# In re Simon Prop. Group, L.P.

Supreme Court of Texas, No. 26-0023

**In re Simon Prop. Group, L.P., No. 26-0023, is before the Supreme Court of Texas. Key issue: Whether a property owner owes a duty to protect patrons from a mass shooter when the pleadings allege no similar crime at or near the property, under the Timberwalk factors and UDR Texas Properties, L.P. v. Petrie.**

Practice areas: personal injury, civil procedure

## Key issues

- Whether a property owner owes a duty to protect patrons from a mass shooter when the pleadings allege no similar crime at or near the property, under the Timberwalk factors and UDR Texas Properties, L.P. v. Petrie.
- Whether mandamus can enforce a Rule 91a dismissal of the negligence, negligent-undertaking and exemplary-damages claims, or whether foreseeability and reasonableness are fact questions requiring discovery.

## Factual History
On May 6, 2023, Mauricio Garcia drove to the Allen Premium Outlets with an AR-15 and other firearms and, within about five minutes, killed eight people and wounded seven; an Allen police officer who happened to be on the property stopped him (Relators' Brief on the Merits, PDF pp. 22, 26-27; Real Party in Interest's Brief on the Merits, PDF p. 16). The Outlets is a 611,000-square-foot open-air shopping center in Collin County; Allied Universal Security Services provided its security, and two security officers and a police officer were on site that day (Relators' Brief on the Merits, PDF pp. 26-27).

The plaintiffs allege that the Simon entities, the nation's largest mall owner, publicly acknowledged a responsibility to "secure every inch of their malls," touted a state-of-the-art surveillance center weeks before the attack, and knew of the risk of mass shootings from a thwarted attack at a Houston Simon mall, a July 2022 shooting at another Simon mall, and terrorism insurance on their properties; that police had urged more security at the Outlets, which received more than 3,000 police calls in three years, including a "Shooting" call a week before; and that on most days the Outlets had a security center and one unarmed officer (Real Party in Interest's Brief on the Merits, PDF pp. 12-15). Relators respond that the pleadings allege no prior mass shooting or similar crime at or near the Outlets, only one "shooting" report and 3,066 calls with no detail, plus shootings hundreds of miles away over nearly twenty years (Relators' Brief on the Merits, PDF p. 27).

## Procedural History
This is an original proceeding for a writ of mandamus (Relators' Brief on the Merits, PDF p. 1). Thirteen plaintiffs sued the Simon entities, the Outlets' security contractor, a nearby hotel owner and the shooter for negligence, gross negligence, premises liability, negligent hiring, training and supervision, and negligent undertaking; more plaintiffs and two intervenors later joined, and the plaintiffs nonsuited two other Simon companies, leaving Simon Property Group, L.P., Simon Property Group (Texas), L.P. and Allen Premium Outlets, L.P. as Relators (Relators' Brief on the Merits, PDF pp. 17-18, 28-30). After hearings on Rule 91a motions to dismiss, Judge Staci Williams of the 101st District Court in Dallas County signed two orders on August 8, 2025 that deny the motions (Relators call the second order less clear but read it to deny the rest) (Relators' Brief on the Merits, PDF pp. 18, 30-31). The Fifth Court of Appeals denied mandamus on November 20, 2025 without substantive explanation (Relators' Brief on the Merits, PDF pp. 18, 31). The case remains pending in the trial court with no trial setting (Relators' Brief on the Merits, PDF p. 19).

Relators petitioned the Supreme Court on January 8, 2026 and the real parties responded February 23. On March 27, 2026 the Court set the case for argument and ordered briefs on the merits, and on April 3 it granted Relators' motion for temporary relief. Relators filed a notice of supplemental authority on July 24, 2026. The Court heard argument on September 16, 2026; afterward a post-argument letter from the real parties' counsel addressing questions from the bench was filed, and an amicus filed a brief.

## Issues Presented
Whether the trial court clearly abused its discretion in denying the Rule 91a motions, and whether Relators lack an adequate remedy by appeal; specifically whether (Relators' Brief on the Merits, PDF pp. 20-21):

1. the allegations show a duty to protect the plaintiffs from a mass shooter
2. the shooter's criminal conduct was a superseding cause as a matter of law
3. the plaintiffs may assert negligence claims alongside a premises-liability claim
4. they pleaded a viable negligent-undertaking claim
5. Tex. Civ. Prac. & Rem. Code § 41.005(a) bars exemplary damages

## Legal Arguments
**Whether mandamus is available.**

**Relators:** a party has no adequate remedy by appeal when a trial court abuses its discretion in denying a Rule 91a motion, as *In re Oncor Electric Delivery Co.* holds; duty is a question of law, so the petition asks the Court to decide no disputed facts; and fair notice is not enough, because pleadings must contain the essential facts that would support a judgment (Relators' Brief on the Merits, PDF pp. 36-43; Relators' Reply Brief on the Merits, PDF pp. 13-21).

**Real Parties:** Relators must show both an abuse of discretion and no adequate remedy, the Court has not dropped the second showing (citing *In re Facebook, Inc.*), treating every Rule 91a denial as mandamus-worthy would create an extra-statutory interlocutory appeal, and foreseeability and reasonableness are fact questions that cannot be resolved on Rule 91a or in mandamus (Real Party in Interest's Brief on the Merits, PDF pp. 20-31).

**Duty: foreseeability.**

**Relators:** a premises owner has no duty to protect against third-party crime unless the risk is both foreseeable and unreasonable; under *Timberwalk Apartments, Partners, Inc. v. Cain*, foreseeability requires recent, sufficiently similar crimes at or near the property, weighed by proximity, recency, frequency, similarity and publicity, and *Trammell Crow Central Texas, Ltd. v. Gutierrez* found ten prior robberies insufficient; the plaintiffs allege no similar crime at the Outlets, police calls are not crimes, and shootings elsewhere fail proximity and similarity (Relators' Brief on the Merits, PDF pp. 44-52).

**Real Parties:** foreseeability depends on all the circumstances and is not suited to Rule 91a; they pleaded the owners' own statements about the risk, prior gun violence at Simon properties, police recommendations, and a shooting call a week before; and *Timberwalk* is one method, not the only one, so the Court should take a more flexible approach to mass shootings as *Del Lago Partners, Inc. v. Smith* and *Wagner v. Planned Parenthood Federation of America* did (Real Party in Interest's Brief on the Merits, PDF pp. 32-39).

**Relators (reply):** those authorities are distinguishable, Colorado's legislature overruled *Wagner*, and the plaintiffs effectively ask the Court to abandon *Timberwalk* (Relators' Reply Brief on the Merits, PDF pp. 21-27).

**Duty: unreasonable risk.**

**Relators:** under *UDR Texas Properties, L.P. v. Petrie* a risk is unreasonable only if it outweighs the burden on owners and society, and preventing a random mass shooting would take airport- or military-level security; the plaintiffs plead no facts showing their proposed measures would have prevented the attack or what they would cost (Relators' Brief on the Merits, PDF pp. 53-57; Relators' Reply Brief on the Merits, PDF pp. 27-30).

**Real Parties:** the measures they pleaded, such as video surveillance, alarms, trained monitors and active-shooter planning, are basic and a small burden for a company of this size, and feasibility and effect are fact questions (Real Party in Interest's Brief on the Merits, PDF pp. 39-41).

**Superseding cause.**

**Relators:** under *Phan Son Van v. Pena*, a premeditated criminal act is a superseding cause as a matter of law unless the plaintiff pleads facts making that specific crime foreseeable from the defendant's own conduct, and taking security measures does not show foreseeability (Relators' Brief on the Merits, PDF pp. 57-63; Relators' Reply Brief on the Merits, PDF pp. 30-32).

**Real Parties:** superseding cause is an affirmative defense, a foreseeable crime is a concurring cause, and the murder cases Relators cite were decided on summary judgment (Real Party in Interest's Brief on the Merits, PDF pp. 42-45).

**Negligence versus premises liability.**

**Relators:** a claim that an owner failed to provide adequate security is a premises-liability (nonfeasance) claim, so the negligence claims are barred because a plaintiff injured on property may assert one theory or the other, under *Occidental Chemical Corp. v. Jenkins* and *United Scaffolding, Inc. v. Levine* (Relators' Brief on the Merits, PDF pp. 63-66; Relators' Reply Brief on the Merits, PDF pp. 33-35); their July 24, 2026 notice of supplemental authority adds *JMI Contractors, LLC v. Medellin*.

**Real Parties:** Rule 48 allows alternative claims, no established rule bars pleading both, and they pleaded affirmative conduct as well as failures to act (Real Party in Interest's Brief on the Merits, PDF pp. 45-48).

**Negligent undertaking.**

**Relators:** the theory cannot be used where a premises-liability duty already governs, and the plaintiffs plead no undertaking beyond what every owner does (the "secure every inch" line was a journalist's conclusion), no reliance and no increased risk; penalizing safety efforts would discourage them (Relators' Brief on the Merits, PDF pp. 66-69; Relators' Reply Brief on the Merits, PDF pp. 35-39).

**Real Parties:** Simon undertook to secure the property by hiring Allied, promising security publicly and running drills, and the plaintiffs pleaded reliance and increased risk (Real Party in Interest's Brief on the Merits, PDF pp. 48-51).

**Exemplary damages.**

**Relators:** § 41.005(a) bars exemplary damages when the harm results from another's criminal act, every court of appeals to decide the question agrees, and the plaintiffs pleaded that Garcia's acts concurrently caused their harm (Relators' Brief on the Merits, PDF pp. 69-73; Relators' Reply Brief on the Merits, PDF pp. 40-43).

**Real Parties:** they seek exemplary damages for Simon's own conscious indifference (gross negligence), not for Garcia's acts (Real Party in Interest's Brief on the Merits, PDF pp. 51-53).

## Stated Reasons the Court Should Take the Case
Relators told the Court the case is important to the jurisprudence of the State because it tests the meaningful application of Rule 91a, and that mandamus is needed to show lower courts they must not shrink from Rule 91a dismissals in mass-shooting cases where the law bars liability (Petition for Writ of Mandamus, PDF pp. 22, 28-29). Real Parties answered that the case presents no extraordinary circumstances justifying mandamus (Real Party in Interest's Brief on the Merits, PDF p. 24).

## Oral Argument

- **Mass shooting versus other crime.** Asked whether mass shootings differ from other crimes, Relators' counsel called them an extreme criminal act but said the pleadings still articulate no duty. (Oral Argument, 2:02:21; 2:02:52)
- ***Timberwalk* fit.** Asked whether *Timberwalk*, a case about high-crime areas, fits a mass shooting, Relators' counsel said it is a framework for third-party crime, not a high-crime rule. (Oral Argument, 2:06:21; 2:07:13)
- **Pleadings versus summary judgment.** Justice Lehrmann pressed why summary judgment would not be appropriate; counsel called this a quintessential Rule 91a case because duty is a legal question and the facts will not change. (Oral Argument, 2:16:09; 2:18:50)
- **Owners' knowledge.** Chief Justice Blacklock asked what plaintiffs could hope to show about owners' knowledge; counsel cited possible internal acknowledgments of shootings at six properties, which the Chief Justice called general knowledge. (Oral Argument, 2:29:10; 2:30:10)
- **Extending *Timberwalk*.** Justice Bland asked whether plaintiffs seek to extend *Timberwalk*; Real Parties' counsel said they pleaded each factor, discovery is needed, and *Del Lago* would not survive Relators' pleading standard. (Oral Argument, 2:20:13; 2:23:35)
- **Exemplary damages.** A Justice asked for Real Parties' best argument against § 41.005; counsel said its final phrase must do work, barring exemplary damages only where tied to the criminal actor's conduct. (Oral Argument, 2:34:16; 2:35:21)
- **Review burden.** Real Parties' counsel closed by warning that mandamus review of denied dispositive motions would add a level of review and make stay motions routine. (Oral Argument, 2:37:46; 2:38:48)
- **Why mandamus here.** Asked why mandamus fits this Rule 91a denial, Relators' counsel cited the case's dozens of parties and the need to clarify duty at the extreme end of criminal conduct. (Oral Argument, 2:43:33; 2:43:51)

## Amicus Involvement
- [Chamber of Commerce of the United States of America, et al.](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=cbd42932-07b1-4615-ab11-b636e53f47f0&coa=cossup&DT=BRIEFS&MediaID=a77194e8-a5c3-4fe1-8f83-a2068c24ef33) support Relators: no duty to protect against third-party crime without notice of recent, similar crimes nearby.
- [Retail Litigation Center, Inc.](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=7f6ac210-6872-4ff7-8957-e0c47782cc0f&coa=cossup&DT=BRIEFS&MediaID=a1bbb465-dd82-4cc8-b8ed-e15718af6298) supports Relators: a retailer is neither a fortress nor a police force and should not guarantee against a mass shooter.
- [AmGUARD Insurance Company](https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=e4ffd22b-c4d2-4e89-a8b4-2561242a619c&coa=cossup&DT=BRIEFS&MediaID=4ff55710-58c4-4d34-9fdc-14fd7110715c), an insurer, filed after argument and supports Relators, urging clear threshold requirements for a duty to protect against mass shootings.


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Source: The SCOTX Report, https://scotxreport.com/cases/26-0023. AI-generated summary of the Court's opinion, orders and the parties' briefs, with pin cites to the page of each document; verify against the Court's own documents at search.txcourts.gov.