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

Opinion Issued February 13, 2009

Opinion Issued February 13, 2009

In The

Court of Appeals

For The

First District of Texas

 

NO. 01-06-01121-CV

 

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

V.

WHATABURGER, INC., Appellee

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2003-30240

  OPINION 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 Kendrick v. Alright Parking, 846 S.W.2d 453, 456 (Tex. App.—San Antonio 1992, writ denied) (holding that when business is “prone to attract crime because of the particular character of the business or its previous experience,” operator has duty to exercise reasonable care to protect invitees from intentional injuries caused by third parties if he knows or has reason to know from observation or past experience that criminal acts are likely to occur “either generally or at some particular time”); see also Nixon v. Mr. Property Mgt. Co., Inc., 690 S.W.2d 546, 549–50 (Tex. 1985) (holding that criminal conduct of third party is not superseding cause that relieves negligent actor from liability when criminal conduct is foreseeable result of actor’s negligence).  Here, Whataburger operated a late night eating place, a business identified, according to expert testimony in the case, as one of the retail establishments with the largest share of workplace homicides.  Expert testimony further showed that it is standard industry practice to take extra precautions to ensure the safety of late-night workers and that the area around the Whataburger had a high crime rate.  Yet Whataburger hired a manager with two prior felony convictions it could easily have discovered.  I agree with appellants and with Justice Jennings that the nature of Whataburger’s business established a basis for foreseeability to show negligence.  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 Restatement (Second) of Agency § 493 (1958).  The duty to provide a safe workplace obliges employers to act with “special knowledge,” i.e., with “such knowledge as to the conditions likely to harm his servants as persons experienced in the business and having special acquaintance with the subject matter have.”  See id. § 493 cmt. a, § 495 (1958).  Thus, an employer owes “a duty to utilize any additional knowledge which in fact he has for the protection of his servants.”  Id. § 495 cmt. b.  The duties of masters to their servants apply to negligent hiring, which is at issue here.  Thus, I further agree with Justice Jennings that the panel errs in applying the Timberwalk analysis applicable to premises liability cases to this negligent hiring case.  See Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, (Tex. 1998); Trammell Crow Cent. Texas, Ltd. v. Gutierrez, 267 S.W.3d 9 (Tex. 2008) (applying 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.

                                                                   Evelyn V. Keyes

                                                                   Justice