“At a time when Texas businesses are already under tremendous economic strain, Texas trial courts should not allow the trial bar to impose additional unfair burdens.”
—Cory Andrews, WLF General Counsel & Vice President of Litigation

Click here for WLF’s brief.

(Washington, DC)—Washington Legal Foundation (WLF) today filed an amicus curiae brief urging the Texas Supreme Court to grant mandamus relief by directing the trial court to limit discovery to the threshold question of foreseeability in a major premises-liability case. WLF’s brief was prepared with the generous pro bono assistance of Allyson N. Ho and Elizabeth Kiernan of Gibson, Dunn & Crutcher LLP in Dallas.

The case arises from one of the most horrific killing sprees in U.S. history. In August 2019, a lone gunman drove 600 miles and 11 hours to massacre 23 shoppers at a random Walmart store in El Paso, Texas. The victims’ families naturally want someone to answer for that unspeakable crime; but this lawsuit unfortunately directs their sorrow and anger at the wrong target.

The law of premises liability in Texas holds that a retail store has no legal duty to protect customers from the criminal acts of others unless those acts were foreseeable. Under the Texas Supreme Court’s decision in Timberwalk Apartments, Partners, Inc. v. Cain, before a premises-liability plaintiff can subject a defendant to free-ranging and burdensome discovery, she first must show that the defendant could have reasonably foreseen her injury. 

The trial court here refused to apply that principle. It derided Timberwalk as “too restrictive” and faulted the Texas Supreme Court for what it viewed as inadequate guidance. In short, it refused to apply the law. In its brief, WLF urges the Texas Supreme Court to step in now and relieve Walmart of the need to produce massive amounts of burdensome discovery unrelated to the threshold issue of foreseeability.