Sherrie GILBERT, Individually and as personal representative of the Estate of Chrystal Newby Willis, deceased; Darcie Baggett, Individually and as personal representative of the Estate of Rebecca Shifflett, deceased, Plaintiffs-Appellants v. OUTBACK STEAKHOUSE OF FLORIDA INC., Defendant-Appellee.
No. 07-40982.
United States Court of Appeals, Fifth Circuit.
Oct. 10, 2008.
295 Fed. Appx. 710
D‘Juana Bellue Parks, Provost Umphrey, Beaumont, TX, J. Barron Neal, Law Offices of J. Barron Neal, Marshall, TX, Clayton E. Dark, Jr., Law Office of Clayton E. Dark, Jr., Lufkin, TX, for Plaintiffs-Appellants.
R. Rogge Dunn, S.A. Khoshbin, Clouse, Dunn, Khoshbin, Dallas, TX, John Robert
Before DAVIS, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM:*
After two employees at an Outback Steakhouse restaurant were murdered in a robbery, the representatives of their estates sued Outback Steakhouse of Florida, Inc. (“OSF“) for damages and have appealed the district court‘s grant of OSF‘s motion for summary judgment. For the following reasons, we affirm.
I. FACTS AND PROCEEDINGS
Chrystal Newby Willis and Rebecca Shifflett (the “decedents“) were employed at an Outback Steakhouse restaurant in Texarkana, Texas. On September 1, 2003, two former employees who had recently been fired (the “assailants“) killed the decedents while robbing the restaurant. Matthew Hines, the managing partner of the restaurant, was also killed in the robbery. In October 2005, Sherrie Gilbert and Darcie Baggett, individually and as personal representatives of the estates of the decedents (collectively referred to as “Gilbert“), filed suit against OSF. The complaint seeks damages against OSF as the employer of the decedents, alleging that OSF intentionally caused their deaths, or, alternatively, that OSF‘s negligence resulted in the murders.
As discovery progressed, Gilbert learned that the decedents, the assailants, and Hines had actually been employed by an
Gilbert filed a motion for leave to amend the complaint on October 13, 2006—over eight months after the deadline to amend pleadings set by the scheduling order. The proposed amended complaint would have added OSRS and OSD as defendants and set forth more detailed claims of negligence against OSF, including as the premises owner. A magistrate judge denied the motion, concluding that the addition of new parties at that juncture would cause undue delay, and the assertion of new claims and allegations was potentially prejudicial to OSF. Gilbert did not object to the magistrate judge‘s decision.
On March 22, 2007, OSF filed a motion for summary judgment, arguing that Gilbert‘s claims failed as a matter of law because they were based on OSF‘s status as the employer of the decedents and assailants. In response, Gilbert conceded that OSRS was the relevant employer, but claimed that OSF nevertheless owed a duty of care to the decedents as the premises owner and as the entity in control of the actual operations of the restaurant. While the summary judgment motion was pending, Gilbert filed a second motion for leave to amend the complaint by adding references to OSF‘s liability as the premises owner and as a party to the contract with OSRS in the negligence cause of action.
On June 29, 2007, the district court denied the motion for leave to amend as an improper attempt to pursue a new theory of liability on the eve of trial, finding that the original negligence cause of action did not properly allege a claim against OSF as the premises owner. On the same day, it entered summary judgment against Gilbert, concluding that OSF could not be held liable for the damages suffered by employees of OSRS. The district court noted in its summary judgment order that Gilbert‘s arguments regarding premises liability were also unavailing and referenced its order denying leave to amend. Gilbert‘s motion to amend or alter the judgment was subsequently denied. Gilbert appeals the district court‘s grant of summary judgment.
II. STANDARD OF REVIEW
This court “reviews a district court‘s grant of summary judgment de novo, applying the same legal standards as the district court.” Condrey v. SunTrust Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005). On review of a grant of summary judgment, “[t]he evidence and inferences from the summary judgment record are viewed in the light most favorable to the nonmovant.” Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d 460, 465 (5th Cir. 2005). Typically, “[s]ummary judgment is proper when the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Kane v. Nat‘l Fire Ins. Co., 535 F.3d 380, 384 (5th Cir. 2008) (internal quotations omitted); see also
III. DISCUSSION
A. Premises Liability Claim
Gilbert challenges the district court‘s holding that her premises liability claim was insufficiently pleaded.1 Other than in the situations expressly enumerated in Rule 9(b), a complaint need only recite “a short and plain statement of the claim showing that the pleader is entitled to relief.”
However, a plaintiff must “plead sufficient facts to put the defense on notice of the theories on which the complaint is based.” TIG Ins. Co. v. Aon Re, Inc., 521 F.3d 351, 357 (5th Cir. 2008) (internal quotation omitted). The plaintiff‘s pleadings must both “(1) provide notice of circumstances which give rise to the claim, [and] (2) set forth sufficient information to outline the elements of the claim or permit inferences to be drawn that these elements exist.” Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). The Supreme Court recently reaffirmed these principles, stating that “[w]ithout some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which the claim rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 n. 3, 167 L.Ed.2d 929 (2007).
6.
Alternative Theories of Recovery
Negligence / Gross Negligence
of Outback Steakhouse
In the alternative, Plaintiffs plead that the negligence and gross negligence of OUTBACK STEAKHOUSE caused the incident made the basis of this suit.
6.1 Plaintiffs would show that the assaults which lead to the deaths of [the decedents] and another employee of the Texarkana OUTBACK STEAKHOUSE restaurant were committed for reasons personal to the assailant, i.e. the assailant had a vendetta against OUTBACK STEAKHOUSE as a result of his being terminated from employment at this facility.
6.2 Therefore, the assault did not occur within the course of [the decedents‘] employment and Plaintiffs are entitled to recover under both the Texas Wrongful Death Act and the Survival Statute.
From a fair reading of these and the other allegations of the complaint, we agree with the district court that OSF was not on notice that it was being sued as the premises owner. Under Texas law,
[W]hen the injured party is an invitee ..., the elements of a premises claim are: (1) Actual or constructive knowledge of a condition on the premises by the owner or occupier; (2) That the condition posed an unreasonable risk of harm; (3) That the owner or occupier did not exercise reasonable care to reduce or eliminate the risk; and (4) That the owner or occupier‘s failure to use such care proximately caused the plaintiff‘s injury.
CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). In order to properly plead her claim against OSF, Gilbert was not required to “correctly specify the legal theory“—i.e., premises liability—underly-ing the claim. McManus, 320 F.3d at 551; see also De La Hoya v. Coldwell Banker Mexico, Inc., 125 Fed.Appx. 533, 537 (5th Cir. 2005) (unpublished) (noting that “Plaintiffs’ failure to include the phrase ‘single business enterprise‘” in a complaint seeking to pierce the corporate veil was not “dispositive” for purposes of dismissal). The complaint did not even need to outline all the elements of her claim for premises liability under Texas law. See Posey, 415 F.3d at 396.
However, in this case, the claim fails as inadequate because it does not “permit inferences to be drawn that these elements exist.” Beanal, 197 F.3d at 164. The complaint does not contain a single refer-ence, whether explicit or implicit, to OSF‘s position as the holder of the lease for the premises, to the existence of any condition or defect of the premises, or to the decedents’ status as invitees on the premises. While Gilbert correctly notes that under Texas law, a claim based on premises liability is a negligence action, see Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983), the complaint‘s mere inclusion of a broad cause of action for negligence is insufficient to sustain her claim. “A complaint which contains a bare bones allega-
Gilbert attempts to demonstrate that she provided “fair notice” of the premises liability claim by noting that OSF denied being in control of the restaurant‘s premises in its own position statement in a Rule 26(f) report, and that questions relat-ing to OSF‘s potential premises liability were asked during discovery. These argu-ments were not raised in response to OSF‘s motion for summary judgment, and thus are waived. See, e.g., Keelan v. Majesco Software, Inc., 407 F.3d 332, 339-40 (5th Cir. 2005). In addition, there is no support for the proposition that either the defendant‘s pleadings or the discovery pro-cess, without any amendment to a plain-tiff‘s pleadings, can serve to add new grounds for relief to the complaint.
Gilbert has failed to state a proper negli-gence claim based on OSF‘s liability as the owner of the Texarkana restaurant‘s prem-ises. Accordingly, we affirm the district court‘s grant of summary judgment on Gil-bert‘s supposed premises liability claim.
B. OSF‘s Duty to the Decedents
Gilbert also challenges the district court‘s granting of summary judgment on her claim that OSF owed a duty to the decedents as employees of its independent contractor, OSRS. Under Texas law, “[b]ecause an independent contractor has sole control over the means and methods of the work to be accomplished, ... the individual or entity that hires the indepen-dent contractor is generally not vicariously liable for the tort or negligence of that person.” Baptist Mem‘l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). Therefore, “[o]rdinarily, a general contrac-tor does not owe a duty to ensure that an independent contractor performs its work in a safe manner.” Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001).
However, “a general contractor may owe a duty of reasonable care to a subcontrac-tor‘s employee, and consequently may be liable for injury to that employee, if the general contractor retains control over part of the work to be performed.” Id. The scope of a general contractor‘s duty to the employees of its general contractor is thus “limited to the scope of its retained supervisory control.” Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357 (Tex. 1998). Accordingly, “[f]or the general con-tractor to be liable for negligence, its su-pervisory control must relate to the condi-tion or activity that caused the injury.” Id. (internal quotation omitted).
Gilbert argues that OSF had re-tained sufficient control over the activities of OSRS to owe a duty of reasonable care to employees of OSRS, including the dece-dents. In the proceedings below, the dis-trict court rejected this argument, holding that because OSF had established that OSRS was an independent contractor that hired the assailants, Gilbert had failed to raise a genuine issue of material fact as to
This argument is nothing more than an attempt by Gilbert to salvage her inade-quate premises liability claim. As ex-plained above, the complaint relies entirely on OSF‘s alleged status as the employer of the decedents and the former employer of the assailants. It claims that OSF hired and terminated employees with criminal backgrounds—the assailants—and em-ployed the decedents in positions that placed them at risk of becoming victims of violent crimes, in particular in light of the assailants’ “vendetta” against OSF. The complaint does not contain a single allega-tion relating to OSF‘s duty to maintain a safe workplace or to the unsafe condition of the restaurant. Therefore, Gilbert has failed to state a negligence claim based on the existence and breach of a duty to ensure the general safety of the decedents’ workplace.
Even assuming that the complaint‘s broad negligence claim properly encom-passed this theory of liability, Gilbert has failed to raise a genuine issue of material fact as to OSF‘s control over safety and security issues at the Texarkana restau-rant. Gilbert notes that the contract be-tween OSF and OSRS, which provides that OSRS had sole authority to hire, train and discharge any restaurant personnel and management, does not expressly address OSRS‘s duty to provide safety and security to its employees. Gilbert also points to statements made during deposition by Paul Avery, the president of OSF, and Blaise Hadley, the joint venture partner for the Texarkana and several other Out-back restaurants in Texas. They testified that OSF held the lease to the Texarkana restaurant, owned the Outback intellectual property rights—including its logo, reci-pes, and a document used for training of Outback personnel—, and required Out-back restaurants to follow corporate guide-lines and procedures regarding food prep-aration and recipes. Avery also testified that he would not allow an Outback restau-rant to be operated in an area he felt was unsafe, that he had at various points re-minded his joint venture partners and franchisees of the need to utilize and test security alarms, and that he had occasion-ally retained security consultants to con-tribute to Outback restaurants’ security procedures. According to Gilbert, this evi-dence shows that OSF had retained con-trol over the operations of the Texarkana restaurant, including the security and safe-ty of the facility.
Gilbert‘s evidence regarding OSF‘s re-tained supervisory control over food prepa-ration, recipes and other intellectual prop-erty rights is irrelevant to the negligence claim because this control does not “relate to the activity that actually caused the injury.” Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d 223, 226 (Tex. 1999). The evidence regarding OSF‘s concern and input over safety procedures at restaurants is also unavailing. The standard to determine whether a general contractor has retained a right to control the activities of its independent contractor is “narrow“; in order to give rise to a duty of care, the general contractor must have “at least the power to direct the order in which work is to be done or the power to forbid it being done in an unsafe manner.” Id. “It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to re-ceive reports, to make suggestions or rec-ommendations which need not necessarily be followed, or to prescribe alterations and
Here, pursuant to the employment ser-vices agreement with OSF, OSRS had full control over the training and supervision of management and personnel at the Tex-arkana restaurant. In addition, the lease between OSF and OSD provided: “SECU-RITY. [OSD] shall have full responsibility for protecting the Premises and the prop-erty located therein from theft and rob-bery.” OSD was also responsible for all maintenance and improvements, and OSF had limited rights of access. For Texas law to impose a duty to protect against the criminal acts of third parties, it must be established that “the defendant had specif-ic control over the security of the premises where the criminal act took place,” rather than a “more general right of control over operations.” Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 199 (Tex. 1995). In this case, OSD had sole control over the Texarkana restaurant‘s premises, includ-ing any security issue.
Therefore, whether the alleged security defects of the decedents’ workplace were attributable to a lack of training or super-vision, or to the condition of the premises, Gilbert has failed to raise a genuine issue of material fact as to OSF‘s retained “su-pervisory control” over the safety of the restaurant. Accordingly, we affirm the district court‘s grant of summary judg-ment on Gilbert‘s claim that OSF owed a duty to the decedents as employees of OSRS.
IV. CONCLUSION
For the foregoing reasons, the judgment of the district court is AFFIRMED.