This post continues our summary of the recent Fifth Court of Appeals decision, JP Morgan Chase Bank, N.A. v. Borquez et al., 2015 WL 6690027 at *19 (Tex. App.—Dallas Nov. 3, 2015, no pet. h.), reversing a $4.3 million verdict against Chase Bank arising from the robbery and murder of an armored car driver at a Chase branch, as discussed in more detail in my previous post. This post focuses on the Fifth Court’s application of the Timberwalk factors to the evidence presented at trial.
In support of their argument that Chase could have reasonably foreseen Mr. Borquez’s murder, at trial, appellees presented (i) evidence of two 2006 robberies at the Oak Cliff Chase branch; (ii) excerpts from a Chase consultant’s reports showing crimes occurring within Dallas “police beat 415,” which included the Oak Cliff branch location; (iii) a compilation of Dallas Police Department crime statistics, including those from the “beat” containing the Oak Cliff branch; and (iv) newspaper reports of a 2009 robbery of an armored car guard at a Bank of America branch in the “Red Bird” area of Dallas. Id. at *2, *16.
Applying the first Timberwalk factors of “proximity and publicity” to the appellees’ trial evidence, the Fifth Court did not consider the consultant’s reports, the Dallas PD statistics, or the evidence of the 2009 robbery persuasive because appellees had presented no evidence showing how close those crimes were to the Oak Cliff branch. Id. at *16. The Fifth Court did not find it convincing that the consultant’s reports or the Dallas PD statistics reflected crimes from the same “beat” containing the Oak Cliff branch because “there is no evidence in the record showing the size of beat 415 or the particular location within the beat where any of the crimes occurred.” Id. The Fifth Court also noted that “the record does not show what publicity was given as to any of those crimes.” Id. (internal quotations omitted).
Turning to the “recency and frequency” factor, the Fifth Court reasoned the two 2006 robberies at the Oak Cliff branch did not support appellees’ position because they had occurred over two years before the crime at issue. Id. The Fifth Court further criticized the consultant’s reports and Dallas PD statistics because they showed crimes committed during one-year periods from 2005-2009, but did not show “specific dates for those crimes,” presumably making it difficult to tell how recent or frequent the crimes were within the two years preceding Mr. Borquez’s death. Id.
As to the “similarity” factor, the Fifth Court considered the 2006 and 2009 robberies to be dissimilar because the 2006 robberies “involved attempts to steal money from the interior of the bank,” rather than the outside ATM machine, and “no one was injured” in either the 2006 or 2009 crimes. Id. at *17. The appellate court did not consider the consultant’s reports or the Dallas PD statistics as convincing evidence of similar crimes because they “show only the number of the types of crimes committed within a designated area. There is no evidence in the record respecting details of those crimes.” Id.
Finishing its Timberwalk factor analysis, the Fifth Court held that “considering all of the Timberwalk factors together, we conclude as a matter of law that the risk of injury from violent crime on the premises in question was not foreseeable based on evidence of prior crimes.” Id.