dissenting.
Well, it’s not right to go into details, I got nervous. I screwed up, I said the wrong thing ... Where if I hadn’t, I could be in bed right now with a woman who, if you make her laugh, you got a life. Instead I’m here with you [gestures to bartender] ... No offense, but a moron pushing the last legal drug.1
If our task is to prohibit “pushing the last legal drug,” the majority has gone a long way to accomplishing that task. By holding events in a place larger than just the bar, where people have, on occasions in the past, engaged in illegal activity, the majority has imposed upon a bar’s owner the duty to protect its patrons from the illegal activity of others.
So this ease is about that duty. The duty of a premises owner/occupier to protect an invitee from the criminal conduct of another invitee or third party. In finding a duty, the majority makes some interesting law. The law they make to determine there is a duty, however, is not supported by existing precedent.
This dissenting opinion will first focus, albeit briefly, on the unusual aspects of what the majority has done, comment on other aspects of the appeal, and then provide what I believe is the analysis for a proper disposition of determining whether Del Lago owed Smith a duty to prevent the attack resulting in his injuries.
THE BACKGROUND
To understand where I am going, it will be helpful to know that Smith was at a reunion of fraternity brothers. They were in a bar at Del Lago. A wedding party came into the bar. After an extended period of alcohol consumption and displays of testosterone, it was time for the bar to close. After the closing and during the exit from the bar, there was what can best be described as a brawl between the wedding party and the fraternity brothers. One of the fraternity brothers, Smith, had his head, somewhat face first, rammed into *165a wall. Though initially declining medical treatment, Smith’s injuries were quite serious. Ultimately, he sued Del Lago.
To find a duty, the following three questions are answered in the affirmative by the majority opinion:
1. Can we use generic, undefined, unspecified past events upon which to determine a duty in conducting a Timberwalk analysis?
2. Can we use the events from which the injury arose in determining the existence of a duty in conducting a Timberwalk analysis?
3. Can we use, and if so, how do we use, an expert’s testimony in determining the existence of a duty in conducting a Timberwalk analysis (as opposed to the breach of the duty if one is determined to exist)?
Considering Vaguely RefeRenced Events
Smith’s expert and the majority put a lot of emphasis on a number of other vaguely described incidents. Because the incidents referred to are vague, particularly in reference to an analysis under the Timberwalk factors, Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756-759 (Tex.1998), I believe it is improper to put the level of reliance upon them that the majority does. I note in all the incidents, including the ones on which reports were prepared, there is only one in which a large number of persons were involved, like this incident, and it was not in the bar. I also note there is a serious question about which, if any, of these vague incidents were criminal conduct, particularly involving violent conduct resulting in an assault.
CONSIDERING THE EVENTS LEADING TO InjuRY to Determine Duty2
Smith’s expert and the majority put great emphasis on the events of the evening prior to the brawl. The problem with this reliance is that the duty existed or did not exist before the evening began. Anything about events that happened over the course of the evening are about a breach and causation once a duty is determined to exist. I believe it is error to factor this into the duty analysis. One of the problems with factoring the night’s events into the analysis will be how the preliminary events are viewed. These preliminary events could just as easily be viewed as confirmation that no duty should exist because the nature of the confrontations between the members of the two groups over the two hours before the injury did not result in any injury or need for intervention by security. Those events certainly did not result in any illegal activity resulting in an injury to an invitee.
Considering Expert Testimony
In some areas, the determination of duty may be assisted by an expert. The question becomes what are the areas in which an expert can be used? I believe that premises liability is not such an area in which an expert should be used to determine the existence of a duty and that the expert testimony should not have been considered at trial or in this appeal. Only *166when expert testimony is required based on the nature of the case would I allow an expert to participate in the determination of the existence of a duty. The classic example of this is probably medical malpractice cases. But when, as here, the duty is going to be determined by ordinary reasonableness standards, what does an expert add? In this particular context, that of liability of a premises owner or occupier, if a security expert is utilized to determine the existence of a duty, every owner or occupier of property would need to engage the services of a security expert to advise them whether, and to what extent, they owe a duty of security to persons who may enter upon their premises. I would not impose such a burden on every property owner.
Essentially, we now have an expert on what constitutes a reasonable person. The premise on which we use experts is they have specialized knowledge, skill, or training. If we use an expert to determine what a reasonable person would have done, known, or been made aware of by certain events, we have required every premises owner to become an expert in the security of the premises from the illegal acts of third persons. The reason the person qualifies as an expert is because they may take facts that a reasonable person would not infer anything from. But an expert may be able to, based upon his training and experience, infer a risk or recognize, when joined with other factors presented, the presence of an unreasonable risk of harm.
Finally, since the duty is a question of law, decided de novo by the appellate court, what would be the proper scope of our review? Are we limited to the record that was before the trial court? Or can we have our own 702/ Daubert hearing to determine 1) whether we are really dealing with a proper area for expert inquiry, 2) whether the alleged expert is really an expert, and 3) whether the expert properly evaluated the issue under investigation; or is it just a review of some facts and a bare conclusion of the alleged experts? See Tex.R. Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). For these reasons, I do not believe this is a proper area of inquiry for use of an expert, and the majority errs in placing such heavy reliance on the expert’s testimony to determine the existence of a duty.
Other Issues/Observations
I also have grave doubts, because the geographic area from which the incidents used by the majority to find a duty is so large, that it could then be found to have been a breach of that duty by not having a security officer within the bar. The security officers were on the larger Del Lago premises, and they arrived in the bar within minutes of when the brawl started. If the reviewing court uses the events occurring in all of Del Lago to find a duty owed to the bar patron, we must evaluate the breach and proximate cause issues within the context of that duty to patrol the larger geographic area. The frequency of assaults requiring security intervention due to injury or criminal conduct, many sexual or domestic relations in nature, occurred much more frequently in the areas security was actually patrolling than within the bar where Smith, his expert, and the majority wants them to stay.
My Analysis
This is a premises liability case in which Bradley Smith sued Del Lago Partners, Inc., for negligence regarding severe injuries he sustained in a bar fight while staying at the Del Lago Resort in Montgomery County. The jury assessed Del Lago’s negligence at 51% and allocated 49% to *167Smith. Del Lago appealed. Because the criminal act committed on Smith was not reasonably foreseeable, Del Lago had no duty to protect Smith from the criminal conduct of a third person. The trial court’s judgment should be reversed, and a judgment should be rendered that Smith take nothing. Because the majority does neither, I dissent.
During a fight among patrons in the Grandstand Bar at the resort, Smith was placed in a headlock and thrown into a wall, head-first. When security arrived minutes later, everyone involved in the fight, including Smith, had left the bar. Smith discovered several days later that he had severe head injuries.
Del Lago contends on appeal that it had no duty to protect Smith from the criminal acts of others because the criminal act committed on Smith was not foreseeable. Whether a duty is owed by one person or entity to another is a question of law for the court to decide. Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998). A duty exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Id. The jury is asked to determine breach and proximate cause only after the court has concluded that a duty exists. Otis Engineering Corp. v. Clark, 668 S.W.2d 307, 312 (Tex.1983) (McGee, J., dissenting).
In the Timberwalk opinion, the Texas Supreme Court discussed extensively the concept of foreseeability when determining whether a property owner has a duty to protect another from the criminal acts of a third party. That discussion is found in Part III, Section A in the opinion. Timberwalk, 972 S.W.2d at 756-759. A complete discussion of the factors used by the courts to determine foreseeability is found in Section A, subsections 1-4. Id. at 757-759.
The parties introduced evidence that within five years of the criminal act against Smith, eleven incidents occurring on Del Lago’s property were reported to either Del Lago’s security or the Montgomery County Sheriffs Office.3 Three of those eleven were possible sexual assaults. The other eight incidents involved other types of assaultive conduct. Two incidents involved domestic violence. One was a verbal confrontation on the golf course. One report mentioned a fight, but did not describe any physical contact or injuries. The other four reports involved either no injuries or only minor injuries. Three of these four incidents occurred at the Grandstand Bar. One occurred in 1998; one occurred in 1999; and one occurred in 2000.
Applying the Timberwalk factors to the evidence before the Court, I conclude that the risk of a criminal act occurring in the Grandstand Bar resulting in injury, to the extent that occurred, to Smith was not foreseeable.4 Therefore, Del Lago did not owe a legal duty to Smith to protect him from the criminal acts of a third party.
The disposition of this issue eliminates the need to discuss any other issues raised by Del Lago.
The trial court’s judgment should be reversed, and judgment should rendered that Smith take nothing against Del Lago. Because the majority does neither, I dissent.
*168APPENDIX A
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. As Good As It Gets (TriStar Pictures 1997) (motion picture).
. I like how the majority characterizes this aspect of the evening's events leading to a duty. "The gist of Smith’s case is that Del Lago owed him a duty ... because, on the occasion in question, its employees were aware (two waitresses) or should have been aware (the bartender and security officers) of the ongoing and escalating one-and-a-half hour confrontation, which posed an unreasonable risk of harm.” Maj. Op. at 157. It seems to me if these events posed such an obvious risk of harm that any reasonable person would have removed himself from the danger; instead, Smith not only voluntarily stayed, he voluntarily entered the fracas after it began.
. The majority separates some of the complaints that were written up on a single report. It is unclear whether Del Lago was aware of the incidents reported by the Montgomery County Sheriff's Office. For a summary of the events, see Appendix A.
. Smith relies on the opinion in Dickinson Arms-REO, L.P. v. Campbell, 4 S.W.3d 333 (Tex.App.-Houston [1st Dist.] 1999, pet. denied) for his argument that the conduct and injury were foreseeable. But Dickinson Arms-REO is distinguishable. The prior criminal acts on and surrounding the property were much more severe, and the appellant did not challenge the duty element of negligence on appeal. Having no need to review whether or not a duty was owed to the victim, the foreseeability element in Dickinson Arms-REO was reviewed as a part of the proximate *168cause element of negligence. This distinction is important because proximate cause is a fact issue to be determined by the jury and duty is a legal issue to be resolved by the court. The methods and standards of review are different.