Park, Chan v. Elaine McKeon & Exxon Mobil Corporation

Citations: 429 S.W.3d 142; 2014 Tex. App. LEXIS 3460; 2014 WL 1409308Docket: 05-12-00856-CV

Court: Court of Appeals of Texas; March 28, 2014; Texas; State Appellate Court

Original Court Document: View Document

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In the case Chan Park v. Exxon Mobil Corporation, the Texas Court of Appeals affirmed the trial court's summary judgment in favor of Exxon Mobil, concluding that the shooting incident involving Park was not foreseeable. Park, after being shot at an Exxon station while stopping for gas, alleged negligence against Exxon Mobil, arguing that the company failed to protect him, as a business invitee, from foreseeable criminal acts. He claimed that Exxon Mobil had knowledge of a pattern of criminal activity in the area and did not implement reasonable security measures, such as additional security, fencing, or a security patrol.

The trial court granted Exxon Mobil's motion for summary judgment, asserting that the company owed no duty to Park because the crime was not foreseeable. Park raised multiple issues on appeal, arguing the court erred by concluding there was no fact issue regarding the foreseeability of the crime. However, the appellate court reviewed the trial court's ruling de novo and determined that the evidence did not indicate a genuine issue of material fact regarding foreseeability. The court emphasized that the existence of a duty is a legal question, generally, there is no obligation to protect individuals from the criminal acts of third parties, leading to the affirmation of the lower court's decision.

A property owner has a duty to protect invitees from foreseeable criminal acts by third parties if they are aware of an unreasonable risk of harm. This duty arises only when the risk of criminal conduct is both unreasonable and foreseeable. Foreseeability is determined by evidence of prior crimes on or near the premises and is assessed based on five factors known as the Timberwalk factors: proximity, publicity, recency, frequency, and similarity. In *Timberwalk*, the Texas Supreme Court ruled that an apartment complex had no duty to provide additional security when no violent crime had occurred in the prior ten years. In *Trammell Crow*, the court analyzed violent crimes at a mall to determine if a shooting was foreseeable, concluding that the property manager owed no duty due to insufficient prior incidents. In the current case regarding a shooting at an Exxon Mobil station, the plaintiff argues that *Trammell Crow* is not applicable for several reasons, including differences in premises and victim circumstances. However, the court finds these distinctions unconvincing, asserting that the existence of a duty is a legal question for the court, regardless of procedural differences or specific crime types.

Trammell Crow serves as a reference point for analyzing foreseeability in criminal cases, despite distinctions in the current case. Five violent incidents occurred at or near an Exxon Mobil station between November 2007 and December 2008, involving robbery and assaults, including the use of a knife and a handgun. These incidents highlight a pattern of violence, raising questions about the station's awareness of potential dangers. 

Factors of proximity and publicity were examined, indicating that crimes occurring on or near the property contribute to a landowner's duty to be aware of foreseeable risks. Although property owners are not required to regularly inspect criminal records, widespread publicity of crimes can establish knowledge of risks. Evidence presented showed 353 violent crimes within a mile of the station from January 2006 to July 2009, including two murders and numerous robberies and assaults, although specifics on the crimes' publicity were lacking. 

The concepts of recency and frequency were also discussed, noting that the likelihood of foreseeability increases with a concentration of crimes occurring within a short time frame. The court's previous rulings highlighted that a pattern of multiple crimes over a limited period enhances foreseeability compared to isolated incidents over a longer duration.

The Exxon Mobil station experienced five violent crimes over a twenty-month period before Park's shooting, averaging one violent crime every 121 days. Notably, there were no violent incidents in the six months leading up to the shooting. A critical factor in assessing foreseeability is the similarity of past crimes to the current incident. The law does not require exact parallels in circumstances but rather that prior crimes must be sufficiently similar to alert the owner to potential dangers. In this case, four out of five prior incidents were robberies, with two robberies targeting the store itself, and only one involving a customer. Minor injuries were reported, and there was only one instance within two years where a gun was displayed, without being fired. Thus, based on the Timberwalk factors, the court concluded that Park's aggravated robbery was not foreseeable, similar to a precedent where ten violent crimes did not indicate a foreseeable murder. 

Additionally, evidence regarding crimes in the surrounding area was not sufficiently publicized to raise the owner’s awareness. Park argued that other factors, such as prior requests for security guards, staff policies against late-night outdoor work, and expert opinions on foreseeability, should be considered. However, evidence of two customer shootings occurring four and five years prior fell outside the relevant two-year period deemed reasonable by precedent. The court reiterated that the two-year timeframe established in the Trammell Crow case was appropriate and consistent with prior rulings.

In the case of Mellon, the Supreme Court evaluated the history of violent crime near the location of a rape incident, specifically assessing crime rates over the two years prior. Beckner’s request for security guards was not targeted at the Inwood location but was a general concern related to panhandling. The presence of security guards or requests for them do not inherently indicate that a crime was foreseeable. Preventative measures do not imply foreseen criminal activity, as established in Allen v. Connolly. Although security guards were present at another location (Quarry Market), Beckner's request did not imply foreseeability concerning a shooting incident involving a customer.

Testimony from Adana Kersa indicated a company policy prohibiting employees from going outside during night shifts for safety, which Beckner suggested was not exclusive to Inwood. Park referenced Exxon Mobil’s security program aimed at reducing incidents, noting that operational guidelines included conducting security threat assessments. However, operational manager James Copeland revealed a lack of awareness of such assessments for the gas station in question over the five years before the shooting, and night ride inspections had ceased by the end of 2007.

Despite the existence of these guidelines, they did not substantiate foreseeability of the crime against Park. Previous crimes near the Exxon Mobil station were deemed insufficiently frequent and similar to warrant a reasonable expectation of the incident. Expert testimonies from Rathburn and Warren suggested that given the crime statistics, Exxon Mobil should have recognized a risk to customers. However, the determination of legal duty remains a judicial matter, not one for expert opinion, as stated in Boren v. Texoma Medical Center.

Expert testimony cannot establish a legal duty where none exists. The case Allright San Antonio Parking Inc. v. Kendrick indicates that additional evidence did not create a factual dispute regarding foreseeability. Consequently, the court ruled against Park's first four issues. Since Exxon Mobil was found not to owe a duty to Park as a matter of law, the court did not address Park's remaining issues concerning punitive damages for alleged gross negligence. The trial court's judgment was affirmed, ordering Exxon Mobil to recover costs from Park. This judgment was entered on March 28, 2014.