Rose Barton, Individually and as Personal Representative of the Estate of Christopher Martin Dean v. Whataburger, Inc. ( 2009 )

Opinion issued February 13, 2009

  In The  

Court of Appeals  

For The  

First District of Texas  

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  NO. 01-06-01121-CV  

__________

ROSE BARTON, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF CHRISTOPHER MARTIN DEAN, Appellant  

V.

WHATABURGER, INC., Appellee  

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On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2003-30240  

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OPINION 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 parties 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 cocaine   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 Love v. State, 199 S.W.3d 447, 449–51 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d); 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 Love, 199 S.W.3d at 449–51; Worthy, 2007 WL 624667, at *1–3. One night prior to the robbery, Love met and spoke with Marshall in the Whataburger parking lot. See Love, 199 S.W.3d at 449. Love suggested that Marshall should return to the restaurant to commit a robbery on a night between 3:00 a.m and 4:00 a.m., when Love was on duty. Id. Love “told Marshall to enter the store by climbing through the drive-through window.” Id. This information was critical to the success of the robbery because Whataburger, like most fast-food restaurants, closed its dining room during its graveyard shift and only served customers through its drive-through window. See id.; 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. Love, 199 S.W.3d at 450. Love’s plan worked, as the manager left work early and entrusted Love with the money from the previous shift to count and place in the restaurant safe. Id. Shortly after the previous manager left, Love, who had been in contact with Marshall by cellular telephone, made up a story so that he could leave the restaurant. Id. Love then left Dean in charge of the restaurant and directly in the path of Marshall. Id.

          Dean, although mentally disabled, was a hard-working man whose life’s ambition was to one day own or manage a Whataburger restaurant. Worthy, 2007 WL 624667, at *6 (summarizing Barton’s testimony that Dean loved “all of his jobs, but he loved Whataburger the most,” his “biggest dream” was to own or manage a Whataburger restaurant, he “wore his Whatabuger shirt everywhere, even to church,” and he “was buried in his Whataburger shirt”). Dean, after noticing that Love had not counted the money in the registers from the previous shift, took it upon himself to count the money and deposit the excess amount, approximately $1,600, in the lockbox. 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. When the men drove up to the window, Marshall grabbed Dean through the window and, as per Love’s instructions, climbed through the drive-through window to enter the restaurant. Id. As the other Whataburger employees hid, Marshall chased Dean to the back of the restaurant and, with a firearm in hand, demanded that Dean give him a key to the safe. Id. Dean did not have a key to the safe because it could only be opened by combination. Id. After Marshall demanded a key from Dean three times and Dean did not produce the key, Marshall shot Dean in the face, ending Dean’s life. Id.

          Barton brought this wrongful death and survival lawsuit, alleging that the negligence of Whataburger proximately caused Dean’s death. See Tex. Civ. Prac. & Rem. Code Ann. §§ 71.002(a)–(b), 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(c). Whataburger also asserted that there is no evidence that “the criminal incident made the basis of Barton’s lawsuit was foreseeable to Whataburger,” “Whataburger breached a duty of care with respect to the hiring, training, and or supervision of its employees,” or any “breach of duty by Whatabuger was the cause in fact” of Barton’s injuries. 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 ReviewTo 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. Tex. R. Civ. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When a defendant moves for summary judgment, it must either (1) disprove at least one essential element of the plaintiff’s cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff’s cause of action. Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). In reviewing the summary judgment, we take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant’s favor. 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. Tex. R. Civ. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832–33 (Tex. App.—Dallas 2000, no pet.). Although the nonmoving party is not required to marshal its proof, it must present evidence that raises a genuine issue of material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); see Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence summary judgment motion may not be properly granted if the nonmovant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements. See Ridgway, 135 S.W.3d at 600. More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.” Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)). When reviewing a no-evidence summary judgment motion, we assume that all evidence favorable to the nonmovant is true and indulge every reasonable inference and resolve all doubts in favor of the nonmovant. Spradlin v. State, 100 S.W.3d 372, 377 (Tex. App.—Houston [1st Dist.] 2002, no pet.). In sum, “[j]udgment without . . . a jury verdict is proper at any course of the proceedings only when the law does not allow reasonable jurors to decide otherwise.” 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 duty owed by one person to another, a breach of that duty, and damages proximately resulting from the breach. El Chico Corp. v. Poole, 732 S.W.2d 306, 311 (Tex. 1987).                   Duty is the threshold inquiry because a plaintiff must prove the existence and violation of a duty owed to her by a defendant to establish liability in tort. 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.

Id. (quoting Buchanan v. Rose, 159 S.W.2d 109,110 (Tex. 1942)). Generally, the existence of duty is a question of law for a court to decide from the facts surrounding the occurrence in question. Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex. 1991). However, when the evidence or the reasonable inferences to be drawn therefrom about foreseeability as it relates to duty are disputed, the question becomes one for the jury, and the trial court should instruct a jury about this element so that it can resolve the factual issues. Union Pacific R.R.Co. v. Williams, 85 S.W.3d 162, 169 (Tex. 2002); Mitchell v. Missouri- Kansas-Texas R.R. Co., 786 S.W.2d 659, 662 (Tex. 1990). “[W]here the risk reasonably to be perceived defines the duty to be obeyed; i.e., where knowledge and foreseeability are important elements of duty,” the issue is “properly and best resolved by the finder of fact.” 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.” Phillips, 801 S.W.2d at 525. Of all of these factors, foreseeability of the risk is “the foremost and dominant consideration.” Id. Specifically, before liability will be imposed for an act of negligence, the evidence must justify a finding that the party committing the negligent act “ought to have foreseen the consequences thereof in the light of the attendant circumstances.” Carey v. Pure Distrib. Corp., 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.”

Id. (quoting 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. Phillips, 801 S.W.2d at 525 (citing Restatement (Second) of Torts § 315 (1965)). However, this general rule does not apply when a special relationship exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct. Id. (citing Restatement (Second) of Torts § 315(a) (1965)). Such special relationships include the relationship between employer and employee. Id. (citing Restatement (Second) of Torts § 317 (1965)). Thus, even when an employee, such as Love, acts outside the scope of his employment, an employer has a duty to exercise reasonable care to control its employee to prevent him from intentionally harming others, or from so conducting himself as to create an unreasonable risk of bodily harm to them, if the employee is upon the employer’s premises, or uses the employer’s property, and the employer knows, or has reason to know, that he has the ability to control the employee and knows, or should know of, the necessity and opportunity for exercising such control. Restatement (Second) of Torts § 317.      

          It is true that an employer, like Whataburger, is not an insurer of its employees’ safety. Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006); Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996); Exxon Corp. v. Tidwell, 867 S.W.2d 19, 21 (Tex. 1993). However, Texas law recognizes that an employer does have a duty to (1) provide rules for the safety of employees and warn them of reasonably foreseeable hazards; (2) furnish reasonably safe machinery and equipment; (3) furnish a reasonably safe place to work; and (4) exercise ordinary care to select careful and competent fellow employees. Fort Worth Elevators Co., 123 Tex. 128, 135–36, 70 S.W.2d 397, 401 (1934); see also Kroger Co., 197 S.W.3d at 794; 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. 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.”

          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, 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., Carmouche v. State, 10 S.W.3d 323, 330 (Tex. Crim. App. 2000) (“Since weapons and violence are frequently associated with drug transactions, the officers reasonably believed that the individual with whom they were dealing was armed and dangerous.”); 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 that Greg Love would plan an inside job” or that Whataburger should have foreseen the specific criminal event that lead to Dean’s death. Carey, 124 S.W.2d at 849. Rather, as explained by the Texas Supreme Court, she was only required to demonstrate that the injury of Christopher Dean was “of such general character as might reasonably have been anticipated” and that Dean was “so situated with relation to the wrongful act that injury to him or to one similarly situated might reasonably have been foreseen.” 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 Union Pacific R.R. Co., 85 S.W.3d at 169; 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,” 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 Timberwalk analysis applies “in the context of an employer’s duty to exercise reasonable care in providing a safe workplace for its employees when an employee asserts that the employer breached its duty by failing to protect the employee from criminal acts.” See Allen v. Connolly, 158 S.W.3d 61, 65 (Tex. App.—Houston [14th Dist.] 2005, no pet.). The Texas Supreme Court did, as noted by the panel, hold in Timberwalk that “[w]hen the ‘general danger’ is the risk of injury from criminal activity, the evidence must reveal ‘specific previous crimes on or near the premises’ in order to establish foreseeability.” 972 S.W.2d at 756. Also, the Fourteenth Court in Allen did conclude that “because Allen [an employee] assert[ed] that Connolly [had] breached her negligence duty as employer by failing to exercise reasonable care to protect Allen from third party criminal acts, the Timberwalk analysis applie[d] to determine whether Connolly owed a negligence duty to Allen under the facts of [the] case.” 158 S.W.3d at 66.

          The panel in the instant case and the Fourteenth Court in Allen both quote Sears, Roebuck & Co. v. Robinson for the proposition that “the nature of the duty of the landowner to use reasonable care to make his premises reasonably safe for the use of his invitees may, in all material respects, be identical with the nature of the duty of the master to use reasonable care to provide his servant with a reasonably safe place to work . . . .” 280 S.W.2d 238, 240 (1955). However, the supreme court explicitly qualified this statement by noting that “[t]he two fields of law (landowner-invitee and master-servant), are entirely separate, and they should be kept so.” Id. Thus, Sears does not support the panel’s and the Fourteenth Court’s conclusions that a Timberwalk analysis applies in either case.

          More importantly, the Timberwalk analysis is simply not applicable in the instant case. In Timberwalk, the supreme court was concerned with the issue of foreseeability in the context of the complaint that a landowner had negligently failed to provide adequate security at an apartment complex to protect a tenant from the sexual assault of a third person. 972 S.W.2d at 751. The court noted that the plaintiff’s claim was a premises liability claim, not a negligent activity claim, because the case concerned the alleged “failure to use ordinary care to reduce or eliminate an unreasonable risk of harm created by a premises condition” which the landowner knew about or in the exercise or ordinary care should have known about. Id. at 753. Thus, the court noted that a landowner owes a duty to use ordinary care to protect an invitee from the criminal acts of third parties “only when the risk of criminal conduct is so great that it both unreasonable and foreseeable.” Id. at 756.

          Here, Barton’s complaint simply does not concern a premises condition, and the Timberwalk factors to determine whether an occurrence of certain criminal conduct at the Whatabuger restaurant was foreseeable are not applicable. Barton is not complaining that Whataburger failed to use ordinary care to protect her son from some random act of violence committed by an unknown third party who happened to show up at the restaurant. Rather, Barton specifically complains that a Whatabuger night-time manager, who had previously been convicted of selling narcotics, actually planned the robbery that resulted in the death of her son. A plaintiff in Barton’s position will not be able to establish 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 Timberwalk factors and that the conduct of Marshall was a superseding cause of Dean’s death unforeseeable to Whataburger are in serious error. See 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.

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Chief Justice Radack and Justices Alcala and Bland.

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 Radack and Justices Taft, Jennings, Keyes, Alcala, Hanks, Higley, Bland and Sharp.

Justice Jennings, dissenting to the denial of en banc consideration, joined by Justices Keyes and Sharp.

Justice Keyes, dissenting to the denial of en banc consideration, joined by Justice Sharp.