Tillman v. Wendy's Intl Inc ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-60661
Summary Calendar
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NEDDA TILLMAN; KEITH TILLMAN,
Plaintiffs-Appellants,
versus
WENDY’S INTERNATIONAL, INC.,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Mississippi, Jackson
USDC No. 3:99-CV-143-BN
_________________________________________________________________
March 13, 2001
Before JOLLY, SMITH, and DeMOSS, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
Nedda Tillman was assaulted by a vagrant while eating lunch in
a Wendy’s restaurant in Jackson, Mississippi. Mrs. Tillman and her
husband sued the restaurant chain, alleging that Wendy’s should
have foreseen the risk of assault on customers by third persons.
The district court granted summary judgment for Wendy’s. For the
reasons set forth below, we affirm.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I
On April 1, 1997, at approximately two o’clock on a weekday
afternoon, Nedda Tillman stopped for lunch at a Wendy’s restaurant
in Jackson, Mississippi. Mrs. Tillman sat in a dining area on the
east side of building that was not readily observable by restaurant
employees. As she was eating, a vagrant entered the restaurant by
a side door, struck her on the head with a concrete block, and
stole her purse.
According to Tillman, the restaurant’s policy of locking this
door after 5:00 p.m. suggests that the restaurant was concerned
about customer safety. Jackson police officers had been called to
the restaurant nine times during the prior three years to
investigate minor complaints, such as vagrants harassing customers.
There were no reports of assault, robbery, or other violent crime
on the restaurant’s premises. In the general vicinity of the
restaurant, however, approximately twenty violent crimes had been
reported in the five years prior to the assault on Mrs. Tillman.
The Tillmans filed a complaint against Wendy’s International,
Inc. in January 1999, seeking $3 million in actual and punitive
damages. The Tillmans argued that the assault was reasonably
foreseeable because of the high crime rate in the area. Wendy’s
filed a motion for summary judgment, which the district court
granted in September 2000. This appeal followed.
II
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A
This court reviews a district court’s grant of summary
judgment de novo, applying the same substantive test set forth in
Federal Rule of Civil Procedure 56. Horton v. City of Houston, 179
F.3d 188, 191 (5th Cir. 1999).
Contrary to the Tillmans’ suggestion, negligence actions are
not governed by a more lenient summary judgment standard. As this
court has emphasized,
summary judgment is appropriate in any case "where
critical evidence is so weak or tenuous on an essential
fact that it could not support a judgment in favor of the
nonmovant." . . . Our cases have sometimes stated in
dicta that summary judgment is generally not appropriate
in certain types of cases, such as products liability or
negligence. That dicta is essentially empty chatter,
however. . . . [W]e reject any suggestion that the
appropriateness of summary judgment can be determined by
such case classification.
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 & n.14 (5th Cir.
1994)(en banc)(citations omitted); see also Stearns Airport Equip.
Co. v. FMC Corp., 170 F.3d 518, 521 (5th Cir. 1999)(“We no longer
maintain that summary judgment is especially disfavored in
categories of cases.”).
Furthermore, while the court may not weigh the evidence or
resolve factual disputes, the court is obligated to determine
whether facts are material. A fact is material only if it might
affect the outcome of the suit under the applicable substantive
law, assuming that any genuine dispute over that fact is resolved
favorably to the nonmovant. See Peavy v. WFAA-TV, Inc., 221 F.3d
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158, 167 (5th Cir. 2000); Willis v. Roche Biomedical Laboratories,
61 F.3d 313, 315 (5th Cir. 1995)(“Only disputes over facts that
might affect the outcome of the suit under the governing law will
preclude summary judgment.”).
B
Under Mississippi premises liability law, business owners have
a legal “duty to protect invitees from foreseeable attacks by third
persons.” Crain v. Cleveland Lodge 1532, Order of Moose, Inc., 641
So.2d 1186, 1192 (Miss. 1994); see also Whitehead v. Food Max of
Miss., Inc., 163 F.3d 265, 271-72 (5th Cir. 1998). The issue on
appeal is whether the criminal assault on Mrs. Tillman was
reasonably foreseeable and, thus, whether Wendy’s had a duty to
protect her from the assailant. See Crain, 641 So.2d at 1189.
A criminal attack is foreseeable if the business owner had
“actual or constructive knowledge that an atmosphere of violence
exists [on the premises].” Grisham v. John Q. Long V.F.W. Post,
519 So.2d 413, 416-17 (Miss. 1988). In making this determination,
one must consider (1) “prior similar incidents” of crime on the
business premises, and (2) “the amount and type of criminal
activity” in the vicinity of the defendant’s business. Crain, 641
So.2d at 1191-92; see also Lyle v. Mladinich, 584 So.2d 397, 399
(Miss. 1991).
As the Mississippi Court of Appeals recently pointed out, the
“prior similar incidents” prong is not offense-specific. See Am.
Nat’l Ins. Co. v. Hogue, 749 So.2d 1254, 1260 (Miss. App. 2000).
4
The court of appeals upheld a jury’s finding that an attempted
kidnaping in the parking lot of a shopping mall was reasonably
foreseeable even though there were no prior incidents of kidnaping
on the premises. The court noted that in one year prior to the
assault, the city police were called to investigate “thirteen auto
thefts, two strong arm robberies and one robbery with a knife, one
rape, and two assaults with injuries” in the mall parking lot. Id.Although no kidnapings were reported, the frequency and nature of
the service calls indicated a reasonable likelihood of “assaultive
conduct” on the premises. Id. The court thus held that, given the
high rate of “assaultive” crimes at the mall and the fact that the
mall employed only one security guard to patrol a 3000-space
parking lot during the Christmas shopping season, the attempted
kidnaping and beating of the plaintiff could have been considered
reasonably foreseeable. Id. at 1259-60.
In the light of the relevant substantive law, the question is
whether the Tillmans’ evidence of (1) prior similar criminal
incidents on the premises and (2) the amount and type of criminal
activity in the neighborhood is sufficient to allow a reasonable
jury to conclude that Wendy’s should have foreseen the midday
assault on Mrs. Tillman.
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C
The Tillmans point to four categories of evidence suggesting
that the assault was foreseeable: (1) statistical evidence that the
restaurant was located in a high crime area; (2) affidavits of two
store employees who stated that the store had a problem with
vagrants and aggressive panhandlers; (3) expert testimony showing
a correlation between vagrancy and the incidence of crime in the
area; and (4) a compilation of police incident reports for
disturbances in and around the restaurant. We examine each
category of evidence in turn.
First, much of the statistical evidence is immaterial. The
Mississippi Supreme Court has explained that evidence of criminal
activity off the premises is relevant only if the crimes were
committed in the business’s “vicinity” or “surrounding
neighborhood.” Crain, 641 So.2d at 1192. The statistical evidence
presented here is broken down by precinct and beat. Because there
are only four precincts and thirty-eight beats within the entire
city of Jackson, most of the documented criminal activity did not
occur within the “surrounding neighborhood” of the restaurant.
Thus, the fact that the Wendy’s restaurant was located in a
precinct and beat with relatively high rates of crime is not
probative and hence not material to whether the attack on Mrs.
Tillman was foreseeable.1
1
When the statistics are broken down into “reporting zones”
within each beat, however, a more accurate picture of criminal
6
Second, the employees’ affidavits are not sufficient to create
a genuine issue of material fact.2 The affidavits contain
basically scripted language: “During the time of my employment at
[Wendy’s], there has been a constant problem with vagrants
harassing and threatening customers inside and outside the
restaurant including before April 1, 1997. Customers frequently
complain about being approached by vagrants, panhandling and
harassing them for money.” The affiants further stated that if a
vagrant entered the restaurant and bothered the customers, the
manager would approach the vagrant and ask him to leave; and on a
few occasions, restaurant employees called the police, who then
asked the vagrant to leave. These affidavits, which are couched in
very general terms, undoubtedly suggest that vagrants were a
nuisance, but there is no indication that any of these encounters
turned violent or rose to the level of simple assault. Cf. MISS.
CODE ANN. § 97-3-7(1) (2000). For that reason, these affidavits do
not speak to, and thus are not material to, the question of whether
prior similar criminal incidents had occurred on the premises.
Third, the Tillmans’ “expert testimony” on the safety risk
posed by vagrants is not sufficient to create a genuine issue of
activity in the vicinity emerges. That information will be
considered below.
2
The fact that the employees signed subsequent affidavits
recanting their earlier testimony is not relevant. For the
purposes of summary judgment, we assume that the original
affidavits were completely truthful and accurate.
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material fact. One expert testified (based solely on his own
observation and experience) that “bums can tend to be unstable,
that they can have mental deficiencies, that they can be addicts of
one sort or another, that they can be alcoholics, and that they can
be irrational. It’s my opinion that such people pose a potential
danger to the public.” While not questioning the accuracy of this
assessment, these general and banal observations tell us very
little that fits into the two-part test for foreseeability that was
articulated in Grisham and Crain. Therefore, this expert’s opinion
on the possible danger posed by vagrants, who indeed regularly
patronize many businesses without incident, is not probative on the
ultimate question of whether a reasonable business owner under
these circumstances would have foreseen the criminal assault on
Mrs. Tillman.
Fourth, the Tillmans presented a compilation of data relating
to criminal activity in the vicinity of the Wendy’s restaurant.
The Tillmans rely on two types of information: (1) records of
“calls for service” and (2) incident reports, which are produced
when the police have confirmed that a criminal offense has actually
occurred. (As the Tillmans’ expert admitted, incident reports are
a better indicator of the level of crime in an area.) The evidence
may be summarized as follows: (1) In the five years covered by the
incident report data, there is not a single report of a crime being
committed on the restaurant’s premises, either inside the
restaurant or in the parking lot. (2) In the three years covered by
8
the “call for service” records, the police were called to the
restaurant’s premises nine times. (3) The nine calls for service
involved complaints of vagrants harassing customers (three times),
approaching cars in the parking lot (twice), spitting on a
customer, “causing a disturbance” within the restaurant, and
“trying to get money”; the ninth service call involved a drive-thru
customer who was seen with a gun. (4) Of the nine calls for police
service at Wendy’s, only one occurred during the daylight hours.
(5) Over this same three-year period, there were 386 calls for
service at several fast-food restaurants, gas stations, and
convenience stores in the area, and most of these complaints were
minor: fights in parking lots, aggressive panhandlers, public
drunkenness, and so on. (6) From 1992 to 1997, there were incident
reports of ten robberies, seven assaults, two kidnapings, one
carjacking, and one rape in the area.
Applying Mississippi’s premises liability law to the facts
summarized in the preceding paragraph, we conclude that summary
judgment is appropriate. The evidence presented by the Tillmans is
not sufficient to permit a reasonable finder of fact to conclude
that it was reasonably foreseeable that a vagrant would enter the
Wendy’s restaurant and, in midday, assault a customer and steal her
purse.
In no relevant way can this case be distinguished from Crain,
in which the Mississippi Supreme Court held that an assault on a
patron in a dark parking lot was not foreseeable. The court noted
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that (1) there were two confirmed crimes (both thefts) on the
premises of the Moose Lodge within the year prior to the assault,
but “no evidence of prior violent, unprovoked attacks”; and (2)
there were only eleven violent crimes committed in the area within
five years prior to the assault. Crain, 641 So.2d at 1192. To be
sure, the Tillmans presented evidence of nine calls for police
service, but (as explained above) not one of those calls qualifies
as a prior similar criminal incident.
As the district court correctly observed, imposing liability
on Wendy’s would effectively create a standard of strict liability
on all businesses located in neighborhoods with relatively high
crime rates. The Mississippi Supreme Court has unequivocally
stated that Mississippi law does not impose such a burden. Crain,
641 So.2d at 1189, 1191-92 (emphasizing that a business owner is
not an insurer of his guests’ safety); Kelly v. Retzer & Retzer,
Inc., 417 So.2d 556, 561, 563 (Miss. 1982)(“[T]he responsibility of
enforcing the law is on the government chosen by the people of the
area and does not necessarily rest upon the business involved.”).
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III
For the reasons set forth above, the summary judgment for
Wendy’s is
A F F I R M E D .
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