Lin McCraw

3 Republican judges sided with a property owner that didn’t repair a broken window, resulting in a break-in and rapes

DAVID TAFFET | Senior Staff Writer
taffet@dallasvoice.com

After a jury found their apartment complex negligent for not properly repairing the lock on a window, Tracy Childers and Mary Trout were awarded actual and punitive damages. On July 3, the Fifth Court of Appeals in Dallas overturned the award.

“These judges got it wrong and got it wrong intentionally,” said Lin McCraw, attorney for Childers and Trout.

Childers was more direct: “You want to think they’d do the right thing,” she said. “But two lesbians going up against a corporation and an insurance company? A Republican judge is going to side with the corporation.”

Three appellate judges — Molly Francis, Craig Stoddart and Ada Brown — found that although local ordinances require that rental properties have locks on doors and keep windows in good repair, the property company that owned and managed Childers’ and Trout’s apartment couldn’t have foreseen what would happen to the women and therefore bore no responsibility for the attack on them in their apartment.

On June 21, 2014, Trout went with Childers to Childers’ Stoneleigh Place apartment in Garland and they went to bed. Childers said she woke up when she heard a noise, shining her cell phone light around the room. She saw a muscular man in the room who began beating her, with Trout getting between the two of them to try and protect Childers — to no avail.

The man then raped both women at knifepoint. The ordeal lasted more than an hour. Jarad Alan Wade was subsequently arrested for the crime and sentenced to 50 years in state prison.

But Childers and Trout claim the apartment complex bore part of the blame.

Childers said she had requested that the complex send someone to repair her window, which wouldn’t latch after having been damaged and was previously repaired only with soft caulk. The inadequate repairs left the metal latches with no place to connect and keep the window from opening.

At trial, Childers produced repair orders, and the person who repaired the window took the stand to testify that the repair had been inadequate.

McCraw said the property management company did everything wrong: “Sufficiency of evidence in this case should have foreseen criminality.”

McCraw explained that to have proved at trial the need for extra lighting or a security guard, he would have had to show an extreme degree of criminal activity in the area. But everyone locks their houses or apartments, he said. It’s a simple and common precaution.

Leaving a house unlocked or a window open, he said, invites a break-in. That’s why city codes require rental properties to provide working locks on doors and latches on windows.

But Judge Francis, who wrote the opinion in the ruling overturning the award to the two women, called the break-in unforeseen.

McCraw said that the court applied the standard of having to provide proof of the need for extra security to basic security required in city property codes. “I shouldn’t have to show it’s an unsafe area to require working windows,” he said.

McCraw said the Court of Appeals ruled the apartment complex couldn’t foresee someone would enter the apartment. But Childers disagreed. “It is foreseen,” she said. “It’s in the law that it’s foreseen.”

McCraw said this ruling, if allowed to stand, could be used as precedence in any property liability case. He said the ruling invalidates ordinances on the books throughout the counties that Fifth Court of Appeals covers, which includes Dallas.

“I wonder if we would have had a different result if the home were in Highland Park, and a repairman had failed to repair a window and a little girl or boy were raped?” McCraw questioned.

He noted that the appellate court wasn’t supposed to re-examine the facts. The court was to overturn a verdict if the judge made errors.

McCraw said he will file for a rehearing, but he isn’t sure yet if he was going to ask for the case to be heard en banc — by the entire court — or for a rehearing by a three-judge panel.
From there, the case could be appealed to the Texas Supreme Court.

McCraw said his message to the court is: “You’ve made every home less safe.”

Meanwhile, two of the judges who overturned the award — Frances and Stoddart — are up for re-election in November.