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Texas Claims Against Property Owners For Inadequate Security

In Texas, a hybrid of the standard premises liability claim is a claim against a property owner for inadequate security. Can a property owner be held liable for an attack on a person or damage to personal property occurring on the premises? Do property managers or owners have a duty to protect others from attacks or damage to personal property? In Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998), the Texas Supreme Court established the standard for a recovery against a property owner for inadequate security. As a rule, "a person has no legal duty to protect another from the criminal acts of a third person." An exception is that "one who controls . . . premises does have 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."Id. at 756. The exception applies, of course, to a landlord who "retains control over the security and safety of the premises." The foreseeability of an unreasonable risk of criminal conduct is a prerequisite to imposing a duty of care on a person who owns or controls premises to protect others on the property from the risk. A duty exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Whether such risk was foreseeable must not be determined in hindsight but rather in light of what the premises owner knew or should have known before the criminal act occurred. For a landowner to foresee criminal conduct on property, there must be evidence that other crimes have occurred on the property or in its immediate vicinity. Id. at 757. Foreseeability also depends on how recently and how often criminal conduct has occurred in the past. Proper factors to be considered in determining foreseeability in the context of premises liability for the criminal acts of third parties are: (1) the proximity of other crimes; (2) the recency and frequency of the other crimes; (3) the similarity of the other crimes; and (4) the publicity of the other crimes. Id.

Liability may also be created by conduct of patrons which immediately precedes an attack. In Del Lago Ptnrs. v. Smith, 307 S.W.3d 762 (Tex. 2010), seven members of a fraternity and ten men from a wedding party were involved in cursing, name calling, yelling and shoving for a period of 90 minutes before a fight broke out which resulted in serious injuries. The Texas Supreme Court noted that criminal misconduct is sometimes foreseeable because of immediately preceding conduct. Since the landowner is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. If he should reasonably anticipate criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it. The actor may have sufficient knowledge of the immediate circumstances to foresee that party's misconduct. When a property owner by reason of location, mode of doing business, or observation or past experience, should reasonably anticipate criminal conduct on the part of third persons, the owner has a duty to take precautions against it. This duty is recognized because the party with the power of control or expulsion is in the best position to protect against the harm. The Court upheld a $1,480,000 verdict against Del Lago Resort. The duty arose because the likelihood and magnitude of the risk to patrons reached the level of an unreasonable risk of harm, the risk was apparent to the property owner, and the risk arose in circumstances where the property owner had readily available opportunities to reduce it.

The potential defendants for a claim of inadequate security include property management companies, convenience stores, apartment complexes, bar owners, hotels, restaurants, or any retail establishment. These claims require immediate action to obtain police reports of prior criminal activity, statements from witnesses, video footage from the time period in question before it is destroyed, and notices previously sent to those in charge of the property. With Del Lago Ptnrs. v. Smith, 307 S.W.3d 762 (Tex. 2010), the Texas Supreme Court has expanded liability to owners with no prior knowledge of criminal activity other than the events immediately preceding the event in question.

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