Eduardo Ramirez v. AHP Mutual Housing Association Inc. F/N/A Quay Point Mutual Housing Association Inc.--Appeal from 125th District Court of Harris County

Affirmed and Memorandum Opinion filed February 24, 2005

Affirmed and Memorandum Opinion filed February 24, 2005.

In The

Fourteenth Court of Appeals

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NO. 14-04-00159-CV

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EDUARDO RAMIREZ, Appellant

V.

AHP MUTUAL HOUSING ASSOCIATION, INC. F/N/A QUAY POINT MUTUAL HOUSING ASSOCIATION, INC., Appellee

On Appeal from the 125th District Court

Harris County, Texas

Trial Court Cause No. 03-26007

M E M O R A N D U M O P I N I O N

This is a premises liability case in which appellant, Eduardo Ramirez, was stabbed repeatedly and severely injured in his apartment at the Quay Point Apartments. He sued his landlord, appellee AHP Mutual Housing Association, Inc. f/n/a Quay Point Mutual Housing Association, Inc. (AQuay Point@), alleging, among other things, that Quay Point failed to provide adequate security. The trial court granted Quay Point=s motion for summary judgment. We affirm.

Quay Point Apartments is a low-income public housing project. On May 19, 2001, three intruders entered the apartment that Ramirez shared with his girlfriend, Carolina Hernandez. Ramirez was stabbed seventeen times, resulting in severe and permanent injuries, including the loss of use of his left arm. Lidio Ambriz Parra was ultimately convicted of committing this assault.

Ramirez sued Quay Point, alleging negligence in failing to provide appropriate security measures to prevent such an attack. Quay Point moved for summary judgment, arguing that it breached no duty to Ramirez and that any negligence on its part did not proximately cause the attack on Ramirez. The trial court granted Quay Point=s motion, and Ramirez appealed. In his first and second issues, Ramirez asserts there is a fact issue as to whether Quay Point breached its duty of care. He claims that the attack was foreseeable and complains that Quay Point failed to (1) provide adequate security, including maintaining its fences and gates, (2) keep itself reasonably informed of the nature and extent of crime in the surrounding area, and (3) warn its residents of the risk of crime and that its security measures were inadequate. In his third issue, Ramirez argues that there is a fact issue as to whether Quay Point=s negligence proximately caused Ramirez=s injuries.

In its traditional motion for summary judgment, Quay Point had the burden to show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). As a defendant, it must conclusively negate at least one essential element of each of Ramirez=s causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). In deciding whether a disputed material fact issue exists precluding summary judgment, we resolve every reasonable inference in favor of Ramirez and take all evidence favorable to him as true. See id.

As a general rule, a person has no legal duty to protect another from the criminal acts of a third person. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). However, a landlord who retains control over the security of a premises has a duty to use ordinary care to protect invitees from the criminal acts of third parties if the landlord knows or has reason to know of an unreasonable and foreseeable risk of harm. Id. Foreseeability requires only that the general danger, not the exact sequence of events that produced the harm, be foreseeable. Id. In the context of risk of injury from criminal activity, the evidence must reveal specific crimes on or near the premises to establish foreseeability. Id.

The foreseeability of an unreasonable risk of criminal conduct is a prerequisite to imposing a duty of care and is a question of law for the court to decide. Id. The supreme court has set forth the following factors to aid in our analysis:

In determining whether the occurrence of certain criminal conduct on a landowner=s property should have been foreseen, courts should consider whether any criminal conduct previously occurred on or near the property, how recently it occurred, how often it occurred, how similar the conduct was to the conduct on the property, and what publicity was given the occurrences to indicate that the landowner knew or should have known about them.

Id. at 757. We consider these factors together in determining whether the criminal conduct was foreseeable. Id. at 759.

In response to Quay Point=s motion for summary judgment, Ramirez introduced evidence of police reports of criminal activity in the area. According to Ramirez, the attack was foreseeable because there were eleven crimes, including nine assaults, at the Quay Point Apartments, Aindicating a high degree of similarity@ between previously reported crime and the attack on him.[1] We disagree. None of these incidents resulted in more than a minor injury, and five were domestic violence calls, which are not similar to a random attack from a stranger.[2] See id. at 758 (noting that Aa spate of domestic violence in the complex does not portend third party sexual assaults or robberies@). One report that is arguably relevant involved a stranger pushing in a door on Carolina Hernandez, Ramirez=s girlfriend; however, it resulted in no injuries. AThe previous crimes must be sufficiently similar to the crime in question to place the landowner on notice of the specific danger.@ Id. None of these few reported crimes are even close to being as violent or as serious as the attack on Ramirez. Thus, assuming Quay Point had full knowledge of all these crimes,[3] we conclude that the assault on Ramirez was not foreseeable and that Quay Point therefore had no duty to take steps to prevent it. See id. at 759 (finding that rape of tenant was not foreseeable, based on evidence of a tire-slashing, a car burglary, and a car theft on the premises and one sexual assault within a one-mile radius in the preceding year); Walker v. Harris, 924 S.W.2d 375, 377B78 (Tex. 1996) (holding that stabbing death was not foreseeable when other crimes on the premises were domestic or neighbor disturbances, four incidents of vandalism, and one theft from a vacant apartment); Tex. Real Estate Holdings, Inc. v. Quach, 95 S.W.3d 395, 400 (Tex. App.CHouston [1st Dist.] 2002, pet. denied) (concluding that violent carjacking incident in which plaintiff was shot was not foreseeable when in two years before incident, there were no other reports of stranger-initiated violent crime involving injuries but only an assault between relatives, three auto thefts, and five thefts from vehicles).

In arguing that the attack was foreseeable, Ramirez relies heavily on Dickinson Arms-Reo, L.P. v. Campbell, 4 S.W.3d 333 (Tex. App.CHouston [1st Dist.] 1999, pet. denied). Dickinson involved a carjacking and murder at an apartment complex. The court held that such an incident was foreseeable based on 184 reported crimes (including burglaries, auto thefts, assaults, and thefts) in addition to gang activity in the neighborhood, which included two nearby properties with Abad reputations@ for criminal activity. Id. at 346B49; see also Quach, 95 S.W.3d at 400 (distinguishing Dickinson). That is significantly different from the crime reports in evidence in this case, which were few in number and involved no or minor injuries. Ramirez emphasizes that the Timberwalk court noted that A[p]roperty crimes may expose a dangerous condition that could facilitate personal crimes.@ 972 S.W.2d at 758. However, in this case where the reported crimes are so few and dissimilar, no such dangerous condition was exposed.

We conclude that the attack on Ramirez was not foreseeable as a matter of law and therefore, Quay Point owed Ramirez no duty. Accordingly, issues one and two are overruled.[4] Further, because of our disposition of issues one and two, we need not consider Ramirez=s third issue regarding whether there is a fact issue as to proximate cause.

The judgment of the trial court is affirmed.

/s/ Leslie Brock Yates

Justice

Judgment rendered and Memorandum Opinion filed February 24, 2005.

Panel consists of Justices Yates, Edelman, and Guzman.

[1] At oral argument, Ramirez tried to expand his foreseeability analysis to include not just the 11 reported crimes but also 136 call reports to the Houston Police Department from the Quay Point Apartments in the year preceding the attack. As Ramirez conceded at oral argument, none of these calls involved significant violence or alleged felonies. Further, A[c]all reports include hang-up calls, mistake calls, missing person calls, information calls, calls for medical assistance, and calls to report suspected criminal activity@ and therefore are not necessarily probative of actual crime. Tex. Real Estate Holdings, Inc. v. Quach, 95 S.W.3d 395, 399 (Tex. App.CHouston [1st Dist.] 2002, pet. denied). In Timberwalk, the supreme court did not consider eleven call reports of sexual assaults within a one-mile radius of the property but only the one police report of an actual sexual assault. 972 S.W.2d at 752, 759. Therefore, we too consider only the actual police reports and not mere call reports.

[2] Quay Point contends this attack was not a stranger-initiated assault but rather the third in a series of events involving the convicted attacker, Parra, and Ramirez=s girlfriend, Hernandez. Parra testified that Hernandez had invited him to the apartment and provided him with the access code to enter the security gate. As such, according to Quay Point, this was a Atargeted attack@ in which Hernandez provided the means of entry, which made the attack unforeseeable and constitutes a superseding cause. See Palacio v. AON Props., Inc., 110 S.W.3d 493 (Tex. App.CWaco 2003, no pet.). Hernandez signed an affidavit contradicting statements to the police reflected in a police report regarding the first incident and indicating she did not know Parra and that she had never even spoken with him before the attack. Quay Point objected to the trial court that this affidavit was produced in violation of Ramirez=s discovery obligations, but the trial court did not rule on the objection. As such, the objection is waived. Dolcefino v. Randolph, 19 S.W.3d 906, 925 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). Quay Point also argues for the first time on appeal that we should not consider this affidavit because it is merely a Asham@ to create a fact issue. Quay Point cites no authority and does not explain why the sham affidavit theory, which traditionally applies when an affidavit contradicts a prior sworn statement without explanation, should apply when the prior statement is unsworn. In any event, because we conclude that the vicious attack on Ramirez was not reasonably foreseeable, we need not resolve this issue.

[3] Ramirez contends that Quay Point had a duty to keep itself informed about the amount of crime on its premises and in the area and that Quay Point ignored this duty. Quay Point correctly points out that A[p]roperty owners bear no duty to regularly inspect criminal records to determine the risk of crime in the area.@ Timberwalk, 972 S.W.2d at 759. Neither party produced summary judgment evidence regarding Quay Point=s actual knowledge about the crime in the area, which is an important factor in determining foreseeability. Id. at 758B59. However, even assuming Quay Point had full knowledge of all the police reports in the summary judgment evidence, we conclude that the vicious attack on Ramirez was not reasonably foreseeable.

[4] Ramirez argues that Quay Point failed to present any summary judgment evidence regarding (1) the adequacy of its security measures, (2) any efforts to keep reasonably informed as to the amount of crime occurring on the premises or in the area, and (3) any warnings to its tenants about the risk of crime or its inadequate security. Even assuming a landlord might have any or all of these duties under certain circumstances, we need not reach that inquiry in this case because if the criminal act was not foreseeable, Quay Point need not have taken any measures. See Timberwalk, 972 S.W.2d at 756 (AThe 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.@); McIntosh v. NationsBank, 963 S.W.2d 545, 548 (Tex. App.CHouston [14th Dist.] 1997, pet. denied) (AA duty to protect persons against the criminal acts of third parties does not arise in the absence of a foreseeable risk of harm, and a defendant is entitled to summary judgment if it can establish that such criminal acts were not foreseeable.@(footnote omitted)).