This three-part series of blog posts focuses on a recent Fifth Court of Appeals decision overturning a $4.3 million verdict against JP Morgan Chase Bank arising from the robbery and murder of an armored car driver at a Chase branch in Dallas. This first post summarizes the decision and the relevant factors applied by the court. The second post will discuss the court’s analysis in more detail and the third post will provide key take away points for banks to use in assessing potential liability for on-premises crimes.
In 2009, in the course of an attempted robbery, a bank robber fatally shot a Brink’s driver, Cresencio Borquez, at an ATM outside a JP Morgan Chase Bank (“Chase”) branch in Oak Cliff, Dallas. A Dallas jury found Chase liable to Mr. Borquez’s family and estate for negligence and premises liability and awarded $4.3 million in damages. In JP Morgan Chase Bank, N.A. v. Borquez et al., the Fifth Court of Appeals reversed the trial court and rendered a take-nothing judgment in favor of Chase, holding it owed no duty to the driver because the crime resulting in his death was not “reasonably forseeable” to the bank. 2015 WL 6690027 at *19 (Tex. App.—Dallas Nov. 3, 2015, no pet. h.).
In reaching its decision, the Fifth Court looked to the Texas Supreme Court’s opinion in Timberwalk Apts. Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex. 1998), which established the applicable analytical framework. Quoting Timberwalk, the Fifth Court recited the relevant legal rule that “‘a person has no legal duty to protect another from the criminal acts of a third person.’ An exception is that ‘one who controls premises does have 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.'” Borquez, 2015 WL 6690027 at *11.
The Fifth Court then identified and explained the factors established in Timberwalk to assess whether a risk of harm from criminal acts was reasonably foreseeable. Id. The Fifth Court identified the first set of Timberwalk factors as “proximity and publicity,” i.e. whether crimes have occurred “on the property or in its immediate vicinity” and the amount of publicity given to each crime. Id at *13. It identified the second set of Timberwalk factors as “recency and frequency,” and explained that “a criminal act is more likely foreseeable if numerous prior crimes are concentrated within a short time span” and that, based on Texas Supreme Court precedent, it would focus its analysis on crimes committed within “two years” of the crime at issue. Id. at *13, 16. It identified the third Timberwalk factor as “similarity,” explaining that “previous crimes need only be sufficiently similar to the crime in question to put the owner on notice of the specific danger.” Id. at *14.