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Click here for the full text of this decision FACTS:Del Lago is a 300-acre resort on the shores of Lake Conroe. Bradley Smith attended a weekend Sigma Chi fraternity 40th reunion at Del Lago from June 8-10, 2001. On Friday night, Smith and his fraternity brothers attended a Sigma Chi event in Del Lago’s bar. On Saturday evening, Sigma Chi had a reception and dinner in a Del Lago banquet room just across from the bar. Around 9 p.m., Smith and a group of fraternity brothers left the banquet room and went to the bar, which was described as packed and standing room only at that time. Around midnight, about 15 to 20 persons from a wedding party entered the bar. A fraternity brother hit on a female companion of a wedding party member and a verbal altercation ensued between the two men. Spencer Forsythe, a fraternity brother, said that verbal exchanges continued in the bar for an hour. He characterized them as cussing, name-calling, verbal threats, and hand gestures. Del Lago’s procedures called for zero tolerance toward violent acts and threats of violence. Elizabeth Sweet, a waitress, did not report the situation to the bartender or a manager; she said she did not see a need to call security. She had not received any training at Del Lago on how and when to contact security or how to handle intoxicated patrons, abusive patrons, fighting patrons or an unruly crowd. Witnesses testified that the verbal confrontations turned into physical shoving and pushing altercations. Around 1:30 a.m., serving had stopped. As the remaining bar patrons left the bar, another verbal confrontation erupted between a fraternity brother and a wedding party member. Forsythe noticed that several of his friends were involved, so he moved toward the two groups, which totaled about 40 persons, to see what was going on. Punches were suddenly thrown between the two groups and Forsythe was pushed against a wall and shoved to the floor. Smith, who had not been involved in any of the earlier verbal and physical confrontations, saw Forsythe being kicked and entered the melee to pick up Forsythe, whom Smith knew to have heart disease and to be in poor health. Smith was hit on the back and on the head as he entered into the fighting groups and someone put Smith in a headlock. Smith and his assailant went across the floor with their and the crowd’s momentum, and Smith’s face hit the wall. Del Lago security logged a fight-in-progress dispatch at 1:24 a.m. A security officer said that he arrived on the scene within 15 to 20 seconds of the dispatch but the fighting was over when he got there and most of those involved had fled. Smith was severely injured in the bar fight at Del Lago. He brought a premises liability action against Del Lago and a jury found the resort 51 percent responsible and Smith 49 percent responsible for the occurrence. The jury found actual damages in the amount of $2,874,000, and the trial court, after reducing the damages amount by 49 percent and then adding prejudgment interest, entered judgment for Smith in the amount of $1,478,283. Del Lago appealed. HOLDING:Affirmed. Del Lago asserted that it owed Smith no duty, because the fight was not foreseeable. The court reviewed the evidence presented in light of the factors set forth in Timberwalk Apartments v. Cain, 972 S.W.2d 749 (Tex. 1998), to determine whether Del Lago owed Smith a legal duty to protect him from third-party criminal acts on its property. The Timberwalk factors proximity, recency, frequency, similarity, and publicity must be considered together in determining whether criminal conduct was foreseeable. Smith, through his security expert Gerald Brandt, tendered evidence of 14 alleged assaultive crimes at Del Lago for the three and one-half years before the fight in question. Weighing the evidence using all the Timberwalk factors, the court found that it was foreseeable as a matter of law that an assault might occur in Del Lago’s bar. And on the occasion in question, the court held that it was foreseeable that Smith or a similarly situated person would be the victim of a criminal act and be harmed. The court held that Del Lago owed a duty to Smith because of the prior reported criminal activity, the prior undocumented and similar criminal and security incidents occurring primarily in the bar but also throughout the resort and the ongoing and escalating one-and-a-half hours of altercations in the bar leading up to the big fight. The court found the evidence legally and factually sufficient to support the jury’s finding of a breach of duty and negligence by Del Lago. In noting that the absence of security and lack of intervention during that time period was a cause in fact of Smith’s injuries, the court held that there was legally sufficient evidence of proximate cause. The court also held that the trial court did not abuse its discretion in refusing Del Lago’s requested jury instruction on foreseeability. OPINION:Vance, J.; Gray, C.J., Vance and Reyna, J.J.

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