Gracie Nguyen Patrick Sanchez Tamara and Derrick O'Neal, Individually and as Representatives of the Estate of De' Andre Tatum, Erica D. Hall Curtisha Davis Arthur Zamarripa, as Next Friend of A.Z. And William Josma v. SXSW Holdings, Inc. SXSW LLC Patrick Lowe Transportation Design Consultants And City of Austin

Dismissed in Part, Affirmed in Part, and Majority and Dissenting Opinions
filed July 18, 2019.

In The

Fourteenth Court of Appeals

NO. 14-17-00575-CV

GRACIE NGUYEN; PATRICK SANCHEZ; TAMARA AND DERRICK
O’NEAL, INDIVIDUALLY AND AS REPRESENTATIVES OF THE
ESTATE OF DE’ANDRE TATUM, DECEASED; ERICA D. HALL;
CURTISHA DAVIS; ARTHUR ZAMARRIPA, AS NEXT FRIEND OF A.Z.;
AND WLLLAM JOSMA, Appellants
V.
SXSW HOLDINGS, INC.; SXSW LLC; PATRICK LOWE;
TRANSPORTATION DESIGN CONSULTANTS; AND THE CITY OF
AUSTIN, Appellees

On Appeal from the 261st District Court
Travis County, Texas
Trial Court Cause No. D-1-GN-17-002229

DISSENTING OPINION
The majority answers the wrong question, ignores recently reiterated and
foundational principles of tort law, and elevates criminal conduct to a superseding
cause which purportedly absolves unreasonably negligent actors of liability. This
line of reasoning wrongly relegates victims of crimes to a newly created second-
class status as plaintiffs even when the specific types of underlying harm caused by
defendants’ breach of duty were actually foreseen. This seemingly unprecedented
relegation is plainly inconsistent with time-tested basics of tort law and is
unquestionably unworthy of appellate approval.

A. Duty

The majority incorrectly concludes the SXSW Appellees and Transportation
Design did not owe Appellants a duty (because Owens’ criminal actions were
unforeseeable) by erroneously analyzing clearly established and controlling Texas
jurisprudence concerning negligence. Whether defendants owed plaintiffs a duty
under the particular facts of a case are questions of law for the court to decide. See
generally Golden Spread Council, Inc. No. 562 of Boy Scouts of Am. v. Akins, 926
S.W.2d 287, 289 (Tex. 1996). When determining whether a common-law duty is
owed, Texas courts apply the risk-utility test. See Read v. Scott Fetzer Co., 990
S.W.2d 732, 736 (Tex. 1998) (identifying the factors of the test); see also id. at
289-90 (same). This test requires courts to balance a set of three distinct variables
against a separate set of three distinct variables. Specifically, courts must balance
(A) the risk, foreseeability, and likelihood of injury against (B) the social utility of
the actor’s conduct, the magnitude of the burden of guarding against the injury, and
the consequences of placing this burden on the defendant. Read, 990 S.W.2d at
736; see also Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 405 (Tex.
2009).

1. Risk

The risk herein was significant insofar as unimpeded vehicles striking
invitee-pedestrians walking on roadways predictably resulted in grievous injury
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and death.

2. Likelihood of injury

The likelihood of injury herein was significant insofar as pedestrians were
predictably and designedly walking on roads otherwise largely reserved for sizable
motor vehicles capable of traveling at substantial rates of speed; therefore, it was
likely such unimpeded vehicles on said roadways would cause grievous injury or
death to invitee-pedestrians gathering thereon.

3. Foreseeability

Foreseeability is, time and again, the single most important variable of the
six. See City of Waco v. Kirwan, 298 S.W.3d 618, 624 (Tex. 2009); see also Tex.
Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30, 36 (Tex. 2002). Texas law has “long
recognized that what must be foreseeable is not the exact sequence of events that
produces the criminal conduct, but only the general danger.” Mellon Mortg. Co. v.
Holder, 5 S.W.3d 654, 655 (Tex. 1999) (plurality op.) (citing Walker v. Harris,
924 S.W.2d 375, 377 (Tex. 1996) and Lofton v. Tex. Brine Corp., 777 S.W.2d 384,
387 (Tex. 1989)); see also Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 551
(Tex. 1985); cf. Finley v. U-Haul Co. of Ariz., 246 S.W.3d 185, 187 (Tex. App.—
Houston [14th Dist.] 2007, no pet.); Allen v. Connolly, 158 S.W.3d 61, 66 (Tex.
App.—Houston [14th Dist.] 2005, no pet.); and Ambrosio v. Carter’s Shooting
Ctr., Inc., 20 S.W.3d 262, 265 (Tex. App.—Houston [14th Dist.] 2000, pet.
denied) (foreseeability “does not require a person to anticipate the precise manner
in which injury will occur once he has created a dangerous situation through his
negligence”) Here, the general danger was one of grievous bodily harm or death
caused by unimpeded vehicles traveling along roads where invitee-pedestrians
were gathering by design despite the established fact that emails between the
Appellees conclusively showed that they were aware of the increased risks of death
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or injury; I simply cannot support the majority’s implicit conclusion that the harms
herein were unforeseeable as a matter of law despite the fact that evidence tends to
show that Appellees themselves actually foresaw them.

The Texas Supreme Court has very recently reaffirmed long held precedent
underpinning the inherently basic concept of foreseeability in negligence actions:

Foreseeability does not necessarily equate to predictability. Rather,
“foreseeability” means that the actor should have reasonably
anticipated the dangers that his negligent conduct created for others.
It does not require that a person anticipate the precise manner in
which injury will occur once he has created a dangerous situation
through his negligence. It requires only that the general danger, not
the exact sequence of events that produced the harm, be foreseeable.
Accordingly, the plaintiff need not always show that his particular
injury has occurred before in order to create a fact question on
foreseeability.
Univ. of Tex. MD Anderson Cancer Ctr. v. McKenzie, No. 17-0730, 2019 WL
2710037, at *9 (Tex. June 28, 2019) (internal citations omitted).

Therefore, the SXSW Appellees’ and Transportation Design’s insistence
(and the majority’s adoption thereof) that Owens’ criminal conduct was
unforeseeable is inapposite to all relevant legal analyses according to an unbroken
line of binding precedent. Instead, the controlling queries are whether (1) the
injury is of a general character that might reasonably have been anticipated and
(2) the injured party is situated in relation to the wrongful act so that injury (as
opposed to the exact cause of said injury) to the party or to one similarly situated
might reasonably have been foreseen. Mellon Mortg. Co., 5 S.W.3d at 655. I
believe the answer to both of these questions is an undeniable “yes”.

The invitee-pedestrians at issue were grievously injured (and some killed) by
a moving vehicle while walking on an ostensibly safe roadway otherwise reserved
almost exclusively for vehicles. Extensive operations were undertaken to prepare

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downtown Austin for the 2014 SXSW festival, including the preparation and
implementation of a traffic control plan designating the closure of certain
downtown streets. But despite these preparations and purported closures, the
SXSW Appellees and Transportation Design failed to place any barriers between
the designated pedestrian walkways and the open fire lane which were capable of
impeding the foreseeable movement of vehicles that would normally travel on
Austin’s connecting streets. At worst, evidence presented to the trial court below
creates a fact question (when read in the light most favorable to the nonmovant) as
to whether Appellees actually foresaw the injury that occurred. I reject the
majority’s novel conclusion that victims of third-party criminal car chases are
precluded from prevailing in negligence actions where similarly-situated victims of
third-party negligence can succeed (e.g., non-criminal conduct of drivers in
medical distress or mechanical failure of vehicles).

4. Social utility of the actor’s conduct

The record does not contain any evidence tending to establish any social
utility associated with the SXSW Appellees’ and Transportation Design’s failure to
place appropriate barriers capable of impeding foreseeable movement of vehicles
to permit reasonably safe pedestrian traffic.

5. The magnitude of the burden of guarding against the injury
The record reveals the magnitude of the burden of guarding against the
injuries sustained herein was minimal. The SXSW Appellees and Transportation
Design actively discussed appropriate traffic control measures to implement on
roads only partially closed to vehicular traffic and contemplated the use of water-
filled barriers. Common sense dictates that such barriers are relatively light-
weight, mobile, and effective. There is neither evidence nor argument tending to
establish the magnitude of the SXSW Appellees’ and Transportation Design’s

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burden is in any way favorable to their position that they have no duty under Texas
law.

6. The consequences of placing this burden on Appellees

The SXSW Appellees and Transportation Design did not present any fact or
argument tending to establish the consequences of holding they had a duty to
prevent errant vehicles from striking pedestrians designedly walking in roadways.
Therefore, there are no consequential consequences of placing this burden on
Appellees herein (and similarly-situated parties).

* * *

After independently analyzing each of these six variables, none of them tend
to establish the absence of a relevant duty. Instead, at least five of the six
(importantly including foreseeability) favor the recognition of a duty. Finding
there is simply no balance to be had, the SXSW Appellees and Transportation
Design had an inescapable duty under the risk-utility test to impede the movement
of vehicles on roadways where invitee-pedestrians were designedly gathering.

B. Superseding Cause

The SXSW Appellees and Transportation Design also argue they cannot be
liable due to Owens’ criminal acts. I interpret Appellees’ argument to implicitly
invoke the “new and independent cause” doctrine; such a cause “is one that
intervenes between the original wrong and the final injury such that the injury is
attributed to the new cause rather than the first and more remote cause.” Dew v.
Crown Derrick Erectors, Inc., 208 S.W.3d 448, 450 (Tex. 2006) (citing Robert R.
Walker, Inc. v. Burgdorf, 244 S.W.2d 506, 509 (Tex. 1951) and Phoenix Ref. Co. v.
Tips, 81 S.W.2d 60, 61 (Tex. [Comm’n Op.] 1935)). This doctrine cannot be
implicated (much less analyzed) except where there is an “original wrong”,

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“cause”, and “injury”. See id. As a result, the new and independent cause doctrine
does not (and cannot) displace a rudimentary negligence analysis.

After first concluding plaintiffs below introduced proof tending to establish
duty, breach, causation, and damage, we should then (and only then) examine
whether a superseding cause exists. See id. (citing Robert R. Walker, Inc., 244
S.W.2d at 509 and Phoenix Ref. Co., 81 S.W.2d at 61). “What generally
distinguishes a superseding cause from one that merely concurs in the injury is that
the intervening force was not only unforeseeable, but its consequences also
unexpected[.]” Id. at 451. Specifically,

[A] superseding cause is one that alters the natural sequence of events
and produces results that would not otherwise have occurred. Or one
that is “of such an extraordinary nature or so attenuates defendant’s
negligence from the ultimate injury that responsibility for the injury
may not be reasonably attributed to the defendant.” An intervening
force will not break a causal connection if that force was itself
probable or foreseeable by the original wrongdoer. It must be one not
brought into operation by the original wrongful act and must operate
entirely independently of such original act.

Id. (quoting 1 J.D. Lee & Barry A. Lindahl, Modern Tort Law § 4:7 at 4-14 - 4-15
(2d ed. 2002) (footnotes and citations omitted)). Here, (1) the
force itself was probable or foreseeable and (2) the consequences thereof (grievous
injury and death) were not unexpected.

Therefore, Owens’ conduct cannot be a superseding cause as a matter of
controlling law because the consequences were not unexpected. The majority’s
conclusion ignores the fact that Appellants’ injuries herein would have occurred as
a result of the SXSW Appellees’ and Transportation Design’s failure to act via any
unimpeded vehicle traveling on the roadways in question at a significant speed (for
any non-criminal reason, e.g., confused drivers, mechanical failure, and drivers

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experiencing medical distress).

The presence of vehicles on the roadways in question was actually foreseen
by the SXSW Appellees and Transportation Design as evidenced by email
correspondence addressing the use of certain barriers to protect pedestrians
walking on these exact roadways. The fact these Appellees actually foresaw the
danger associated with unimpeded vehicles traveling along these precise roads
during SXSW directly precludes the propriety of concluding that an unimpeded
vehicle causing Appellants’ injuries was unforeseeable.

Even if the majority incorrectly displaced a negligence analysis with a
superseding cause analysis and/or concluded cars traveling along these roadways
were unforeseeable, Owens’ conduct is still incapable of becoming a superseding
cause because the harms inflicted thereby were the same type as those said
Appellees (those with the relevant duty) “generally contemplated”. Applying this
precept in Phan Son Van v. Pena, 990 S.W.2d 751 (Tex. 1999), the Texas Supreme
Court examined whether the defendant convenience store and its owner could be
held liable for negligently selling alcohol to underage gang members who went on
to assault and kill two teenage girls. Concluding the harm inflicted by the gang
members was “different in kind” from that generally contemplated by the duty to
not furnish alcohol to minors, the Court noted:

It is foreseeable, for example, that the sale of alcohol to a minor will
result in the minor driving while intoxicated and either causing injury
or being injured. On the other hand, the intentional sexual assault and
brutal murder of two teenage girls who happen upon a gang initiation
some distance in time and location from the illegal sale of alcohol is
not the type of harm that would ordinarily result from such a sale.

Id. at 755.

Unlike the circumstances in Phan, Owens’ ability to maneuver his vehicle

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without obstruction onto roadways where pedestrians were invited to gather was a
normal and expected consequence of the SXSW Appellees’ and Transportation
Design’s failure to use appropriate barriers to protect roadways designated solely
for pedestrian traffic from vehicular incursion. See id. at 755-56 (“The violent
sexual assaults and murders committed by the gang members when the girls, by
chance, stumbled upon their initiation ritual were certainly an ‘extraordinary’
rather than ‘normal’ consequence of Phan’s alleged illegal sale of alcohol.”) (citing
Donnell v. Spring Sports, Inc., 920 S.W.2d 378, 385 (Tex. App.—Houston [1st
Dist.] 1996, writ denied) (affirming summary judgment for the defendant on the
ground that small scuffles at a softball park after participants consumed alcohol
may be foreseeable, but the “ferocity of this fight and the severity of [the
plaintiff’s] injuries were extraordinary” and not foreseeable as a matter of law);
and Yarborough v. Erway, 705 S.W.2d 198, 203-04 (Tex. App.—Houston [14th
Dist.] 1985, writ ref’d n.r.e.) (holding the third party’s sudden violent criminal acts
were an unforeseeable consequence of a bar’s alleged negligence in serving the
intoxicated assailant)). Similarly, the injuries here were physical injuries sustained
by invitee-pedestrians walking on a roadway after they were struck by an
unimpeded vehicle traveling at a significant rate of speed.

Finally, controlling precedent holds that the threshold (and often controlling)
inquiry when distinguishing between a concurring and a superseding cause remains
“whether the intervening cause and its probable consequences were such as could
reasonably have been anticipated by the original wrongdoer.” Bell v. Campbell,
434 S.W.2d 117, 120 (Tex. 1968). The injuries and deaths for which Appellants
seek to recover were an expected and reasonably anticipated result of the alleged
failure to use appropriate barriers to protect pedestrian zones from vehicular traffic
traveling along Austin’s adjoining thoroughfares (and were foreseeable without

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foreseeing Owens’ precise criminal conduct). It is well-settled in Texas that a
defendant who seeks to negate foreseeability on summary judgment must prove
more than the intervening third-party criminal conduct occurred; the defendant also
has the burden to prove that the conduct was not foreseeable. Phan, 990 S.W.2d at
754. Appellees here cannot do so because they actually foresaw the precise need
they refused to address.

C. Timberwalk (and Del Lago) are inapposite

The majority analyzes Timberwalk and Del Lago and concludes Owens’
criminal conduct must be a superseding cause without first analyzing whether there
was duty, breach, causation, and damage; instead, it rushes to a conclusory finding
that because Owens’ actions were criminal they must be a superseding cause and
the only source of liability. Timberwalk reiterates the clearly established rule that,
“Foreseeability requires only that the general danger, not the exact sequence of
events that produced the harm, be foreseeable.” Timberwalk Apartments, Partners,
Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) (citing Walker, 924 S.W.2d at 377
and 2 Fowler V. Harper & Fleming James, Jr., The Law of Torts § 20.5(6) at 1147
(1956) (“Foreseeability does not mean that the precise hazard or the exact
consequences which were encountered should have been foreseen.”)). In
Timberwalk, the “general danger” was sexual assault (an inherently criminal and
malum in se act). Even the majority quotes Timberwalk’s statement that “when the
general danger is the risk of harm from criminal activity, foreseeability must be
proven with evidence of ‘specific previous crimes near the premises.’” Id.
(emphasis added). There, the Court properly analyzed the question presented and
provided a framework to determine when comparable criminal conduct is
foreseeable. Here, the general danger is the risk of these types of injuries from any
runaway vehicles for any reason; this was not only foreseeable, but emails

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evidence Appellees actually foresaw it. Based thereon, these types of harms were
foreseeable and that Appellees had an affirmative duty to protect Appellants from
these injuries. This foreseeability forecloses the propriety of examining the
Timberwalk factors concerning exclusively criminal and malum in se activity.

The majority’s reliance on Timberwalk yields yet an additional absurdity I
cannot support. Specifically, the conclusion that Timberwalk controls under these
facts permits trial courts to infer they would act within their discretion if they
concluded comparable conduct was unforeseeable at next year’s festival (six years
after the harms herein) because Owens’ conduct occurred more than four years
ago. See Maj. Op. at Part V.A.iii. This misapplication of the Timberwalk
framework to general harms caused by conduct that is not inherently criminal
improperly short-circuits and supplants clearly established negligence analyses.

Unlike in Timberwalk or Del Lago, Appellants’ prevailing argument here is
not that Owens’ criminal acts were foreseeable, but rather that their injuries were
foreseeable. Because the Texas Supreme Court provided no indication that it
intended for its analysis in Timberwalk to replace fundamental tenets of negligence
jurisprudence (and the implications of concluding otherwise), courts should not
proceed to Timberwalk without first conducting a risk-utility analysis (including
foreseeability). Having concluded the harm herein was foreseeable, no authority
asks (much less requires) us to close our eyes to already ascertained and
controlling conclusions of law.

CONCLUSION

It is clear from the evidence that Appellants presented that the SXSW
Appellees and Transportation Design failed to comport with their duty imposed by
the risk-utility test and that their conduct was, at the bare minimum, a proximate
cause of Appellants’ damages. It is also clear that Owens’ conduct was a
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proximate cause of Appellants’ damages, but Owens’ actions do not automatically
vitiate any liability the SWSW Appellees and Transportation Design may have
incurred as a result of their own actions. The Appellees’ briefs establish that
Owens was a responsible third party but fail to establish that the SXSW Appellees
and Transportation Design are wholly blameless. The foreseeability of Appellants’
general harms forecloses both (1) the possibility said harms were unforeseeable
and (2) the propriety of conducting an additional analysis in an attempt to
obfuscate (if not obliterate) judicial discernment of said foreseeability. The
majority’s analysis is dependent upon a misapplication (and impermissible
alteration) of tort law basics and improperly wields third-party criminal acts as a
judicial guillotine through which Texas plaintiffs are prevented from prevailing
against negligent defendants as a matter of law (even when evidence tends to prove
defendants actually foresaw both the relevant harms and the need to protect people
therefrom). The majority errs by refusing to let a jury consider the relative liability
of the actors in this circumstance. Due to the fundamental error involved in the
majority’s creation of new law to the detriment of clearly established law, the
plainly unjust ramifications thereof, and the unquantifiable harms caused thereby, I
am obliged to dissent.

/s/ Meagan Hassan
Justice

Panel consists of Justices Christopher, Zimmerer and Hassan (Christopher, J.,
majority).

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