High court says mall owners could not have predicted fatal shooting

Steve Korris Sep. 30, 2008, 7:35am

AUSTIN – Bexar County jurors made a mistake when they blamed Alamo Quarry Market manager Trammell Crow for a fatal shooting, the Texas Supreme Court ruled recently.

All nine Justices agreed on Aug. 29 that Quarry Market security guards owed the late Luis Gutierrez no duty to protect him from his killer.

They reversed Fourth District appeals judges in San Antonio, who affirmed the jury's verdict and upheld a $5 million damage award from District Judge Michael Peden.

"Life in a free society carries a degree of risk," Chief Justice Wallace Jefferson wrote in a concurring opinion for the smaller group.

"That risk can be virtually eliminated by a pervasive military presence, but the burdens – both in terms of economic cost to premise owners and in the oppressive climate a police state spawns – would be prohibitive," he wrote.

On Feb. 17, 2002, Gutierrez and wife Karol Ferman watched a movie at the mall. A week earlier, Luis had taken $250 from a policeman after providing information about a burglary ring.

At 11 p.m., off duty policeman Patrick Robertson started his shift as a mall guard. He wore a police uniform and patrolled the lot in an unmarked car.

After midnight, Robertson saw two people dressed in black near the theater. He made eye contact and they acknowledged his presence.

The theater doors opened and Robertson drove on.

Gutierrez and Ferman, leaving the theater, heard a gunshot. Ferman saw a person wearing a ski mask, dressed in black, pointing a gun at Gutierrez.

A second shot hit Gutierrez in a shoulder and knocked him down. He got up. He and Ferman started running. More shots followed.

Ferman fell. She didn't get up. She crawled under a car.

Robertson, hearing shots from hundreds of feet away, drove to where Gutierrez lay. Two shots had hit him in the back. One had hit his head.

On another side of the mall, guards spotted a runner getting into a Jeep. They pursued but gave up when they started taking fire from the Jeep.

Police found no wallet on Gutierrez. They never caught a suspect.

Ferman and the victim's mother, Maria Gutierrez, sued Trammell Crow on behalf of themselves and his children.

At trial, wife and mother argued that after 10 robberies at the mall in two years, Trammell Crow should have seen this one coming.

Trammell Crow portrayed the crime as retaliation from the burglary ring.

The jury returned a verdict for the family.

On appeal, the Fourth District held that Trammell Crow owed a duty to Gutierrez and breached the duty in a way that proximately caused his death.

Trammell Crow appealed again, and in response five Supreme Court Justices focused on the robberies that preceded the murder.

"Nothing about the previous robberies committed at the Quarry Market put Trammell Crow on notice that a patron would be murdered as part of a robbery on its premises," Justice Don Willett wrote for the five.

Three robberies involved guns and a fourth involved an object that might have been a gun, he wrote.

"However, none of these weapons were ever fired," he wrote.

"Even viewing the attack on Luis as a robbery, as we presume the jury did, the circumstances of this attack are extraordinary," he wrote.

"The assailant opened fire from behind at long range without making any prior demand," he wrote.

Justices Harriett O'Neill, Dale Wainwright, David Medina and Paul Green agreed.

Jefferson and three others feared that the decision might obligate property owners to prepare for any crime they can foresee.

Jefferson wrote that both sides agreed the crime might not have happened if the mall had posted a conspicuous guard at the theater door.

"I would hold that the number of similar crimes here, however, while perhaps sufficient to make the attack foreseeable, would not require, in response, snipers on the roof or uniformed officers on every corner," he wrote.

Justices Dan Hecht, Scott Brister and Phil Johnson agreed.

Wendell Hall, Rosemarie Kanusky and Lara Johnson represented Trammell Crow.

Kimberly Keller and Joe Stephens represented Gutierrez.

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