Texas Judiciary Online - HTML Opinion

In this case, because = no=20 information exists as to how or by whom the truck was stolen, and, = thus,=20 what act or omission by U-Haul, if any, could have enabled it to = occur, or=20 prevented it from occurring, it cannot be determined or inferred = whether=20 the theft of the truck was a result at all, let alone a reasonably = foreseeable result, of any such unknown conduct. In = addition,=20 nothing in the summary judgment record suggests that U-Haul could = have=20 reasonably foreseen that its truck would be used to hit someone = walking in=20 a field in any event.^{^[6]} =20 Therefore, even if a general danger of a criminal act was = foreseeable=20 (which we do not address), and even if any conduct by U-Haul could = have=20 created a risk of harm (which cannot be known), U-Haul owed no = legal duty=20 to John Finley because he was not so situated with relation to the = wrongful act that his injury and death might have been = foreseen. =20 See Mellon, 5 S.W.3d at 658. Therefore, we overrule=20 Finley=3Ds first issue, and = because this=20 conclusion is also dispositive of the other issues in the = appeal,^{^[7]} = we need=20 not address them. Accordingly, the judgment of the trial = court is=20 affirmed.

/s/ =20 Richard H. Edelman

Senior = Justice

Judgment rendered and = Opinion=20 filed November 20, 2007.

Panel consists of = Justices=20 Fowler, Frost, and Edelman.^*

^{^[1]} =20 The manager of the U-Haul location from which the truck was stolen = testified at a deposition that he had seen a former employee on = the=20 security tape in the area where the keys were kept on the day the = keys=20 were reported missing; and that he told a police officer that he = had fired=20 that employee for taking U-Haul vehicles after hours. = However, there=20 is no evidence in the record indicating whether that former = employee had=20 taken the missing keys or been involved in the theft of the truck = or the=20 incident involving John Finley.

^{^[2]} =20 The manager of the U-Haul location from which the truck was taken = stated=20 in an affidavit that: (1) the truck had been locked and parked in = front of=20 the store at closing on the preceding day; (2) there was only one = set of=20 keys to each rental vehicle at that location at that time; and (3) = keys to=20 rental vehicles were generally kept behind the counter during = business=20 hours and locked in a safe after hours. This evidence was=20 uncontroverted.

^{^[3]} =20 Those factors include: the risk, the foreseeability, the = likelihood of=20 injury weighed against the social utility of the actor=3Ds conduct, the magnitude of the burden = of guarding=20 against the injury, and the consequences of placing the burden on = the=20 defendant. Mission Petroleum Carriers, Inc. v. = Solomon, 106=20 S.W.3d 705, 710 (Tex. 2003).

^{^[4]} =20 To allow liability without requiring such a connection between the = property owner and either the victim or perpetrator of the crime = would=20 place a duty on property owners to prevent criminal acts with = their=20 property simply because criminals could gain access to the = property, and=20 would thereby make property owners insurers of crime = victims. See=20 Mellon, 5 S.W.3d at 658.

^{^[5]} =20 Even where keys have been left in the ignition of a vehicle, Texas = court=20 decisions (albeit mostly older ones) have varied in their = conclusions on=20 the foreseeability of injury to a third-party occurring after the = theft of=20 the vehicle. See e.g. Story Servs., Inc. v. Ramirez, = 863=20 S.W.2d 491, 497-98 (Tex. App.CEl Paso 1993, writ denied)(finding = sufficient=20 evidence for negligence but not for proximate cause); Stephens = v.=20 Crowder Invs., Inc., 841 S.W.2d 947, 948 (Tex. = App.CWaco 1992, no writ)(remanding case to = the trial=20 court to review the foreseeability of a funeral home=3Ds vehicle stolen by a 12 year old, with = the keys=20 left in the ignition, in light of no evidence of the level of = crime in the=20 area); Simmons v. Flores, 838 S.W.2d 287 (Tex. = App.CTexarkana 1992, writ denied)(finding no=20 foreseeability even though the keys had been left in the car in = front of a=20 laundry facility); Finnigan v. Blanco County, 670 S.W.2d = 313, 317=20 (Tex. App.CAustin 1984, no writ)(finding the escape = and=20 subsequent injury of a third party foreseeable where an officer = parked his=20 running patrol car in the Ayard@ where an inmate could simply get in and = drive=20 away); Batko v. Mecca Invs. Co., 642 S.W.2d 41 (Tex.=20 App.CEastland 1982, no writ)(affirming = liability=20 against the defendant where his inebriated passenger, with a = history of=20 playing practical jokes, was left unattended in a running vehicle = and=20 subsequently caused damage); Bicknell v. Lloyd, 635 S.W.2d = 150=20 (Tex. App.CHouston [1st Dist.] 1982, no = writ)(finding the=20 risk of injury foreseeable to an owner, who left the keys in his = three=20 wheeler despite previous occasions where youths would go for joy=20 rides); McKinney v. Chambers, 347 S.W.2d 30 (Tex. = App.CTexarkana 1961, no writ)(finding as a = matter of=20 law, that an owner could not have reasonably foreseen the theft = and=20 subsequent injury to a third party even though he left the keys in = an=20 unattended vehicle); Parker & Parker Constr. Co., v. = Morris,=20 346 S.W.2d 922, 923B26 (Tex. App.CEl Paso 1961, writ. ref=3Dd n.r.e.).

^{^[6]} =20 See Mellon, 5 S.W.3d at 658 (stating that nothing in the = summary=20 judgment record suggests that Mellon could have reasonably = foreseen that=20 its parking garage would be picked by the perpetrator as the scene = of his=20 crime if Mellon did not secure the garage).

^{^[7]} =20 Finley=3Ds other issues pertain to the trial=20 court=3Ds exclusion of her summary judgment = evidence and=20 the denial of her motion for new trial. Because neither the = excluded=20 summary judgment evidence nor the motion for new trial bear on the = lack of=20 foreseeability that John Finley or someone similarly situated, = would be=20 the victim of the criminal act that occurred, and because this = lack of=20 foreseeability precludes a finding of duty, the issues on the = excluded=20 summary judgment evidence and motion for new trial cannot affect = our=20 disposition. Similarly, because Finley=3Ds claims for gross negligence and = respondeat=20 superior do not survive our finding of no duty, they, too, need = not be=20 addressed.

^* =20 Senior justice Richard H. Edelman sitting by=20 = assignment.