November 16, 2021
The Complex Case of Premise Liability in Texas
A cause of action for negligence in Texas requires three elements: a legal duty owed by one
person to another, a breach of that duty and damages proximately covered by the breach. D.
Houston, Inc. v. Love, 92 S.W. 3d 450,454 (Tex. 2002). The initial burden of proof in each
element of a negligence cause of action is on the plaintiff. Nelson v. Krusen 678 S.W. 2d 918,
929 (Tex. 1984).
Premise liability is a special form of Negligence in which the duty owed to the plaintiff is any
depends on the status of the plaintiff as an invitee, licensee, or trespasser. Maldonado v. Sumeer
Homes Inc., No. 05-12-01599-CV, 2015 WL 3866561, at 2 (Tex. App-Dallas June 23, 2015 no
pet.) (Memo. Op.) In a premise liability case, the plaintiff must establish a duty owed to itself
(The Plaintiff) Del Lago Partners, Inc. v. Smith, 307 S.W. 3d 762.767 (Tex. 2010).
“As a rule, a person has no legal duty to protect another from the criminal acts of a third person.”
Timberwalk Apts. Partners, Inc. v. Cain, 972 S.U. 2d 749, 756 (Tex. 1998) 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.” Lefmark Mgmt. Co. v. Old, 946 S.W. 2d 52, 53 (Tex. 1997).
In our legal analysis it is important to define foreseeability.
Foreseeability (1) means that the actor as a person of ordinary intelligence should have
anticipated the dangers that his negligent act created for others, Nixon v. Mr. Prop. Mgmt. Co.,
680 S.W.2d 546, 549-50 (tex. 1985) and (2) requires only that the general danger, not the exact
sequence of events that produce the harm be foreseeable.
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 occurred, how often it occurred, how similar the
conduct was to the conduct on the property and what publicity was given to the occurrences to
indicate that the landowner knew or should know about them. “Park v. Exxon Mobile Corp., 429
S.W. 3d 142,145 (Tex. App.-Dallas 2014, pet. Denied). The court must weigh the evidence
using all the factors.” The factors have been called or must be known as “the Timberwalk
factors.”
The Texas Supreme Court stated in Timberwalk Case that the relevant evidence necessary to
establish foreseeability are as follows.
1. “When the general danger is the risk of injury from criminal activity, the evidence must reveal
specific previous crimes on or near the premises in order to establish foreseeability.”
2. “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,”
3. “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,”
4. “The previous crimes must be sufficiently similar to the crime in question as to place the
landowner on notice of the specific danger.”