*1 Bonds, (Tex.2002); apply see of whether B. decision supreme precedent prospec- Supplies, Animal Inc. Schus court also Petco tively ter, (Tex.App.-Austin lies the discretion of within (“As supreme the court. pet.) appel intermediate court, not to mold Texas late we are free exception In the discussing retroactiv- fit but instead law we see must follow ity, supreme court has noted precedents Supreme of the Texas supreme court case decision whether high and until the court Court unless over applies only prospectively lies within the Legislature Texas super rules them or the supreme discretion of the court. Lohec v. statute.”). it is them Because not sedes Court, County Galveston Comm’rs province of this court overturn (Tex.1992). Lohec, n. 4 In court, supreme we must decisions of the supreme stated: court second issue. overrule SBC’s operate retroactively Our decisions un- less this court exercises its discretion to Conclusion
modify application. When deter- mining to exercise our discre- whether judgment foregoing, Based on the modify application, tion to retroactive trial is affirmed. court things, this other weighs, among court fairness, equity
considerations of policy including the decision in- whether impression volves an issue first application whether retroactive could produce inequitable results. substantial added). (emphasis Id. Downs, supreme court did not BARTON, Individually and as Per- Rose modify gener- exercise its discretion Representative of the Estate of sonal retrospec- rale that apply al its decisions Dean, Appellant, Martin Christоpher tively. By refraining exercising discretion, supreme must we conclude retrospec- WHATABURGER, INC., Appellee. to apply court intended Downs tively. issue therefore over- SBC’s first is No. 01-06-01121-CV. ruled. Texas, Appeals Court appellate
An intermediate court Dist.). (1st Houston may supreme overrule July 2008. precedent. court Rehearing En Banc Denying Order asks this court over SBC also Feb. turn it Downs because believes su erroneously preme interpreted court Compensation Act and the
Texas Workers’ rules of the when it determined TWCC However, Downs. not the function “[i]t abrogate appeals modify of a court of That function lies precedent. established Supreme] Lub solely with Court.” [the Lubbock Bail County bock v. Trammel’s *4 Crow, Crow, P.L.L.C.,
Carl Carl V. V. Post, Beck, Gunn, Russell M. S. David LLP, Secrest, Houston, TX, Redden & for Appellant. III, A.
Hubert Crouch Court Dean Smith, LLP, Dallas, Ramey, TX, & Crouch Jr., Raul A. Gonzalez Law Office of Raul Gonzalez, TX, Austin, A. Frank Gerhardt L.L.P., Cawley, Cawley, & Whitehurst Ad- TX, dison, Appellee.
Panel consists Chief Justice RADACK and Justices ALCALA and BLAND.
OPINION BLAND,
JANE Justice. negligence ag- This case arises from the gravated robbery res- Whataburger of a resulting taurant murder of one of duty during robbery. its on employees had not counted Barton, and on Love individually Rose behalf covered Dean, son, he it Christopher money registers, her counted estate of Whataburger mur- excess safe. employee deposited who was dered, summary court’s returned to the restaurant appeals trial never judgment night. entered in favor Whatabur- the trial ger, Inc. Barton contends men, a.m., later three At around 4:00 judg- in granting summary court erred Marshall, as Ronald Wor- Gerald identified ment her claim that Calliham, to rob attempted Kenny thy, and (1) Gregory Love to negligеnt hiring access Whataburger. gained Marshall restaurant, he conspired manage by climb- restaurant to the interior of the commit the that led the mur- robbery drive-through window. through ing (2) der; failing provide workplace a safe Dean, eventually into the chased Marshall Dean; rea- failing to exercise restaurant, he demand- where back of prevent robbery. We sonable care the safe. key give Dean him ed that *5 the court properly conclude that trial not did that if Dean told Dean Marshall the granted summary judgment because safe, Marshall to the give key him the aggravated robbery leading to murder was told repeatedly him. Dean would shoot not as matter of law. foreseeable a the keya did not have Marshall he comply Marshall’s and could not with safe Background produce failed to demands. When Dean On in Love night May a was work- and him in the face key, Marshall shot AVhataburger a
ing night manager as a Worthy and the scene Calliham. fled with Houston. restaurant Also northwest The left immediately. robbers Dean died Dean, duty mentally a im- night Ship- a nothing, but afterward robbed with paired who had worked for Wha- employee equipped video ley Doughnut store years. for arrived taburger fourteen Love surveillance. early evening, allowing for his shift that the rob Love to Police later connected Murray, manager, to leave. Arthur another capi charged him with bery, and the State Murray agreed that Love would Love parties. the law of felony murder under tal count the cash that had accumulated State, Love registers during Murray’s place shift and 2006, pet. (Tex.App.-Houston Dist.] [1st init the store safe. 'd). guilty, and juryA found Love ref Shortly Murray after left Whatabur- at life punishment trial court assessed ger, Murray called him that Love told affirmed prison. Id. at 449. Our court he work. asked also needed leave Love Id. the conviction. in charge if could Dean Murray he leave responded that Murray the restaurant. Whataburger under Barton sued running restau- capable Dean statute, asserting wrongful death Texas rant, he could not authorize Love but negligence proximate- Whataburger’s Dean. delegate managerial power ly Dean’s death. See caused Tex. Civ. 71.002(a)-(b), §§ return, Murray to Prac. & Rem.Code did not ask Ann. (Vernon 2008). 71.004(a) Murray’s warnings, disregarded instead summary judg- restaurant, no-evidence put left Dean moved claim, assert- negligence Barton’s money count the in ment on charge. Love did not no evidence produced that Barton had deposit any money ing registers cash or The breach, cause. duty, proximate or he Dean dis- safe before left. When granted summary trial court judg- Negligence final Nonsubscribers and ment in Whataburger. favor of Whataburger is a nonsubscriber to Act. Compensation
the Texas Workers’ 406.002(a) (Vernon § Analysis Tex Lab.Code Ann. 2006) (“Except public employers and as Standard, Review law, employer provided otherwise an may compensation elect to obtain workers’ 166a(i) In a Rule summary no-evidence coverage.”). action ... insurance “In an judgment, movant represents that no an against employer who does evidence exists as to one or more essential compensation coverage, insurance workers’ claims, elements upon non-movаnt’s plaintiff prove of the negligence must the non-movant burden which has the employer agent or of servant 166a(i). proof trial. Tex.R. Civ. P. employer acting general scope within the non-movant then must present evidence agent’s employment.” or servant’s raising genuine issue of material fact on (Vernon 406.033(d) 2006). §Id. Contribu challenged elements. AId. no-evi tory not a negligence is defense in nonsub- dence summary judgment essentially 406.033(a)(1); § Kroger criber cases. Id. pre-trial Bendigo directed verdict. v. City (Tex.2000). Keng, Co. Houston, (Tex. 113-14 negligence A action cause of has App.-Houston pet.). [1st A Dist.] legal elements: four owed *6 fact issue exists if the evidence “rises to a (2) another, person one to a breach of that that level would enable reasonable and (3) (4) duty, damages proximately and people fair-minded to differ in their conclu Houston, caused D. Inc. v. breach. Ranch, King sions.” Inc. Chapman, v. Love, (Tex.2002). 450, 92 454 S.W.3d (Tex.2003) 742, 118 S.W.3d 751 (quoting the context of rela employer-employee Pharms., Havner, Merrell Dow Inc. v. 953 (1) tionship, company duty pro has a to (Tex.1997)). 706, S.W.2d 711 If the evi safety employees, vide rules for the of and dence does no more than create a mere reasonably to warn them foreseeable of fact, surmise or suspicion of than less (2) hazards; to furnish safe exists, scintilla of summary evidence (3) machinery equipment; to furnish a judgment proper. is Ins. Transp. Co. v. work; reasonably safe to to place Faircloth, 269, (Tex.1995); 898 S.W.2d 282 care to ordinary exercise select careful and Mart, Inc., v. Macias Fiesta 988 S.W.2d competent employees. Fort Worth fellow 316, (Tex.App.-Houston 317 [1st Dist.] Russell, 128, Tex. Elevators Co. v. 123 1999, pet.). no A respondent is not re 135-36, 397, (1934); 401 see 70 S.W.2d also to quired proof marshal its to a no- defeat Elwood, 793, Kroger v.Co. 197 S.W.3d 794 judgment; motion for summary evidence Gravel, (Tex.2006); Humble Sand & Inc. only point she need out evidence that rais (Tex. Gomez, 170, n. 45 v. 146 S.W.3d 186 aes fact issue on the challenged elements. 2004). however, An is not an employer, 166a(i) (1997). Tex.R. Civ. P. cmt. Elwood, employees’ safety. insurer of its 794; Hornsby, Leitch 197 S.W.3d at v. 935 Because summary judg the trial court’s (Tex.1996); 114, Corp. S.W.2d 117 Exxon ment does specify ground which (Tex.1993). Tidwell, 19, 21 v. 867 S.W.2d court ruling, relied its we should theory affirm it if any advanced Whata that it dispute does not Wasson, burger Dean, has merit. See but duty employee, Weiner v. to as its owed (Tex.1995). 316, n. 2 duty 900 is to its protect S.W.2d 317 observes that 462 rule,
employees general person from foreseeable harms. The As “a has case, analyzed' legal duty protect issue in this whether as a no to another duty part negligence of the element criminal acts of a person.” third Timber walk, element, is the at This foreseeability causation 972 S.W.2d is because that the criminal conduct led Dean’s the criminal conduct of a third is a party As Texas that superseding extinguishes any murder. cases discuss cause that intervening liability previous foreseeability criminal actor. See Phan so, main, Pena, 751, do in the context Son Van v. 990 conduct S.W.2d 753 duty, (Tex.1999); element Nixon Mgmt. we do so well. v. Mr. Prop. See, Co., Inc., 546, (Tex.1985); e.g., Apartments, Part- 690 550 Timberwalk S.W.2d ners, Cain, 749, P’ship, Inc. 972 S.W.2d 756 Garcia v. El Paso Ltd. (Tex.1998) 432, (holding legal duty (Tex.App.-El 2006, no exists to 436 Paso no pet.); prevent acts); criminal Corp., unforeseeable Cowart v. Kmart 783 denied). Harris, 924 (Tex.App.-Dallas pet. Walker S.W.2d How (Tex.1996) ever, if (holding duty protect a criminal’s foresee conduct negligence from criminal arise in of a prior acts “does not able result harm”); party, may absence of a foreseeable risk of the criminal act not excuse that Smith, Pena, party’s liability. Houser v. S.W.2d 544-45 S.W.2d (in Cowart, Nixon, negli- 753; 550; (Tex.App.-Austin pet.) case, holding gent hiring employer impose liability at 783. on a To prevent negligence in failing pre had no unforeseeable crim- defendant another, employee); inal conduct of Doe v. criminal Boys vent the conduct cf. Dallas, Inc., Clubs Greater facts than must show more conduct (in (Tex.1995) intervening creates crime— opportunity criminal commit case, holding plaintiffs they conduct failed must show both that defendant key negligent raise fact issues on elements of each it committed acts knew *7 claims, that, of their elements or its particularly on of should have known because of cause). (or it) acts, proximate producing might the crime one like occur. principle imparted This in the Re legal is Duty Intervening Criminal Conduct (Second) Torts, statement of which states: negli in a inquiry threshold person committing The act of a in third gence duty. Centeq Realty, case is Inc. v. an tort crime a su intentional (Tex.1995). 195, 899 Siegler, S.W.2d 197 re perseding cause of harm another The existence of is a question law therefrom, although actor’s sulting the from the facts a court decide sur a negligent conduct created situation in rounding question. the occurrence Van afforded to the opportunity which an Chambers, 542, Horn v. 970 544 S.W.2d third to commit such a tort or person (Tex.1998); 197; 899 Siegler, S.W.2d crime, unless the actor at the time of his Transp. Phillips, Greater Houstоn Co. v. negligent conduct realized or should (Tex.1990). 523, 801 S.W.2d 525 deter have realized the likelihood that such a duty, mining scope of a defendant’s we created, might situation be and that foreseeability injury consider might person third himself of avail weighed against magnitude of the bur opportunity to such tort or commit guarding against injury den of and the crime. consequences placing burden Clark, § Eng’g Corp. 448 defendant. Otis (Second) Restatement of Torts (Tex.1983). (1965); Pena, 753; 309 see also 990 S.W.2d at S.W.2d Whitten, manager aggravated Humble Oil & taurant caused Co. Ref. (Tex.1968) (discussing S.W.2d Re- Al- robbery that led to Dean’s murder. (Second) § statement of Torts which though copy of the actual conviction and identifies factors to be considered in deter- record, judgment appears in this Barton mining intervening whether force rises to investigative re- produced evidence of an cause). superseding level that, port September that states in
Thus,
felony
impose legal duty
to Love was
offense of
convicted
another,
prevent
Indiana,
criminal conduct of
“dealing cocaine” in
and served
reasonably
the crime must have been
fore
year
jail.
testimony
in
Deposition
one
also
seeable at the time
engaged
the defendant
that,
exists
report
indicates that a
nine
negligent
Foreseeability
in
conduct.
exists
later,
felony
convicted of
years
Love was
actor,
person
if the
as a
intelli
ordinary
Texas,
nonpayment of child
support
gence, should
anticipated
dangers
have
before
ap-
November
the week
he
negligent act
creates
others. D.
for a
plied
managerial position Whata-
Houston, 92
at 454. A danger
is burger.1 Whataburger
a back-
performed
general
foreseeable if its
character might
ground
hiring him,
check on Love before
reasonably be
if not
anticipated,
precise
only
but
searched for criminal convictions
manner.
v. City Mesquite,
Travis
Harris
occurred
County
between
(Tex.1992); Nixon,
November 1995 and November 2002. The
at 551. The question
involves a
search did not
reveal either
two
practical inquiry,
experi
based on common
felony
alleges that
convictions. Barton
applied
conduct,
ence
to human
and asks
Whataburger’s failure to conduct an ade-
injury
whether the
might
background
ultimately
check
caused
quate
contemplated
been
as a
result
the defen
aggravated
robbery
led Dean’s
Doe,
dant’s conduct.
464 foreseeable present [plaintiff]
of harm
foresee-
convictions did not
that befell
were
assault),
presented
able and
commit sexual
risk that
risk that he would
[defendant]
Church, No.
required
guard against....
Baptist
was
Under
and Frith v. Fairview
*1,
facts,
1565664,
05-01-01605-CV,
these
hold the conduct and harm
we
2002 WL
”).
were not foreseeable....
assum-
17, 2002, pet.
Even
(Tex.App.-Dallas July
*4
ing
prior
about
(mem.
information
Love’s
denied)
employ
op.) (holding that
convictions,
known,
torpe-
if
would have
of
possession
for burglary,
ee’s convictions
employment
doed Love’s
with Whatabur-
intoxication,
substance, public
controlled
ger,
selling
his criminal
acts
cocaine
carrying
possession marijuana,
unlawful
failing to pay
support
child
are different
did
evading
arrest
weapon,
from an aggravаted
robbery
foresee
sexual
of child
—neither make his
assault
theft,
requires
crime inherently
violence or
Co.,
able)
990
Read v. Scott Fetzer
ingredients
aggra-
the two
essential
(Tex.1998)
734,
(holding
732,
vated
robbery. See
Tex.
Ann.
Penal Code
adjudication
deferred
employee’s
(Vernon 2003)
§ 29.03
(defining aggravat-
make sexual
child could
indecency with
robbery
robbery
person
ed
which
sales
when
assault of customer foreseeable
bodily
either
injury
causes serious
or uses
homes), and
in customers’
were made
§
or
deadly weapon)
exhibits
29.02
Scott, 787
Nursing
v.
Ctr.
Deerings W.
(defining robbery as theft coupled with
Paso
(Tex.App.-El
bodily
bodily
or threat of
injury
imminent
denied)
fifty-six
(holding
nurse’s
writ
death).
injury or
The record contains no
his assault
prior
for theft made
convictions
evidence that the
either
underlying
events
foreseeable).
on elderly female visitor
of Love’s
involved
or
convictions
violence
our
brief, Barton calls
appellate
In her
theft,
engaged
in any
that Love
conduct
note
to criminal cases that
attention
during the
months he
employed
seven
and violence.
drugs
connection between
at Whataburger that would have made his
See,
Mich.,
v.
501 U.S.
e.g., Harmelin
participation
aggravated robbery
in an
2680, 2706,
L.Ed.2d 836
S.Ct.
hindsight,
foreseeable. Even viewed in
J.,
(uphold-
(Kennedy,
concurring)
selling
Love’s
cocaine and
convictions
ing
possession
sentence for
life
nonpayment
support
child
not indi-
do
against
Amend-
grams
Eighth
cocaine
propensity
cate a
for violent criminal con-
“Petitioner’s
challenge, noting
ment
duct,
aggravated robbery
like
and murder.
that his crime
nonviolent
suggestion
Thus, we hold that
criminal
Love’s own
point
...
is
false to
victimless
behavior,
cohorts,
of his
and that
petitioner’s
absurdity.
contrary,
To
precludes
superseding cause
Whata-
harm to
grave
crime threatened
cause
burger’s
these
liability for
crimes. Com-
Brown, 188
society.”); United States
Ramirez,
Club,
pare
Inc.
Fifth
(7th Cir.1999)
dealing
(“Drug
F.3d
(Tex.2006)
(holding
796-97
*9
” (quot-
ais
‘crime infused with violence.’
employee’s
that
failure to
re-
comply with
Gambrell,
ing
v.
178 F.3d
States
United
quirement
peace
officer manual and his
(7th
v.
927,
Cir.1999)));
States
929
United
reprimand
using profanity
to member
Cir.1990)
(8th
570,
Brown,
F.2d
913
572
public
not make his assault of cus-
did
(“Since
frequent-
weapons and violence are
Doe,
foreseeable),
tomer
907
at 478
transactions,
ly
drug
associated with
(holding
employee’s two
convic-
that
DWI
indi-
that the
officers
believed
tions did
make his sexual
fore-
assault
(hold-
they
dealing were
seeable), Houser,
viduals with whom
were
We 907 S.W.2d at acknowledge courts, including ours, 1565664,at WL *4. We hold that recognized a con- therefore street-level failed to more drugs, produce nection Barton has than a weapons, between vio- that, scintilla provides assuming lence. This connection of- of evidence even police constitutionally ficers with the should have required discovered suspicion Terry history, given history, reasonable Love’s criminal conduct a *10 stop, legislature or a justification reasonably with a it was that foreseeable Love imposing drug harsher sentences in conspire aggravated robbery on would the Harmelin, offenders. See at 501 U.S. in murder. resulted Dean’s 466 Subsid 751; McKinney at lumbia 118 Jackson v. Med. Ctr.
Chapman,
S.W.3d
Mart, Inc.,
L.P.,
659,
(Tex.App.
663
68,
iary,
214
979 S.W.2d
70-71
S.W.3d
Fiesta
denied).
1998,
2007,
no
-Dallas
pet.).
pet.
(Tex.App.-Austin
matter, Barton con
an initial
As
Workplace
Failure to Provide Safe
analysis should
tends that the Timberwalk
that,
if it
Barton further contends
even
not
in
because Timberwalk
apply
this case
legally
was not
foreseeable
liability
duty
and the
premises
dealt with
the crime that resulted in
engineer
would
invitees,
nondelegable
owed to
murder, Whataburger generally
Dean’s
еmployees.
to its
employer
duties an
owes
increased risk of a violent
of an
knows
employer
Although
liability and
premises
occurring
open
at restaurants
late at
crime
theories,
Texas
liability
are distinct
night and should have taken reasonable
that “the
Supreme
has observed
Court
prevent
Relying
it.
security measures
to use
nature
of the landowner
of the
in
Supreme
on
Texas
Court’s decision
rea
premises
make his
care to
reasonable
Timberwalk, Whataburger
responds
of his invitees
sonably
for the use
safe
that occurred
not reason-
robbery
may,
respects,
in
be identical
all material
ably
on this
either. 972
foreseeable
basis
duty of
master
nature of the
at
S.W.2d
756.
provide
care to
his serv
to use reasonable
safe
reasonably
place
ant
Employees are the
with a
invitees
” Sears, Roebuck & Co. v. Robin
Heldenfels,
Hernandez v.
work....
employer.
their
son,
336, 340, 280
240
(Tex.1963);
154
S.W.2d
Allen
Tex.
S.W.2d
(1955);
Allen,
2005, pet. (applying Timberwalk drive-through another customer in the lane analysis in employer-employee context of July in the in thigh; was robbed and shot relationship). 1998, a in the customer was robbed drive- Barton further contends that the Tim- lane; 1999, in through June a customer’s analysis berwalk apply should not in this purse stolen; July 2000, in was a customer case perpetrated because the robbers their (without in reported injury); an assault Love, crime with the assistance of Whata- April sought help in the woman burger’s manager duty. Barton asserts Whataburger, reporting that she had been factors, the Timberwalk which are shot; in August reported a woman used to determine the foreseeability of a (without injury); February assault in criminal act on an premises, apply owner’s reported that her car woman only crime, to random targeted not to a lot; stolen from parking April her crime accomplished by, or with the assis- 2002, one intentionally customer hit anoth- of, Timberwalk, tance an insider. See drive-through er customer’s vehicle at 757-59. Barton is correct that (with property damage inju- lane but the Timberwalk factors are applica- more and, ry); February police arrested ble to targeted crime, random crime than a person premis- who refused to leave the preventative but the measures that Barton es.2 Whatаburger contends imple- should have contrast, no exists that the evidence mented to prevent robbery by a random any aggra- the scene of same, criminal or an insider are save assault, robbery, aggravated vated sexual Whataburger’s decision to hire Love in assault, years prior or murder in the three sense, the first instance. In this the Tim- No berwalk factors Dean’s murder. crime similar to determining assist one whether fact issue exists as to the this had ever occurred: one had foresee- before, ability of the ever robbed the restaurant nor robbery based on the had evi- dence that Barton it regarding any workplace advances ever been the scene of general violence, foreseeability activity anyone of criminal nor had ever committed And, at the any against Whataburger restaurant. See id. the Dal- sort of crime restaurant,” Relying opinion on our court's in Love v. to rob someone at the but he had State, that, parties day note before convinced them not to. Id. Love told his murder, Dean's Love met with his fellow con- boss, Davilyn Spencer, merely the men spirators outside the restaurant. 199 S.W.3d complained had about their food. Id. at 450. (Tex.App.-Houston [1st Dist.] notify police management Love did not ref’d). alibi, pet. part As told this event. Id. attempting coworkers that these men "were *12 468 great- had a crime “index rate” four times
employee,
anyone
nor had
ever been mur-
average
a national
and noted
dered.
er than
evi-
at
drive-through
dence of three
robberies
other,
evidence
Comparing this
with
restaurants, namely,
Whataburger
other
Texas,
agree
similar cases in
we
attemрted drive-through robbery five
an
trial court
does not
that the evidence
show
263,
away at
No.
in November
miles
Store
rampant,
activity
criminal
suffi
violent
robbery
1998,
drive-through
attempted
an
the fore
cient to raise a fact issue about
462 in
away at Store No.
sixteen miles
robbery
seeability
aggravated
of the
rob-
1998,
drive-through
December
in
resulted
Dean’s murder. See Timbe
No. 605 in
bery
away at Store
five miles
(“On
rwalk,
at
the other
972 S.W.2d
758
that “an
expert opined
April 2003.
hand,
complete
previous
absence of
foreseeability” exists
industry standard of
crimes, or the occurrence of a
crimes
few
high risk of
because
well-known
period, negates
time
over
extended
late-night
convenience
robbery
armed
Allen,
element.”);
foreseeability
restaurants,
particu-
in
pointing
stores
67; compare
Lodg
at
Jai Jalaram
store robber-
study
lar to a
of convenience
Leribeus,
ing Group,
225 S.W.3d
L.L.C.
that “the
that concludes
ies and literature
(Tex.App.-El
pet.
245-46
Paso
includ-
workplace violence
greatest risk of
denied) (holding
duty
that no
existed when
(80%)
being a
ing homicide
comes
before,
reports
years
incident
within two
fur-
robbery.” Barton
of an armed
victim
showing
activity,
a rise in criminal
while
Whataburger foresaw
ther asserts that
any
frequency
did not
notable
nor
show
because
premises
risk of crime on its
they of the kind that would have
were
security
manager
employed
had
previous
personal crime in
facilitated the violent
early
guard on the
work
weekends
(hold
Gibbs,
question),
at 612
manager
A
store
dis-
morning hours.
new
ing
robbery
of bus
not foresee
2002, after deter-
practice
continued the
no
plaintiff produced
able because
evi
it
mining that was
cost-effective.
on
bus
dence of similar robberies
same
Allen,
line),
(holding
at 67
158 S.W.3d
Timberwalk,
evi
general
Under
not foreseeable
sexual assault was
of crime rates and of robberies
dence
plaintiff produced
because
evidence
industry
cannot create “an
other locales
similar criminal acts on or near defen
foreseeability”
standard of
sufficient
premises),
dant’s
with Trammell Crow
prevent crime. See
impose a
Tex.,
Gutierrez,
Cent.
Ltd.
(“Statistics
Timberwalk,
(Tex.App.-San
pet.
Antonio
large
geographic
or undefined
regarding
(holding
shopping
that murder at
granted)
crime
make
areas do not
themselves
plaintiff pro
mall
foreseeable because
location.”). None
specific
at a
foreseeable
duced
of ten violent crimes
evidence
at a restaurant
of the robberies occurred
years),
Dickinson
previous
mall
two
closer than five miles to the
Arms-REO,
Campbell,
L.P. v.
case. “For a landowner
at issue
this
333, 335-36,
(Tex.App.-Houston
[1st
property,
criminal conduct on
foresee
denied)
car
pet.
(holding that
Dist.]
crimes
be
that other
there must
evidence
foreseeable in
jacking and murder were
or in its
property
on the
have occurred
criminal
light
reported
of 184
incidents
generally
Id.
vicinity.”
immediate
Courts
premises during previous
years).
three
in consid
geographic areas
rely on small
vicinity.”
in the “immediate
ering
an un-
crime
expert also averred that
Barton’s
(considering apartment
id. at
surrounding the restaurant
defined area
*13
Garcia,
665;
complex, neighboring complexеs, and one-
at
203
at 437-
S.W.3d
S.W.3d
complex);
mile radius around
also
targeted
see
38
murder commit-
(holding that
Holder,
Mortgage
Mellon
Co.
5 S.W.3d
of Sonic
premises
ted on
restaurant was
(Tex.1999)
(considering parking
664
result of
to
not foreseeable
Sonic’s failure
and
garage
one-quarter mile radius
security guard).
employ
Gibbs,
garage);
around
at 612
162 S.W.3d
the Timberwalk factors
Applying
(holding
evidence of
bus robberies
recency, frequency,
similari
proximity,
did not
robbery
other states
make
bus
ty,
publicity,
and
we conclude that Barton
foreseeable);
Texas
Tex. Real Estate
raise a fact
has failed to
issue that
Quach,
Holdings, Inc. v.
aggravated robbery resulting in Dean’s
(Tex.App.-Houston
398-99
[1st Dist.]
Whataburger
murder at
restaurant
denied)
2002, pet.
(considering premises
foreseeable,
on
impose duty
so as to
square
and area of 3.5
prem
miles around
to take
Whataburger
reasonable measures
(con
ises); Campbell,
plex neighborhood surrounding com plex). Lastly, contends that Barton Whatabur- ger’s violating employees negligent were Finally, Barton’s contention policies company procedures own Whataburger’s earlier employment of a se robbery. the risk of theft or minimize curity guard on the proves weekends alleges Barton Sрecifically, Whatabur- foreseeability of robbery unavailing. ger’s employees following committed the “The act taking mere preventative (1) manager acts of store Da- negligence: to protect against measures possibility vilyn left her Spencer key safe of future crime is not the same foresee (2) shift; restaurant at end of her Allen, ing that criminal activity.” Murray early notify- left his shift without S.W.3d at 67. If equated preventative we ing Spencer; Murray failed to count measures foreseeability, we would “vir money registers deposit tually eliminate the foreseeability require shift; a negligence ment for excess in the at the end of against per claim safe (4) Murray son who installs a failed to security system notify Spencer or takes preventative other guard duty during measures that no would be on manager Id.; Stewart, against crime.” accord 214 the shift in Dean was killed. which Readi- that, expert security 3. Barton’s lists a evening, number of fact the same later the crimi- measures that the restaurant lacked that Shipley doughnut nals robbed a store that had placed industry it below the standard in the security some of the measures that Barton’s security all-night for an establishment. expert holding Given recommended. our Among Whataburger’s these are failures unforeseeable, this crime was we do not ad- surveillance, provide video and re- assess allegations departure dress Barton’s risks, port security physically prevent and to industry Whataburger’s response standards ingress through to the restaurant the drive security that additional would have been fruit- through window. responds that less, any negating "but for” causation for this these prеvented none of measures would have evidence. crime, given this Love's and the involvement cash, safe, ly key (holding targeted and a to the murder committed available argues, Greg “gave exactly premises Barton was not of Sonic restaurant for” in looking planning he was what result of failure em foreseeable Sonic’s robbery. ploy security guard); Boggs v. Bottomless Team, Pit 824-25 Cooking
But, as Texas cases and the Restate 2000, no (Tex.App.-Houston Dist.] *14 [14th observe, foreseeability requires ment more by committed pet.) (holding that murder “afford[ing] than to com opportunity” of ex not result customer was foreseeable aggravated robbery mit a crime. The and customer); Co sale of alcohol to cessive at murder an ex was wart, (holding at that 20 S.W.3d 784-86 event, traordinary contain record by was not party committed third murder anyone ing no evidence that had ever at sale result of to restaurant, foreseeable ammunition to tempted rob the much less minor). Nothing gunpoint, at before. in the record any history
indicates that had of Conclusion aggravated robbery violence. An and ordinary murder not the result of the properly that court We hold trial by Spencer Murray’s situation created granted summary because the judgment Pena, alleged See 990 negligence. S.W.2d of who com- diabolic conduct others —men 755-56; Whitten, at 427 S.W.2d at murder— aggravated robbery and mitted (noting intervening force rise to can Dean’s death was a cause of superseding opera cause superseding level when its foreseeable to not was extraordinary). are consequences tion or affirm the Wе therefore Whataburger. undisputed The evidence is that the rob judgment trial court. bery wrongful act and that at least three of the men have been con involved ON FOR ORDER MOTION is sen victed Dean’s murder —Marshall EN REHEARING in prison. tenced death and Love life BANC Pena, Whitten, 754; at See 990 S.W.2d State, 315; see also Marshall BLAND, JANE Justice. 618, 620, (Tex.Crim.App. Barton, Rose for en Appellant, moved Love, 2006); 457. We majority banc consideration. A acts wrongful hold that these are su deny Court en consideration. voted banc death, of Dean’s and the perseding cause appellant’s It is therefore ORDERED properly granted trial court Whatabur- motion is denied. summary ger’s judgment no-evidence It is so ORDERED. ordinary negligence Barton’s See claims.
Pena,
(holding
at 756
Appellant moved
en banc
by minor
mem
gang
murder committed
TexRApp.
41.2(c).
P.
consideration.
bers was
foreseeable result of sale of
members);
gang
alcohol
Pichardo
deny
A
majority of
voted
Court
Diamond, Inc.,
502-
Big
TexRApp.
en
P.
banc consideration. See
(Tex.App.-Fort
pet.)
Worth
49.7.
(holding
injury caused
criminal
The en banc court
of Chief
consists
fleeing
stealing gas
gas
after
station
TAFT,
Justice RADACK
Justices
poli
not foreseeable result
station’s
JENNINGS, KEYES, ALCALA,
cy
requiring
pre-pay
of not
customers to
Garcia,
HANKS, HIGLEY, BLAND, and SHARP.
gas);
granting summary judgment against ap- Background and Factual Procedural Barton, Rose
pellant, Individually and as Representative Personal of the Estate of Dean, mentally “very disabled but ded a Christopher Dean, Martin the “because Whataburger employee icated” fourteen diabolic conduct of others —men com- who years, murdered when he was shot in was aggravated mitted robbery and murder— Marshall, was, by the face Gerald who at a superseding was cause of Dean’s death Love, attempting direction to rob that was not reasonably to foreseeable” Whataburger restaurant at which Love appellee, Inc., Whataburger, as a matter State, manager. served as See Love law. 447, 449-51 (Tex.App.-Houston [1st case, ref'd); State, In this Whataburger overnight- pet. Worthy a Dist.] Love, 01-06-00184-CR, manager, Gregory shift No. had at who WL *1-3, planned (Tex.App.-Houston with to rob [1st others the Whatabur- Dist.] ref'd) (mem. ger managed, restaurant he directly pet. op., March was responsible designated publication). under the for parties1 law of for capital had, murder Dean. Love case, underlying The facts of this which to prior employment by Whataburger, already dispute, are not in been sum- been convicted of incarcerated Love, this marized Court. See committing felony delivery two offenses of 449-51; Worthy, S.W.3d at 2007 WL of crack cocaine2 in Indiana. prior *1-3. One to night In concluding general that the robbery, spoke character Love met with Mar- Love, of the actions of which Whataburger parking resulted shall in the lot. See capital Dean, Love, murder of suggested could not have at 449. Love reasonably anticipated by been Whatabur- should Marshall return to restau- 7.02(a)(2) (Ver- § year 1. one Love served and one-half of a Tex Penal Code Ann. 2003) sentence, (stating person non ‘‘[a] is crimi- penitentiary year three re- nally responsible for an offense committed good placed pro- leased for behavior and on acting the conduct of another if ... with deposition bation. The record testi- contains promote intent or assist the commission stating mony that Love's conviction resulted offense, solicits, directs, encourages, he confinement, eight years in a sentence aids, attempts person aid the other years suspended. with five of those rec- offense”). commit the testimony ord also contains affidavit that Love had been convicted of “two counts" of "deal- briefing, Whataburger its states Love ing crack cocaine.” selling had been convicted of nine narcotics years prior Whataburger employment, to his cost Whataburger money, it Dean his night on a its robbery rant to commit be- a.m., a.m. life. 3:00 and 4:00 when Love tween Id. Marshall duty. on “told Love a.m., 4:00 Marshall approximately At by climbing through the store enter planned as and two other men arrived Id. This drive-through window.” informa- an order. plаced drive-through critical to tion was the success rob- window, to the up Id. When men drove like most bery Whataburger, because fast- through the win- grabbed Dean Marshall restaurants, dining food closed its room instructions, and, per Love’s dow only during graveyard its shift and served drive-through through window climbed through drive-through win- customers the other Id. As enter the restaurant. id.; Worthy, dow. See 2007 WL hid, Marshall employees at *1. the restaurant Dean to chased the back hand, and, demanded firearm 11, 2003, Subsequently, May key to safe. give Dean him the in an reported early, apparently to work key to the safe did Id. Dean not have pre- attempt manager to entice on the by combi- opened only because it could be Love, early. shift
vious leave demanded *16 nation. Id. After Marshall worked, as at 450. the plan Love’s and Dean did Dean times key from three manager early left work and entrusted shot Dean produce key, not the Marshall previous the from the money Love with Id. face, Dean’s life. ending count and in the restaurant place shift to Shortly previous safe. Id. after the man- wrongful death and brought Barton this left, Love, ager had been contact who negli- lawsuit, alleging survival telephone, made with Marshall cellular caused proximately gence Whataburger story so could leave the up that he Prac. & Rem. Dean’s death. See Tex Civ. Id. left Dean in restaurant. Love then 71.004(a) (Ver- 71.002(a)-(b), §§ Ann. Code directly in charge of the restaurant and 2008). alleged Barton Specifically, non path of Marshall. Id. to maintain a safe Whataburger failed Love, a hiring was workplace, negligent disabled, Dean, although mentally was a trafficker, and was convicted nаrcotics hard-working man life’s ambition whose training in its negligent supervision day manage to one own or a Whata- was employees. its Worthy, burger restaurant. WL (summarizing Barton’s testi *6 summary judg- Whataburger moved jobs, mony that Dean “all of his but law, loved that, it ment, asserting as a matter most,” “big Whataburger he loved the criminal no duty “under to screen was manage or gest dream” was to own “the criminal background” of Love restaurant, he “wore his of Barton’s made the basis lawsuit incident Whatabuger everywhere, shirt even to Whataburger.” See not foreseeable church,” 166a(c). Whataburger and he his Whata- “was buried also P. Tex.R. Civ. shirt”). Dean, noticing after burger is no evidence asserted there money in had not counted the made basis “the criminal incident shift, took it Whata- registers previous was foreseeable Barton’s lawsuit duty money “Whataburger and de breached upon burger,” himself count hiring, training, amount, respect approximately the excess care posit Love, employees,” its supervision of $1,600, in the 199 S.W.3d and or lockbox. Whatabuger any “breach Although Dean’s dedication saved at 451. injuries. legal sufficiency the cause fact” See ment under same Barton’s verdict. used to review a directed standard 166a(i). Tex.R. Civ. P. Rests., Inc., Wings, Inc. v. Tex. Gen. Mills stating basis, Without its trial court (Tex.App.-Dallas 832-33 12 S.W.3d summary granted judgment against Bar Although nonmoving pet.). it on appeal, Whataburger, ton. As does proof, party required is not marshal below, summary judgment in its motion gen must that raises a present it evidence arguments primarily focused its on the issue fact on uine of material each of foreseeability, extensively issue relying challenged elements. Tex.R. Civ. P. рremises on the duties that owe to owners 166a(i); Ridgway, see Motor Ford Co. and, their specifically, upon invitees (Tex.2004). A 598, 600 no- 135 S.W.3d liability premises case of Timberwalk summary may motion judgment evidence Partners, Cain, Apartments, Inc. v. granted be if the properly nonmovant (Tex.1998). S.W.2d 749 brings forth than a scintilla of more evi genuine dence to raise a issue of material Standard Review challenged fact on the elements. See prevail To on a “matter-of-law” sum- Ridgway, 135 at 600. More than a mary motion, judgment a movant has the scintilla of evidence exists when evi burden of proving that it is entitled to dence “rises to a level that enable would judgment as a matter of law that there to differ people reasonable fair-minded genuine is no issue of material fact. in their conclusions.” Merrell Dow 166a(c); Booth, Tex.R. Civ. P. Cathey v. Pharms., Havner, Inc. v. (Tex.1995). When a (Tex.1997) (quoting Burroughs Well *17 defendant judgment, moves summary 497, come Co. v. 907 499 Crye, S.W.2d (1) it must either disprove at least one (Tex.1995)). a reviewing When no-evi essential plaintiffs element the cause motion, summary dence we as judgment action or plead conclusively and estab- sume that all evidence favorable the lish each essential element of its affirma- every and indulge nonmovant is true rea defense, thereby tive the defeating plain- sonable inference resolve all doubts tiffs cause of action. Cathey, 900 S.W.2d of the v. Spradlin favor nonmovant. 341; Tex., One, N.A., at v. Yazdchi Bank State, 372, (Tex.App. 100 S.W.3d 377 399, 177 S.W.3d 404 (Tex.App.-Houston 2002, sum, pet.). -Houston In [1st Dist.] denied). 2005, pet. reviewing [1st Dist.] ... “[j]udgment jury without a verdict is the summary judgment, as all we take true proper any of the proceedings course nonmovant, evidence favorable the and only when does the law not allow reason indulge every we reasonable inference and jurors City able to decide otherwise.” any resolve doubts the nonmovant’s fa- (Tex. Wilson, 802, v. 168 S.W.3d 823 Keller Dorsett, Operating vor. Valence v.Co. 164 2005) added) (further (emphasis noting (Tex.2005). 656, S.W.3d 661 legal sufficiency that “test for should be prevail To a summary summary “no-evidence” judgments, the same for directed motion, verdicts, judgment allege notwithstanding must judgments movant verdict, there re appellate is no evidence of an essential no-evidence view”). element of the adverse party’s cause action or affirmative defense. Tex.R. Civ. Foreseeability 166a(i);
P. Fort Worth Osteopathic Hosp., Reese, (Tex.2004). v. negligence Inc. claim 148 99 The common law summary essential le- judg- We review no-evidence consists of three elements —a another, against injury, burden gal person guarding one duty owed consequences placing the burden on the duty, damages proxi of that breach Phillips, defendant.” resulting from the El Chi mately breach. factors, foreseeability Of all of of the Poole, these 306, 311 Corp.
co v. 732 S.W.2d risk is “the foremost and dominant consid (Tex.1987). Duty inquiry is threshold liability eration.” Id. before Specifically, prove must the exis plaintiff because negligence, be for an act of imposed will duty of a to her tence and violation owed finding that the justify evidence must liability in tort. a defendant establish “ought party committing negligent act “duty,” describing Id. In the Texas Su consequences thereof to have foreseen preme explained: has Court attendant circum light negligently party ... if a creates a situ- Corp., Carey v. Pure Distrib. stances.” ation, duty it becomes to do then (Tex. 133 Tex. prevent injury it to something about 1939). reasonably appears or others if it should However, required others to him that in the exercise it is appear complained of rights injured particular be accident or event may of their lawful Rather, Id. thereby. should been foreseen. Court, Supreme Texas explained by the Rose, 159 Buchanan v. (quoting Id. “injury All that the be required that is (Tex.1942)). Generally, might of such character as rea- general duty is a of law question the existence anticipated; and sonably have been facts sur for a court to decide so injured party should be situated question. occurrence rounding the wrongful to the act with relation Phillips, Transp. Houston Greater Co. similarly injury to him or to one situated (Tex.1991). However, might reasonably have been foreseen.” infer reasonable when evidence therefrom about fore Ry. ences to be drawn A .P. (quoting Id. Antonio Co. San (Tex. disput seeability Behne, as it relates are Comm’n S.W. ed, jury, becomes one for the question App.1921)). *18 jury court should instruct a
and the trial duty control Generally, there is that this element so it can resolve about person. Phillips, the third conduct of a Union R.R.Co. the factual issues. Pacific (citing 801 at 525 S.W.2d Restatement Williams, 162, 169(Tex.2002); 85 S.W.3d (1965)). § 315 Howev- (Second) of ToRts R.R. Mitchell v. MissouriKansas-Texas er, not apply this rule does when general (Tex.1990). 659, Co., S.W.2d 662 786 ac- special exists between the relationship “[Wjhere per to be reasonably the risk imposes a person tor and the third which i.e., duty obeyed; the to be defines ceived duty upon actor to control the third foreseeability are knowledgе and where person’s (citing Id. conduct. Restatement duty,” of the issue is important elements 315(a) (1965)). § Such (Second) of ToRts the finder and best resolved “properly relationships include relation- special Mitchell, 786 at 662. of fact.” S.W.2d Id. ship employer employee. and between (citing determining defendant was (Second) whether ToRts Restatement (1965)). Thus, § when an em- 317 even duty, courts “consider particular under a Love, acts outside factors, including ployee, such as interrelated several employer an has scope employment, risk, foreseeability, and likelihood of an reasonable care to con- utility of to exercise against the social injury weighed him in- prevent trol its from conduct, employee magnitude an actor’s
475 others, Here, tentionally harming support or from so of its matter-of-law summary judgment motion rule conducting himself as to create unrea-. under an 166a(c), them, attached if evidence bodily sonable risk harm to had showing that it hired Love Novem- employee upon employer’s premises, is 2002, ber, 19, and, 31, 2002, on December employer’s or uses property, and the from man- promoted him “team-leader” to knows, employer know, or has reason to Also, job appli- out his ager. filling when that he ability has control em- cation, represented that he had no knows, of, ployee and or should know convictions, Whataburger prior felony and necessity opportunity and for exercising cheek, background criminal paid such control. Restatement (Second) Love, which revealed November § ToRts of 1995to had no crimi- November It is that an employer, true like Whata- County, in Harris nal record Texas. Fur- burger, not an insurer of its employees’ thermore, employed by Whataburger while Elwood, safety. Kroger Co. v. 197 months, for almost six Love had re- (Tex.2006); 794 Leitch v. Hornsby, any any reprimands ceived “criminal or (Tex.1996); Exxon dangerous” Whatabuger conduct. also at- Tidwell, (Tex. Corp. showed, tached years evidence five 1993). However, recognizes Texas law prior robbery, expe- to the the restaurant (1) employer does a duty pro only rienced five “criminal incidents” rules for the safety employees vide and been em- reported Whataburger had them warn haz foreseeable and, ployees years prior in the three to the (2) ards; furnish reasonably safe machin robbery, any had not aggravat- there been (3) ery equipment; furnish a reason assaults, ed sexual assaults or murders (4) ably work; safe place exercise committed at the restaurant. ordinary care to compe select careful and response Barton to her attached to Wha- employees. tent fellow Fort Worth Eleva taburger’s summary judgment motion Co., 128, 135-36, tors 123 Tex. testimony McGoey. affidavit of Chris (1934); Co., Kroger see also 197 McGoey, security president of his own 794; Gravel, S.W.3d at Humble Sand & consulting years, firm for over testified Gomez, Inc. v. n. 45 book, he book has written several (Tex.2004). chapters, over 90 articles on the sub- jects foreseeability, premises lia- crime Thus, questions the fundamental about violence, bility, workplace fast-food foreseeability before this Court are *19 security. reviewing After restaurant injury whether the to Christopher Dean records, police report, the court offense general “of might was such character as records, Department Houston Police Wha- reasonably anticipated” by have been records, taburger numerous witness state- Whataburger placed after it had hired and depositions, ments and and the crime Love, previously a man convicted on two McGoey his re- photographs, scene wrote narcotics, felony counts of of delivery into Christopher on the of port capital murder night-shift one its restaurants aas man- Dean. ager, and whether Dean was “so situat- affidavit, McGoey In his testified that wrongful ed with relation to the act[s]” Love that or injury him his fellow em- greatest workplace risk of serious [T]he (80%) ployees “might including have been fore- violence homicide comes being seen.” from a victim of an rob- armed bery. adequate money on Workplace spend drive-through homicide was the sec- leading maintenance, ond cause security cameras, of death American window workers, night eating drinking alarms, McGoey, Late and security guards. and in places high- are identified as one testimony, highlighted several also rob- risk retail establishments constitute robber had entered a in which a beries the largest workplace share of homi- its Whataburger through inade- restaurant cides. windows, and at quate drive-through least to be an thought one of robberies was that, generally, It surprise comes as no McGoey opined, job.” “inside perpetrators randomly not target do Rather, they they attack. businesses advantage of a merely took Greg Love targets analy- select their bаsed on a risk fast-food lacked restaurant basic weaknesses, a sis of business’ various in- lacked rob- security systems, restaurant routes, cluding escape employ- number of poor secu- training, had bery prevention customers, security ees and lack of and adequate lacked su- rity procedures, and barriers, alarms, guards, bullet-resistant Proper managers. other pervision equipment. Accordingly, and surveillance by Wha- security implemented measures per McGoey, most convenience stores most of the have taken taburger would implemented a and fast-food chains have Love and Greg from opportunity away security important number of and effective For robbery. ex- thereby prevented measures to reduce the risk that their access con- ample, time-delay a safe with employees bewill robbed. manager; not general trolled McGoey emphasized safe; carelessly leaving keys both only chain of he fast-food which cash; a swing manager dropping shift a develop was aware that had “failed to and drive- self-closing lockable modern comprehensive prevention pro- robbery officer; off-duty window; police thru gram protect employees.” At cam- a combination surveillance and Dean, time of capital murder Whata- signifi- system as alarm hold-up era manual or burger security had no method- proper Of course cant deterrents. no minimum ology place. There were check background pre-employment training published provided standards Greg having kept would managers, “Whataburger’s conduсt opportu- position responsibility addressing workplace violence nity. robbery below the standard prevention fell malice or of care and constituted conscious of armed McGoey series noted risk of magnitude indifference to the question the restaurant robberies disregard safety for the of its harm and wake-up “should have been 1997-1998 proximate employees. This conduct was security meas- implement adequate call to Christopher cause of Dean’s death.” the established indus- keeping ures Although restaurant try standards.” McGoey, Whataburger According offi- off-duty police temporarily employ did industry twenty years “about behind *20 robberies, terminated it after these Moreover, cers delegating the standard.” Whataburger should services, their responsibility security to local restau- crime the risk that violent foreseen managers, required rant who to re- were fast-food rob- “basic return because duce then a bo- would expenditures and received imple- not so, bery prevention measures were Whataburger for had created doing nus fill void.” to mented to the deterrence strong managers disincentive In regard hiring especially manager job to the for a negligent decision Love, that in- MeGoey testified it is “the in a safety that of a crew late- involves dustry care standard of to conduct crimi- Whatabur- night fast-food restaurant. background nal on checks all restaurant ger’s fell far the standard conduct below manager applicants every county where screening background to the of care in added.) they (Emphasis had lived.” In it or con- point сonstituted malice were fact, he noted se- Whataburger’s that own magnitude to scious indifference curity experts agreed Whatabuger that and a safety employees risk and of its had a background conduct criminal cause of Dean’s proximate Christopher checks, can managers be in dis- involved death. acts, honest including robberies, such In to Barton’s to its reply response checks should include more than coun- one motion, Whataburger summary judgment ty residence, job and no offer be should its no-evidence assertions and stressed made until check completed. that Barton to an- contended had failed MeGoey also noted that although Whata- question, Whataburger swer the “How was buger’s Corporate Director had discussed supposed Greg to have that known Today with importance Restaurants job?” plan Whataburger would inside protecting employees from con- crime then its contention there repeated that is a ducting thorough interviews and back- foreseeability negligent lack of on Barton’s ground checks, Whatabuger, for rea- cost and, Timberwalk, hiring claim based on sons, background limited its check of Love it foreseeability lack of on labels as what County only. Harris Security Barton’s “Premises Claim.” Specifically, MeGoey noted that Whata- buger paid had William Saxon $11.00 readily apparent problem with both perform the criminal background on check (1) of these contentions is that Barton has Love in County only. Hands Although Security alleged “Premises Claim” or Saxon had informed Whataburger in 1995 (2) any premises liability kind of claim and “easily” he could check rec- criminal pertinent foreseeability pre- question in any county ords nation for case sented for consideration in this is not fee, reasonable ability and Saxon had the question artfully has performing “Positive ID” search Nevertheless, appeal, framed. in Barton’s security number, Love’s social Whatabur- panel erroneously that Barton: holds ger only chose to request a minimal search (1) produce than “failed more a scin- at a price. MeGoey that, base testified that, assuming tilla of evidence” even using the information available to Whata- Inc., appellee, Whataburger, burger, Greg felony he discovered Love’s should have Love’s crimi- discovered convictions on the Internet in a matter history, “it fore- nal minutes for He also noted that the $35.00. conspire seeable Love would first digits security three of Love’s social robbery that resulted aggravated obviously number indicated that he was murder,” in Dean’s born MeGoey agreed Indiana. one of Whatburger’s security own consultant’s “failed raise a fact issue” “the that a one-county criminal background proximity, factors of re- Timberwalk search inadequate. MeGoey conclud- cency, frequency, similarity, and ed that rob- publicity” aggravated “the my opinion, hiring bery resulting a felon murder at convicted Dean’s very Whatburger narcotics sales was a fore- careless restaurant was
seeable,
upon
obvious,
In
to this
impose duty
so as
individuals.
addition
to
Whatabuger
take
reasonable
inherent
connection
narcotics
to
between
prevent
violence,
to
it.”
measures
it
dealing
weapons
and
and
is also
to note that
chooses
en-
fair
one who
to
Moreover, relying
analysis
on
in mak-
its
gage
selling
unlawful
narcotics is
holdings,
panel
further erro-
ing these
doing
express purpose
so with the
of ac-
that,
to
neously
regard
holds
in
Barton’s
money
illegitimate means.
It is
quiring
by
regarding Whataburger’s other
claims
acts
person
to
that a
reasonable
infer
who is
“the
court
negligence,
properly
trial
willing
acquire money
to sell
to
narcotics
summery
because the
granted
judgment
carries
it
unlawfully,
who com-
crime that
conduct
others —men
diabolic
aggravated robbery
punishment
and murder— threat of serious criminal
and
mitted
confinement,
superseding
periods
of Dean’s death
significant
cause
and a
was
not
forseeable to
that was
has in
been
person who
fact
convicted
Whataburger.”
narcotics,
of dealing
counts
would also
two
to
in
willing
engage
be
other unlawful con-
Hiring
Negligent
duct,
robbery,
acquire
as
such
theft and
holding
to the
on Bar
regard
first
self
money unlawfully.
It seems
evident
claim,
negligent hiring
by
as noted
ton’s
restaurant,
that a fast-food
order to
opinion,
panel
recog
its
the case law
a safe
provide
working environment for
nizing the inherent connection between
employees,
consider
other
should
these
dealing
legion.
narcotics
and violence
nar-
simple
hiring
facts before
a convicted
State,
See,
e.g., Carmouche
night manager
cotics dealer
serve as the
(“Since
(Tex.Crim.App.2000)
one of its
restaurants.
frequently
and
are
asso
weapons
violence
Here, the
that Whatabur-
record shows
transactions,
drug
ciated with
officers
ger
aware of these connections at
was
reasonably believed that
individual
by
it hired
noted
Barton
time
As
Love.
they
dealing
were
was armed
with whom
(1)
rehearing
her motion for en banc
Wha-
State,
No. 01-
dangerous.”);
Chase
testified, “If I
taburger’s
manager
area
02-00536-CR,
at *2
2003 WL
felony,
aware that he had committed
March
(Tex.App.-Houston
Dist.]
[1st
(2)
him”;
sir,
not
I would
hired
Wha-
have
ref'd) (mem.
op.,
designated
not
pet.
consultant,
taburger’s security
when asked
(same). Yet,
panel
publication)
for
person’s
dealing
convictions
whether
being merely
this
considers
connection
ineligible
him
narcotics would make
“stereotypical,
necessary
protect
and is
testified, “I
employment,
quite
don’t know
officers
deter crime.”
police
obvious,
so
I
how to answer that —it’s
don’t
However,
reality,
as recog-
harsh
question.
He’s
know how answer
is that
public,
nized
the law and the
you
type
person
not the
would want
dealing
between narcotics
connection
running
store”;
Whataburger’s
quite
not merely
crime is
real —it is
violent
agent
that he
not
screening
testified
would
daily basis,
“stereotypical.” See id. On a
had been
hired someone who
convict-
newspapers
television
our
and local
news
theft,
crimes, or
nar-
dealing
ed of
violent
related
report of homicides
programs
cotics.
Moreover,
“gone
deals
it
narcotics
bad.”
summary
Whataburger’s
To survive
knowledge
our common
is within
negligent hiring
judgment motion on her
in narcotics are
dealing
those involved
claim,
required
Barton
show
enforcement
considered
law
generally
“have
dangerous
should
known
particularly
to be
authorities
*22
Greg
plаn
and,
job”
seeability,
although
Love would
inside
the evidence and
or that Whataburger should
foreseen
arising
have
the inferences
from that evidence
specific
criminal event that
lead to may
disputed by WTiataburger,
be
a fact-
Carey,
Dean’s death.
ion, “hiring a felon convicted for narcotics provide employees with a very sales was a careless decision especial- safe work environment. As noted Bar- ly for a manager job that safety involves ton in her En Rehearing, Motion for Banc a crew in a late-night fast-food restau- panel opinion “erases the traditional Why? rant.” Because common sense dic- employer distinction between cases and tates that hiring an felony individual with a premises liability cases.” Barton further conviction on delivery two counts of notes that premises liability “this is narcotics and placing him in a night-time case.” management position at a fast-food restau- The panel agrees with the Fourteenth in charge rant of other employees would Appeals Court of the Timberwalk obviously endanger the restaurant and the analysis applies “in the context of an em- safety employees. case, of those In this ployer’s duty to exercise reasonable care in juror reasonable could given conclude that providing workplace employ- safe for its Love’s criminal history, his actions were employee ees when an asserts that Accordingly, foreseeable. I hold would employer duty by failing breached its that Barton’s evidence demonstrates that protect the injury employee from criminal acts.” general Dean was of such Connolly, character as See Allen v. might reasonably been anticipated by (Tex.App.-Houston [14th and that Dist.] Dean pet.). Supreme did, sowas situated with relation to the The Texas Court wrong- injury panel, ful acts of noted hold in Timberwalk to him and employees other the ‘general danger’ restaurant was rea- is the “[w]hen sonably least, very foreseeable. At the injury activity, risk of from criminal Barton presented some of fore- ‘specific previous evidence evidence must reveal majority concept perseding regard 3. The discusses the of “su- cause” in to all claims. *23 the Timberwalk importantly, to More anal- premises’ or the order
crimes on near simply applicable not the instant ysis is at foreseeability.” 972 S.W.2d establish Timberwalk, supreme the case.4 In court Also, in Allen 756. the Fourteenth Court of foresee- concerned with issue Allen em- [an did conclude that “because complaint context of the ability in the Connolly ployee] [had] assertfed] negligently pro- failed to a had landowner employer negligence duty her breached security apartment at an adequate vide to to reasonable care by failing exercise the sexu- a tenant from complex protect criminal party Allen from third protect at person. a third al assault of acts, analysis applie[d] the Timberwalk plaintiffs noted that The court 751. Connolly negli- determine whether owed claim, not a liability premises claim was gence duty to Allen under the facts [the] the case claim, because negligent activity case.” 158 at 66. to use ordi- “failure alleged concerned an unrea- or eliminate nary care to reduce case and the panel instant by premises of harm created sonable risk quote Fourteenth Allen both Court knew the landowner condition” which Sears, & v. Robinson for the Roebuck Co. ordinary care or in the exercise about duty proposition that “the nature of Id. at 753. about. should have known reasonable care to the landowner to use a landowner Thus, noted that the court reasonably safe for premises make his protect care to ordinary duty to use owes may, in all material use of his invitees acts of third criminal an invitee from the the nature of respects, be identical with of criminal the risk “only when parties reasonable duty of the master use it both unreason- great conduct is so a reason- provide care to his servant with Id. at 756. able and foreseeable.” Tex. ably place safe work....” does Here, simply complaint Barton’s (1955). However, condition, premises not concern a qualified this supreme explicitly court to determine whether factors Timberwalk by noting that two fields “[t]he statement conduct criminal of certain an occurrence (landowner-invitee and master-serv- of law foresee- restaurant was Whatabuger at ant), entirely separate, they should are is not Barton applicable. are not able Thus, not kept so.” Id. Sears does be failed complaining that support panel’s and the Fourteenth her son protect care to ordinary use conclusions that a Timberwalk committed Court’s act of violence some random happened party an unknown third who in either case. analysis applies Jefferson, concurring opin- in a opinion, the Texas Chief Justice panel After the issued its ion, application of bare explained that Supremе opinion in Trammell Court issued its Texas, Gutierrez, might for con- not allow factors Timberwalk Cent. Ltd. v. Crow Crow, at 18 (Tex.2008). factors. See id. all relevant sideration of In Trammell S.W.3d 9 factors, J., example, (Jefferson, concurring). court, For applying after the Timberwalk ‘‘prior- noted that the manager Jefferson property defen Chief Justice that the concluded inquiry” Timberwalk under not have similar-incidents dant in that case could for crimes properly "account prevented a crime committed does foreseen or despite and, thus, eminently may foreseeable have been parties, the court held third particular having never occurred manager to a their property owed no rea- This same id. at 19. properties. place before.” See one of its patron who was shot on Although the record soning applies here. reasoning applied in Trammell Id. at 17. The previously Crow, Love had been not show that reasoning applied in Timber- does like the case, robbery, walk, aggravated his conduct convicted of apply to the instant should not Moreover, reasonably foreseeable. in this case discussed here. the same reasons Rather, up relationship between show the restaurant. Bar- terizes the inherent specifically complains ton that a Whata- violent crime as narcotics dealers and *24 buger night-time manager, previ- erroneously had conflates “stereotypical” who narcotics, ously selling by been convicted of with premises the duties owed owners actually planned robbery employees that resulted to their employers the duties of in plaintiff Accordingly, the death of her son. A in resulting in a serious error. position Barton’s to will not be able estab- I the denial of en respectfully dissent from lish the factors Timberwalk because her banc See id. reconsideration.
claims are upon premises based de- KEYES, Justice, fect, but, rather, EVELYN V. upon negligent acts of en concurring dissent from denial an employer. and omissions of banc consideration. Likewise, complaining Barton is not of “the diabolic Jennings conduct” and the random I Justice that the agree vio- lent act of some strange party. summary third Her trial in granting court erred complaint is focused on of on Whatabuger’s neg- judgment Whataburger favor ligent in hiring foreseeability panel acts and omissions that the issue of placing management and then him in a erroneously by conflates the duties owed position in he had responsibility premises which owners with the duties em- Therefore, over and for her son. As a Whatabuger to I ployers employees. their night-time manager, certainly opinion Love most join Jennings’ dissenting Justice conspired should not have with Marshal from banc denial of en review. placed and then Dean in path Marshall’s I agree In that the character particular, destruction and death. Marshall did not an employee the business which is
pick Whataburger restaurant ran- respect hired makes a difference with Rather, dom. Marshall attempted rob foreseeability of a crime. See Ken- Whataburger restaurant because the Allright Parking, 846 drick v. night-time Whataburger manager solicited Antonio writ de- (Tex.App.-San him do so. nied) is (holding “prone that when business Accordingly, panel’s holdings particular to attract crime because Barton failed fact to raise a issue on the or its previous character business Timberwalk factors and that the conduct experience,” has to exercise operator of Marshall a superseding cause of protect reasonable care invitees Dean’s death unforeseeable to Whatabur- injuries parties intentional third caused TexRApp. ger are serious error. See P. if he or has reason to know from knows 41.2(c). experience that crimi- past observation likely general- nal acts are occur “either
Conclusion time”); ly see also particular or at some Inc., sum, Co., Mgt. In I Property would hold that the trial court Nixon Mr. (Tex.1985) in granting summary (holding erred judgment 549-50 Whataburger party on the of for- of third is not favor issue criminal conduct seeability, negligent superseding and this Court should reverse cause that relieves liability judgment the trial court’s and remand for actor from when criminal conduct least, proceedings. very negligence). further At the is of actor’s foreseeable result question Here, Whataburger operated night Barton’s evidence raises a fact a late identified, foreseeability. place, accord- concluding eating the issue a business case, otherwise, panel ing expert testimony charac- one erroneously manager larg property defendant could ing establishments with the retail workplace Expert prevented homicides. foreseen or est share of not have that it stan testimony parties). further showed crime committed third practice pre to take extra industry dard reasons, foregoing grant For the I would safety late-night cautions to ensure the review. en banc around the and that the area workers had a crime rate. Yet high manager Whataburger hired a with two *25 easily it could
prior felony convictions agree appellants I discovered. with Jennings that nature with Justice established a ba Whataburger’s business foreseeability negligence. to show sis Young, L.L.P. v. Mut. See Ernst & Pacific BLOCKBUSTER, INC., Appellant, (Tex. Co., Ins. Life 2001) (“General practice industry may a basis for fore knowledge establish ENTERTAINMENT, INC. C-SPAN seeability negligence....”). to show Dharod, Appellee. and Sunil appellants that agree “[i]n I also with No. 05-06-00849-CV. creating maintaining the conditions of duty has a to his employment, master Texas, Appeals Court of precautions taken servants to have which Dallas. care, intelligence, regard reasonable safety require.” for the servants his Aug. Agenoy (Second) See Restatement 6, 2008. Rehearing Nov. Overruled (1958). provide § a safe duty workplace obliges act with employers i.e., knowledge,” “such
“special with knowl- likely to his edge as to the conditions harm persons experienced servants having acquaintance special business subject have.” See id. matter (1958). Thus, a, § § an em- 493 cmt. any “a to utilize addition- ployer owes in fact he has for knowledge al which § cmt. Id. protection of servants.” to their The duties of masters servants b. hiring, which at issue apply negligent Thus, agree I with Justice here. further Jennings panel applying that the errs applicable to analysis the Timberwalk negligent to this liability cases premises Apartments, hiring See Timberwalk case. Cain, Partners, Inc. v. Texas, (Tex.1998); Trammell Cent. Crow (Tex.2008) Gutierrez, Ltd. v. Timberwalk factors determin- (applying