|Justice Baker, concurring.
As a general rule, a landowner has no legal duty to protect another from the criminal acts of a third party who is not under the landowner's control or supervision. SeeTimberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998); Walkerv. Harris , 924 S.W.2d 375, 377 (Tex. 1996). To the extent that the law does impose aduty, the threshold issue is whether the risk of harm was foreseeable. See Timberwalk, 972 S.W.2d at 756; Walker, 924 S.W.2d at 377. I conclude as a matter of law that,under the record here, Mellon could not foresee the risk that a sexual assault would occurin its employee parking garage. Therefore, I agree with the plurality's conclusion that Mellon did not owe Holder a duty. I cannot agree, however, with the plurality's dutyanalysis. Therefore, I concur in the judgment and write separately.
I. THE PLURALITY
The plurality relies on Palsgraf v. Long Island Railroad, for its two-prongforeseeability test for duty. See Palsgraf v. Long Island R.R., 162 N.E. 99 (N.Y.1928). But even the plurality's cited authorities recognize that, contrary to theopinion's claim, Palsgraf 's two-prong duty analysis has not been "widelyembraced." ___ S.W.2d ___, ___; see Restatement (Second) of Torts? 281 Reporter's Notes (1966) (noting that Palsgraf is "controversial"and that, as late as 1966, the decisions on facts that are at all analogous to Palsgraf's facts are "few and divided."); Zipursky, Rights, Wrongs, and Recourse in theLaw of Torts, 51 Vand. L. Rev. 1, 3 (1998)("Leading scholars treat Palsgraf as a proximate cause case . . . . Cordozo's own reasoning in Palsgraf istypically ignored or derided." ); see also Powers, Judge and Jury in theTexas Supreme Court, 75 Tex. L. Rev. 1699, 1702-03 (1997) (explaining that DeanKeeton's approach to duty and proximate cause, in which questions about whether adefendant's liability extends to a particular type of plaintiff are questions of proximatecause and not duty, has prevailed in Texas). Further, as the plurality concedes, the Texascases it cites for the two-prong foreseeability analysis discuss foreseeability only inthe context of proximate cause, not duty. See Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549-50 (Tex. 1985); Texas Cities Gas Co. v. Dickens, 168 S.W.2d208, 212 (Tex. 1943); Carey v. Pure Distrib. Corp., 124 S.W.2d 847, 849-50 (Tex.1939); San Antonio & A.P. Ry. v. Behne, 231 S.W. 354, 356 (Tex. 1921). Movingthe determination of whether harm to a certain class of potential plaintiffs isforeseeable from the proximate cause analysis to the duty analysis changes Texas law inthis type of case. It also changes the law in every negligence case that requires a dutyanalysis as a threshold issue. More importantly, it shifts the allocation of power in suchcases. See Powers, Judge and Jury in the Texas Supreme Court, 75 Tex. L.Rev. at 1703. Traditionally, duty is a threshold legal issue the court properly decides. SeeWalker, 924 S.W.2d at 377; Powers, Judge and Jury in the Texas Supreme Court, 75 Tex. L. Rev. at 1703. Proximate cause is usually a jury issue. See Clarkv. Waggoner, 452 S.W.2d 437, 440 (Tex. 1970); City of Houston v. Jean, 517S.W.2d 596, 599 (Tex. Civ. App.--Houston [1 st Dist.] 1974, writ ref'd n.r.e.); seealso Flores v. Sullivan, 112 S.W.2d 321, 323 (Tex. Civ. App.--San Antonio 1937), rev'd on other grounds , 132 S.W.2d 110 (Tex. 1939); Powers, Judge and Jury in theTexas Supreme Court, 75 Tex. L. Rev. at 1703. Consequently, changing the dutyanalysis to include the traditional proximate cause foreseeability test allocates morepower to trial judges, as well as appellate judges, to decide questions traditionally andproperly reserved for the jury.
Rather than change the law of duty to add a second-prong foreseeability analysis, weneed only consider the Timberwalk factors -- similarity, proximity, recency,frequency, and publicity -- to analyze foreseeability within the duty context as it ariseshere. See Timberwalk, 972 S.W.2d at 759.
Common-law negligence consists of these elements: (1) a legal duty; (2) a breach ofthat duty; and (3) damages proximately resulting from the breach. See El Chico Corp.v. Poole , 732 S.W.2d 306, 311 (Tex. 1987). Duty is the threshold inquiry, which is aquestion of law for the court to decide. See Greater Houston Transp. Co. v. Phillips ,801 S.W.2d 523, 525 (Tex. 1990). As a general rule, a landowner has no duty to preventcriminal acts of third parties who are not under the landowner's control or supervision. SeeTimberwalk, 972 S.W.2d at 756; Walker , 924 S.W.2d at 377; ExxonCorp. v. Tidwell , 867 S.W.2d 19, 21 (Tex. 1993). To the extent that the law doesimpose a duty, foreseeability is the initial analysis. See Timberwalk , 972 S.W.2dat 756; Walker, 924 S.W.2d at 377. Only after foreseeability is established mustwe determine the parameters of the duty. See Timberwalk, 972 S.W.2d at 757.
In Timberwalk , this Court stated the factors courts should consider indetermining if criminal conduct on a landowner's property is foreseeable: (1) whether anycriminal conduct previously occurred on or near the property; (2) how recently itoccurred; (3) how often it occurred; (4) how similar the conduct was to the conduct on theproperty; and (5) what publicity the occurrences received to show that the landowner knewor should have known about them. See Timberwalk , 972 S.W.2d at 757-58. Wesummarize these foreseeability factors as similarity, proximity, recency, frequency, andpublicity of previous criminal conduct. See Timberwalk , 972 S.W.2d at 759. Courtsmust consider all the factors together. See Timberwalk , 972 S.W.2d at 759.
Past crimes must be sufficiently similar, though not identical, to the crime at issueto put the landowner on notice of the specific danger. See Timberwalk , 972 S.W.2dat 758. For example, automobile vandalism in an apartment complex does not put thelandowner on notice of the likelihood of a sexual assault. See Timberwalk , 972S.W.2d at 758.
Proximity requires evidence of other crimes on or in the property's immediate vicinity. See Timberwalk , 972 S.W.2d at 757. Evidence of criminal activity occurringfarther from the landowner's property is less relevant than past criminal activity in thespecific area at issue. See Timberwalk , 972 S.W.2d at 757.
Foreseeability also depends on the recency of past criminal conduct. See Timberwalk ,972 S.W.2d at 757-58. A significant number of crimes occurring in a short time period onor near the property makes the crime in question more foreseeable. See Timberwalk ,972 S.W.2d at 758.
Publicity of prior crimes strengthens the claim that a particular crime was foreseeablebecause a property owner can be expected to have knowledge of such criminal activity. SeeTimberwalk , 972 S.W.2d at 758. Landowners, however, have no duty to inspect criminalrecords to determine the risk of crime in the area. See Timberwalk , 972 S.W.2d at759.
Mellon is entitled to summary judgment if it can establish as a matter of law that thesexual assault in Mellon's parking garage was not foreseeable. Foreseeablilty requires ananalysis of frequency, recency, publicity, and similarity of previous criminal activity. SeeTimberwalk , 972 S.W.2d at 759. In reviewing a summary judgment, we assume allevidence favorable to the nonmovant to be true. See Nixon , 690 S.W.2d at 548-49.
Mellon's garage is in downtown Houston. In the twenty-two months before Holder'sassault, 190 violent crimes had occurred within a one-quarter mile radius of the garage.The year that Holder was sexually assaulted, 88 violent crimes occurred in the areasurrounding the garage: 4 sexual assaults, 57 robberies, and 27 aggravated assaults.Indeed, Holder's expert, relying on police reports, testified that there were high crimerates in the area surrounding Mellon's garage. But "[t]he frequent occurrence ofproperty crimes in the vicinity is not as indicative of foreseeability as the lessfrequent occurrence of personal crimes on the landowner's property itself." Timberwalk, 972 S.W.2d at 759. The only evidence of criminal activity in Mellon's garage isevidence of vagrancy and automobile theft. There is no evidence of personal crimesoccurring in the garage.
On the publicity of criminal activity in the area, Holder complains that Mellon did notregularly check Houston police records. But landowners have no duty to regularly inspectcriminal records to determine the risk of crime in the area. Nevertheless, two Mellonemployees had written memos to Mellon in response to auto thefts occurring when the garagewas occupied by employees' vehicles. One of the memos discussed a crime increase in thearea surrounding the garage. But its author testified that he based his information onrumors he had heard from other Mellon employees. Mellon responded to these memos byemploying armed security guards during hours that Mellon employees would be using thegarage. Mellon also provided security escorts for Mellon employees going to and from thegarage.
The fact that there may have been frequent and recent criminal activity in the areasurrounding the garage and that Mellon knew about certain criminal activities occurring inits garage does not alone mean that a sexual assault in the garage was foreseeable. Wehave stated that the frequency of previous crimes necessary to show foreseeability lessensas the similarity of the previous crimes to the incident at issue increases. SeeTimberwalk, 972 S.W.2d at 759. The converse is also true -- the less similar previouscrimes are to the one at issue, the frequency necessary to show foreseeability increases.Thus, we must consider whether such criminal activity was similar to the crime at issue.There is no summary judgment evidence that violent or personal crimes had occurred inMellon's garage. The evidence only shows that automobile thefts during business hours andvagrancy had occurred in the garage. Automobile thefts and vagrancy do not suggest thelikelihood of sexual assault. See Timberwalk , 972 S.W.2d at 758. Nor is theresummary judgment evidence that any of the four reported sexual assaults in the areasurrounding the garage occurred in either a public or private parking garage or wereotherwise similar to Holder's.
Considering the summary judgment evidence here and all the Timberwalk factors,I conclude that although there is evidence of frequent and recent criminal activity in thearea surrounding Mellon's garage, and evidence that Mellon knew of vagrancy and automobilethefts in the garage itself, it was not foreseeable to Mellon that a sexual assault wouldoccur in its garage.
IV. THE DISSENT
The dissent misstates our view when it claims we discount the two employee memos. Tothe contrary, the memos are relevant to show that the nature of the crimes reported inMellon's garage were auto thefts and vagrancy, not violent crimes against persons. Thedissent also argues that we completely disregard the nature and character of the premisesat issue. Although the Timberwalk factors are not exclusive, nothing in Timberwalk suggests that a court must take into account the nature and character of the premises atissue. By citing Gomez v. Ticor , the dissent argues that all parking garageowners should inherently foresee rapists lying in wait for unsuspecting victims at allhours of the day and night. ___ S.W.2d ___, ___ (citing Gomez v. Ticor, 145 Cal.App. 3d 622, 628 (1983)). In effect, the dissent would make all property owners insurersof the general public. This is not the rule in Texas. See Lefmark Management Co. v.Old, 946 S.W.2d 52, 59 (Owen, J., concurring); see also Timberwalk, 972S.W.2d at 756; Walker, 924 S.W.2d at 377. The flaw in the dissent's analysis isthat the dissent fails to properly consider all the Timberwalk factors together. SeeTimberwalk , 972 S.W.2d at 759.
Because I would hold that Holder could not foresee a sexual assault in its garage, andtherefore, did not owe Mellon a duty as a matter of law, I concur in the judgment.
James A. Baker
OPINION DELIVERED: September 9, 1999