Last month we successfully defended two clients in a jury trial in Houston over premises liability claims arising from a home invasion shooting and murder. At issue was, among other things, the range of prior criminal activity on or near the premises that the court and the jury should consider in determining whether a premises owner has an affirmative duty to protect persons from foreseeable criminal activity on the premises.
During the course of our trial, the Federal Fifth Circuit Court of Appeals issued an opinion in Jenkins v. C.R.E.S. Management, LLC, addressing this same issue: Texas premises liability standards and the issue of the relevance of evidence of similar crimes to the foreseeability analysis.
Jenkins was a courtesy officer and resident of the C.R.E.S. apartment complex who was shot when he opened his door to find armed assailants. The district court granted summary judgment in favor of C.R.E.S., concluding that the apartment complex’s criminal history was insufficient to render foreseeable the assault against Jenkins.
The record from the district court showed that, in the year prior to the assault on Jenkins, the apartment complex had been the site of 7 aggravated assaults, 14 residential burglaries, 7 motor vehicle burglaries, 6 thefts, 4 auto thefts, and one sexual assault. Jenkins also presented evidence of a robbery-shooting that occurred approximately 1 ½ years prior to the assault.
In reviewing the prior acts, however, the trial court decided to exclude all of the previous crimes from its foreseeability analysis save for the “violent personal crimes”: the aggravated assaults, the sexual assault, and the robbery-shooting. The trial court’s rationale for limiting the scope of relevant prior criminal activity was that the “foreseeability analysis” must be limited to those crimes with violent characteristics because the assault on Jenkins was a violent crime. In addition, the court stated that property crimes, including theft and burglary, should be excluded from the foreseeability analysis when analyzing the foreseeability of a personal crime such as the shooting at issue.
In reversing and remanding the matter to the district court, the Fifth Circuit found that the district court had erred in its determination of which crimes should be included in its analysis. Specifically, the Fifth Circuit concluded that the district court erred in excluding the burglaries as irrelevant to the foreseeability analysis, finding that the analysis by the district court failed to account for the admonition in Trammell Crow v. Gutierrez, 267 S.W.3rd 9 (Tex. 2008), that “crimes fitting one category can relate to or result in crimes of another category: a string of violent crimes such as robberies or assaults can make other violent crimes like murder or rape foreseeable…”