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Texas's New One Free Murder Rule

I have often been quick to criticize the current Texas Supreme Court regarding its decisions in the tort arena, but last week, they may have outdone themselves. Last week they handed down a decision in Trammel Crow v. Gutierrez that has emasculated inadequate security premises liability cases – cases where the injured person says that land owner knew about dangers from criminals but failed to protect customers or visitors to the land.

In Texas, a person or entity that controls a premises has a duty to use ordinary care to protect invitees (in most cases, customers) from criminal acts of third parties if the person or entity knows or has reason to know of an unreasonable and foreseeable risk of harm to the customer. These cases are all fought on two questions: Did the defendant control the premises and was there a foreseeable risk of harm to the customer?

In the Gutierrez case, Mrs. Gutierrez filed suit against Trammel Crow after her husband was shot and killed by an assailant dressed in black during a botched robbery in the parking lot of a San Antonio mall.

In the case, Trammel Crow admitted that they controlled the premises. The only question before the court was whether it was foreseeable that this murder might have occurred.

At the trial, the plaintiff presented evidence that in the two years before the murder, the mall had seen 227 reported crimes, 24 personal crimes, and 10 violent crimes involving aggregated robbery.

In addition, the security guard (and off-duty police officer) on duty the night of the murder testified that he saw two men dressed in black standing by a pay phone and made eye contact with them.

Hearing this, the jury found that it was foreseeable that the crime would be committed and awarded the widow and four children $6.5 million.

The Supreme Court reversed and found that the crime was not foreseeable. They went through each prior crime and parsed out examples of why those crimes were different than the one in the case. For example, some of the ridiculous distinctions were that in one crime, the assailants accosted the victim first, took his valuables, and then attacked him, whereas in this case, the victim was first attacked and then robbed. They noted that some of the robberies had indeed involved guns, but in none of those cases were the guns actually fired.

This type of parceling and categorizing of crimes basically creates a “one free murder rule” and maybe more than that. There is nothing to stop the court in future cases from categorizing murders and saying shooting deaths don’t necessarily mean that stabbing deaths are foreseeable. As long as the Supreme Court continues to substitute its judgement for that of our juries, justice will never be done.

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