The following is a summary of the holding of the Fifth Circuit Court of Appeals in an Opinion filed on January 26, 2016.
JENKINS v. C.R.E.S.
Management, L.L.C.
A Shooting at an
Apartment Complex Leads to a Civil Lawsuit
Security guard Shannon Jenkins worked for the Fountains of
Westchase apartment complex, managed by C.R.E.S. Management, L.L.C. (“CRES”). As part of his salary, Jenkins lived
rent-free at the complex. Early one
morning, Jenkins heard loud banging on his door. Concerned that someone needed help, he opened
the door, but was shot in the doorway at close-range by an unknown person. The shooter fled the scene and was never
apprehended. Jenkins sustained injury to
his elbow, but later recovered.
Jenkins sued the property management company under a premises
liability theory, asserting that the property manager had a duty to protect him
from unreasonable and foreseeable harm due to the criminal acts of third
parties. CRES moved for summary judgment
on the ground that Jenkins could not adequately show that his assault was
foreseeable, given the lack of violent crimes occurring at the Fountains of
Westchase.
Jenkins reported the apartment complex’s crime
history to the court, which included seven aggravated assaults, fourteen
residential burglaries, seven motor vehicle burglaries, six thefts, four auto
thefts, one sexual assault and one robbery-shooting. However, the magistrate judge assigned to
conduct a Foreseeability Review, limited the review to only crimes with violent
characteristics, removing all of the property-based crimes. The district court adopted the standard of
review, stating, “the Court agrees…the foreseeability analysis must be limited
to…[violent] crimes…[and] because Jenkins’s [shooting] was a violent crime,
property crimes…are excluded…when analyzing the foreseeability of a personal
crime, such as the shooting [here].”
Removing all of the property crimes from the crime history had the
effect of lowering the total number of crimes reported during the
Foreseeability Review.
Under this analysis, the district court granted
a summary judgment motion in favor of the property manager because the
apartment complex’s criminal history was insufficient to show that the assault
against Jenkins was foreseeable to the management of the apartment complex.
The Big Issue Before the
Court of Appeals for the Fifth Circuit
On appeal to the Court of Appeals for the Fifth
Circuit, the Court was tasked with determining whether the shooting of Jenkins
was “foreseeable” by the property manager.
In other words, should the district court have removed all of the
property crimes from the criminal history during the Foreseeability Review?
Premises Liability and Foreseeability
Under Texas Law
Under Texas Law, “one who controls … [a] 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.” Timberwalk Apartments, Partners Inc. v. Cain,
972 S.W.2d 749 (Tex. 1998); Lefmark Mgmt.
Co. v. Old, 946 S.W. 2d 52, 53 (Tex. 1997).
To evaluate foreseeability, Texas courts narrow the relevant criminal
history to be included in a foreseeability review. TrammellCrow Cent. Tex., Ltd. V. Gutierrez, 267 S.W. 3d 9, 13-15 (Tex. 2008). After the criminal history is narrowed,
courts compare the criminal history with the crime at hand. Specifically, courts examine the facts of the
case against the following five factors:
(1) proximity; (2) publicity; (3) recency; (4) frequency; and (5)
similarity. Id. at 15; Del Lago Partners, Inc. v. Smith, 307
S.W. 3d 762, 768 (Tex. 2010).
The Fifth Circuit Court
of Appeals Weighs In
The Fifth Circuit determined that the lower court did not commit
error by narrowing the criminal history of the apartment complex, as “Texas appellate
courts…follow Trammell Crow’s
framework by limiting their review to relevant crimes.” However, the Fifth Circuit did find that the district
court erred “in excluding burglaries as irrelevant to the foreseeability
analysis.” The Court explains, “Trammell
Crow did not call for a rigid categorical analysis; [rather] it accepted the
notion that residential burglaries could suggest the likelihood of personal
crime.” The Court further declared, “residential
burglaries, by their very nature, may suggest the foreseeability of violent
crime [because] an apartment intruder initially intent upon stealing, may
decided to assault a tenant discovered inside, even if the tenant avoids
confrontation.” Aaron v. Havens, 758 S.W.2d 446, 448 (Mo. 1988). Accordingly, the Court reversed the judgment
of the district court and remanded the case back to the lower court.
Implications for Texas Landlords
Generally speaking, this case has
implications for landlords in Texas.
Under existing Texas law, landlords have a duty of ordinary care to
protect tenants against the criminal acts of third parties if the landlord knows, or has reason to know that the risk to tenants
is unreasonable and foreseeable.
Hypothetically, a Landlord could “know or have reason to know” about
crime risks based upon police reports, media broadcasts, security assessments, and
tenant complaints, for example. The
Court in this case held that in premises liability suits, the Court will limit the
scope of the criminal history to include similar crimes. However, when it comes to apartment
communities, property crimes are relevant in terms of foreseeability of
future violent crimes against tenants.
In sum, Texas courts may examine the number of
property crimes in an apartment complex to determine whether the criminal acts
of third parties against renters were foreseeable to landlords, and if so, then
the apartment complex and/or managing company may be held liable for damages in
a premises liability suit.
This article is intended
for educational and informational purposes only and does not substitute legal
advice. If you are in need of real
estate or property legal counsel, please contact my office at (210) 223-4100.
