Mary Frances Maes v. H.E.B. Food Stores, Inc.--Appeal from 28th District Court of Nueces County

 NUMBER 13-04-504-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

MARY FRANCES MAES, Appellant,

v.

H.E.B. FOOD STORES, INC., Appellee.

On appeal from the 28th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Ya ez, Castillo, and Garza

  Memorandum Opinion by Justice Garza

Appellant sued appellee for negligence after she was injured by a shoplifter who knocked her over while fleeing on foot from one of appellee=s grocery stores. Appellee moved for summary judgment on both traditional and no-evidence grounds, arguing that it had no duty to protect appellant from the unforeseen criminal acts of a third party. See Tex. R. Civ. P. 166a(b) (summary judgment for defending party), 166a(i) (no-evidence summary judgment). The trial court granted appellee=s motion without specifying whether the summary judgment was based on traditional or no-evidence grounds. On appeal, appellant contends that the judgment was improper because a genuine fact issue exists as to whether the shoplifter=s actions were foreseeable. Timberwalk Apartments v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) (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.@).

This Court concludes that appellant failed to produce more than a scintilla of proof on the element of foreseeability, the challenged element of its claim. See Tex. R. Civ. P. 166a(i). In determining whether the occurrence of certain criminal conduct on a landowner=s property should have been foreseen, we must 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. Timberwalk, 972 S.W.2d at 757. The only evidence produced by appellant showed that one of appellee=s employees had previously observed a person shoplifting merchandise at one of appellee=s stores. The suspect was later spotted by an employee at a different store attempting to return the stolen merchandise for cash. Aware that he had been recognized, the suspect immediately fled, knocking over and injuring appellant in the process. Appellant produced no evidence that any other assaults or other similar criminal activity had ever occurred at the store where she was injured or at any other nearby location. No evidence was produced upon which appellee could be charged with knowledge of such dangers. Because the trial court properly granted summary judgment on no-evidence grounds, we do not consider appellant=s second issue regarding deemed admissions that were used to support the traditional grounds for appellee=s motion. See Tex. R. App. P. 47.1. The judgment of the trial court is affirmed.

_______________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 21st day of July, 2005.