Opinion
No. 06-00-00005-CV.
Date Submitted: July 13, 2000.
Date Decided: August 2, 2000.
Appeal from the 58th Judicial District Court, Jefferson County, Texas, Trial Court No. A-155,637.
Before CORNELIUS, C.J., GRANT and ROSS, JJ.
OPINION
Warmack Company, Warmack-Port Arthur Limited Partnership, Central Mall Joint Venure and John Warmack (hereafter Central Mall), appeal from a jury verdict awarding Edna Beltz $50,000 in damages for injuries sustained when she was attacked by a robber while shopping at the mall. Central Mall contends in several points of error that the jury verdict is not supported by the evidence. It contends that there is no evidence that
• it owed a duty to Beltz,
• other crimes had occurred to make this attack foreseeable,
• the crimes which had occurred were sufficient in number and close enough in time to make the attack foreseeable,
• the specific danger was foreseeable, and
• there was evidence of publicity to inform Central Mall of previous crimes.
Central Mall also argues that the court erred by permitting Bill Bradley to testify as an expert about safety and security on the premises and that the court erred by allowing testimony that Central Mall had not reviewed crime statistics from the local police department.
Edna Beltz went to Central Mall to shop on July 15, 1995 at about 5:30 in the afternoon. She parked her car about five spaces from the Dillard's entrance. As she approached the store, she saw a man leaning against the wall by the bushes. Beltz testified that, as she neared the entrance, she was attacked from behind by that individual, struck on the face, and thrown to the ground. After a short fight, the attacker took her purse, ran to a waiting car, and sped away. A passerby saw the robbery and ran into Dillard's where a security officer radioed for police assistance. The robber was caught and convicted. [Mrs. Beltz had 17 cents in her wallet when it was stolen, and the thief also got her identification, credit cards, and car and house keys.] At the time, the mall had one security guard on duty. He arrived at Dillard's between thirty minutes and to one hour after the robbery.
Beltz testified that her physical injuries were minor, consisting of scrapes and bruises. She also testified, however, that the attack had caused changes in her life. She testified that she was afraid to be alone at home and was unable or unwilling to go out in public for any purpose. She testified that her husband had changed jobs so that he would no longer be away from home during the week. A close friend testified that Beltz's personality had changed radically since the attack, that she had been an extrovert and was now extremely introverted, and that she would no longer leave her home to participate in recreational activities without being pressured to do so. Further, Beltz's husband testified that, although they had promptly changed the locks on their house, they had moved from their home to a different house because of her continuing fear that someone would break into their home.
The jury found that Central Mall's negligence was a proximate cause of the attack and that Beltz was entitled to $25,000 for past damages and $25,000 for future damages.
Central Mall has not delineated any of its stated points of error within its discussion. We shall discuss those contentions so far as they are set out and argued within the brief.
Central Mall contends that it had no duty to Beltz. This contention of error is similar to one raised in Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998). Whether a duty exists is a question of law for the court to decide. As a rule, a person has no legal duty to protect another from the criminal acts of a third party. Id. However, one who retains control over the security and safety of the premises has a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee. Id. Most courts have looked to narrow geographic areas in analyzing the foreseeability of criminal conduct. Id. at 757. For a risk to be foreseeable, there must also be evidence of criminal activity within the specific area at issue or nearby. Id. at 757. Foreseeability also depends on how recently and how often criminal conduct had occurred in the past. Id. at 757-58.
Central Mall has couched its contentions of error as no-evidence claims. The existence of a duty is a question of law for the court to decide from the facts surrounding the occurrence in question. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996); Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1990).
The assault/purse-snatching in the present case occurred on July 15, 1995. Evidence was presented to show that, between 1990 and 1995, there were eight purse-snatchings, fifty-three fights, one shooting, and one robbery. In addition to those acts, James Nixdorf testified that there were an additional fifteen assaults that occurred on the premises of Central Mall during the five years that he had worked there as a security officer.
The evidence in this case shows that violent confrontations on mall property were not constant events, but also that they were not uncommon. Over a six-year period, an average of twenty violent events occurred each year at the mall. In 1995 Central Mall's statistics showed that there were twenty-nine fights. If we accept Nixdorf's testimony as showing an additional fifteen assaults over the five years that he was employed there, the totals are raised accordingly. In either event, this constitutes some evidence to show it was foreseeable that violent criminal conduct would occur on the property. See generally, Timberlake, 972 S.W.2d at n. 40.
Central Mall argues that, because it could not predict this particular type of violence on this particular day, foreseeability is not shown. Foreseeability requires only that the general danger, not the exact sequence of events that produce harm, be foreseeable. Walker, 924 S.W.2d at 377. When the general danger is the risk of injury from criminal activity, the evidence must reveal specific previous crimes at or near the premises in order to establish foreseeability. There was a sufficient showing to establish a duty based on foreseeability.
Central Mall next contends that the court erred in permitting Bill Bradley to testify as an expert witness. Bradley testified about the need for additional security and opined that additional security would have reduced the likelihood of Beltz's injury. Central Mall argues that Bradley should not have been permitted to testify because he did not demonstrate any expertise in security, or in shopping malls particularly, and therefore his opinions are based on speculation and conjecture.
The determination of whether an expert witness is qualified to testify is left largely to the trial court's discretion, and we will not disturb it on appeal absent a showing that the court abused that discretion. Broders v. Heise, 924 S.W.2d 148, 151 (Tex. 1996); E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); Spivey v. James, 1 S.W.3d 380, 382 (Tex.App.-Texarkana 1999, pet. denied); Hall v. Huff, 957 S.W.2d 90, 100 (Tex.App.-Texarkana 1997, writ denied). In determining whether an abuse of discretion occurred, we look to see whether the trial court acted without reference to any guiding principles or rules. E.I. du Pont, 923 S.W.2d at 558. A reviewing court cannot conclude that a trial court abused its discretion merely because it would have ruled differently. Id.; Purina Mills, Inc. v. Odell, 948 S.W.2d 927, 932 (Tex.App.-Texarkana 1997, writ denied).
The proponent of the expert bears the burden of showing that the expert witness's testimony is qualified, relevant to issues in the case, based on a reliable foundation, and will assist the trier of fact. E.I. du Pont, 923 S.W.2d at 556. The offering party is required to establish that the expert has the knowledge, skill, experience, training, or education regarding the specific issue before the court which would qualify the expert to give an opinion on that particular subject. Broders, 924 S.W.2d at 153. In addition, the underlying foundation on which that opinion is based must be reliable. See Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 590, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); E.I. du Pont, 923 S.W.2d at 557; see also Tex.R.Evid. 702 [requiring that experts be qualified by "knowledge, skill, experience, training, or education."].
In the present case, counsel objected to Bradley's testimony on the ground that he was not qualified as an expert. He did not raise any underlying foundational complaints. Bradley testified that he was a college graduate and that he had spent thirty years with the Houston Police Department, with the last ten years as a lieutenant of detectives in the Special Thefts Division. He testified that, during four years of that time, he was in charge of several groups that assisted several Houston shopping malls with their security arrangements during the Christmas holiday season and that he was aware of the type of security needed in such malls. Bradley testified that those malls used him as a security advisor to improve security measures and that, because of his background and experience, he was qualified to assess the security arrangements at shopping malls and review their security arrangements. Bradley also testified that he had set up the security arrangements for a major manufacturer in the area.
Based on the testimony of Bradley's background and his experience in security matters (both generally and specifically relating to shopping malls), his experience and understanding of the working of the criminal mind, and his background in law enforcement, the court's decision to admit him as an expert witness was within its discretionary authority. Error has not been shown.
Central Mall has also set out other points of error, but without substantive discussion or argument. See Tex.R.App.P. 38.1(e), (h). It is not the proper job of this Court to create arguments for an appellant. We are restricted to addressing the arguments actually raised, not those that might have been raised. Garcia v. Robinson, 817 S.W.2d 59 (Tex. 1991).
The judgment is affirmed.