Diaz v. DTC West Tidwell Corp. (Tex.App.- Houston [14th Dist.] Oct. 8, 2009)(Sullivan)
(deadly shooting at carwash, no premises liability, crime 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
Pedro Santiago Diaz was shot and killed at a carwash at 1:30 in the morning. The appellants, his
surviving children, brought a wrongful-death lawsuit against the carwash, appellee DTC Tidwell
Corporation d/b/a U.S. Auto Wash (DTC), alleging premises liability. The trial court granted DTC’s
motion for summary judgment after the carwash, which had no history of violent crime, argued it owed
no duty to Diaz to prevent an unforeseeable crime.
We affirm the judgment.
On September 15, 2005, Diaz was at U.S. Auto Wash long after the posted hours of operation with a
blood-alcohol content of 0.14. Around 1:30 that morning, an unidentified person shot and killed him
on the premises of the carwash.
Appellants sued DTC for wrongful death. DTC denied liability and produced evidence showing no
previous history of violent crime at the carwash.  Premised on this evidence, DTC filed a traditional
motion for summary judgment arguing it owed no legal duty to prevent an unforeseeable crime to Diaz.
 The trial court granted DTC’s motion for summary judgment on the basis DTC owed no duty to
Diaz, resulting in a final judgment. In their single issue on appeal, appellants argue the trial court
erred in granting summary judgment based on the conclusion that DTC owed no duty to Diaz.
I. Standard of Review
To prevail on a traditional motion for summary judgment, the moving party must establish “there is no
genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.”
Tex. R. Civ. P. 166a(c); see Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). In
determining whether there is a genuine fact issue precluding summary judgment, we take as true
evidence favorable to the non-movant, and we make all reasonable inferences and resolve all doubts
in favor of the non-movant. Nixon, 690 S.W.2d at 548–49. A movant that conclusively negates at
least one essential element of a plaintiff’s cause of action is entitled to summary judgment on that
claim. IHS Cedars Treatment Ctr. of Desoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).
Thereafter, the burden shifts to the non-movant to produce evidence that would preclude summary
judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678–79 (Tex. 1979). If
there is no issue of material fact, summary judgment should issue as a matter of law. See Haase v.
Glazner, 62 S.W.3d 795, 797 (Tex. 2001). We review the trial court’s summary judgment de novo.
Provident Life & Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).
It is well established that a property owner is not an insurer of the safety of those on his premises.
See Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 658 (Tex. 1999) (plurality opinion). A property owner
owes a duty to persons harmed by third party criminal acts on his property only when the risk of
criminal conduct is so great it is both unreasonable and foreseeable. Id. at 655 (citing Timberwalk
Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998)).
To determine foreseeability, the Supreme Court of Texas has frequently used the following two-
pronged test: (1) “the injury be of such a general character as might reasonably have been
anticipated” and (2) “the injured party should be so situated with relation to the wrongful act that injury
to him or to one similarly situated might reasonably have been foreseen.” Id. (quoting Nixon, 690 S.W.
2d at 551); see Tex. Cities Gas Co. v. Dickens, 168 S.W.2d 208, 212 (Tex. 1943). Only after we
apply both prongs and conclude the criminal act was foreseeable can we determine whether a duty
was owed. See Mellon Mortg. Co., 5 S.W.3d at 657.
When applying the first prong, we consider the Timberwalk factors: similarity, recency, frequency and
publicity. See id. at 656–57 (citing Timberwalk Apartments, Partners, Inc., 972 S.W.2d at 757). After
considering those factors, we conclude appellants have not satisfied the first prong. See Mellon
Mortg. Co., 5 S.W.3d at 655; Timberwalk Apartments, Partners, Inc., 972 S.W.2d at 757. In that
regard, a review of Timberwalk Apartments, Partners, Inc. is helpful. There, a tenant of the
Timberwalk Apartments was sexually assaulted at the complex. Timberwalk Apartments, Partners,
Inc., 972 S.W.2d at 751. The evidence showed no violent, personal crime had occurred at the
complex in the ten years preceding the tenant’s assault, but it showed a sexual assault within a one-
mile radius of the complex and six assault-type crimes in neighboring apartment complexes had
occurred in the year preceding the tenant’s assault. Id. at 752, 759. There was no evidence any of
these crimes were ever publicized or that Timberwalk knew or had any way of knowing about them. Id.
at 759. Thus, the court held the risk a tenant would be sexually assaulted was in no way foreseeable
to Timberwalk. Id.
In the instant case, appellants did not present evidence of any violent crimes, much less any similar
crimes, that occurred at the carwash or in the surrounding area. Without such evidence, we cannot
conclude it might have been foreseeable a violent crime such as murder might occur at the carwash.
 See Mellon Mortg. Co., 5 S.W.3d at 657.
We also note that appellants’ claims fail as to the second prong as well. In that regard, Mellon Mortg.
Co. is instructive. See id. at 657-58. There, an on-duty Houston police officer pulled the victim over
in her car at 3:30 a.m. and directed her to get out of her car and follow him to his squad car. Id. at
654–55, 657. The victim followed the officer to a parking garage owned by Mellon Mortgage
Company (Mellon) where he sexually assaulted her. Id. at 654. Although no violent crime had
previously occurred at the parking garage, summary-judgment evidence revealed 190 violent crimes
had occurred in the area surrounding the parking garage in the two years preceding the victim’s
sexual assault. Id. at 657. The court reasoned the violent crime in the surrounding area, coupled
with the fact Mellon knew vagrants frequented the garage, constituted some evidence of foreseeable
criminal conduct and the possibility that a violent crime such as rape might occur. Id. Based on those
facts, the court held the victim satisfied the first prong. Id.
Nevertheless, in Mellon Mortg. Co., the court found the victim did not satisfy the second prong
because Mellon had no control over the officer, no knowledge or reason to believe the officer would
choose Mellon’s garage to assault the victim, and no knowledge or reason to believe the victim or a
person similarly situated would be subjected to a crime on Mellon’s property. Id. at 657–58. The
court reasoned the mere fact crimes are prevalent in downtown Houston was not enough to predict
the officer would pick Mellon’s garage as the scene of his crime. Id. at 658. Because the victim failed
to establish both prongs, the court held the assault was unforeseeable and, thus, Mellon owed her no
duty. Id. at 655. Therefore, it was unnecessary to determine into which of the three categories—
invitee, licensee, or trespasser—she fell. Id.
Similarly, in this case, appellants have not shown that injury to Diaz or one similarly situated might
reasonably have been foreseen. See id. at 655. DTC had no control over the murderer, no
knowledge or reason to believe the assailant would choose DTC’s carwash as the site of his crime,
and no knowledge or reason to believe Diaz or a person similarly situated would be murdered at DTC’
s carwash. See id. at 657. The mere fact crimes have generally occurred in downtown Houston is not
enough. See id. at 658. Thus, appellants also have not met their burden under the second prong of
our foreseeability analysis. See id. at 655.
We conclude DTC owed no legal duty to Diaz because the criminal conduct of a third party was not
foreseeable. Having overruled appellants’ single issue, we affirm the trial court’s order granting DTC’
s motion for summary judgment.
/s/ Kent C. Sullivan
Panel consists of Justices Seymore, Brown, and Sullivan
 While the appellants offered some summary-judgment evidence of incidents in the area such as trespassing, the
need for a city wrecker to tow an abandoned vehicle, and a disagreement between the store clerk and a customer,
they offered no proof of similar crime.
 DTC also argued that the appellants lacked standing and capacity to bring suit. However, the trial court did not rule
on these alternative arguments, and we need not address them here to resolve the merits of this appeal.
 Diaz was murdered after the carwash’s posted hours of operation. However, appellants argue because the
premises were lit and the machines were fully operational, the carwash was open and running when Diaz was
murdered. Whether the carwash was open may affect Diaz’s status as an invitee, licensee, or trespasser, but it does
not bear on the relevant inquiry of whether the crime was foreseeable, the focus of our analysis here. See Mellon
Mortg. Co. v. Holder, 5 S.W.3d 654, 655 (Tex. 1999). We also note that although appellants contend Diaz was washing
his vehicle, DTC presented undisputed summary-judgment evidence that (1) Diaz’s vehicle did not appear as though
it had been recently washed, (2) the washer wand was sitting in its carrier and did not appear to have been recently
used, and (3) the ground around the vehicle was not wet as it would have been had someone recently washed his car.
 Appellants argue DTC had a duty to discover whether criminal activity was taking place at or near its property and
DTC owed Diaz a duty to protect him from criminal activity. However, the Supreme Court has rejected the notion that a
landowner might have to inspect police records to determine whether his property is in a high-crime area. See Mellon
Mortg. Co., 5 S.W.3d at 657.
 Appellants suggests that a carwash should have a heightened duty to protect the public, which should include
maintaining a full-time security guard or installing gates to prevent afterhours entry. To support this proposal,
appellants point to a legislative bill to that effect that was introduced in 1997. That bill did not survive its referral to
committee, however, and is not the law in Texas.