Houck v. Sunshine Jr Food ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
____________________
No. 97-60414
Summary Calendar
____________________
TIMOTHY HOUCK,
Plaintiff-Appellant,
v.
SUNSHINE JUNIOR FOOD STORES and
PEOPLES TELEPHONE COMPANY,
Defendants,
SUNSHINE JUNIOR FOOD STORES,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Mississippi
(1:96-CV-286-CR)
_________________________________________________________________
March 31, 1998
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Timothy Houck appeals the district
court’s judgment as a matter or law for defendant-appellee
Sunshine Junior Food Stores on his premises liability claim. We
*
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this opinion should not be published and is not precedent except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.
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
On May 28, 1994, Houck received a page from his employer,
Sears. Houck, who resided at his brother’s home within a block
of a store owned by Sunshine Junior Food Stores (Sunshine),
routinely shopped at the Sunshine store and utilized the pay
telephones there because his brother’s telephone had been
disconnected. The two pay telephones, placed at the Sunshine
store by Peoples Telephone Company (Peoples), were located on the
brick exterior wall approximately three feet from the indentation
leading to the front entrance of the store. Although a cashier
behind the register area could not see patrons using the
telephones, an expert witness testified that a surveillance
camera located inside the store and directed at the cashier area
could have recorded activity at the corner where the phones were
located.
Sometime after dark on May 28, Houck drove to the Sunshine
store, parked in front, and used the telephone located closest to
the store entrance to return the page to his employer. After
receiving a busy signal at his employer’s telephone number, Houck
telephoned his ex-wife to arrange visitation with his children.
During the conversation with his ex-wife, Houck heard a pager and
noticed two men, approximately twenty yards away, walking toward
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the Sunshine store.
After reaching the premises, the larger of the two men
approached Houck and told him to get off the phone. Houck told
him to use the other phone or to wait until he finished his call.
The larger man mumbled and walked into the store. The shorter of
the two men placed a call from the adjacent telephone. While
Houck continued his telephone conversation, the larger man
returned and demanded a quarter. Houck responded that he had no
quarter, but reached in his pocket and gave the man the change he
had which was twenty-three cents. Keeping the two dimes, the man
threw the three pennies on the ground. In response to the larger
man’s subsequent demand for the rest of his money, Houck answered
that he had none. The smaller man told the other that Houck said
he had no money, so “go on.” The larger man went back inside the
Sunshine store. Houck continued his telephone conversation.
The smaller man then attempted to grab Houck’s pager, and
Houck prevented him from doing so. Houck refused the smaller
man’s subsequent request to look at the pager. The smaller man
began mumbling what Houck described as threats to take the pager.
As Houck ended his telephone call and turned sidewards to face
the smaller man, the smaller man hit him beneath the eye. Houck
stepped forward, asked him why he hit him, and stared him down
for some amount of time. Shortly thereafter, someone, presumably
the larger man, hit Houck in the back of the head with a metal
object. All of these events transpired within three to four feet
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of the Sunshine store entrance. Houck was discovered unconscious
at 11:19 p.m. and transported by ambulance to a local hospital,
where he remained for four to five days for treatment of his head
injury.
Houck sued Sunshine and Peoples for negligence in failing to
provide adequate security for the users of pay telephones located
on Sunshine’s premises. The district court granted Peoples’
motion for summary judgment and dismissed Peoples with prejudice
from the suit.
At trial before a jury, Houck presented the video deposition
from his treating physician and testimony from two witnesses--
Houck and Cynthia Payne Swetman Childers, designated by Sunshine
as a security expert. Sunshine moved for judgment as a matter of
law at the end of Houck’s case-in-chief. Concluding that the
evidence was “woefully lacking in showing any negligence” and
“void concerning any proximate cause,” the District Court granted
Sunshine’s motion.
II. DISCUSSION
Houck contends that the District Court erred in granting
Sunshine’s motion for judgment as a matter of law. Because this
is a diversity case, we apply the federal standard to determine
if the judgment as a matter of law was proper. Entente Mineral
Co. v. Parker, 956 F.2d 524, 526 (5th Cir. 1992); Matador
Drilling Co. v. Post, 662 F.2d 1190, 1195 (5th Cir. 1981). We
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review a district court’s grant of judgment as a matter of law de
novo. Conkling v. Turner, 18 F.3d 1285, 1300 (5th Cir. 1994).
Judgment as a matter of law is appropriate in cases where “a
party has been fully heard on an issue and there is no legally
sufficient evidentiary basis for a reasonable jury to find for
that party on that issue.” FED. R. CIV. P. 50(a); see also
Conkling, 18 F.3d at 1300. The court need not submit an issue to
the jury merely because the party having the burden of proof at
trial introduces a scintilla of evidence to support his position
unless that evidence is such that a jury would be justified in
finding in favor of that party. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 251 (1985); Boeing Co. v. Shipman, 411 F.2d 365,
374-75 (5th Cir. 1969). “If the facts and inferences point so
strongly and overwhelmingly in favor of one party that the Court
believes that reasonable men could not arrive at a contrary
verdict, granting of the motion[] is proper.” Boeing, 411 F.2d
at 374. The court must review the entire trial record in the
light most favorable to the non-moving party, reserving
credibility determinations and factual inferences for the jury.
Conkling, 18 F.3d at 1300 (citing Anderson, 477 U.S. at 255).
“The ‘decision to grant [judgment as a matter of law] . . . is
not a matter of discretion, but a conclusion of law based upon a
finding that there is insufficient evidence to create a fact
question for the jury.’” Id. at 1300-01 (quoting In re Letterman
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Bros. Energy Sec. Litig., 799 F.2d 967, 972 (5th Cir. 1986)).
Under Mississippi law, to prevail on a negligence claim,
Houck must prove that (1) Sunshine owed a duty to him;
(2) Sunshine breached that duty; (3) he sustained damages; and
(4) Sunshine’s breach of duty was the proximate cause of his
damages. Lyle v. Mladinich, 584 So. 2d 397, 399 (Miss. 1991).
In order to bear his burden, Houck must allege specific acts or
omissions rather than make general assertions that Sunshine
failed to exercise ordinary care. McWilliams v. City of
Pascagoula, 657 So. 2d 1110, 1111 (Miss. 1995). Houck contends
that Sunshine breached its duty of care to its patrons through
negligent placement of the pay telephones.
“Whether a duty exists is a question of law.” Id. at 400.
Sunshine is not strictly liable to its guests for any injury that
occurs on its premises; rather, Sunshine owes its patrons a duty
to exercise reasonable care to protect invitees from reasonably
foreseeable injuries by third parties. Crain v. Cleveland Lodge
1532, Order of Moose, Inc., 641 So. 2d 1186, 1189 (Miss. 1994).
Liability attaches where the owner has “cause to anticipate the
wrongful or negligent act of [an] unruly patron.” Id. For
Sunshine to have cause to anticipate a potential assault, it
would need to have either “(1) actual or constructive knowledge
of [an] assailant’s violent nature, or (2) actual or constructive
knowledge that an atmosphere of violence exists in the tavern.”
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Id. The Mississippi Supreme Court has expanded the definition of
“in the tavern” to encompass both the exterior and interior of a
business premises. Lyle, 584 So. 2d at 399.
Houck neither submitted evidence at trial nor argues on
appeal that Sunshine had actual or constructive knowledge of the
assailants’ violent nature. Consequently, the question of
foreseeability requires us to determine whether sufficient
evidence exists that Sunshine had actual or constructive
knowledge of a violent atmosphere surrounding its premises.
Relevant factors include the pattern of criminal activity both in
the general vicinity and on the premises prior to the event which
is the subject of this suit. Crain, 641 So. 2d at 1189-90 (citing
Lyle, 584 So. 2d at 399).
Houck introduced evidence of criminal activity in the
vicinity of Sunshine’s store through the testimony of Childers, a
security expert witness.1 Childers testified that, in the two
1
In his initial brief, Houck asserted that he had
introduced police reports to demonstrate the level of criminal
activity at the Sunshine store. He included citations in his
initial brief and submitted copies of criminal reports regarding
incidents of shoplifting and gasoline theft at the Sunshine store
in his record excerpts. Sunshine argued that Houck
misrepresented the evidence to this court. The district court
granted Sunshine’s Motion to Strike Exhibits because Houck failed
to disclose these documents in discovery. In his reply brief,
Houck conceded that the district court had excluded the police
reports and claimed that his assertion to this Court was an
inadvertent mistake. On appeal, he does not argue that the
district court erred in excluding the police reports.
Consequently, the only evidence before the court regarding
criminal activity is Childers’s testimony.
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years prior to Houck’s assault, two assaults, one arrest for
concealment of a weapon, and a number of minor criminal incidents
had occurred on Sunshine’s premises. In August 1992, almost two
years prior to Houck’s assault, an incident of domestic violence
occurred inside an automobile parked near the pay telephones.
That same month, police arrested a store patron for carrying a
concealed weapon. Six months prior to Houck’s assault, a female
clerk had an altercation with a regular customer. Following a
dispute inside the store, the clerk successfully repelled an
attack when a customer grabbed her as she disposed of trash in
the dumpster located in the store parking lot. Houck introduced
evidence of no incidents of violence against a store patron by an
unknown third party other than the assault in which he was the
victim.
Sunshine argues, and the district court agreed, that Crain
v. Cleveland Lodge 1532, Order of the Moose, Inc., 641 So. 2d
1186 (Miss. 1994), controls the disposition of this case. In
Crain, Crain was the victim of an assault that occurred in the
parking lot of Moose Lodge as he unloaded a musical instrument
from the trunk of his car. See id. at 1187. In an attempt to
prove foreseeability, Crain introduced police reports documenting
278 crimes, eleven of which were considered violent crimes,
occurring within a two block radius of the lodge during fifty-
five of the sixty months prior to his assault. Id. Four of the
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crimes occurred at the Moose Lodge, including two that occurred
within the year immediately preceding Crain’s assault. Id.
Houck argues that Crain is distinguishable from this case.
He contends that in Crain, the plaintiff submitted only two
reports of crimes occurring on the Moose Lodge premises, whereas
Houck presented substantial evidence constituting “a pattern of
routine and frequent criminal activity” on Sunshine’s premises.
Furthermore, he asserts that neither of the two crimes at Moose
Lodge were crimes against the person. See id. at 1192. He fails
to note, however, that the evidence of criminal activity
presented at trial consisted solely of Childers’ testimony. That
testimony described two incidents of crimes against the person
within the two years preceding Houck’s assault, one of which
occurred inside a vehicle located in the parking lot of the
Sunshine store.
The specific claim of negligence in Crain centered on
inadequate lighting. Id. at 1192. Only one light located near
the building illuminated the parking lot. On the evening of
Crain’s assault, inclement weather exacerbated the poor security
situation allegedly caused by bad lighting.2 Id. at 1187.
Nevertheless, the Mississippi Supreme Court granted the
2
Although Moose Lodge stipulated for purposes of summary
judgment that only one light existed in the parking lot, it
claimed that the parking lot was actually illuminated by more
than one light. Id. at n.2.
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defendant’s motion for summary judgment, holding that two crime
reports on the lodge’s premises within the year prior to Crain’s
assault were insufficient to establish that Moose Lodge should
have reasonably foreseen the assault on Crain. Id. at 1192.
Addressing the issue of foreseeability, the court stated that
“[e]veryone can foresee the commission of a crime virtually
anywhere and at any time. If foreseeability itself gave rise to
duty to provide ‘police’ protection for others, every residential
curtilage, every shop, every store, every manufacturing plant
would have to be patrolled by the private arms of the owner.”
Id. at 1190 (citations omitted).
Houck argues that his claim is similar to Lyle v. Mladinich,
584 So. 2d 397 (Miss. 1991), in which two unknown assailants
accosted James Lyle in the parking lot of the Mladiniches’
restaurant and forced him into their car at gunpoint. See id. at
398. The Mississippi Supreme Court remanded the case for a
determination of whether “discontinuance of its previous policy
of hiring security personnel to patrol the parking lot
constituted a breach of duty and, if so, whether [that] breach
proximately caused or contributed to Lyle’s injuries.” Id. at
400. Houck does not contend that Sunshine has discontinued any
security measure that may have prevented Houck’s injury nor does
he produce any evidence supporting such a contention. He
likewise does not argue that Sunshine breached its duty by not
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supplying a security officer to patrol the store.
Houck’s sole argument is that Sunshine breached its duty
through negligent placement of the pay telephones. Yet, Houck
introduced no evidence that the placement of the phones was
problematic or that placement of the phones elsewhere would be
preferable. Although a clerk standing behind the counter is
unable to see patrons using the telephones, a surveillance camera
records activity at the corner where the phones are located.
Moreover, the telephones are located within three feet of the
indentation leading to the Sunshine store entrance. Childers
testified that nothing in her review of photos of the store,
discussions with an employee who visited the site, or inspection
of police reports would warrant a recommendation to move the pay
telephones to a different location.
Even if sufficient evidence exists to submit the question of
breach of duty to a jury, Houck must still prove a causal link
between Sunshine’s purported breach and his injury. See Crain,
641 So. 2d at 1191. He offered no evidence to show that, had
Sunshine placed the pay telephones in a different location, his
injuries would not have occurred. As such, he offered no
evidence proving that any act or omission on the part of Sunshine
proximately caused his injuries. Although proximate cause is
generally a fact question for the jury, when the plaintiff offers
no evidence, as here, no question exists for the jury to decide.
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See Crain, 641 So. 2d at 1192. Houck’s failure to prove an
essential element of his negligence claim is fatal.
The district court rendered judgment as a matter of law
after Houck was fully heard on his claim. Reviewing the entire
trial record in the light most favorable to Houck, this court
concludes that a reasonable person could come to only one
conclusion--that Houck failed to produce sufficient evidence to
demonstrate negligence on the part of Sunshine. We conclude that
the district court did not err in granting Sunshine’s motion for
judgment as a matter of law.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s
judgment.
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