texas courts did not follow the trend.

By the late 1970’s and in the 1980’s, the movement toward change came to a halt as numerous courts specifically rejected Rowland, declined to abolish the common-law categories, or simply reaffirmed the traditional rules.²¹ This reversal of the courts came at about the same time as the trends toward holding landowners liable for criminal acts on their premises. Responsibilities for criminal acts will be discussed further below.

Control, Knowledge, and Foresee ability

Besides the duty owed to the entrant by the owner/occupier of the premises, other principles of premises liability include the concepts of control, knowledge, and foresee ability. A discussion of general rules involving these principles follows.

Control

The general rule concerning control, with certain exceptions, is that the possessor, or person in control of the premises, is liable for injuries suffered by entrants as a result of conditions or activities that violate a legal duty owed by the possessor to entrants. Relying on Restatement (Second) of Torts, a possessor of land is defined as:

1. a person who is in occupation of the land with intent to control it or

2. a person who has been in occupation of the land with intent to control it, if no other person has subsequently occupied it with intent to control it, or

3. a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).²²

Texas courts have relied on the provisions of the Restatement in various cases, as in IDC, Inc. v. County of Nueces. ²³ The court determined that Nueces County did not control the property in question and, therefore, should not be held liable.

Merely having legal title, or owning land, does not make the person liable. An owner who controls the premises is not an insurer against accidents on the premises, even toward invitees; but an owner is liable to such persons for injuries caused by his own negligence.²⁴

Knowledge

In premises liability, the concept of knowledge is considered for both the owner/occupier and the entrant. If the owner/occupier created the dangerous condition on the premises, or knows or should have known of the hazard on the premises and fails to correct or repair the condition, and the defendant can prove the owner/occupier knew of the hazard, then liability is likely. Other factors are important when deciding whether the owner/occupier should have discovered the condition. These include the size and the nature of the premises, the volume of traffic, the number of employees on duty, the nature and location of the danger, and the length of time the danger continued to exist.²⁵ As to the entrant, there is some expectation in certain circumstances, that he might have reasonable knowledge of a dangerous condition, and thus contribute to the accident or injury.

In Texas, the statute on proportionate responsibility, set out in the Texas Civil Practice and Remedies Code, Chapter 33, provides that even a responsible third party, in addition to the plaintiff and defendant, may be charged with liability. The statute makes possible the distribution of the liability among the various parties involved.

Foresee ability

Somewhat like the concept of knowledge, foresee ability is the ability to see or know in advance; in other words, the reasonable anticipation that harm or injury is a likely result of acts or omissions on the part of the owner/occupier. In premises liability, an owner of the premises may be held liable only where he knew, or should have foreseen, that an entrant would be attracted by the condition or instrumentality on the premises. Foresee ability is a significant consideration in determining the extent of liability of landowners for criminal actions on their property.

Elements of Liability for Criminal Acts of Third Parties

There are many relationships that may create a "duty owed" by one party to another: independent contractor/builder; social host/guest; realtor/home buyer or seller; landlord/tenant. To what extent is a landowner liable to a patron, customer or tenant for criminal actions that occur on his property and are harmful to those persons? Relying on Prosser and Keeton on the Law of Torts, Uri Kaufman notes that "the courts have traditionally been unwilling to extend tort liability to include injuries arising out of criminal activity, maintaining that there is no duty to protect one from the intentional criminal actions of another." ²⁶ However, exceptions to the common-law rule began to arise after Section 344, Restatement (Second) of Torts (1965) provided that

"[A] possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons. . . ."

Additionally, the decision in 1970 in Kline v. 1500 Massachusetts Avenue Apartment Corp.²⁷ focused attention on the duty of a landowner regarding criminal behavior. In that case, a tenant of an apartment house was criminally assaulted in a common hallway of the building by an unidentified third party. In a suit against the landlord, the tenant proved that the landlord had voluntarily undertaken to provide a 24-hour security guard service in the lobby of the building as a result of numerous other assaults known to the landlord that were shown to have occurred on or near the premises. Immediately prior to the assault upon the tenant, the landlord had significantly reduced the security service and the assault rate had correspondingly increased. On appeal, the Circuit Court for the District of Columbia found that a duty to provide security exists in the landlord-tenant relationship. Reversing the opinion of the trial court, the D. C. Circuit Court held that the landlord, having actual and constructive notice that his tenants were being victimized by crimes against both their property and their persons, had a duty to provide reasonable security and protection to the tenants and other invitees. The Court reasoned that while the landlord was "no insurer of his tenants’ safety," he certainly was "no bystander" with no power or responsibility.²⁸

Later courts addressing the problem in other jurisdictions held that:

"[T]he urban landlord indeed owed an affirmative duty to protect his tenants and invitees from foreseeable, unreasonable risk of criminal attacks from third persons while on his premises. . . . 
[L]andlords must, along with their preoccupation with possession and profits, be at all times alert to protect their tenants and invitees from the risks associated with criminal attacks, and to this end, must undertake appropriate steps to assure safety to those who enter their premises." ²⁹

 By extending that ruling to the business-invitee context, merchants may then be held liable for criminal attacks that occur on their property and are against their customers.

In 1970, the same year that the D.C. Circuit Court dealt with Kline, the Texas Supreme Court heard a case against a landowner for injuries to a theater patron.³⁰ The Court declined to affirm the lower court’s ruling that the landowner was responsible for injuries suffered by the plaintiff when a bottle was thrown from the balcony of the theater during a late-night movie. The plaintiff had charged the owner with negligence in failing to remove from the premises a rowdy group of patrons when complaints had been received just prior to the bottle throwing. The Texas Supreme Court, while recognizing the duty of the theater owner to exercise reasonable care for the safety of its patrons, concluded that there was no proof that the bottle would not have been thrown "but for" the failure of the defendant to remove "rowdy persons" from the premises.

The tide began to turn some seven years later, when Morris v. Barnette ³¹ traveled through the lower courts and finally to the Texas Supreme Court. The high court refused to grant an application for writ of error, deciding that no reversible error was shown in the case. The court let stand the decision of the Court of Appeals, which ruled that:

"the operator of a washateria business who, by reason of location, mode of doing business, or observation or past experience, should reasonably anticipate criminal conduct on the part of third persons, either generally or at some particular time, has a duty to take precautions against it and to provide an effective warning or a reasonably sufficient number of servants to afford reasonable protection to invitees on the premises." ³²

With this Supreme Court decision in the late 1970’s, Texas courts joined what was considered a majority of jurisdictions with regard to the question of the owner/landlord’s duty of security to tenants and/or invitees.

While not seeking to impart responsibilities of police protection to the landowner, the courts have, nevertheless, yielded to public concern about criminal activity. The apparent inability of local law enforcement agencies to successfully protect against increased crime has led more citizens to expect at least reasonable protection to be provided by business owners, who must take steps to provide protection or face potential liability.

Duty Owed to Business Invitee and Public Invitee: Nixon

It is well established that, as in other cases charging negligence, the plaintiff in a premises liability case must prove that a duty exists, the duty was breached, there was proximate cause, and damages resulted. The duty of a landowner toward a business invitee or public invitee has been well established: s/he must take reasonable care to provide safe conditions. However, under older law, landowners were seldom held accountable for criminal acts, with the courts reasoning that only the criminal is responsible for the crime; landowners do not possess crystal balls to know when crime will occur. Restatement (Second) of Torts (1965) Section 448 provides:

"The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such atort or crime."

In applying this section to the cases before them over the past twenty years or more, courts have been more inclined to emphasize the last part of the Restatement section rather than the first: i.e., the owner in control of the premises may be liable if he knows or should have known that he may have created a tempting situation for a criminal bent on crime.

That was the position taken by the Texas Supreme Court in Nixon. In this case of a young girl who was raped in an abandoned apartment, the issue before the court was whether there was sufficient evidence to show that the landowner, Mr. Property Management, should have known there were circumstances that might tempt a criminal. This approach sidestepped the traditional reliance on the status of the entrant to determine the duty owed. The lower courts had viewed the plaintiff as a trespasser, even though she did not willingly enter the premises, and ruled there was no duty to protect. In determining the duty owed, the Supreme Court was able to skirt the issue of entrant category. The Court showed that 1) evidence of other criminal acts in the area and 2) a city ordinance that required vacant buildings or apartments to be secured against intruders were reasons that Mr. Property Management should have known that a criminal act might occur and, therefore, was liable for such acts if they did occur. This 1985 decision marked a turning point in Texas cases of this type. It represented a departure from the traditional analysis of landowner liability for criminal acts based solely on the status of the entrant.

The issue that concerned the lower courts in Nixon, and still plagues the courts at all levels, is when, and under what circumstances, the court should justify liability on more than the status of the entrant. The Texas Supreme Court’s most recent analysis of a premises liability case involving a crime was decided on September 9, 1999. The opinion in Mellon v. Holder, ³⁴ shows much disagreement among the current judges of the Court. Only a plurality opinion favoring the landowner was issued; an additional three opinions, two concurring, but each for different reasons, and one dissenting under still another rationale, were also published. One judge argued that the facts were so similar to Nixon that the Court should follow that earlier ruling; others thought differently, because, here, there was no ordinance or statute to invoke.

The case concerned the rape of a young woman in a parking garage located in a high-crime area of Houston. She was not a willing trespasser, but neither was she in a class that the defendant might foresee coming to harm. The Court reasoned that a two-prong test is necessary to determine liability of the landowner. The five elements of foresee ability, as presented in Timberwalk v. Cain in 1998 (see citation of this case and full discussion of its points below under "B. Beyond Status of Entrant") must first be proven. The second prong concerns the victim’s status that is determined by examining whether the victim is in a class to which the landowner owes a duty. Here, the plurality decided the victim was not foreseeable, and the defendant owed no duty. However, the divided Court in Mellon indicates that the reasoning of the plurality may not hold through time. Justice Enoch suggested that a new, less harsh sounding category should be created for unwilling "trespassers." Justice O’Neill, joined by two other justices, concludes that the victim entered more as a licensee than a trespasser and thus, was owed a duty by the landowner. The plurality in Mellon made the status of the entrant of secondary importance to the foresee ability of the crime. Future cases of a similar nature will be especially interesting and necessary to watch. The law may not be settled.

Beyond Status of Entrant: Other Elements of Liability in Nixon and Other Cases

Control, Knowledge, Foresee ability

In Nixon, the Texas Supreme Court, having established the element of control, closely examined the element of foresee ability in determining knowledge. The majority wrote, "the tortfeasor’s negligence will not be excused where the criminal conduct is a foreseeable result of such negligence. . . . The record is replete with prior violent crimes occurring at the Chalmette Apartments. This record certainly provides evidence that further acts of violence were reasonably foreseeable." ³⁵ The Court ruled that it was not required that the particular crime complained of should have been foreseen, only that the injury might reasonably have been anticipated. The easily accessible vacant apartment afforded the criminal a secluded spot for the crime, which Mr. Property Management should have foreseen. The landowner was held liable for the crime against the young girl.

Another case demonstrating the element of control is Exxon v. Tidwell.³⁶ At issue was the determination of who was in control of the service station, scene of a robbery where Tidwell was injured. The rule is that the party who has the power of control or expulsion is in the best position to protect against the harm. In Exxon, a divided Texas Supreme Court raised the standard for testing control. It held that the duty existed only when there was control over the specific elements that led to the harm. The specific elements in Exxon were the security and safety of the premises.

A dissenting opinion of three judges noted that even though Exxon leased the business property to Tidwell’s employer, the trial court evidence showed that Exxon effectively retained control of the premises: the contract required the lessee to keep the gas station open twenty four hours every day; modifications to the buildings and improvements could not be made without prior approval of Exxon; and Exxon would not allow the bay doors to be locked, because it did not want the station to appear closed for business. The dissenting justices, Gammage, Doggett and Spector, believed that retention of such control meant that Exxon had a duty to use ordinary care and was clearly liable for Tidwell’s injuries, incurred during the criminal act of robbery. There was no need for the Court to prescribe a new standard to decide control. The majority, however, held that "in a case alleging negligence in maintaining a safe workplace, the court’s inquiry must focus on who had specific control over the safety of the premises, rather than the more general right of control over operations." The new test was to be applied particularly to the duty of oil companies to their tenant service station employees.³⁷

The principles of knowledge and foresee ability go hand-in-hand as the courts have considered them in cases of liability for criminal actions. The landowner owes a reasonable duty of care toward the business visitor or public invitee; and, where the hazard or danger is foreseen, the land occupier may be held liable for injury, even that caused by a third party. In a 1977 case, Eastep v. Jack-in-the-Box, Inc.,³⁸ the defendant unquestionably had knowledge that a crime was occurring, or about to occur. The employees stood by and watched while customers were taunted and cursed by several drunken thugs who had entered the restaurant; the plaintiff was subsequently injured in the fight that ensued. In spite of their witnessing the circumstances that could reasonably lead to a fight, not until the fight actually broke out did the employees call the police. The delayed action of the employees left them vulnerable to the resulting ruling of liability. Proof of knowledge that a criminal act is occurring or, is about to occur, is strong evidence in support of liability.

Foresee ability is a factor in determining both duty owed (an issue of law) and proximate cause (an issue of fact.) Both duty owed and proximate cause are elements to be proven in any negligence cause. In considering foresee ability, Texas courts have, since Nixon, established several factors to be considered. These factors were consolidated and enumerated in a 1998 case, Timberwalk v. Cain, discussed below.

In Nixon, when the Supreme Court held the defendant liable, it relied primarily on a city ordinance requiring that vacant buildings be secured against intruders; but, it also cited the reports of previous crimes in the area, and specifically those in proximity to the vacant apartment owned by Mr. Property Management, Inc., as evidence of foresee ability. There was not presented, however, a clear definition of how to judge foresee ability.

In a much later case, Lefmark v. Old,³⁹ the concurring opinion of Justice Owen noted that:

"Other than in Nixon, our Court has not considered the extent of the duty that a landlord owes when the leased premises are located in an area where assaults, murders, or drive-by shootings have occurred. And, other than in Nixon, we have not had occasion to opine on what specific actions may or may not be necessary to discharge the duty to take reasonable steps to protect against the criminal acts of third parties. . . . Foresee ability is the beginning, not the end, of the analysis in determining the extent of the duty to protect against criminal acts of third parties." ⁴⁰

Thus, the next year, in Timberwalk v. Cain, ⁴¹ the Texas Supreme Court took the opportunity to clarify factors to be considered in determining foresee ability. At last, it seemed that the Court was providing some specific guidance concerning foresee ability. Citing cases from numerous other jurisdictions, the Court enumerated five factors to be considered:

The Court stressed that these factors, proximity, recency, frequency, similarity, and publicity, must be considered together when foresee ability of criminal conduct is analyzed.

Totality of Circumstances and Tempting Target Rules

Finally, a brief look at two other rules for determining whether a duty is owed provides a broader approach to the issue of foresee ability. The "totality of circumstances" rule, first recognized in California, ⁴³ takes foresee ability a step further. Totality of circumstances states that foresee ability can be established not only by evidence of prior crimes, but also by other circumstances.⁴⁴ These circumstances might take into consideration the architectural design of a building or parking garage involved; the outside lighting of the premises; or, such details as the type security locks installed on the premises.

In her concurring opinion in Timberwalk, Justice Spector objected to the Court’s analysis of foresee ability only on whether other, similar criminal incidents had occurred in the immediate vicinity of the premises under examination. She wrote, "I would hold that other types of evidence may also establish foresee ability. For example, the ‘nature, condition and location of the defendant’s premises’ should be considered by the Court in determining whether to impose a duty on the landowner."⁴⁵

Justice Spector’s Timberwalk opinion identifies yet another "rule" known as the "tempting target rule."⁴⁶ Under this approach, the nature and character of a business may make crime foreseeable. For example, bars, night clubs, ATM locations, night-deposit boxes, all-night businesses such as washaterias, convenience stores, parking lots/garages, emergency room areas of hospitals, may, indeed, lend themselves to attracting more criminal activity than other types of businesses.

The Court’s decision in Timberwalk, essentially ignored these other factors for determining liability for criminal misconduct, even though in earlier Texas cases, the types of businesses were considered and recognized as more likely to attract crime. In both Morris, discussed above, and Castillo v. Sears,⁴⁷ the courts stated that establishments such as all-night laundromats create climates susceptible to crime. In a 1986 case, Ronk v. Parking Concepts of Texas, Inc.,⁴⁸ the Fort Worth Court of Appeals also used the totality of circumstances rule, but concluded that the parking lot owner had no reason to foresee a likelihood that third persons were committing or were about to commit criminal acts dangerous to its patrons. And, in 1989, the Austin Court of Appeals relied on the totality of circumstances test in Garner v. McGinty,⁴⁹ but concluded that the owner of a hair styling salon had no reason to foresee a mid-day robbery that resulted in an injury to a patron.

Conclusion

As Texas courts rely on precedent and, sometimes, even decisions from other jurisdictions when determining the liability of a landowner for criminal acts committed upon his premises, plaintiffs and defendants, it seems, might expect continued uncertainty in the analysis of duty owed and proximate cause. The elements of control, knowledge, and foresee ability are complex concepts used to help determine liability. As demonstrated in both the older and the recent decisions discussed above, judges struggle to analyze the evidence. More often than not, they have found it insufficient to support a clear and definitive ruling, a ruling consistent with precedent, and one that can be confidently followed by succeeding courts.

While the trend seems to be toward expecting a landowner to exercise greater than ordinary care for the safety of those upon his land, there is still the reluctance of the Texas courts to saddle a land-owner with an undue burden for what some see as "police protection." The tension between these views, coupled with a greater awareness of the public, will more than likely continue to be a part of the equation in resolving the issues. The categories of invitee, licensee, and trespasser may not have been abandoned by Texas courts, but judges are redefining the characteristics of these entrants and the duty owed to each by the landowner.

Catherine Harris is the Law Librarian at the State Law Library in Austin, Texas. This research was completed as part of the requirements for the Master of Arts in Legal Studies, Southwest Texas State University, May 2000.

1  Alice London, Premises Liability and Dram Shop Liability in the 90’s, in Texas Torts in the 90’s K-2 (State Bar of Texas 1992)

2  Exodus 21:33 "When a man leaves a pit open, or when a man digs a pit and does not cover it, and an ox or an ass falls into it, the owner of the pit shall make it good; he shall give money to its owner, and the dead beast shall be his"

3  Kermarec v Compagnie Generale Transatlantique, 358 U.S. 625, 630 (1959).

4  92 Mass (10 Allen) 368 (1865)

5  Nixon v Mr. Property Management, 690 S.W.2d 546, 551 (Tex. 1985).

6  Eg. Restatement (Second) of Torts, § 332 (1965); 59 Tex. Jur. 3d Premises Liability 66 3-13 (1999); Joseph Page, The Law of Premises Liability, 662.2, 3.2, 4.2 (2d ed. 1988). See also Rosas v. Buddies, 518 S.W.2d 534 (Tex. 1975).

7  Nick Roberts, Texas Personal Injury Guide 222-231 (Sky Publishing 1998)

8  Atchison, Topeka & Santa Fe R Co. v. Smith, 563 S.W.2d 660 (Tex. Civ. App.-Waco 1978, writ ref’d n.r.e.).

9  Rowland v City of Corpus Christi, 620 S.W.2d 930 (Tex. Civ. App.-Corpus Christi 1981, no writ).

10  Carlisle v J. Weingarten, Inc., 152 S.W.2d 1073 (Tex. 1941).

11  Weeks v Kelley, 433 S.W.2d 769 (Tex. Civ. App.-Eastland 1968, writ ref’d n.r.e.).

12  Peters v Detsco, Inc., 820 S.W.2d 38 (Tex. App.-Houston [14th District] 1991, writ denied).

13  Rowland , 620 SW.2d at 933; Texas-Louisiana Power Co. v. Webster, 91 S.W.2d 302 (Tex. 1936); Texas Power & Light Co. v. Holder, 385 S.W.2d 873 (Tex.Civ.App.-Tyler 1964, writ ref’d n.r.e.).

14  Brown v Dellinger, 355 S.W.2d 742 (Tex.Civ. App.-Texarkana 1962, writ ref’d. n.r.e.).

15  Baldwin v Texas Utilities Elec. Co., 819 S.W.2d 264 (Tex. App.-Eastland 1991, writ denied).

16  Texas Utilities Elec Co. v. Timmons, 947 S.W.2d 191 (Tex. 1997); Brownfield v. Missouri Pacific R. Co., 794 S.W.2d 773 (Tex. App.-Houston [14th Dist.] 1990, writ den.); Restatement (Second) of Torts 6 339 (1965).

17  Page, supra note 6, 6 64, at 132.

18  443 P2d 561 (Cal. 1968).

19  Id at 568.

20  Page, supra note 6, 6 64 at 132-13. Jurisdictions following California included Alaska, Colorado, Hawaii, Illinois, Louisiana, Maine, Massachusetts, Minnesota, New Hampshire, New York, North Dakota, Rhode Island, Tennessee, Wisconsin and The District of Columbia.

21  Id at 139.

22  Restatement (Second) of Torts 6328E (1965)

23  814 SW.2d 91,94 (Tex. App.-Corpus Christi 1991 no writ).

24  59 Tex Jur. 3d Premises Liability 6 1 (1999).

25  Page, supra note 6, at 143

26  Uri Kaufman, When Crime Pays; Business Landlords’ Duty to Protect Customers from Criminal Acts Committed on the Premises, 31 South Texas Law Review 89, 90 (1990)

27  439 F2d 477 (D.C.Cir. 1970).

28  Id at 481.

29  Carl Adams, Security Against Criminal Acts: The Landlord’s New Liability, 42 Texas Bar Journal 201, 204 (1979)

30  East Texas Theaters, Inc. v. Rutledge, 453 S.W.2d 466 (Tex. 1970.

31  553 SW.2d 648, 650 (Tex. Civ. App.-Texarkana 1977, writ ref’d n.r.e.).

32  Id at 650

33  690 SW.2d 546 (Tex. 1985).

34  5 SW.3d 654 (Tex. 1999).

35  Id at 550.

36  867 S.W.2d 19 (Tex. 1993).

37  Id at 23.

38  546 SW.2d 198 (Tex. Civ. App.-Houston [14th Dist.] 1977, writ ref’d. n.r.e.).

39  946 SW.2d 52 (Tex. 1997).

40  Id. at 59.

41  972 SW.2d 749 (Tex. 1998).

42  Id at 757.

43  Isaacs v Huntington Memorial Hosp. 695 P.2d 653 (Cal. 1985).

44  Kaufman, supra note 26, at 96

45  Timberwalk, 972 SW.2d at 759.

46  Kaufman, supra note 26, at 98

47 663 SW.2d 60 (Tex. App.-San Antonio 1983, writ ref’d n.r.e.).

48 711 SW.2d 409 (Tex. App.-Fort Worth 1986, writ ref’d n.r.e.).

49 711 S.W.2d 242 (Tex. App.-Austin 1989, no writ).