Gutierrez v. Scripps-Howard

OPINION ON MOTION FOR REHEARING

The Appellees have filed a motion for rehearing in which they again assert they owed no duty to Mr. Gutierrez and that his injuries were not foreseeable. They argue this is certainly the case where criminal acts of a third party are involved. Relying upon Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546 (Tex.1985), they assert there must be evidence of similar prior criminal activity of which the defendants were aware. In that case, the Court did state that the evidence is replete with instances of prior violent crimes occurring at the apartment where the rape occurred. But, the Court, in quoting Restatement (Second) of Torts § 448 (1965), noted that a tortfeasor’s negligence will not be excused where the criminal conduct is a foreseeable result of such negligence. As noted in Justice Woodard’s concurring opinion, it is common knowledge that drug dealers generally have a propensity for violence, and the reason that it is common knowledge is because newspapers like the El Paso Herald Post report such events on almost a daily basis.

The facts in this case are much different from those in Nixon. A fact issue was raised as to whether the assault upon Mr. Gutierrez resulted from the published articles of the newspaper which assigned him the task of taking the pictures of the hotel *702operated by his assailant. We believe there is a fact issue concerning the published articles creating an unreasonable risk of harm about which there was no warning.

The Appellees state, in their motion for rehearing, that at the time Mr. Gutierrez went to the hotel in Juarez, he was not wearing a press pass which identified him with the Herald Post. That statement in our original opinion is not correct. He was carrying press credentials which he showed to the office attendant at the hotel. Appel-lees also state that Mr. Gutierrez was not sent to the front door of one labeled a drug czar to take pictures. We disagree. He was asked to go to Juarez to take pictures of the hotel. He was also asked to find out when the hotel would open and if it was going to have gambling. He had to approach someone at the hotel to get that information. The most likely place to start would be at the front door.

The motion for rehearing is overruled.