Also see --> Other Premises Liability Law Suits Including Slip, Trip & Fall Cases

Killing at Carwash Not Foreseeable - No Liability
Diaz v. DTC West Tidwell Corp. (Tex.App.- Houston [14th Dist.] Oct. 8, 2009)(Sullivan)
(
deadly shooting at carwash, no premises liability, killing not forseeable)
AFFIRMED: Opinion by
Justice Sullivan      
Before Justices Seymore, Brown and Sullivan  
14-08-00402-CV  Pedro Santiago Diaz, Jerry Diaz, as surviving child of Pedro Santiago Diaz, Yvette
Mercado, as surviving child of Pedro Santiago Diaz, and as adminstrator of the Estate of Pedro Diaz and
MIchelle Diaz, as surviving child of Pedro Santiago Diaz v. DTC West Tidwell Corporation, DBA U.S. Auto
Wash    
Appeal from 234th District Court of Harris County
Trial Court Judge:
Reese Rondon

Employer found not liable in murder of employee in course of robbery at place of employment
Barton v. Whataburger, Inc. (Tex.App.- Houston [1st Dist.] July 31, 2008) (Bland)
(
workplace safety, murder not forseeable, no employer liability)
AFFIRM TRIAL COURT JUDGMENT: Opinion by
Justice Bland  
Before Chief Justice Radack, Justices Alcala and Bland
01-06-01121-CV        Rose Barton, Individually and as Personal Representative of the Estate of
Christopher Martin Dean v. Whataburger, Inc.
Appeal from 157th District Court of Harris County
Trial Court Judge:
Hon. Ronald [Randall] L. Wilson
Court of Appeals holds that the trial court properly granted summary judgment because the diabolic
conduct of others—men who committed aggravated robbery and murder—was a superseding cause of
Dean’s death that was not reasonably foreseeable to Whataburger. The Court therefore affirm the
judgment of the trial court.

We conclude Pouncy-Pittman failed to bring forth even a scintilla of evidence raising a genuine issue of
material fact on her challenged negligence claim against Pappadeaux. For example, she did not present
any evidence demonstrating that the crime was or should have been foreseeable to Pappadeaux under
Timberwalk. None of documents she submitted contain information regarding crime statistics for the
surrounding area, nor do they discuss “specific previous crimes on or near the premises.”  Nor was
Pouncy-Pittman’s conclusory allegation that the area was “widely known” to be dangerous and that
“numerous violent crimes” had occurred in the general area sufficient to survive a no-evidence summary
judgment motion. Conclusory or speculative opinion testimony does not tend to make the existence of a
material fact “more or less probable” and is neither relevant nor competent. Coastal Transp. Co. v.
Crown Cent. Petroleum. Corp., 136 S.W.3d 227, 232 (Tex. 2004) (quoting Tex. R. Evid. 401). A trial court
presented with purported evidence that is merely conclusory or speculative on its face need not go
beyond the face of the record to test its reliability. Coastal Transp. Co., 136 S.W.3d at 233.

Accordingly, Dr. Moore’s opinion that the murder of Pittman was not foreseeable to Pappadeaux—as
supported by the facts he recited from the unchallenged police reports, news reports and crime
statistics—was uncontroverted. We recognize that, because the question of duty is a question of law for
the court, an expert cannot properly opine regarding the existence of a duty. See, e.g., Drennan v. Cmty.
Health Inv. Corp., 905 S.W.2d 811, 824 (Tex. App.—Amarillo 1995, writ denied). Further, in premises
liability cases, expert testimony alone is insufficient to raise a fact issue on foreseeability. Allright San
Antonio Parking Inc. v. Kendrick, 981 S.W.2d 250, 255 (Tex. App.—San Antonio 1998, no pet.). However,
even when faced with a no-evidence summary judgment motion against her, Pouncy-Pittman failed to
produce more than a scintilla of evidence showing that Pappadeaux had a duty under Timberwalk to
Pittman and that it breached that duty. Pappadeaux, on the other hand, produced an affidavit that
contained unchallenged factual assertions supporting a conclusion that it did not owe a duty to Pittman.
Accordingly, the trial court properly entered final summary judgment in Pappadeaux’s favor. We overrule
Pouncy-Pittman’s first point of error.

Pouncy Pittman v. Pappas Restaurants (Tex.App.- Houston [1st Dist.] July 31, 2008)(Hanks)
(
shooting in front of restaurant, not forseeable, no liability, motion for continuance MFC, admission of
evidence)
AFFIRM TC JUDGMENT: Opinion by
Justice Hanks
Before Justices Nuchia, Alcala and Hanks
01-07-00575-CV Leah Pouncy Pittman, Individually and on behalf of the heirs at law of the Estate of
Delearette Montrail Pittman v. Pappas Restaurants, Inc., d/b/a Pappadeaux Seafood Kitchen
Appeal from 190th District Court of Harris County
Trial Court
Judge: Hon. Jennifer Walker Elrod

Bergman v. Minnie Martin Daugherty (Tex.App.- Houston [14th Dist.] Jul. 31, 2007)(Yates)(premises
liability, theft)
Opinion by
Justice Brock Yates
Before Justices Brock Yates, Anderson and Hudson
14-05-01268-CV Pamela K. Bergman v. Minnie Martin Daugherty
Appeal from 280th District Court of Harris County (
Judge Tony Lindsay) - Affirmed

Thomas v. CNC Investments, L.L.P (Tex.App.- Houston [1st Dist.] May 31, 2007)(Taft)
(premises liability, assault, criminal)
AFFIRM TC JUDGMENT: Opinion by
Justice Taft
Before Justices Taft, Jennings and Alcala
01-05-00838-CV
Craig Thomas, Karen Thomas, Kaitlin Thomas and Caroline Thomas v. CNC
Investments, L.L.P.--Appeal from 190th District Court of Harris County (Judge Jennifer Elrod)

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