Court of Appeals of Texas,
Houston (14th Dist.).
Tracey Dawn ALLEN, Appellant,
Traci CONNOLLY d/b/a Traci Connolly Insurance, Appellee.
Jan. 27, 2005.
Attorneys & Firms
*63 Jeffrey A. Hirt, Houston, for appellant.
John Engvall Jr., Houston, for appellee.
Panel consists of Chief Justice GUZMAN.
KEM THOMPSON FROST, Justice.
In this summary-judgment case we address whether there was a foreseeable risk of harm giving rise to a duty by an employer to protect employees from the criminal acts of third parties. The employee, appellant/plaintiff Tracy Dawn Allen, challenges the trial court’s summary judgment in favor of her former employer, appellee/defendant Traci Connolly d/b/a Traci Connolly Insurance. Finding no foreseeable risk of harm that a violent criminal act might occur against the employee, we affirm the trial court’s judgment in favor of the employer.
I. FACTUAL AND PROCEDURAL BACKGROUND
Tracy Dawn Allen worked for Traci Connolly d/b/a Traci Connolly Insurance, a State Farm insurance agency operating in the greater Houston area and located on leased premises in a suburb of Houston. While at work during regular business hours, Allen was robbed and sexually assaulted by an armed assailant. Myeong–Ja Jeong, the owner of a nearby Texaco gas station and a customer of Connolly’s insurance business, and Allen’s co-worker, Christine Howell, were also on the premises at the time of the robbery and sexual assault. Both Jeong and Howell also were robbed at gunpoint during this criminal episode. The assailant, Clarence Cerf, was apprehended, charged, and convicted of aggravated robbery and aggravated sexual assault. He was sentenced to thirty-five years’ confinement and is currently incarcerated.1
Allen brought a negligence action *64 against Connolly,2 seeking to recover damages for physical injuries, mental anguish, and past and future medical expenses she claims to have suffered as a result of the assault. Allen alleged Connolly failed to provide a safe work place for employees.
Connolly had purchased and installed an office security system as part of the start-up equipment she obtained from State Farm Insurance. The security system was equipped with a silent alarm feature that could be triggered by pressing panic buttons installed under certain desks and in the office copy room. Allen alleged Connolly failed to train employees in the proper use of the panic buttons and failed to implement proper safety procedures in the work place. Allen alleged that during the criminal episode, she had opportunities to press the panic buttons but did not do so because she did not know where all of the buttons were located and because she feared the alarm would sound and jeopardize her life or the lives of others. Allen alleged that, had Connolly provided proper instruction in the operation and location of the panic buttons, Allen would have known where they were located and would have been aware that the alarm would send only a silent signal. Allen alleges she thus would have been able to summon law enforcement, who would have responded to the silent alarm in a matter of minutes and prevented the sexual assault.
Connolly filed a no-evidence summary judgment motion. Relying on Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998), Connolly asserted that there is no evidence that she owed a duty to Allen because there is no evidence that other crimes of a similar nature had occurred at the location of the assault or in its immediate vicinity. The trial court granted the motion and signed a judgment in favor of Connolly.
II. ISSUE PRESENTED
In a single issue, Allen asserts the trial court erred in granting summary judgment because (1) as Allen’s employer, Connolly owed Allen a non-delegable duty to provide a safe place to work; (2) there was evidence to demonstrate that Connolly was negligent and that this negligence was a proximate cause of Allen’s injuries; (3) the sexual assault was not only foreseeable but actually foreseen by Connolly; and (4) there was evidence of prior criminal activity at and near the business premises where the assault occurred.
III. STANDARD OF REVIEW
In reviewing a no-evidence motion for summary judgment, we ascertain whether the non-movant produced any evidence of probative force to raise a genuine issue of fact as to the essential elements attacked in the no-evidence motion. Id. at 917.
In a typical negligence case, a plaintiff will prevail only if she can establish that the defendant owed her a duty of care that was breached as a result of the *65 defendant’s acts or omissions and that the type of harm that resulted from those acts or omissions was caused by and reasonably foreseeable by the defendant. Allen’s appellate arguments center on foreseeability and the existence of a legal duty, if any. Allen argues that her claim is based upon Connolly’s failure to provide a safe work place and asserts that evidence of prior criminal conduct at or near the premises is not an element of that claim. As explained below, we conclude that the risk of criminal violence against employees, in a small office open to the public, is virtually identical to the risk of criminal violence there against invitees. Likewise, we conclude an employer’s duty to use reasonable care to provide a reasonably safe place to work is, with respect to the risk of violent crime, based upon the same considerations that determine whether a premises occupier must protect invitees against the same risk. Thus, we analyze this issue under Timberwalk.
Employers’ Negligence Duty to Protect Employees from Third–Party Criminal Acts
Employers are not insurers of their employees’ safety at work; however, employers have a duty to use reasonable care to provide their employees with a reasonably safe place to work. See Id. at 756–59.
Connolly argued successfully in the trial court that no foreseeable risk of harm existed, and thus, under Sears, Roebuck & Co., 280 S.W.2d at 240 (observing that a landowner’s negligence duty towards its invitees may be the same as an employer’s negligence duty to provide a safe place to work, but holding that a line of no-duty premises-liability cases should not be extended to the employers’ *66 liability context because the Texas Supreme Court believed that such an extension would be contrary to the Texas Legislature’s intent, as expressed in the Workers’ Compensation Act, to take away affirmative defenses from nonsubscribing employers).
Allen asserts that Timberwalk analysis applies to determine whether Connolly owed a negligence duty to Allen under the facts of this case.
Foreseeability of Harm
In the alternative, Allen also argues that if Id. In this case, the evidence demonstrates that Connolly and her other employees were unaware of any prior criminal activity of a similar nature occurring on or near Connolly’s *67 business premises. The owner of a gas station on the same block was aware of some incidents of shoplifting, and Allen points to crime statistics that indicate some criminal activity in the area. Additionally, Allen argues that Connolly’s act of installing an alarm system itself indicates Connolly’s awareness that crimes were occurring in the area.
Allen’s evidence and arguments are unpersuasive. Only one of the prior criminal acts, an assault that occurred at the nearby gas station, is possibly comparable to the violent act committed by Cerf against Allen; however, the record is devoid of any evidence indicating the nature or severity of that assault or whether it was similar to the assault against Allen. Moreover, before the aggravated sexual assault on Allen, the assault at the gas station appears to have been an isolated incident. The evidence Allen produced does not indicate the kind of rampant, obvious, and violent criminal activity that would put Connolly on notice that her place of business was located in a dangerous area. Allen’s argument that the mere existence of crime in the vicinity is proof of foreseeability is not legally sound. See Walker, 924 S.W.2d at 377–78.
Allen’s argument that Connolly’s mere installation of a security and alarm system itself proves foreseeability is also unavailing. Installing an alarm system is not proof per se that Connolly was aware of any crimes occurring in the area. Connolly’s motivation for installing the security system is unclear, although arguably, she acted to prevent the possibility of future criminal acts. The mere act of taking preventative measures to protect against the possibility of future crime is not the same as foreseeing that criminal activity. We do not equate Connolly’s installation of a security system and the minimal criminal activity at or near her business premises with proof of foreseeability of aggravated robbery and aggravated sexual assault of Connolly’s employees. To hold otherwise would virtually eliminate the foreseeability requirement for a negligence claim against a person who installs a security system or takes other preventative measures to guard against crime.
The evidence in this case does not show that Connolly had any reason to foresee that a violent criminal act might occur on her business premises and injure one of her employees. Because the aggravated sexual assault on Allen was unforeseeable, Allen’s negligence claim against Connolly fails.
We find no merit in Allen’s appellate arguments and no error in the trial court’s summary judgment in favor of Connolly. Accordingly, we overrule Allen’s sole issue on appeal and affirm the trial court’s judgment.
Connolly cited Cerf as a responsible third party and secured a default judgment against him for liability in this case.
Allen also sued several State Farm Insurance entities. After the trial court granted Connolly’s motion for summary judgment, Allen non-suited her claims against the State Farm defendants, making the summary judgment in favor of Connolly final.