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At a Glance:
Title:
Barton v. Whataburger, Inc.
Date:
July 31, 2008
Citation:
276 S.W.3d 456
Status:
Published Opinion

Barton v. Whataburger, Inc.

Court of Appeals of Texas,

Houston (1st Dist.).

Rose BARTON, Individually and as Personal Representative of the Estate of Christopher Martin Dean, Appellant,

v.

WHATABURGER, INC., Appellee.

No. 01–06–01121–CV.

|

July 31, 2008.

|

Order Denying Rehearing En Banc

Feb. 13, 2009.

Attorneys & Firms

*459 David M. Gunn, Beck, Redden & Secrest, LLP, Houston, TX, for Appellant.

Frank Gerhardt Cawley, Whitehurst & Cawley, L.L.P., Addison, TX, for Appellee.

Panel consists of Chief Justice BLAND.

OPINION

JANE BLAND, Justice.

This negligence case arises from the aggravated robbery of a Whataburger restaurant and the resulting murder of one of its employees on duty during the robbery. *460 Rose Barton, individually and on behalf of the estate of her son, Christopher Dean, the Whataburger employee who was murdered, appeals the trial court’s summary judgment entered in favor of Whataburger, Inc. Barton contends that the trial court erred in granting summary judgment on her claim that Whataburger was negligent in (1) hiring Gregory Love to manage its restaurant, as he conspired to commit the robbery that led to the murder; (2) failing to provide a safe workplace for Dean; and (3) failing to exercise reasonable care to prevent the robbery. We conclude that the trial court properly granted summary judgment because the aggravated robbery leading to murder was not foreseeable as a matter of law.

Background

On a night in May 2003, Love was working as a night manager at a Whataburger restaurant in northwest Houston. Also on duty that night was Dean, a mentally impaired employee who had worked for Whataburger for fourteen years. Love arrived early for his shift that evening, allowing Arthur Murray, another manager, to leave. Murray and Love agreed that Love would count the cash that had accumulated in the registers during Murray’s shift and place it in the store safe.

Shortly after Murray left the Whataburger, Love called Murray and told him that he also needed to leave work. Love asked Murray if he could leave Dean in charge of the restaurant. Murray responded that Dean was capable of running the restaurant, but he could not authorize Love to delegate his managerial power to Dean.

Love did not ask Murray to return, and instead disregarded Murray’s warnings, left the restaurant, and put Dean in charge. Love did not count the money in the cash registers or deposit any money in the safe before he left. When Dean discovered that Love had not counted the money in the registers, he counted it and deposited the excess in the safe. Love never returned to the restaurant that night.

At around 4:00 a.m., three men, later identified as Gerald Marshall, Ronald Worthy, and Kenny Calliham, attempted to rob the Whataburger. Marshall gained access to the interior of the restaurant by climbing through the drive-through window. Marshall chased Dean, eventually into the back of the restaurant, where he demanded that Dean give him the key to the safe. Marshall told Dean that if Dean did not give him the key to the safe, Marshall would shoot him. Dean repeatedly told Marshall that he did not have a key to the safe and could not comply with Marshall’s demands. When Dean failed to produce the key, Marshall shot him in the face and fled the scene with Worthy and Calliham. Dean died immediately. The robbers left with nothing, but afterward robbed a Shipley Doughnut store equipped with video surveillance.

Police later connected Love to the robbery, and the State charged him with capital felony murder under the law of parties. Id.

Barton sued Whataburger under the Texas wrongful death statute, asserting that Whataburger’s negligence proximately caused Dean’s death. See 71.004(a) (Vernon 2008). Whataburger moved for a no-evidence summary judgment on Barton’s negligence claim, asserting that Barton had produced no evidence of duty, breach, or proximate cause. The *461 trial court granted a final summary judgment in favor of Whataburger.

Analysis

Standard of Review

In a Rule 166a(i) no-evidence summary judgment, the movant represents that no evidence exists as to one or more essential elements of the non-movant’s claims, upon which the non-movant has the burden of proof at trial. TEX.R. CIV. P. 166a(i) cmt. (1997).

Because the trial court’s summary judgment does not specify the ground on which the court relied for its ruling, we should affirm it if any theory advanced by Whataburger has merit. See Weiner v. Wasson, 900 S.W.2d 316, 317 n. 2 (Tex.1995).

Nonsubscribers and Negligence

Whataburger is a nonsubscriber to the Texas Workers’ Compensation Act. See Kroger Co. v. Keng, 23 S.W.3d 347, 352 (Tex.2000).

A negligence cause of action has four elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages (4) proximately caused by the breach. Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex.1993).

Whataburger does not dispute that it owed a duty to Dean, as its employee, but observes that its duty is to protect its *462 employees from foreseeable harms. The issue in this case, whether analyzed as a part of the duty element of negligence or the causation element, is the foreseeability of the criminal conduct that led to Dean’s murder. As the Texas cases that discuss the foreseeability of intervening criminal conduct do so, in the main, in the context of the element of duty, we do so as well. See, e.g., Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995) (in intervening criminal conduct case, holding that plaintiffs failed to raise fact issues on key elements of each of their claims, particularly on elements of proximate and producing cause).

Duty and Intervening Criminal Conduct

The threshold inquiry in a negligence case is duty. Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983).

As a general rule, “a person has no legal duty to protect another from the criminal acts of a third person.” Cowart, 20 S.W.3d at 783. To impose liability on a defendant for negligence in failing to prevent the criminal conduct of another, the facts must show more than conduct that creates an opportunity to commit crime—they must show both that the defendant committed negligent acts and that it knew or should have known that, because of its acts, the crime (or one like it) might occur. This legal principle is imparted in the Restatement (Second) of Torts, which states:

The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor’s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.

Restatement (Second) of Torts § 442, which identifies factors to be considered in determining whether intervening force rises to level of superseding cause).

Thus, to impose a legal duty to prevent the criminal conduct of another, the crime must have been reasonably foreseeable at the time the defendant engaged in negligent conduct. Foreseeability exists if the actor, as a person of ordinary intelligence, should have anticipated the dangers his negligent act creates for others. id.

Negligent Hiring

Barton first contends that Whataburger’s negligence in hiring Love as a restaurant manager caused the aggravated robbery that led to Dean’s murder. Although no copy of the actual conviction and judgment appears in this record, Barton produced evidence of an investigative report that states that, in September 1993, Love was convicted of a felony offense of “dealing cocaine” in Indiana, and served one year in jail. Deposition testimony also indicates that a report exists that, nine years later, Love was convicted of felony nonpayment of child support in Texas, in November 2002, the week before he applied for a managerial position at Whataburger.1 Whataburger performed a background check on Love before hiring him, but only searched for criminal convictions in Harris County that occurred between November 1995 and November 2002. The search did not reveal either of the two felony convictions. Barton alleges that Whataburger’s failure to conduct an adequate background check ultimately caused the aggravated robbery that led to Dean’s murder.

While Love’s convictions, if discovered, should have raised Whataburger’s suspicions about his fitness to manage a restaurant, under Texas law, they did not make his eventual participation in an aggravated robbery leading to murder reasonably foreseeable. See and Deerings W. Nursing Ctr. v. Scott, 787 S.W.2d 494, 496 (Tex.App.–El Paso 1990, writ denied) (holding that nurse’s fifty-six prior convictions for theft made his assault on elderly female visitor foreseeable).

In her appellate brief, Barton calls our attention to criminal cases that note the connection between drugs and violence. See, e.g., Terry stop by a police officer, or of severe punishment for possession of large quantities of drugs.

We acknowledge that courts, including ours, have recognized a street-level connection between drugs, weapons, and violence. This connection provides police officers with the constitutionally required reasonable suspicion to conduct a Terry, 392 U.S. at 27, 88 S.Ct. at 1883.

A stereotypical connection, however, is insufficient to raise more than a scintilla of evidence that a person convicted of selling cocaine, without any accompanying evidence of violence, will foreseeably commit aggravated robbery leading to murder in the future. Here, we have no evidence that Love’s cocaine sale involved any sort of violence or a weapon. While the smell of marijuana or the suspicion that a defendant possesses narcotics might provide a police officer sufficient justification to frisk a suspect for weapons under Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70–71 (Tex.App.-Austin 1998, no pet.).

Failure to Provide a Safe Workplace

Barton further contends that, even if it was not legally foreseeable that Love would engineer the crime that resulted in Dean’s murder, Whataburger generally knows of an increased risk of a violent crime occurring at restaurants open late at night and should have taken reasonable security measures to prevent it. Relying on the Texas Supreme Court’s decision in 972 S.W.2d at 756.

Employees are the invitees of their employer. Stewart v. Columbia Med. Ctr. of McKinney Subsidiary, L.P., 214 S.W.3d 659, 663 (Tex.App.–Dallas 2007, pet. denied).

As an initial matter, Barton contends that the Timberwalk analysis in context of employer-employee relationship).

Barton further contends that the Timberwalk to test foreseeability of targeted shooting of employee).

Barton produced some evidence of criminal activity at the Whataburger in the years preceding Dean’s murder: in July 1997, six years before the incident, a customer was shot in the parking lot, and another customer in the drive-through lane was robbed and shot in the thigh; in July 1998, a customer was robbed in the drive-through lane; in June 1999, a customer’s purse was stolen; in July 2000, a customer reported an assault (without injury); in April 2001, a woman sought help in the Whataburger, reporting that she had been shot; in August 2001, a woman reported an assault (without injury); in February 2002, a woman reported that her car was stolen from her in the parking lot; in April 2002, one customer intentionally hit another customer’s vehicle in the drive-through lane (with property damage but not injury); and, in February 2003, police arrested a person who refused to leave the premises.2

In contrast, no evidence exists that the Whataburger was the scene of any aggravated assault, aggravated robbery, sexual assault, or murder in the three years prior to Dean’s murder. No crime similar to this one had ever occurred: no one had ever robbed the restaurant before, nor had it ever been the scene of any workplace violence, nor had anyone ever committed any sort of crime against a Whataburger *468 employee, nor had anyone ever been murdered.

Comparing this evidence with other, similar cases in Texas, we agree with the trial court that the evidence does not show the rampant, violent criminal activity sufficient to raise a fact issue about the foreseeability of the aggravated robbery that resulted in Dean’s murder. See Dickinson Arms–REO, L.P. v. Campbell, 4 S.W.3d 333, 335–36, 346 (Tex.App.–Houston [1st Dist.] 1999, pet. denied) (holding that carjacking and murder were foreseeable in light of 184 reported criminal incidents on premises during previous three years).

Barton’s expert also averred that an undefined area surrounding the restaurant had a crime “index rate” four times greater than a national average and noted evidence of three drive-through robberies at other Whataburger restaurants, namely, an attempted drive-through robbery five miles away at Store No. 263, in November 1998, an attempted drive-through robbery sixteen miles away at Store No. 462 in December 1998, and a drive-through robbery five miles away at Store No. 605 in April 2003. The expert opined that “an industry standard of foreseeability” exists because of the well-known high risk of armed robbery to late-night convenience stores and restaurants, pointing in particular to a study of convenience store robberies and literature that concludes that “the greatest risk of workplace violence including homicide (80%) comes from being a victim of an armed robbery.” Barton further asserts that Whataburger foresaw the risk of crime on its premises because a previous manager had employed a security guard on the weekends to work the early morning hours. A new store manager discontinued the practice in 2002, after determining that it was not cost-effective.

Under Plowman v. Glen Willows Apartments, 978 S.W.2d 612, 618 (Tex.App.–Corpus Christi 1998, pet. denied) (considering apartment complex and neighborhood surrounding complex).

Finally, Barton’s contention that Whataburger’s earlier employment of a security guard on the weekends proves the foreseeability of the robbery is unavailing. “The mere act of taking preventative measures to protect against the possibility of future crime is not the same as foreseeing that criminal activity.” Garcia, 203 S.W.3d at 437–38 (holding that targeted murder committed on premises of Sonic restaurant was not foreseeable result of Sonic’s failure to employ security guard).

Applying the Quach, 95 S.W.3d at 400–01 (same).3

Other Acts of Negligence

Lastly, Barton contends that Whataburger’s employees were negligent in violating its own company policies and procedures to minimize the risk of theft or robbery. Specifically, Barton alleges that Whataburger’s employees committed the following acts of negligence: (1) store manager Davilyn Spencer left her safe key at the restaurant at the end of her shift; (2) Murray left his shift early without notifying Spencer; (3) Murray failed to count the money in the registers and deposit the excess in the safe at the end of his shift; and (4) Murray failed to notify Spencer that no manager would be on duty during the shift in which Dean was killed. Readily *470 available cash, and a key to the safe, Barton argues, “gave Greg Love exactly what he was looking for” in planning the robbery.

But, as Texas cases and the Restatement observe, foreseeability requires more than “afford[ing] an opportunity” to commit a crime. The aggravated robbery and murder at the Whataburger was an extraordinary event, with the record containing no evidence that anyone had ever attempted to rob the restaurant, much less at gunpoint, before. Nothing in the record indicates that Love had any history of violence. An aggravated robbery and murder is not the ordinary result of the situation created by Spencer and Murray’s alleged negligence. See Cowart, 20 S.W.3d at 784–86 (holding that murder committed by third party was not foreseeable result of ammunition sale to minor).

Conclusion

We hold that the trial court properly granted summary judgment because the diabolic conduct of others—men who committed aggravated robbery and murder—was a superseding cause of Dean’s death that was not reasonably foreseeable to Whataburger. We therefore affirm the judgment of the trial court.

ORDER ON MOTION FOR REHEARING EN BANC

JANE BLAND, Justice.

Appellant, Rose Barton, moved for en banc consideration. A majority of the Court voted to deny en banc consideration. It is therefore ORDERED that appellant’s motion is denied.

It is so ORDERED.

Appellant moved for en banc consideration. See TEX.R.APP. P. 41.2(c).

A majority of the Court voted to deny en banc consideration. See TEX.R.APP. P. 49.7.

The en banc court consists of Chief Justice SHARP.

*471 Justice Sharp.

Justice SHARP.

TERRY JENNINGS, Justice, dissenting from the denial of en banc consideration.

The panel, in its opinion, erroneously holds that the trial court did not err in granting summary judgment against appellant, Rose Barton, Individually and as Personal Representative of the Estate of Christopher Martin Dean, “because the diabolic conduct of others—men who committed aggravated robbery and murder—was a superseding cause of Dean’s death that was not reasonably foreseeable” to appellee, Whataburger, Inc., as a matter of law.

In this case, a Whataburger overnight-shift manager, Gregory Love, who had planned with others to rob the Whataburger restaurant he managed, was directly responsible under the law of parties1 for the capital murder of Dean. Love had, prior to his employment by Whataburger, been convicted of and incarcerated for committing two felony offenses of delivery of crack cocaine2 in Indiana.

In concluding that the general character of the actions of Love, which resulted in the capital murder of Dean, could not have been reasonably anticipated by Whataburger, the panel characterizes the real and inherent relationship between narcotics dealing and firearms and violence as “stereotypical” and conflates the duties owed by premises owners to their invitees with an employer’s duties to exercise ordinary care in its hiring of employees and to provide its employees with a reasonably safe work environment. Accordingly, I respectfully dissent from the denial of en banc consideration of this case. See TEX.R.APP. P. 41.2(c).

Factual and Procedural Background

Dean, a mentally disabled but “very dedicated” Whataburger employee of fourteen years, was murdered when he was shot in the face by Gerald Marshall, who was, at the direction of Love, attempting to rob the Whataburger restaurant at which Love served as manager. See Worthy v. State, No. 01–06–00134–CR, 2007 WL 624667, at *1–3, 6 (Tex.App.-Houston [1st Dist.] March 1, 2007, pet. ref’d) (mem. op., not designated for publication).

The underlying facts of this case, which are not in dispute, have already been summarized by this Court. See Worthy, 2007 WL 624667, at *1.

Subsequently, on May 11, 2003, Love reported to work early, apparently in an attempt to entice the manager on the previous shift to leave early. Id.

Dean, although mentally disabled, was a hard-working man whose life’s ambition was to one day own or manage a Whataburger restaurant. Love, 199 S.W.3d at 451. Although Dean’s dedication saved Whataburger its money, it cost Dean his life.

At approximately 4:00 a.m., Marshall and two other men arrived as planned at the drive-through and placed an order. Id.

Barton brought this wrongful death and survival lawsuit, alleging that the negligence of Whataburger proximately caused Dean’s death. See 71.004(a) (Vernon 2008). Specifically, Barton alleged that Whataburger failed to maintain a safe workplace, was negligent in hiring Love, a convicted narcotics trafficker, and was negligent in its supervision and training of its employees.

Whataburger moved for summary judgment, asserting that, as a matter of law, it was “under no duty to screen the criminal background” of Love and “the criminal incident made the basis of Barton’s lawsuit was not foreseeable to Whataburger.” See TEX.R. CIV. P. 166a(i). Without stating its basis, the trial court granted summary judgment against Barton.

As it does on appeal, Whataburger, in its summary judgment motion below, focused its arguments primarily on the issue of foreseeability, relying extensively on the duties that premises owners owe to their invitees and, specifically, upon the premises liability case of Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749 (Tex.1998).

Standard of Review

To prevail on a “matter-of-law” summary judgment motion, a movant has the burden of proving that it is entitled to judgment as a matter of law and that there is no genuine issue of material fact. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).

To prevail on a “no-evidence” summary judgment motion, a movant must allege that there is no evidence of an essential element of the adverse party’s cause of action or affirmative defense. City of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex.2005) (emphasis added) (further noting that “test for legal sufficiency should be the same for summary judgments, directed verdicts, judgments notwithstanding the verdict, and appellate no-evidence review”).

Foreseeability

The common law claim of negligence consists of three essential elements—a legal *474 duty owed by one person to another, a breach of that duty, and damages proximately resulting from the breach. Id. In describing “duty,” the Texas Supreme Court has explained:

... if a party negligently creates a situation, then it becomes his duty to do something about it to prevent injury to others if it reasonably appears or should appear to him that others in the exercise of their lawful rights may be injured thereby.

Mitchell, 786 S.W.2d at 662.

In determining whether a defendant was under a particular duty, courts “consider several interrelated factors, including the risk, foreseeability, and likelihood of an injury weighed against the social utility of an actor’s conduct, the magnitude of the burden of guarding against injury, and the consequences of placing the burden on the defendant.” Carey v. Pure Distrib. Corp., 133 Tex. 31, 124 S.W.2d 847, 849 (Tex.1939).

However, it is not required that the particular accident or event complained of should have been foreseen. Id. Rather, as explained by the Texas Supreme Court,

All that is required is that the “injury be of such general character as might reasonably have been anticipated; and that the injured party should be so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.”

San Antonio A.P. Ry. Co. v. Behne, 231 S.W. 354, 356 (Tex. Comm’n App.1921)).

Generally, there is no duty to control the conduct of a third person. RESTATEMENT (SECOND) OF TORTS § 317.

It is true that an employer, like Whataburger, is not an insurer of its employees’ safety. Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 186 n. 45 (Tex.2004).

Thus, the fundamental questions about foreseeability before this Court are (1) whether the injury to Christopher Dean was “of such general character as might reasonably have been anticipated” by Whataburger after it had hired and placed Love, a man previously convicted on two counts of felony delivery of narcotics, into one of its restaurants as a night-shift manager, and (2) whether Dean was “so situated with relation to the wrongful act[s]” of Love that injury to him or his fellow employees “might reasonably have been foreseen.”

Here, in support of its matter-of-law summary judgment motion under rule 166a(c), Whataburger attached evidence showing that it had hired Love on November, 19, 2002, and, on December 31, 2002, promoted him from “team-leader” to manager. Also, when filling out his job application, Love represented that he had no prior felony convictions, and Whataburger paid for a criminal background check, which revealed that Love, from November of 1995 to November of 2002, had no criminal record in Harris County, Texas. Furthermore, while employed by Whataburger for almost six months, Love had not received any reprimands for any “criminal or dangerous” conduct. Whatabuger also attached evidence that showed, five years prior to the robbery, the restaurant experienced only five “criminal incidents” that had been reported to Whataburger employees and, in the three years prior to the robbery, there had not been any aggravated assaults, sexual assaults or murders committed at the restaurant.

Barton attached to her response to Whataburger’s summary judgment motion the affidavit testimony of Chris McGoey. McGoey, the president of his own security consulting firm for over 21 years, testified that he has written a book, several book chapters, and over 90 articles on the subjects of crime foreseeability, premises liability, workplace violence, and fast-food restaurant security. After reviewing the police offense report, the court records, Houston Police Department records, Whataburger records, numerous witness statements and depositions, and the crime scene photographs, McGoey wrote his report on the capital murder of Christopher Dean.

In his affidavit, McGoey testified that

[T]he greatest risk of serious workplace violence including homicide (80%) comes from being a victim of an armed robbery. *476 Workplace homicide was the second leading cause of death to American workers, Late night eating and drinking places are identified as one of the high-risk retail establishments that constitute the largest share of workplace homicides.

It comes as no surprise that, generally, perpetrators do not randomly target the businesses that they attack. Rather, they select their targets based on a risk analysis of a business’ various weaknesses, including escape routes, number of employees and customers, and lack of security guards, alarms, bullet-resistant barriers, and surveillance equipment. Accordingly, as per McGoey, most convenience stores and fast-food chains have implemented a number of important and effective security measures to reduce the risk that their employees will be robbed.

McGoey emphasized that Whataburger was the only fast-food chain of which he was aware that had “failed to develop a comprehensive robbery prevention program to protect its employees.” At the time of the capital murder of Dean, Whataburger had no security manual or methodology in place. There were no minimum standards published or training provided to managers, and “Whataburger’s conduct of not addressing workplace violence and robbery prevention fell below the standard of care and constituted malice or conscious indifference to the magnitude of the risk of harm and disregard for the safety of its employees. This conduct was a proximate cause of Christopher Dean’s death.”

According to McGoey, Whataburger was “about twenty years behind the industry standard.” Moreover, by delegating the responsibility of security to local restaurant managers, who were required to reduce expenditures and then received a bonus for doing so, Whataburger had created a strong disincentive for managers to spend adequate money on drive-through window maintenance, security cameras, alarms, and security guards. McGoey, in his testimony, also highlighted several robberies in which a robber had entered a Whataburger restaurant through its inadequate drive-through windows, and at least one of the robberies was thought to be an “inside job.” McGoey opined,

Greg Love merely took advantage of a restaurant that lacked basic fast-food restaurant security systems, lacked robbery prevention training, had poor security procedures, and lacked adequate supervision by other managers. Proper security measures implemented by Whataburger would have taken most of the opportunity away from Greg Love and thereby prevented the robbery. For example, a time-delay safe with access controlled by the general manager; not carelessly leaving both keys in the safe; swing shift manager dropping cash; a modern self-closing and lockable drive-thru window; off-duty police officer; and a combination of surveillance camera and hold-up alarm system as significant deterrents. Of course a proper pre-employment background check would have kept Greg Love from having a position of responsibility and opportunity.

McGoey noted that a series of armed robberies at the restaurant in question in 1997–1998 “should have been a wake-up call to implement adequate security measures in keeping with the established industry standards.” Although the restaurant did temporarily employ off-duty police officers after these robberies, it terminated their services, and Whataburger should have foreseen the risk that violent crime would return because “basic fast-food robbery prevention measures were not implemented to fill the deterrence void.”

*477 In regard to the negligent hiring of Love, McGoey testified that it is “the industry standard of care to conduct criminal background checks on all restaurant manager applicants in every county where they had lived.” (Emphasis added.) In fact, he noted that Whataburger’s own security experts agreed that Whatabuger had a duty to conduct criminal background checks, managers can be involved in dishonest acts, including robberies, such checks should include more than one county of residence, and no job offer should be made until the check is completed. McGoey also noted that although Whatabuger’s Corporate Director had discussed with Restaurants Today the importance of protecting employees from crime by conducting thorough interviews and background checks, Whatabuger, for cost reasons, limited its background check of Love to Harris County only.

Specifically, McGoey noted that Whatabuger had paid $11.00 to William Saxon to perform the criminal background check on Love in Harris County only. Although Saxon had informed Whataburger in 1995 that he could “easily” check criminal records in any county in the nation for a reasonable fee, and Saxon had the ability of performing a “Positive ID” search of Love’s social security number, Whataburger chose to request only a minimal search at a base price. McGoey testified that, using the information available to Whataburger, he discovered Greg Love’s felony convictions on the Internet in a matter of minutes for $35.00. He also noted that the first three digits of Love’s social security number obviously indicated that he was born in Indiana. McGoey agreed with one of Whatburger’s own security consultant’s that a one-county criminal background search was inadequate. McGoey concluded that

In my opinion, hiring a felon convicted for narcotics sales was a very careless decision especially for a manager job that involves safety of a crew in a late-night fast-food restaurant. Whataburger’s conduct fell far below the standard of care in background screening to the point were it constituted malice or conscious indifference to the magnitude of risk and safety of its employees and a proximate cause of Christopher Dean’s death.

In its reply to Barton’s response to its summary judgment motion, Whataburger stressed its no-evidence assertions and contended that Barton had failed to answer the question, “How was Whataburger supposed to have known that Greg Love would plan an inside job?” Whataburger then repeated its contention that there is a lack of foreseeability on Barton’s negligent hiring claim and, based on Timberwalk, a lack of foreseeability on what it labels as Barton’s “Premises Security Claim.”

The readily apparent problem with both of these contentions is that (1) Barton has not alleged a “Premises Security Claim” or any kind of premises liability claim and (2) the pertinent foreseeability question presented for consideration in this case is not the question that Whataburger has artfully framed. Nevertheless, in Barton’s appeal, the panel erroneously holds that Barton:

(1) “failed to produce more than a scintilla of evidence” that, even assuming that appellee, Whataburger, Inc., should have discovered Love’s criminal history, “it was reasonably foreseeable that Love would conspire in the aggravated robbery that resulted in Dean’s murder,” and

(2) “failed to raise a fact issue” on “the Timberwalk factors of proximity, recency, frequency, similarity, and publicity” that “the aggravated robbery resulting in Dean’s murder at the Whatburger restaurant was foreseeable, *478 so as to impose a duty upon Whatabuger to take reasonable measures to prevent it.”

Moreover, relying on its analysis in making these holdings, the panel further erroneously holds that, in regard to Barton’s claims regarding Whataburger’s other acts of negligence, “the trial court properly granted summery judgment because the diabolic conduct of others—men who committed aggravated robbery and murder—was a superseding cause of Dean’s death that was not reasonably forseeable to Whataburger.”

Negligent Hiring

In regard to the first holding on Barton’s negligent hiring claim, as noted by the panel in its opinion, the case law recognizing the inherent connection between narcotics dealing and violence is legion. See, e.g., Chase v. State, No. 01–02–00536–CR, 2003 WL 1563761, at *2 (Tex.App.-Houston [1st Dist.] March 27, 2003, pet. ref’d) (mem. op., not designated for publication) (same). Yet, the panel considers this connection as being merely “stereotypical, and is necessary to protect police officers and deter crime.”

However, the harsh reality, as recognized by the law and the public, is that the connection between narcotics dealing and violent crime is quite real—it is not merely “stereotypical.” See id. On a daily basis, our newspapers and local television news programs report of homicides related to narcotics deals “gone bad.” Moreover, it is within our common knowledge that those involved in dealing in narcotics are generally considered by law enforcement authorities to be particularly dangerous individuals. In addition to this obvious, inherent connection between narcotics dealing and weapons and violence, it is also fair to note that one who chooses to engage in the unlawful selling of narcotics is doing so with the express purpose of acquiring money by illegitimate means. It is reasonable to infer that a person who is willing to sell narcotics to acquire money unlawfully, a crime that carries with it the threat of serious criminal punishment and significant periods of confinement, and a person who has in fact been convicted on two counts of dealing narcotics, would also be willing to engage in other unlawful conduct, such as theft and robbery, to acquire money unlawfully. It seems self evident that a fast-food restaurant, in order to provide a safe working environment for its other employees, should consider these simple facts before hiring a convicted narcotics dealer to serve as the night manager of one of its restaurants.

Here, the record shows that Whataburger was aware of these connections at the time it hired Love. As noted by Barton in her motion for en banc rehearing (1) Whataburger’s area manager testified, “If I was aware that he had committed a felony, sir, I would not have hired him”; (2) Whataburger’s security consultant, when asked whether a person’s convictions for dealing narcotics would make him ineligible for employment, testified, “I don’t know quite how to answer that—it’s so obvious, I don’t know how to answer the question. He’s not the type of person you would want running the store”; and (3) Whataburger’s screening agent testified that he would not have hired someone who had been convicted of theft, violent crimes, or dealing narcotics.

To survive Whataburger’s summary judgment motion on her negligent hiring claim, Barton was not required to show that Whataburger should “have known *479 that Greg Love would plan an inside job” or that Whataburger should have foreseen the specific criminal event that lead to Dean’s death. Id.

Here, Barton, through McGoey, presented evidence that Love took advantage of his position in a restaurant that “lacked basic fast-food restaurant security systems, lacked robbery prevention training, had poor security procedures, and lacked adequate supervision by other managers.” McGoey further testified that, in his opinion, “hiring a felon convicted for narcotics sales was a very careless decision especially for a manager job that involves safety of a crew in a late-night fast-food restaurant.” Why? Because common sense dictates that hiring an individual with a felony conviction on two counts of delivery of narcotics and placing him in a night-time management position at a fast-food restaurant in charge of other employees would obviously endanger the restaurant and the safety of those employees. In this case, a reasonable juror could conclude that given Love’s criminal history, his actions were foreseeable. Accordingly, I would hold that Barton’s evidence demonstrates that the injury to Dean was of such general character as might reasonably have been anticipated by Whataburger and that Dean was so situated with relation to the wrongful acts of Love that injury to him and other employees in the restaurant was reasonably foreseeable. At the very least, Barton presented some evidence of foreseeability, and, although the evidence and the inferences arising from that evidence may be disputed by Whataburger, a fact-finder should be allowed to resolve any such fact issues. See Mitchell, 786 S.W.2d at 662.

Failure to Provide Safe Workplace and Ordinary Negligence

In regard to the panel’s holding that Barton has “failed to raise a fact issue” on “the Timberwalk factors of proximity, recency, frequency, similarity, and publicity” and the panel’s more general holding that “the diabolic conduct of others ... was a superseding cause of Dean’s death that was not reasonably foreseeable to Whataburger,”3 the panel conflates the duties owed by premises owners to their invitees with an employer’s duties to exercise ordinary care in its hiring of employees and to provide its employees with a reasonably safe work environment. As noted by Barton in her Motion for En Banc Rehearing, the panel opinion “erases the traditional distinction between employer cases and premises liability cases.” Barton further notes that “this is not a premises liability case.”

The panel agrees with the Fourteenth Court of Appeals that the 158 S.W.3d at 66.

The panel in the instant case and the Fourteenth Court in Timberwalk analysis applies in either case.

More importantly, the Id. at 756.

Here, Barton’s complaint simply does not concern a premises condition, and the Timberwalk factors because her claims are based not upon a premises defect, but, rather, upon the negligent acts and omissions of an employer.

Likewise, Barton is not complaining of “the diabolic conduct” and the random violent act of some strange third party. Her complaint is focused on Whatabuger’s negligent acts and omissions in hiring Love and then placing him in a management position in which he had responsibility over and for her son. As a Whatabuger night-time manager, Love most certainly should not have conspired with Marshal and then placed Dean in Marshall’s path of destruction and death. Marshall did not pick the Whataburger restaurant at random. Rather, Marshall attempted to rob the Whataburger restaurant because the Whataburger night-time manager solicited him to do so.

Accordingly, the panel’s holdings that Barton failed to raise a fact issue on the TEX.R.APP. P. 41.2(c).

Conclusion

In sum, I would hold that the trial court erred in granting summary judgment in favor of Whataburger on the issue of forseeability, and this Court should reverse the trial court’s judgment and remand for further proceedings. At the very least, Barton’s evidence raises a fact question on the issue of foreseeability. In concluding otherwise, the panel erroneously characterizes the inherent relationship between narcotics dealers and violent crime as “stereotypical” and erroneously conflates the duties owed by premises owners with the duties of employers to their employees resulting in a serious error. Accordingly, I respectfully dissent from the denial of en banc reconsideration. See id.

EVELYN V. KEYES, Justice, concurring in dissent from the denial of en banc consideration.

I agree with Justice Jennings that the trial court erred in granting summary judgment in favor of Whataburger on the issue of foreseeability and that the panel erroneously conflates the duties owed by premises owners with the duties of employers to their employees. Therefore, I join Justice Jennings’ opinion dissenting from denial of en banc review.

In particular, I agree that the character of the business for which an employee is hired makes a difference with respect to the foreseeability of a crime. See Ernst & Young, L.L.P. v. Pacific Mut. Life Ins. Co., 51 S.W.3d 573, 581 (Tex.2001) (“General industry practice or knowledge may establish a basis for foreseeability to show negligence....”).

I also agree with appellants that “[i]n creating and maintaining the conditions of employment, the master has a duty to his servants to have precautions taken which reasonable care, intelligence, and regard for the safety of his servants require.” See Timberwalk factors in determining that property manager defendant could not have reasonably foreseen or prevented crime committed by third parties).

For the foregoing reasons, I would grant en banc review.

Footnotes

1

None of the Indiana or Texas criminal court records, or copies of Love’s convictions, are part of the record in this case. A “possible matching record” internet report states that Love was convicted of an offense for “dealing-coke/narcotics,” and that he was sentenced to two years, five months, and four days. The report provides no further information about the nature of the offense. The record also shows that one of Love’s previous employers, Taco Bell, fired him for falsifying his employment application after the conviction came to light. Love similarly falsely stated on his application to Whataburger that he had never been convicted of a felony.

2

Relying on our court’s opinion in Id.

3

Barton’s expert lists a number of security measures that the restaurant lacked that placed it below the standard in the industry for security for an all-night establishment. Among these are Whataburger’s failures to provide video surveillance, to assess and report security risks, and to physically prevent ingress to the restaurant through the drive through window. Whataburger responds that none of these measures would have prevented this crime, given Love’s involvement and the fact that, later the same evening, the criminals robbed a Shipley doughnut store that had some of the security measures that Barton’s expert recommended. Given our holding that this crime was unforeseeable, we do not address Barton’s allegations of departure from industry standards or Whataburger’s response that additional security would have been fruitless, negating any “but for” causation for this evidence.

1

See TEX. PENAL CODE ANN. § 7.02(a)(2) (Vernon 2003) (stating that “[a] person is criminally responsible for an offense committed by the conduct of another if ... acting with intent to promote or assist the commission of the offense, he solicits, encourages, directs, aids, or attempts to aid the other person to commit the offense”).

2

In its briefing, Whataburger states that Love had been convicted of selling narcotics nine years prior to his Whataburger employment, Love served one and one-half of a year of a three year penitentiary sentence, and was released for good behavior and placed on probation. The record contains deposition testimony stating that Love’s conviction resulted in a sentence for eight years confinement, with five of those years suspended. The record also contains affidavit testimony that Love had been convicted of “two counts” of “dealing crack cocaine.”

3

The majority discusses the concept of “superseding cause” in regard to all claims.

4

After the panel issued its opinion, the Texas Supreme Court issued its opinion in id. at 19. This same reasoning applies here. Although the record does not show that Love had been previously convicted of aggravated robbery, his conduct in this case was reasonably foreseeable.

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