COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00433-CV
JOEL STAINBROOK APPELLANT
V.
TEXAS CHRISTIAN UNIVERSITY APPELLEE
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FROM THE 96TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 096-256767-11
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MEMORANDUM OPINION1
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I. Introduction
In two issues, Appellant Joel Stainbrook appeals the granting of TCU’s no-
evidence motion for summary judgment, and in a separate issue, he complains
about the court assignment of the case. We affirm.
1
See Tex. R. App. P. 47.4.
II. Statement of Facts
On November 14, 2009, top-20-ranked TCU and Utah played football in
Amon Carter stadium before a sold-out crowd, reportedly numbering over
50,000. With a 6:40 p.m. kick-off, parking lots opened earlier than normal at 1:00
p.m. The TCU Police Department and the Fort Worth Police Department
(FWPD) provided security, with Contemporary Services Corporation (CSC)
providing event staffing. The two police departments furnished 113 officers, and
CSC provided an additional 211 employees. Sergeant Paul Strittmatter and
Officer Chris Brashear later testified that these numbers were sufficient for the
crowd and that generally there were few fights or arrests in connection with TCU
games in that TCU students formed a “rather sedate crowd.” Stainbrook agreed
with this assessment and later testified that he did not recall any fights at
previous football games that he had attended and was not aware of any publicity
of previous crimes at TCU. Typically, when a football game ends, the officers are
at their assigned lots, and bike patrol officers are typically the last ones to leave
on game days, tailgating usually ending by an hour and a half after the game’s
end.
Two TCU fraternity alumni, Adam Brown and Jared Bradley, held a tailgate
party in Lot 2 in connection with the football game. Eleven FWPD bike patrol
officers patrolled all of the parking lots, and Officer Phillip Vasquez policed Lot 2,
working the entrance on foot. Six CSC employees were also assigned to Lot 2.
Incidents arose between two brothers and fellow fraternity alumni, Tim and David
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O’Brien, and other members of the tailgate party. According to witness Jenny
Robertson, before the game, David O’Brien tried to start a fight, which was
resolved by police officers on bicycles. Witnesses described the O’Briens as
“obviously . . . visibly intoxicated . . . trying to a start fight.” Although tailgate
parties are generally empty during the game, Stainbrook returned to the tailgate
location at the end of the third quarter because TCU was winning in a “blowout,”
the final score being 55-28. Twenty or thirty minutes after his return, he noticed a
possible second conflict between Tim O’Brien and Courtland Kilpatrick.
Stainbrook, shocked that anyone was acting like that, stepped in and defused the
situation. Host Jared Bradley witnessed a third conflict between Tim O’Brien and
Thomas Corely about thirty minutes after the game ended at 10:10 p.m.
Witnesses described the conduct of the O’Briens as “belligeren[t] and
“aggressive[],” “yelling,” “chest bumping and pushing,” “fists clenched,” and
offering to fight. Bradley reported the situation, and FWPD officers arrived to
assist in halting the situation. Bradley did not ask that anyone be arrested, only
that the O’Brien brothers leave the tailgate party. Corporal Oscar Flores
escorted the O’Brien brothers out of the parking lot and did not believe that they
were overly intoxicated, else he would have arrested them. Stainbrook
witnessed Officer Flores’s actions and was not concerned that the O’Brien
brothers would return and start a fight. Thirty to sixty minutes later, as the
tailgate party was ending, the O’Brien brothers surreptitiously reentered Lot 2
and assaulted multiple tailgaters, including Stainbrook. Officers Brasheer and
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D.J. Scott, walking through Lot 2, witnessed these fights from about fifty yards
away and quickly arrived on the scene. Officer Flores and a second bike officer,
just north of Lot 2, arrived at the fights within thirty seconds to a minute. The
fights ended upon the officers’ arrival.2
As a consequence of the fight, Stainbrook sustained injuries to his neck,
back and leg. Because of a fractured tibia, Stainbrook required surgery to
permanently place a metal rod in his leg.
As a result of the foregoing, Stainbrook filed suit against TCU, CSC, and
three O’Brien brothers on May 3, 2010. Over a year later, TCU filed a no-
evidence motion for summary judgment, Stainbrook nonsuited his case, and
refiled it in Johnson County three days later. A motion to transfer venue back to
Tarrant County was granted in November 2011, and the case was transferred
back to its original Tarrant County court, the 67th District Court. In February of
2012, TCU refiled its no-evidence motion for summary judgment. The basis of
the motion was that there was no evidence of a legal duty, breach of that duty, or
injuries and damages proximately caused by TCU. While this motion was
pending, Stainbrook filed a “Motion to Assign the Case to the Administrative
Judge for Random Selection in Courts Designated for the Subject Matter of the
Litigation.” The 67th District Court trial court judge denied this motion and
2
This factual background contains four separate incidents, but both parties
to this appeal indicate that only three occurred; it may be that the second and
third incidents recounted herein were related.
4
granted summary judgment in favor of TCU. Stainbrook then filed a motion to
recuse that judge. The trial judge recused himself, and the regional presiding
judge assigned the case to the 96th District Court. Following this transfer, TCU
filed a further no-evidence motion for summary judgment as to additional claims
Stainbrook had added while the original summary judgment motion was pending.
In response to Stainbrook’s “Motion to Reconsider TCU’s [original] Motion for No
Evidence Summary Judgment,” the 96th District Court judge held a hearing to
reconsider the prior judge’s grant of summary judgment in favor of TCU as well
as the latter-filed no-evidence motion for summary judgment regarding
Stainbrook’s later-filed claims. The 96th District Court judge made the
determination that summary judgment was proper as to all of Stainbrook’s claims
without specifying the basis for his ruling. Stainbrook nonsuited his claims
against the O’Brien brothers and does not appeal the summary judgment of his
claims against CSC. He also does not appeal the summary judgment of his
nuisance and misrepresentation claims. Thus, the only causes of action before
us are those pertaining to TCU, which were nonsuited in September 2013.
III. Negligence/ Premises Liability
In his first issue, Stainbrook asserts that the trial court committed
reversible error by granting TCU’s no-evidence summary judgment motion as to
his premises liability and negligence / inadequate security causes of action
because he offered evidence as to every element of the causes of action.
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A. Standard of Review
After an adequate time for discovery, the party without the burden of proof
may, without presenting evidence, move for summary judgment on the ground
that there is no evidence to support an essential element of the nonmovant’s
claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the
elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286
S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the
nonmovant produces summary judgment evidence that raises a genuine issue of
material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d
425, 426 (Tex. 2008).
When reviewing a no-evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for
evidence that would enable reasonable and fair-minded jurors to differ in their
conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168
S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if
reasonable jurors could, and we disregard evidence contrary to the nonmovant
unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)). If the
nonmovant brings forward more than a scintilla of probative evidence that raises
a genuine issue of material fact, then a no-evidence summary judgment is not
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proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.
v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030
(2004).
B. Inadequate Security Claims
At various places in various pleadings, Stainbrook has characterized his
cause of action against TCU in various ways, including as a premises liability
case, negligent security case, and negligent activity case. Regardless of how it
is characterized, “[a] complaint that a landowner failed to provide adequate
security against criminal conduct is ordinarily a premises liability claim.”
Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex.
1998). “We have repeatedly treated cases involving claims of inadequate
security as premises-liability cases.” Del Lago Partners, Inc. v. Smith, 307
S.W.3d 762, 776 (Tex. 2010). The entire focus of Stainbrook’s complaint against
TCU was, and is, that there was inadequate security present to protect him from
the O’Briens’ attack, and hence this is a premises liability case and will be
analyzed as such.
Generally, a premises owner has no duty to protect invitees from
criminal acts by third parties. We have recognized an exception
when the owner knows or has reason to know of a risk of harm to
invitees that is unreasonable and foreseeable.
....
Whether a duty exists is a question of law for the court and turns “on
a legal analysis balancing a number of factors, including the risk,
foreseeability, and likelihood of injury, and the consequences of
placing the burden on the defendant.”
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Id., at 767 (quoting Gen. Elec. Co. v. Moritz, 257 S.W.3d 211, 217, 218 (Tex.
2008).
We first turn to the question of duty on the part of TCU and specifically
focus on the issue of foreseeability. Our Supreme Court has given us two
scenarios under which a failure to provide adequate security against criminal
conduct rises to the level of a premises liability claim. Those scenarios are
contained in Timberwalk and Del Lago. The distinction in the scenarios between
the two cases, for purposes of our analysis in this case, is the timing of events
giving rise to a duty on behalf of the premises owner, that is, whether those
events occurred in the past (Timberwalk) or contemporaneous in nature (Del
Lago).
In Timberwalk, Cain alleged that “she was raped in her apartment because
her landlord failed to provide adequate security.” 972 S.W.2d at 751. She
alleged a history of criminal events in and around her apartment complex and a
corresponding lack of security provided by the complex that allowed the attack to
occur. The Supreme Court discussed at length the historical criminal activity
factors necessary to make such an event foreseeable for purposes of imposing a
duty on the premises owner. “These factors—proximity, recency, frequency,
similarity, and publicity—must be considered together in determining whether
criminal conduct was foreseeable.” Id. at 759. As to the unfortunate
circumstances involving Cain, the court held that:
8
Applying the factors we have set out to the facts before us, we
conclude that the risk that a tenant would be sexually assaulted was
in no way foreseeable to Timberwalk. Therefore, as a matter of law,
Timberwalk owed Cain no duty to provide additional security beyond
that required by statute and by the lease.
Id.
By contrast, Del Lago addresses a situation in which there is not an
alleged history of criminal activity but an immediacy of events leading up to
criminal activity. The opinion specifically addresses whether Del Lago had a
“duty to protect Smith from being assaulted by another bar customer.” 307
S.W.3d. at 767. The court observed that “criminal misconduct is sometimes
foreseeable because of immediately preceding conduct . . . . [T]he actor may
have sufficient knowledge of the immediate circumstances . . . to foresee that
party’s misconduct.” Id. at 769. Bradley Smith was a member of a fraternity
party at the Grandstand Bar in the Del Lago resort on the shores of Lake Conroe.
An hour-and-a-half long escalating and alcohol–fueled conflict occurred between
the fraternity members and members of a wedding party. What began as verbal
jousting became chest bumping and pushing and eventually erupted into an all-
out brawl, fueled by the bar staff continuing to serve alcohol, giving no notice to
resort security, and herding the parties together while attempting to close the bar.
In upholding the jury verdict finding Del Lago responsible for Smith’s injuries
resulting from the brawl, the court observed that:
Del Lago's duty arose not because of prior similar criminal conduct
but because it was aware of an unreasonable risk of harm at the bar
that very night. When a landowner “has actual or constructive
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knowledge of any condition on the premises that poses an
unreasonable risk of harm to invitees, he has a duty to take
whatever action is reasonably prudent” to reduce or eliminate that
risk.
....
. . . The duty arose because the likelihood and magnitude of
the risk to patrons reached the level of an unreasonable risk of harm,
the risk was apparent to the property owner, and the risk arose in
circumstances where the property owner had readily available
opportunities to reduce it.
....
. . . Del Lago's duty was to “take whatever action [was]
reasonably prudent under the circumstances to reduce or to
eliminate the unreasonable risk from that condition.” We have
alternatively described the duty as requiring the premises owner to
“either adequately warn of the dangerous condition or make the
condition reasonably safe.
Id. at 769–71. (footnotes omitted)
We first turn our attention to the Timberwalk factors and consider whether
there was such a history of criminal activity applicable to the situation on the day
of the incident as to make foreseeable the occurrence that gave rise to this
lawsuit. Stainbrook lists seven “bullet points” in his brief that he alleges are
applicable to this question. We have set out his list in full:
[1] Sergeant Paul Strittmatter testified to similar incidents to the
present matter, “after a game,” when invitees are “at the height of
emotion,”
Q. Have there been more problems after a game, at the height
of emotion?
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A. Oh, there’s always some taunting going on that we
hear . . . I would be surprised to see that we averaged more
than, you know—up until this year, one—one arrest per game.
Then there’s some games there are as many as six or seven
people arrested for different incidences.”[3] (emphasis supplied)
[2] Sergeant Strittmatter also testified to knowing of prior
similar assaultive incidences when he affirmed, “[W]e’ve had other
brawls, yes . . . yeah, where everybody knew each other.”
[3] Strittmatter also testified when asked whether pushing and
shoving between rival groups or individuals happens “a lot” during
these football games, “Oh, yeah. Because you— you’ve got
rival people walking through the parking lots to get to the
stadium.” (emphasis supplied)
[4] Finally, Sergeant Strittmatter also testified, “[W]e’ve had some
where there’s pushing and shoving . . . whether, you know,
somebody looked at somebody’s girlfriend wrong or—or, you know,
said something bad about TCU or another school, you know, the
rival school that’s there at the time.”
[5] Lieutenant Paul Jwanowski testified that due to intoxication
on average there were “one or two” arrests per game.
(emphasis supplied)
[6] The “CSC Incident Report” reveals that there had already
been a separate “altercation” at the ESPN Compound earlier that
very same day. Page two of the Report also reveals that the CSC
staff member “notified TCU and Fort Worth PD.”
[7] As in any sporting event, there is a well-known built-in
animosity between opposing rival fans outside in the parking lot
areas at college sporting events, as eluded to by Sergeant
Strittmatter.
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The record states,
A. Oh, there’s always some taunting going on that we hear . . . . I would
be surprised to see that we averaged more than—up until this year . . . . one
arrest per game. Then there’s some games . . . . we may arrest six, seven
people on different incidents.
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We first observe that the referenced CSC incident report, item 6, was
objected to in connection with Stainbrook’s response to TCU’s motion for
summary judgment. The objection was sustained by the trial court but is not
challenged in this appeal. Thus, we will not consider it on appeal. Frazier v. Yu,
987 S.W.2d 607, 610 (Tex. App.—Fort Worth 1999, pet. denied) (“Where
evidence has been held to be inadmissible and that holding has not been
challenged on appeal, this court cannot consider the excluded evidence.”)
Additionally, with regard to Strittmatter’s comments regarding taunting in item 1,
and rivals in items 3 and 7, this incident did not involve rivalry but in fact involved
members of the same fraternity at TCU. Therefore, what we have as far as a
history of similar criminal events is concerned is (1) a police officer saying that he
would be surprised if there was more than one arrest per game on average, (2)
Lieutenant Jwanowski’s estimate of one to two arrests per game with a maximum
of six or seven arrests in a game, and (3) an awareness that other brawls had
occurred in the past. We have examined cases in which the court held that the
evidence of historical criminal activity rose to the level necessary to place a duty
on the premises owner. See Mellon Mortg. Co. v. Holder, 5 S.W.3d 654, 657
(Tex. 1999) (concluding 190 violent crimes in area is evidence of foreseeability);
Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–50 (Tex. 1985) (holding that
violent acts were foreseeable where an attempted murder, two aggravated
assaults, and multiple apartment and vehicle burglaries had occurred on
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premises); Rivera v. S. Green Ltd P’Ship., 208 S.W.3d 12, 19–20 (Tex. App.—
Houston [14th Dist.] 2006, pet. denied) (holding that criminal conduct was likely
foreseeable based on evidence of four robberies, six aggravated assaults, and
four sexual assaults that had occurred within two-tenths of a mile from
premises ); Petrie v. UDR Tex. Props., L.P., No. 14-13-00123-CV, 2014 WL
3955074, at *4, 9 (Tex. App.—Houston [14th Dist.] Aug. 14, 2014, no pet. h.)
(mem. op.) (holding that unreasonable risk of harm was foreseeable where 220
violent crimes occurred in the vicinity, including one aggravated assault and three
rapes on premises, over two year period).
In contrast, here, past criminal activity did not rise to a level that it imposed
a duty on TCU. Turning to the factors enumerated in Timberwalk, proximity,
recency, frequency, similarity, and publicity, it is readily apparent that the paucity
of prior undated incidents, without evidence of publicity, does not make the
criminal conduct which occurred foreseeable. See Timberwalk, 972 S.W.2d at
759. We hold that Stainbrook has not met his burden under Timberwalk to show
foreseeability and hence a duty on the part of TCU with regard to this incident.
We next turn to the question of when “criminal misconduct is sometimes
foreseeable because of immediately preceding conduct.” Del Lago, 307 S.W.3d
at 769. Del Lago was found responsible under the premises liability theory
because the likelihood and magnitude of the risk to patrons reached the level of
an unreasonable risk of harm, the risk was apparent to the property owner, and
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the risk arose in circumstances in which the property owner had readily available
opportunities to reduce it. Id. at 770.
Let us then examine the events of that day to see if the Del Lago analysis
results in a duty being placed upon TCU. Jenny Robertson recalled that before
the game started, David O’Brien tried to start a fight, which was resolved by
officers from the FWPD. Hours later, after the conclusion of the third quarter, a
second and possibly a third conflict, occurred. This incident resulted in the
O’Brien brothers being escorted out of the parking lot by an officer who did not
believe that they were overly intoxicated or he would have arrested them.
Stainbrook testified that he was not concerned at that point that the O’Brien
brothers would return and start a fight. An hour or less later, the final altercation
occurred, which was quickly stopped by both Officer Brasheer and Scott and two
bike officers who arrived at the scene in less than one minute. Comparing the
facts of this case to those of Del Lago is comparing a Chihuahua to a Great
Dane.
In Del Lago, there was a continuous disturbance between two factions
over an hour and a half period, which escalated in intensity over that time and
was exacerbated by the continuous serving of alcohol by Del Lago’s employees.
In addition, these employees failed to notify security when it obviously was called
for and finally brought the matter to a head by forcing the parties physically
together when telling them to exit at closing time. See West v. SMG, 318 S.W.3d
430, 442 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (holding that evidence of
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bottles being thrown into crowd by band prior to a bottle striking West did not give
actual and direct knowledge of imminent assault under Del Lago). We hold that
the activity prior to the incident giving rise to this lawsuit had not “reached the
level of an unreasonable risk of harm,” the risk was not “apparent to the property
owner,” and the risk did not arise “in circumstances where the property owner
had readily available opportunities to reduce it.” TCU therefore had no duty to
protect Stainbrook under Del Lago. Stainbrook’s first issue is overruled.
IV. The Assigned Court
In his second issue, Stainbrook asserts that the trial court committed
reversible error by denying his motion to have this case randomly assigned
because Tarrant County Local Rule 1.03 dictates that transfer cases shall be
filed by random selection and not to a specific Tarrant County court.
While this is a somewhat unique situation, in that the case had already
been randomly assigned to a Tarrant County court, and nonsuited, refiled in
another county, then transferred back from that county, we will assume that the
case should have been randomly assigned rather than being reassigned to its
original court. Stainbrook however fails to point us to harm that resulted from this
error, if any. Nor can we envision what the harm might have been. Under the
present local custom, to avoid court-shopping, if a case is assigned to a court
and then nonsuited and refiled, it is assigned to its original court upon refiling.
Were we to accept the harmful error analysis as Stainbrook alleges, this policy
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would be circumvented, potentially allowing forum shopping. Stainbrook’s
second issue is overruled.
V. Conclusion
Having overruled both of Stainbrook’s issues, we affirm the judgment of
the trial court.
/s/ Bob McCoy
BOB MCCOY
JUSTICE
PANEL: MCCOY, MEIER, and GABRIEL, JJ.
DELIVERED: November 6, 2014
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