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Jeremy McDaniel v. Trio Holdings, LLC d/b/a Trio Wireless--Appeal from 244th District Court of Ector County (Majority)
State: Texas
Court: Texas Northern District Court
Docket No: 11-10-00240-CV
Case Date: 08/31/2012
Plaintiff: Jeremy McDaniel
Defendant: Trio Holdings, LLC d/b/a Trio Wireless--Appeal from 244th District Court of Ector County (Majority)
Preview:Opinion filed August 31, 2012

In The

Eleventh Court of Appeals
__________

No. 11-10-00240-CV __________ JEREMY MCDANIEL, Appellant V. TRIO HOLDINGS, LLC D/B/A TRIO WIRELESS, Appellee

On Appeal from the 244th District Court Ector County, Texas Trial Court Cause No. C-126,788

MEMORANDUM OPINION Jeremy McDaniel sued Trio Holdings, LLC d/b/a Trio Wireless as a result of injuries McDaniel sustained when he was a business invitee on Trio's premises. McDaniel alleged that Trio and its employees were negligent and breached a duty of reasonable care by failing to make the premises safe. Trio moved for summary judgment, asserting that it owed no duty to McDaniel because the criminal act was unforeseeable. The trial court granted Trio's motion for summary judgment and entered judgment that McDaniel take nothing on his claims against Trio. McDaniel appeals. We affirm.

In a single issue on appeal, McDaniel contends that the trial court erred in granting Trio's motion for summary judgment. Trio filed a traditional motion for summary judgment pursuant to TEX. R. CIV. P. 166a(c). Thus, as the moving party, Trio had the burden of showing that there was no genuine issue as to any material fact and that it was entitled to judgment as a matter of law. Rule 166a(c). To be entitled to summary judgment, a defendant must either conclusively negate at least one of the essential elements of each of the plaintiff's causes of action or conclusively establish an affirmative defense. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex. 2010). In reviewing a summary judgment, we must consider all of the evidence in the light most favorable to the nonmovant, indulging every reasonable inference in favor of the nonmovant and resolving any doubts against the movant. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 756 (Tex. 2007). We must consider whether reasonable and fairminded jurors could differ in their conclusions in light of all of the summary judgment evidence presented, and we may not ignore undisputed summary judgment evidence that cannot be disregarded. Id. at 755, 757. McDaniel's contention on appeal is that Trio was not entitled to summary judgment because it owed a duty to McDaniel pursuant to Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010). The court in Del Lago addressed the duty owed to a bar customer to protect him from being assaulted by another bar customer. 307 S.W.3d at 767. The court recognized the general law that whether a duty exists is a question of law for a court, which "turns `on a legal analysis balancing a number of factors, including the risk, foreseeability, and likelihood of injury, and the consequences of placing the burden on the defendant.'" Id. (quoting Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 218 (Tex. 2008)). As a general rule, a premises owner has no duty to protect invitees from criminal acts committed by third parties. Id.; Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). However, a premises owner does have a duty to protect an invitee when the owner knows or has reason to know of a risk of harm that is unreasonable and foreseeable. Del Lago, 307 S.W.3d at 767; Timberwalk, 972 S.W.2d at 756. The foreseeability of an unreasonable risk of criminal conduct is a

prerequisite to imposing on the owner of a premises a duty of care to protect others on the premises from the risk. Timberwalk, 972 S.W.2d at 756. In Timberwalk, a tenant who was raped in her apartment by an intruder sued her landlord for failing to provide adequate security. Id. at 751. The Timberwalk court set out the following
2

factors that courts "should consider" when addressing the element of foreseeability: whether any criminal conduct previously occurred on or near the premises, how recently that conduct occurred, how often it occurred, how similar was the conduct, and how much publicity was given to the prior conduct. Id. at 757. The supreme court applied the above factors and held as a matter of law that the landlord owed no duty to the tenant to provide additional security. Id. at 759. The court in Del Lago found that the Timberwalk factors were not applicable in Del Lago because of the nature and character of the premises, which was a bar located in the conference center of the 300-acre resort, and because of the immediately preceding conduct in the bar that night, which made the criminal misconduct foreseeable. Del Lago, 307 S.W.3d at 765, 768
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