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Click here for the full text of this decision FACTS:The Quarry Market is a 53-acre shopping mall located in San Antonio. In 2002, Trammell Crow Central Texas Ltd., managed the property. On Feb. 18, 2002, at approximately 12:30 a.m., Luis Gutierrez and his pregnant wife Karol Ferman were leaving a movie theater located in the Quarry Market, when Ferman heard a gunshot. Turning toward the sound, Ferman saw the shooter, who was dressed in black with a black hood or ski mask over his or her face. Although she did not believe the first shot hit anyone, she thought a second shot hit her husband in the shoulder. Gutierrez fell to the ground then got up, and the couple started running toward the south end of the Quarry Market. Then Ferman fell to the ground and, no longer able to move, crawled under a car, where she remained until the ambulance arrived. There were no other witnesses to the shooting. Gutierrez later died at the hospital from four gunshot wounds, and the San Antonio Police Department classified his death as a murder. One month after Gutierrez’s death, Karol gave birth to a son, four months premature. On March 28, 2002, Maria Gutierrez (Gutierrez’s mother) and Ferman, individually and on behalf of her infant son, filed the underlying suit alleging that Trammell Crow’s negligent failure to provide adequate security proximately caused Gutierrez’s death. The petition was later amended to add claims by Maria Gutierrez on behalf of Gutierrez’s three minor children from a previous relationship. Finding Trammell Crow negligent, the jury returned a verdict in favor of the plaintiffs. On appeal, Trammell Crow asserts it owed no duty to Gutierrez, because his murder was not foreseeable and, even if it was foreseeable, the plaintiffs failed to show that any negligence on Trammell Crow’s part proximately caused Gutierrez’s murder. HOLDING:Affirmed. As a general rule, the court stated, a person has no legal duty to protect another from the criminal acts of a third person. But one who controls premises has 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. The court then considered both the foreseeability of the general criminal act and also the foreseeability that the victim might be injured by the act. It is undisputed that Trammell Crow knew about the crimes reported at the Quarry Market premises, the court found. The court stated that a string of assaults and robberies in a shopping mall and its large parking lot make the risk of other violent crimes, like murder, foreseeable. As a result, the court concluded that a string of similar violent crimes occurring on the property over a two-year period established that the general danger of a person being murdered at the Quarry Market was foreseeable. A few weeks before his murder, the court noted, Gutierrez provided San Antonio police officers with the names of individuals involved in a string of smash-and-grab burglaries. Trammell Crow, the court stated, asserted Gutierrez died as a result of a targeted hit and that it could not foresee a reprisal killing. But the court noted that police never recovered Gutierrez’s wallet and disregarded any inference “that the wallet was not stolen in the course of Gutierrez’s murder.” The court then analyzed Gutierrez’s robbery and murder within the context in which it occurred. Of the 10 violent crimes occurring at the Quarry Market in the two years before the Gutierrez shooting, eight occurred between the hours of 6 p.m. and 6 a.m., most occurred during the Saturday to Monday period, and the average appears to be one violent crime every other month. Many of the crimes occurred as the victims were walking to or from a store or their vehicles, the court stated. In light of this history, the court concluded that it was foreseeable that Gutierrez, or a person similarly situated, could have been murdered at the Quarry Market. Because Gutierrez’s murder was foreseeable, the court stated that its last inquiry is whether Trammell Crow’s acts or omissions were the cause in fact of Gutierrez’s injury. The court concluded that Trammell Crow’s inconspicuous undercover security system provided no deterrence to opportunist criminals and was a substantial factor in causing the death of Gutierrez at the Quarry Market. OPINION:Marion, J., wrote the majority opinion; Lopez, C.J., and Stone, Marion and Simmons, J.J., formed the court majority. DISSENT:Duncan, J.; Duncan, Angelini and Speedlin, J.J. “The majority’s analysis appears to reject the Texas Supreme Court’s analytical frameworks . . . and replace them with a rule of strict liability for premises owners. From the judgment that inevitably results, I cannot do other than dissent.”

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