Tracye Currie v. Chevron U.S.A., Inc.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
February 25, 2008
No. 07-10510 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 05-01610-CV-BBM-1
TRACYE CURRIE,
Individually and as Surviving
Mother and Personal Representative
of the Estate of Nodiana Antoine,
deceased,
Plaintiff-Appellee,
versus
CHEVRON U.S.A., INC.,
CHEVRON STATION, INC.,
Defendants-Appellants.
No. 07-10749
TRACYE CURRIE,
Individually and as Surviving
Mother and Personal Representative
of the Estate of Nodiana Antoine,
Deceased,
Plaintiff-Appellant,
versus
CHEVRON U.S.A., INC.,
CHEVRON STATION, INC.,
Defendants-Appellees.
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(February 25, 2008)
Before HULL and PRYOR, Circuit Judges, and MOORE *, District Judge.
PER CURIAM:
In this diversity case controlled by Georgia law, defendants Chevron U.S.A.,
Inc. and Chevron Stations, Inc. (collectively “Chevron”) appeal the entry of a
$2,625,000 judgment against them for negligently causing the death of Nodiana
*
Honorable K. Michael Moore, United States District Judge for the Southern District of
Florida, sitting by designation.
2
Antoine (“Antoine”). Antoine’s mother Tracye Currie (“Currie”) brought this
wrongful death suit against Chevron, alleging that Antoine died of burns she
received after Chevron’s employee, Jyotika Shukla (“Shukla”), negligently
activated a gas pump for Anjail Muhammad (“Muhammad”). More specifically,
Currie contended at trial that Chevron’s Shukla negligently activated the gas pump
for Muhammad only after: (1) Shukla saw Muhammad pulling Antoine around the
Chevron station’s property by her shirt and thought that something was wrong; (2)
Shukla saw that Muhammad and Antoine did not have a vehicle; and (3) customer
Pamela Robinson warned Shukla that there was a problem with the two women
outside, asked Shukla to call the police, and showed Shukla where the two women
were standing by gas pump number one. Currie claimed that, given this evidence,
Shukla should have foreseen that Antoine would suffer some injury as a result of
Shukla’s activating the gas pump for Muhammad.
On appeal, Chevron argues that the district court erred in denying its motion
for judgment as a matter of law or, alternatively, a new trial based on the Georgia
law defenses that (1) Muhammad’s actions were unforeseeable and broke the chain
of causation, (2) Antoine failed to exercise ordinary care for her own safety to
avoid the consequences of Chevron’s negligence, (3) Antoine had superior
knowledge than Chevron of the danger posed by Muhammad, and (4) Antoine’s
3
negligence was equal or greater than Chevron’s negligence. Chevron also claims
several jury instructions were erroneous.
After review and oral argument, we conclude that there were significant
conflicts in the evidence about the incident in this case and that under Georgia law
the district court did not err in submitting the case to the jury and denying
Chevron’s motion for judgment as a matter of law or for a new trial. Thus, we
affirm the district court’s judgment.
I. BACKGROUND
A. Trial Evidence
1. Events prior to May 25, 2003 Incident
In 2001, Antoine left high school and moved to Gadsden, Alabama to enroll
in Job Corps, a vocational training program. She met Muhammad, who was also in
Job Corps, and the two women began an intimate relationship some time in 2002.
Muhammad left the Job Corps in the fall of 2002 and moved away from Gadsden.
The two women temporarily ended their relationship, and Antoine started dating a
woman named Nicole. Muhammad eventually returned to Gadsden, and she and
Antoine resumed their relationship. In March 2003, Antoine and Muhammad
moved into a house together in Gadsden.
Courtney Yelder Manus, who described herself as being “best friends” with
4
Antoine while they were in Job Corps together, testified that Muhammad would
become upset if she ever saw Antoine and Nicole near each other. Manus
witnessed Muhammad make threats to Nicole that Muhammad would “kick her
ass” or kill her.1 Manus testified regarding one such incident where Antoine had to
calm Muhammad down when Muhammad got upset at Nicole. Manus described
that Antoine was “[j]ust trying to calm [Muhammad] down and get her – we were
trying to leave and she wanted to get her in the car so she just kind of, you know,
pushed her toward the car and tried to calm her down.”
Manus also heard Muhammad threaten to harm Antoine if she was in a
relationship with anyone else. At first, Manus thought that Muhammad was
joking, but over time she became more concerned for Antoine. Manus observed
superficial scratch marks on Antoine’s neck and bruises on Antoine’s arm and
chest. In their last conversation, approximately two weeks before the incident at
the Chevron station, Antoine acknowledged to Manus that she needed to get out of
the relationship.
In the weeks preceding May 25, 2003, Antoine and Muhammad moved out
of their home in Alabama and were living out of Muhammad’s car.
1
Manus testified that she overheard Muhammad on a separate occasion tell a story about
shooting her ex-husband. Manus admitted, however, that she never learned if Muhammad’s
story was true and that a detective had told her that there were no prior assault charges against
Muhammad by her ex-husband.
5
2. Events on May 25, 2003
On the morning of May 25th, Muhammad had parked her car in a restaurant
parking lot in Marietta, Georgia. According to Muhammad’s statement to police
later in the day on May 25th, Muhammad and Antoine got into an argument over a
lost battery.2 In the course of the argument, Antoine told Muhammad that she was
tired and was leaving the relationship. Muhammad told police that she became
angry because she had given up a lot for their relationship. Antoine left
Muhammad’s car and started walking toward the Chevron gas station across the
street to call her family. Muhammad followed her, and the women continued
arguing as they walked across the street.
Pamela Robinson, a customer at the Chevron gas station, testified that she
pulled into the Chevron station to get gasoline for her car and heard a loud noise
behind her as she was still sitting in her car. Robinson looked behind her and saw
two young women approaching from across the street. Robinson stayed in her car
for a moment because the situation “just didn’t look quite right.” She observed
that the smaller woman (Muhammad) had her fist wrapped tightly in the shirt of
2
Muhammad was not called to testify at trial. At her deposition, Muhammad invoked her
Fifth Amendment privilege after each question asked of her. The district court later denied
Chevron’s motion to add Muhammad as a third-party defendant. At trial, portions of
Muhammad’s interview with police were read and a redacted transcript of the interview was
admitted.
6
the larger woman (Antoine). Robinson testified that she “noticed that the one lady
that was being held tried to pull away from her, and at that point the other young
lady wrapped her hand even tighter around her t-shirt around her neck right here
and she pulled her, just pulled her back down to the ground like an animal or
something, and they proceeded walking.” Antoine was “pretty much being
dragged” and looked “kind of scared.” Currie’s counsel asked, “Was the one lady
still holding the other lady by the collar when they were on Chevron property?”
Robinson responded, “Yes. She never let her go in my sight” and “She had a hold
of her the whole time.”
Robinson watched the two women walk behind her car in the direction of
gas pump number one and the Chevron station’s restrooms. Robinson then got out
of her car to pump gas. She lifted the gas pump lever but the pump did not
activate. Robinson then went inside the Chevron station to have her gas pump
activated.
Shukla was the cashier at the Chevron station on that day and was working
by herself.3 Robinson testified that she entered the station and “told the clerk
immediately that there was something going on with the two young ladies out here
and that she needed to contact the police immediately.” Robinson explained that
3
Shukla’s testimony suggests that there was another Chevron employee on duty on this
morning, but that the employee was taking a break at the time this all occurred.
7
she then “showed [Shukla] that the two young ladies was over there in that area,
and all I could see of the person was just a portion of the side of their clothing.
From where I was standing in the front of the store out to where the pump number
one is.” Currie’s counsel asked Robinson, “So while you were talking to Ms.
Shukla, you could see one of the women at pump one?” Robinson replied, “You
could see a portion of their clothes.”
Shukla, who is from India and is not a native English speaker, testified
without an interpreter that she did not know that there was anything wrong outside
until customer Robinson came into the station and told her. Shukla contended that
she saw the two women “verbally fighting” and that one woman was holding the
other by her shirt. Shukla then testified that the women were leaving the property
when she saw them and that five or ten minutes passed before they actually left the
property. Thus, Shukla has the women fighting as they left the Chevron property.
When asked at trial why she did not call the police after Robinson requested
her to do so, Shukla testified that she felt it was unnecessary because the women’s
fighting was not that bad and they were leaving the property. This contrasted with
Shukla’s deposition testimony, which Currie’s counsel read to her during direct
examination, that it was not her responsibility to call the police because the couple
8
was fighting outside, not inside the store.4
Furthermore, Shukla’s statement to the police on the day of the incident,
which was drafted by a police officer because Shukla did not write well in English,
suggested that she also saw the two women in the station’s parking lot and thought
something was wrong even before Robinson came into the station. Shukla’s
statement to police provided, in full:
wk @ Chevron . . . wk alone came to work @ 8 AM saw 2 ladies
walking in p. lot - did not see their car - she thought something was
wrong. Customer came in they talked about the 2 women She saw
lady in yellow shirt grabbed the other lady by the front of the shirt
pulled her. Customer said called police one of the women pumped .65
gas - doesn’t know which one - pump was not hung up. After helping
3 customers she came out to talk to the other customer & saw one of
the women across street on fire.
4
The exchange at trial between Currie’s counsel and Shukla was as follows:
[Currie’s counsel]: Didn’t you tell us before under oath that the reason you didn’t
call the police was because they were fighting outside on station property, not inside
the store, so therefore it wasn’t your responsibility to call the police; isn’t that what
you told us before under oath?
[Shukla]: Like inside means inside my store, and they are – I saw them outside near
the restroom. But on that time they were just walking and they were leaving our
property, so I told my customer it’s not needed.
...
[Currie’s counsel]: Question, why didn’t you call the police when the women were
fighting at the gas station? Answer, they were fighting and they were fighting
outside the gas station, you know, they were not fighting inside, and so it’s not my
responsibility to call the police.
Did I read that correctly?
[Shukla]: Yes.
[Currie’s counsel]: Did the translator make another mistake or is that what you said?
[Shukla]: No. I said that, but – and I say then it was too bad, so it’s not necessary.
Yeah, it’s my responsibility to take care, but it was not bad at all and they were
leaving our property, so I said we didn’t need it.
9
Shukla’s testimony regarding when she authorized gas pump number one in
relation to when she saw the two women fighting was also inconsistent with her
previous statements. At trial, Shukla testified that she authorized a gas pump
before Robinson came in the station and told her that there were two women
fighting outside. Shukla said, “First I authorized the pump and then I saw them.”
In contrast, Shukla testified in her deposition that she did not remember if she saw
the couple fighting before she authorized the pump. Furthermore, the order of
events outlined in Shukla’s written statement to police suggests that she also saw
the two women in the station’s parking lot and thought something was wrong
before Robinson came into the station.
At trial, Shukla admitted that she may have authorized a gas pump for
another customer during the five or ten minutes it took the women to leave the
station’s property. Yet, Shukla contended that this other customer was not
Robinson, and both Robinson and Shukla testified that there were no customers
outside at the gas pumps other than Robinson at the time.
Robinson’s testimony suggested that Shukla authorized a gas pump after
Robinson had told Shukla about the two women fighting. Based on her prior
experience of working at a gas station, Robinson recognized that a beeping sound
10
informed the cashier that a gas pump needed to be activated.5 Robinson testified
that she heard a beeping sound when she entered the Chevron station to have her
gas pump authorized. After being shown her deposition testimony that the sound
stopped “right after” she told Shukla to call the police, Robinson stated, “It wasn’t
long, pretty much, yes.” Robinson also noted that she did not ask Shukla to
authorize her own gas pump until after she talked to Shukla about the two women
fighting outside and showed Shukla where they were standing by gas pump
number one.
At some point, Shukla undisputably authorized gas pump number one at the
Chevron station for Muhammad. Shukla’s testimony was inconsistent about
whether she looked at gas pump number one before authorizing it. Shukla first
testified that she did not remember if she had looked at gas pump number one
before authorizing it, then said, “Maybe yes.” Charles Williams, the manager of
the Chevron station at the time, however, testified that Shukla told him after the
incident that she did not look at pump number one before activating it. Shukla
further testified that she could not see the dispensing area for pump number one
from her position behind the counter because her view was obstructed by
5
It was undisputed at trial that the referenced beeping sound informed the Chevron
cashier that a customer had lifted the lever on a gas pump to receive gas. In order for a customer
to receive gas through the pump, the cashier must hit the “authorize pump” button. After the gas
pump is authorized, the beeping sound stops.
11
advertising signs, a pillar, the gas pump itself, and a trash can.6
Muhammad told police, however, that Shukla did, in fact, look at gas pump
number one before authorizing it. Muhammad stated that “[e]verybody was really
helpful like the lady . . . in the store she just turned the pump on.” Detective
Christopher Twiggs asked, “Even though ya’ll didn’t have a car?” Muhammad
responded, “Didn’t even have a car right next to it, she just turned it on, she looked
at us and just turned the pump on . . . .”
It is undisputed that Shukla authorized gas pump number one for
Muhammad and Muhammad then sprayed sixty-five cents of gasoline on Antoine.
Muhammad told police that she first sprayed gas on Antoine’s front side, then
Muhammad hugged Antoine so she could get the gasoline on herself too.7
6
Shukla affirmed that she had received safety training from Chevron on procedures to be
followed while customers were dispensing gasoline, including instruction that there was an
automatic shut off button for the gas pumps. Shukla admitted though that she spoke little
English when she started working at Chevron and her safety training was not conducted in her
native language.
7
We recognize that Muhammad told police that at this point Antoine told her, “if I burn
you gonna burn,” and Muhammad told her “okay.” Muhammad also told police that Antoine
just stood there while Muhammad sprayed gasoline on her and that Antoine told Muhammad to
wet the back of her shirt with gas after she wet the front. However, in reviewing a district
court’s denial of a motion for judgment as a matter of law, we view all evidence in the light most
favorable to Currie. Proctor v. Fluor Enters., Inc., 494 F.3d 1337, 1347 n.5 (11th Cir. 2007).
Further, as the district court properly instructed, the jury was free to “believe or
disbelieve any witness, in whole or in part.” Eleventh Circuit Pattern Jury Instructions (Civil),
Basic Instruction 3 (2005 ed.). Given Robinson’s testimony that Antoine attempted to get away
from Muhammad, the jury could have found that this portion of Muhammad’s statement was not
credible, but still have chosen to believe other portions of Muhammad’s statement.
12
Customer Robinson testified that she exited the gas station to return to her
car to pump gas and immediately saw the two women “in the same position with
the smaller one holding the larger lady.” Before Robinson got to her car,
Muhammad asked Robinson if she had a cigarette lighter. Robinson looked
straight ahead and did not even look at the two women. Robinson responded that
she did not smoke and did not have a lighter. Robinson then started to pump gas
into her van and watched the two women from behind them as they left the
Chevron station, with Muhammad still pulling Antoine by her shirt.
According to Muhammad’s statement to the police, she and Antoine left the
Chevron station and went back to their car. Muhammad then found a cigarette
lighter inside her car. They stood face to face just a few feet from each other.
Muhammad told police that she was holding on to Antoine and that they were
arguing again. Muhammad flicked the cigarette lighter five to ten times until it lit.
She then lit Antoine on fire.
Robinson testified that she saw a big puff of black smoke across the street.
Robinson estimated that only five or six minutes passed between the time she first
saw the two women come onto the station’s property until she saw the puff of
smoke. Robinson then saw Antoine, who was on fire from head to toe, running
toward the gas station. Robinson ran to the middle of the street and shouted at
13
Antoine to roll over in the grass.
Jason Barrett, an employee of the Cherokee County Sheriff’s Office at the
time, was off-duty and saw a car parked in front of the restaurant across the street
from the Chevron station. Barrett testified that he “[s]aw two females standing on
the passenger-side area of the car. They were kind of putting their arms – I can’t
really describe it, but to me it looked like they were arguing about something, no
fighting.” Barrett testified that the two women were standing “maybe a foot” or
“maybe a couple of feet” apart from each other. After he passed them, he looked
in his rearview mirror and saw one of them burst into flames. Barrett turned
around and parked behind their car. Antoine was on fire and running through the
parking lot. Barrett ran after Antoine and told her to roll on the ground to put out
the fire. Antoine did this briefly, but then stood up and ran around some more.
Barrett then called 911. Antoine was taken to a hospital and, several weeks later,
died as a result of the burns she suffered.
While Antoine was running around on fire, Barrett observed Muhammad get
into her car. Barrett ordered her to stop, but Muhammad drove away. While
police were still at the scene, Muhammad later returned to the same Chevron gas
station in her car. According to Muhammad’s statement to police, when she
returned to the gas station, another customer at the station had prepaid for more gas
14
than she needed and gave Muhammad her last dollar of gas. Muhammad sprayed
gas all over the inside of her car. Muhammad then drove her car across the street
to where the police were gathered and lit the inside of her car on fire as she was
driving.8 Muhammad parked the car near the police and exited her car. The police
drew their weapons and ordered her to the ground. Muhammad did not comply,
and, according to Barrett, tried to get back into her car while it was still on fire.
The police eventually took Muhammad into custody. Detective Twiggs later
interviewed Muhammad, and she confessed to him that she had set Antoine on
fire.9
3. Foreseeability of the Risk of Harm
Chevron presented expert testimony from Rosemary Erickson, Ph.D., a
forensic sociologist, that it was not reasonably foreseeable to Shukla that
Muhammad would douse Antoine with gas and set her on fire. Dr. Erickson based
her opinion on a review of the depositions, the police records, the low crime rate in
the area surrounding the Chevron station, the lack of previous violent crimes at this
8
Detective Twiggs later recovered a journal from Muhammad’s burned car that contained
entries from both Muhammad and Antoine. Twiggs read at trial several of the journal entries
written by Muhammad. In these entries, Muhammad had written: “I would kill her, but she is
too young and she just need a little lesson, not the total package.” Muhammad also had written:
“And if she tries to hurt me, I could kill her and not get – or not get locked up,” and “I can just
hurt her in more ways than one and have my hands just clean.”
9
In 2004, Muhammad was indicted on criminal charges of murder, aggravated battery,
aggravated assault, and arson.
15
specific Chevron station, and the rarity of the particular crime that occurred here.
In addition to Dr. Erickson’s testimony, Shukla testified that she had never
had a crime or fire at the Chevron station before that day and never had to call the
police. Williams, the former Chevron station manager, testified that there had not
been any criminal activity at the Chevron station in his eight to ten years working
there before this incident.
However, in cross-examining Dr. Erickson, plaintiff’s counsel asked, “You
would agree with me . . . would you not, that if something is going on at a gas
station and a clerk sees one person holding another at a gas pump and there’s no
car and no container, that it’s foreseeable that the gas may be used inappropriately
and harm can result . . . .” Dr. Erickson replied, “If all those factors were in
evidence.” Thus, even from Chevron’s own witness, there was in effect testimony
to support Currie’s claim that Shukla should not have authorized the gas pump
after Shukla saw Muhammad and Antoine fighting (or was told by Robinson they
were fighting) and where Muhammad and Antoine had no car or gas container.10
B. Jury Instructions
At the charge conference, Currie’s counsel contended that the court’s
proposed jury charge on an intervening criminal act was inappropriate because the
10
Both Williams and Robinson also testified that they would not activate a gas pump if
they saw people at the gas pump without a car or gas can.
16
plaintiff’s primary theory of the case was that Shukla committed an affirmative act
of negligence in activating the pump for Muhammad, not that Chevron failed to
provide adequate safety for Muhammad. Currie’s counsel even stated “[i]t is no
longer a premises liability case . . . [t]hat’s not even our claim.” The district court
commented, “for something that’s not a premises liability case, both sides sure did
submit a lot of premises liability charges.” Currie’s counsel responded, “I think
there is a premises liability claim. It’s not our main claim and it’s not our
underlying claim.”
Chevron objected to the general charge on premises liability because it
would be confusing to the jury when given with the instruction on third-party acts.
After further discussion, the district court said that it would need to take some time
to think about the instructions. The district court advised the parties that, “You
will certainly have a copy of it in advance of when I read it and you will have an
opportunity to object to it after I’ve read it . . . .”
After the close of the defense’s case and closing arguments, the district court
read the jury instructions. The district court then heard objections to the jury
charges. Chevron objected, inter alia, to the district court’s instructions on
premises liability, intervening criminal acts, and superior knowledge.
C. Jury Verdict
17
At the close of the trial, Chevron orally moved for judgment as a matter of
law on numerous grounds. The district court denied Chevron’s motion.
The jury returned a verdict finding Chevron liable and awarding Currie
$3,500,000 in damages. The jury also found that Antoine was twenty-five percent
liable. Accordingly, the district court reduced the damages award by twenty-five
percent to $2,625,000 and entered judgment.
D. Renewed Motion for Judgment as a Matter of Law or New Trial
Chevron filed a written renewed motion for judgment as a matter of law or,
alternatively, a new trial on the grounds that: (1) Currie failed to establish that
Muhammad’s criminal act was foreseeable or that Chevron had superior
knowledge of the danger posed by Muhammad; (2) Antoine’s failure to exercise
ordinary care was the sole cause of her injuries; (3) Antoine assumed the risk of
her injuries by not removing herself from the dangerous situation; and (4) Antoine
could have avoided the consequences of Chevron’s negligence through the exercise
of ordinary care.
The district court denied Chevron’s motion. The district court concluded
that there was a sufficient evidentiary basis for the jury to conclude that this
incident was foreseeable and that Chevron could have avoided Antoine’s death.
Specifically, the district court noted that there was evidence from which the jury
18
could have concluded that: (1) Shukla saw the couple fighting on Chevron
property and saw Muhammad using force to lead Antoine to the gas pump before
Shukla activated the pump; and (2) Robinson warned Shukla that something was
going on with the two women outside and told Shukla to call the police. The
district court also noted that the jury was “extensively” instructed on Georgia tort
principles such as avoidance of consequences and the plaintiff’s duty of care.
Drawing all reasonable inferences in Currie’s favor, the district court found that
there was sufficient evidence to support the jury’s verdict.
E. Evidence of Prior Incidents
Before trial, Chevron filed a motion in limine to exclude evidence of internal
Chevron reports regarding three incidents at different Chevron stations. The three
incidents involved: (1) kids in California who had filled a two-liter bottle with
gasoline for their go kart and had the bottle ignite as they were leaving; (2) a
customer in Louisiana who sprayed approximately ninety gallons of gasoline on
the ground while proclaiming that it was water, not gasoline; and (3) a customer in
Texas who lied to the cashier in saying he had a gasoline can, poured gasoline on
himself, and lit himself on fire. Chevron argued that the reports were inadmissible
because they were not similar to Muhammad’s crime, were unduly prejudicial,
were inadmissible hearsay, and contained evidence of subsequent remedial
19
measures.
At a pretrial hearing, Currie argued that the three incidents were relevant
because they each involved instances where the cashier could not observe the gas
pump. The district court determined that the inquiry as to relevance was whether
the crime at issue was against property or a person. The district court found that
the California and Louisiana incidents were not crimes against persons. While
acknowledging that the Texas incident was a closer issue, the district court
determined that this also was inadmissible because it did not occur at the same
location and did not involve a crime against another person. The district court
concluded, “So, again, this is preliminary. And, you know, if you think that the
evidence takes a turn that I haven’t anticipated, but I just – based on my review of
Georgia law, I just don’t think they come in, so I’m going to grant [Chevron’s]
motion in limine . . . .”
At the end of the first day of trial, Currie renewed her request to admit the
evidence of the three prior incidents. The district court responded, “I’ll take
another look at it.” There was no further discussion at trial of the three prior
incidents.11
11
Because we affirm the district court’s judgment in favor of Currie, it is unnecessary to
address Currie’s argument in her cross-appeal that, in the event that we grant relief in favor of
Chevron, she was entitled to a new trial because the district court improperly excluded evidence
of three prior incidents at Chevron gas stations that, Currie alleges, would have shown that the
20
II. DISCUSSION
On appeal, Chevron argues that the district court erred in denying its motion
for judgment as a matter of law, or, alternatively, a new trial on four grounds:
(1) Muhammad’s actions were not a reasonably foreseeable consequence of
Shukla’s negligence; (2) Antoine failed to exercise ordinary care to “avoid the
consequences” of Shukla’s negligence; (3) Antoine had equal or superior
knowledge than Shukla of the risk of Muhammad’s criminal conduct; and
(4) Antoine’s negligence was equal to or greater than Shukla’s negligence.12 In
addition, Chevron argues that the district court erred in its jury instructions on
premises liability, superior knowledge, and intervening criminal acts.13
After review of the record, as well as the well-presented arguments of the
injury here was foreseeable to Chevron.
12
We review de novo a district court’s ruling on a motion for judgment as a matter of law,
viewing all evidence and drawing all reasonable inferences in the light most favorable to the
non-moving party. Proctor, 494 F.3d at 1347 n.5. Judgment as a matter of law is appropriate
where “a reasonable jury would not have a legally sufficient evidentiary basis to find for the
[non-movant].” Fed. R. Civ. P. 50(a). Judgment as a matter of law must be denied “if there is
substantial conflict in the evidence, such that reasonable and fair-minded persons in the exercise
of impartial judgment might reach different conclusions.” Christopher v. Florida, 449 F.3d
1360, 1364 (11th Cir. 2006) (quotation marks and citation omitted). We review the denial of a
motion for a new trial for an abuse of discretion. Action Marine, Inc. v. Cont’l Carbon Inc., 481
F.3d 1302, 1309 (11th Cir.), petition for cert. filed, 76 U.S.L.W. 3082 (U.S. Aug. 24, 2007) (No.
07-257).
13
We review de novo whether a jury instruction accurately reflects the law, but give wide
discretion to the district court as to the phrasing of the instructions. Wright v. CSX Transp., Inc.,
375 F.3d 1252, 1256 (11th Cir. 2004).
21
parties in both their thorough briefs and at oral argument, we conclude that all of
Chevron’s claims of error lack merit. The only issues that warrant further
discussion are Chevron’s arguments that the district court erred in denying its
motion for judgment as a matter of law or a new trial on the grounds that
Muhammad’s actions were not reasonably foreseeable to Shukla and that Antoine
failed to avoid the consequences of Shukla’s negligence.
A. Foreseeability
A cause of action for negligence in Georgia must contain the following
elements: (1) a legal duty to conform to a standard of conduct for the protection of
others against unreasonable risks of harm; (2) a breach of this standard; (3) a
legally attributable causal connection between the conduct and the resulting injury;
and (4) some loss or damage resulting from the breach of the legal duty. Watson v.
Gen. Mech. Servs., 623 S.E.2d 679, 681 (Ga. Ct. App. 2005) (citing Bradley Ctr.,
Inc. v. Wessner, 296 S.E.2d 693 (Ga. 1982)).
In order to establish a breach of the applicable standard of conduct, there
must be evidence that the alleged negligent act (or omission) created a foreseeable,
unreasonable risk of harm. Id. at 681. “‘That is, it must appear that the alleged
negligent condition was such as to put an ordinarily prudent person on notice that
some injury might result therefrom.’” Id. (quoting Ga. Power Co. v. Carden, 196
22
S.E.2d 477, 478 (Ga. Ct. App. 1973)). As to foreseeability of injury, Georgia
courts have stated that “‘in order for a party to be held liable for negligence, it is
not necessary that he should have been able to anticipate the particular
consequences which ensued. It is sufficient if, in ordinary prudence, he might have
foreseen that some injury would result from his act or omission, and that
consequences of a generally injurious nature might result.’” Love v. Morehouse
College, Inc., 652 S.E.2d 624, 626 (Ga. Ct. App. 2007) (quoting Freeman v.
Wal-Mart Stores, 635 S.E.2d 399, 402 (Ga. Ct. App. 2006)).
In Georgia, questions of negligence, proximate cause, and foreseeability are
generally for the jury, except in “plain, palpable and undisputed cases where
reasonable minds cannot differ as to the conclusions to be reached.” Ford v.
Smith, 546 S.E.2d 346, 350 (Ga. Ct. App. 2001); Redding v. Tanner, 498 S.E.2d
156, 158 (Ga. Ct. App. 1998) (Andrews, C.J., concurring and dissenting); Murphy
v. Wometco Cable TV of Fayette County, Inc., 478 S.E.2d 398, 399 (Ga. Ct. App.
1996); Wade v. Mitchell, 424 S.E.2d 810, 813 (Ga. Ct. App. 1992).14
Viewing the evidence in the light most favorable to Currie and making all
14
Although these Georgia cases addressed these questions at the summary judgment
stage, the Supreme Court has stated that “the standard for granting summary judgment ‘mirrors’
the standard for judgment as a matter of law, such that ‘the inquiry under each is the same.’”
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S. Ct. 2097, 2110 (2000)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-251, 106 S. Ct. 2505, 2511-12
(1986)).
23
reasonable inferences in her favor, we conclude that reasonable minds could differ
as to whether Shukla was aware at the moment she authorized gas pump number
one that her action would create a foreseeable risk of injury to Antoine. There was
evidence from which the jury could have inferred that Shukla was aware that
Muhammad and Antoine were involved in a serious fight on the Chevron station’s
property. In her statement to police on the day of the incident, Shukla said that she
saw the two women walking on the station’s property, that Muhammad had
“grabbed” and “pulled” Antoine by the front of her shirt, and that Shukla “thought
something was wrong.” Shukla also testified at trial that she saw the women
fighting on the Chevron station’s property and that one woman was holding the
other by her shirt.
Robinson’s testimony confirmed Shukla’s observation that the fight was
serious. Robinson testified that Muhammad had her fist wrapped tightly in
Antoine’s shirt and that Muhammad wrapped her hand even tighter in Antoine’s
shirt when Antoine try to pull away from her. Robinson herself described that
Muhammad then pulled Antoine “down to the ground like an animal.” Robinson
was so concerned about the fight that she waited in her car until the women passed
before she exited to pump her own gas.
There also was evidence from which the jury could have found that Shukla
24
was aware that Muhammad and Antoine were involved in a serious fight at the
Chevron station before she activated gas pump number one for Muhammad.
Robinson testified that, after observing Muhammad and Antoine fighting on the
Chevron station’s property, she entered the station, told Shukla that something was
going on with the two women outside, showed Shukla where the two women were
standing by gas pump number one, and asked Shukla to call the police. Robinson
further testified that the beeping sound for a gas pump to be authorized stopped
shortly after she asked Shukla to call the police, indicating that Shukla had
authorized a gas pump. In addition to Robinson’s testimony, Shukla’s statement to
police on the day of incident stated that she “saw 2 ladies walking in p. lot - did not
see their car - she thought something was wrong. Customer came in they talked
about the 2 women.” Based on the order of events as relayed to the police by
Shukla, together with Robinson’s testimony outlined above, the jury could have
concluded that Shukla saw the two women fighting on the station’s property
without a car and suspected something serious was wrong before she activated gas
pump number one for Muhammad.
Finally, there was evidence from which the jury could have concluded that
Shukla looked at Muhammad before authorizing gas pump number one.
Muhammad told police on the day of the incident that “[e]verybody was really
25
helpful like the lady . . . in the store she just turned the pump on. . . . Didn’t even
have a car right next to it, she just turned it on, she looked at us and just turned the
pump on . . . .” Based on Muhammad’s statement and Shukla’s own testimony, the
jury could have found that Shukla looked at gas pump number one before she
authorized it, saw Muhammad (who Shukla had seen fighting with Antoine on the
station’s property and had recognized did not have a car), and nevertheless
authorized gas pump number one for Muhammad.15
Viewing the totality of this evidence in the light most favorable to Currie
and making all reasonable inferences in her favor, the jury could have found that
the beeping sound that Robinson heard inside the Chevron station was Muhammad
seeking authorization of gas pump number one and that Shukla looked at
Muhammad and authorized gas pump number one for her (thus stopping the
beeping sound) after Shukla’s conversation with Robinson. The jury also could
15
Chevron insists that Muhammad’s statement that Shukla looked at her before
authorizing gas pump number one is “conclusively refuted by the evidence.” However, it was
within the province of the jury to decide whether to believe Muhammad’s version of events. See
Cleveland v. Home Shopping Network, 369 F.3d 1189, 1193 (11th Cir. 2004) (“‘Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions . . . .’” (quoting Reeves, 530 U.S. at 150, 120 S. Ct. at 2110)). Further,
even without Muhammad’s testimony, parts of Shukla’s own testimony suggested she looked at
gas pump number one before authorizing it. Even if the jury found that Shukla did not look at
gas pump number one before authorizing it or that she looked at gas pump number one but could
not see the dispensing area because of obstructions, the jury still could have inferred from the
evidence that Shukla was aware that Muhammad and Antoine were at gas pump number one
because Robinson had pointed out to Shukla that they were standing at the pump.
26
have found that Shukla was aware at the time that she authorized gas pump number
one for Muhammad that: (1) Muhammad had been pulling Antoine around the
Chevron station’s property by her shirt as they were fighting; (2) the fight was
sufficiently serious that Shukla herself thought something was wrong and that
Robinson came into the station to warn Shukla that something was going on with
the two women outside and to ask her to call the police; (3) Muhammad and
Antoine were fighting by gas pump number one; and (4) Muhammad and Antoine
did not have a car on the station’s property. Dr. Erickson, Chevron’s own expert
witness on foreseeability, admitted that it was foreseeable that gasoline could be
used improperly to injure someone in such a situation. Thus, we conclude that
there was, at the very least, a substantial conflict in the evidence such that
reasonable and fair-minded jurors might reach different conclusions as to whether
Shukla was aware before she authorized gas pump number one that her negligent
action would create a foreseeable risk of injury to Antoine.
In arguing that this incident was not foreseeable, Chevron cites Georgia
premises liability cases providing that property owners have a duty to exercise
ordinary care to protect invitees from foreseeable third-party criminal attacks
where there are prior similar criminal acts occurring on the premises that put the
property owner on notice of the dangerous condition. See Rice v. Six Flags Over
27
Ga., LLC, 572 S.E.2d 322, 325-26 (Ga. Ct. App. 2002); Johnson v. Atl. Hous.
Auth., 532 S.E.2d 701, 703 (Ga. Ct. App. 2000). Chevron argues that the criminal
attack by Muhammad on Antoine was not foreseeable because this particular
Chevron station was in a low crime area and had not been the site of any criminal
activity in previous years, much less violent crime.
First, while Currie raised a premises liability theory at trial, her primary
theory of liability was that given the particularly serious events unfolding before
Shukla and given Robinson’s warning, Shukla then committed her own affirmative
negligent act in activating gas pump number one for Muhammad, not that Chevron
breached its duty to Antoine to keep its premises safe generally.16
Second, the lack of prior criminal activity at this Chevron station does not
wholly foreclose the foreseeability issue. Even in cases grounded solely on a
premises liability theory, Georgia courts have stated that “a showing of prior
similar incidents on a proprietor’s premises is not always required to establish that
a danger was reasonably foreseeable. An absolute requirement of this nature
would create the equivalent of a one free bite rule for premises liability, even if the
16
As Currie’s counsel explained at the jury charge conference:
[T]he defendants try to keep pigeonholing this case into a liability where Chevron
fails to provide adequate safety for a customer. That’s not it. . . . [T]he main thing
is [Shukla] committed an affirmative act of negligence in turning on a gas pump
under conditions which is justified in evidence – in the evidence in this case where
one person is pulling another by the collar and a customer comes in and says, call the
police. It’s an act of negligence. It is no longer a premises liability case . . . .
28
proprietor otherwise knew that the danger existed.” Wade v. Findlay Mgmt., Inc.,
560 S.E.2d 283, 286 (Ga. Ct. App. 2002) (quotation marks omitted). This Court
applied this same reasoning in a premises liability case to conclude that there was a
jury question of whether hostilities throughout the evening of which bowling alley
employees were, or should have been, aware were sufficient to make it reasonably
foreseeable to them that a fight would erupt, even though there had been no similar
prior altercations on the premises. Bishop v. Fair Lanes Ga. Bowling, Inc., 803
F.2d 1548, 1551-52 (11th Cir. 1986). Similarly, in this case, there was a sufficient
conflict in the evidence for reasonable minds to differ as to whether the particular
serious and exigent events unfolding right before Shukla at the Chevron station
that morning, together along with Robinson’s warning, should have put her on
notice that activating the gas pump for Muhammad would pose an unreasonable
risk of harm to Antoine, even though there were was no history of prior similar
incidents at this specific Chevron station.
Therefore, we cannot say that the district court erred in denying Chevron’s
motion for judgment as a matter of law or a new trial on the grounds that it was not
foreseeable to Shukla that her negligent act of activating the gas pump for
Muhammad would create a foreseeable risk of injury to Antoine.
B. Avoidance of Consequences
29
Chevron also argues that even if Shukla was negligent in activating the gas
pump for Muhammad, Antoine is barred from recovery under Georgia law because
she could have avoided the consequences of Shukla’s negligence by exercising
ordinary care for her own safety.
Georgia has a well-established avoidance-of-consequences doctrine, as well
as a separate comparative negligence rule, in O.C.G.A. § 51-11-7, which provides
that:
If the plaintiff by ordinary care could have avoided the consequences
to himself caused by the defendant’s negligence, he is not entitled to
recover. In other cases the defendant is not relieved, although the
plaintiff may in some way have contributed to the injury sustained.
O.C.G.A. § 51-11-7. Under the first sentence of § 51-11-7, which states the
avoidance-of-consequences doctrine, a plaintiff must “‘avoid the effect of the
[defendants’] negligence after it becomes apparent to him or in the exercise of
ordinary care he should have learned of it. He must make use of all his senses in a
reasonable measure amounting to ordinary care in discovering and avoiding those
things that might cause hurt to him.’” Lowery’s Tavern, Inc. v. Dudukovich, 507
S.E.2d 851, 854 (Ga. Ct. App. 1998) (quoting Alterman Foods, Inc. v. Ligon, 272
S.E.2d 327, 330 (Ga. Ct. App. 1980)) (alteration in original). Georgia courts have
described the avoidance-of-consequences doctrine as “Georgia’s contributory
negligence rule,” Whelan v. Moone, 531 S.E.2d 727, 730 (Ga. Ct. App. 2000), and
30
“a form of the last clear chance doctrine,” Muldovan v. McEachern, 523 S.E.2d
566, 571 (Ga. Ct. App. 1999) (Benham, C.J., concurring).
In contrast, the second sentence of § 51-11-7 embodies Georgia’s
comparative negligence rule that a plaintiff may recover if her own negligence
contributed to her injury so long as the plaintiff’s negligence was not “equal to or
greater than” the defendant’s negligence, but reduces the amount of recovery in
proportion to the plaintiff’s fault. See Whelan, 531 S.E.2d at 730.
Under Georgia law, questions of whether an individual by ordinary care
could have avoided the consequences of another’s negligence are generally for the
jury, except in plain, palpable, and undisputed cases. Bass Custom Landscapes,
Inc. v. Cunard, 575 S.E.2d 17, 20 (Ga. Ct. App. 2002); Ford, 546 S.E.2d at 350;
Murphy, 478 S.E.2d at 399; Mitchell, 424 S.E.2d at 813.
Viewing the evidence in the light most favorable to Currie and making all
reasonable inferences in her favor, we conclude that there was a sufficient conflict
in the evidence for reasonable minds to differ as to whether Antoine by ordinary
care could have avoided the consequences of Shukla’s negligent act of authorizing
gas pump number one for Muhammad. There was evidence from which the jury
could have found that Antoine was familiar with Muhammad’s hostile tendencies
and had learned how to calm Muhammad down in such situations. Antoine had
31
known Muhammad for over a year, dated her for several months, and lived with
her for a brief period of time. According to Antoine’s friend Manus, Muhammad
had exhibited violent tendencies in the past towards Antoine and others. Manus
specifically referenced one incident where Muhammad was agitated at Nicole, a
woman whom Antoine had dated briefly, and was yelling threats at her. Antoine
successfully convinced Muhammad to get into their car to leave the scene and
prevented any escalation of the situation.
The jury could have found that, on this morning at the Chevron station,
Muhammad continued to argue with Antoine and hold her by the shirt after Shukla
negligently authorized the gas pump and after Muhammad sprayed gasoline on
Antoine based on: (1) testimony from Robinson, who watched the women leave
the Chevron station, that Muhammad had her fist wrapped in Antoine’s shirt the
entire time she saw them; (2) Muhammad’s statement to police that she was
holding on to Antoine as they were standing by their car and that they were still
arguing; and (3) Barrett’s testimony that the two women were close together and
arguing when he drove by them. In light of this situation and the fact that,
according to Robinson, Muhammad had tightened her grip on Antoine’s shirt when
Antoine had tried to break free from her grasp earlier, the jury could have found
that Antoine decided, based on her prior experiences with Muhammad, that she
32
should try to calm Muhammad down, rather than risk escalating the situation by
attempting to physically resist her or flee. While this may not have been the only
reasonable course of action Antoine could have taken, we conclude that this
evidence created a sufficient conflict for reasonable minds to differ as to whether
Antoine exercised ordinary care to avoid the consequences of Shukla’s negligent
act of authorizing gas pump number one for Muhammad.17
Finally, we note that Chevron argues that the jury must have found that
Antoine failed to avoid the consequences of Chevron’s negligence because it found
that Antoine was twenty-five percent liable for her injuries. Chevron contends that
“[t]he only alleged negligence was Antoine’s failure to avoid harm. Thus, if the
jury had followed the district court’s instructions, it should have returned a verdict
17
The Georgia cases cited by Chevron in its brief and at oral argument on this defense are
inapposite. Four of the five cases involved a landowner’s duty to keep its premises safe under
O.C.G.A. § 51-3-1 and the defense that the plaintiff had equal or superior knowledge of the
dangerous condition on the property. Rice, 572 S.E.2d at 325-27; Atl. Hous. Auth., 532 S.E.2d
at 703-05; Johnson v. Holiday Food Stores, 520 S.E.2d 502, 504-05 (Ga. Ct. App. 1999); Griffin
v. AAA Auto Club S., Inc., 470 S.E.2d 474, 476-77 (Ga. Ct. App. 1996). Thus, these cases
applied a different defense raised by Chevron, not the avoidance-of-consequences doctrine.
Chevron also cites Quiktrip Corp. v. Fesenko, 491 S.E.2d 504, 505 (Ga. Ct. App. 1997),
in which the Georgia Court of Appeals applied the avoidance-of-consequences doctrine in § 51-
11-7 and concluded, as a matter of law, that a plaintiff failed to exercise care for her own safety
when she held an allegedly defective gasoline pump that was gushing gasoline over her head for
three to five minutes. 491 S.E.2d at 505-06. Although both Quiktrip and this case involved
incidents at a gasoline station, the scenario of an individual putting a malfunctioning gasoline
pump over her own head is not comparable to the situation here where Muhammad dragged
Antoine around the Chevron station’s property by her shirt, tightened her grip on Antoine after
she tried to break free, and then poured gasoline on her. Thus, this case is materially different
from Quiktrip.
33
of no liability for Chevron.”
The record demonstrates, however, that the district court properly instructed
the jury on Georgia law and that the jury followed the district court’s instructions.
The district court first explained Georgia’s comparative negligence principles to
the jury:
[I]f you find that the accident was due partly to the fault of Nodiana
Antoine, that Nodiana Antoine was negligent . . . for example, 25
percent responsible for her injuries, then you would fill in that
percentage [as] your finding on the special verdict form. . . . Such a
finding would not prevent the plaintiff from recovery, but I would
reduce any award that you make to the plaintiff by the percentage that
you insert. . . .
On the other hand, if you find that Nodiana Antoine’s
negligence equaled or exceeded the defendants’ negligence, then Ms.
Currie cannot recover at all.
The district court then separately instructed the jury on the
avoidance-of-consequences doctrine:
If Nodiana Antoine, by the exercise of ordinary care, could have
avoided the consequences caused by Chevron’s negligence, then she
is not entitled to recover. . . . In other cases, a defendant is not
relieved even though a plaintiff may have contributed to the injury
sustained. A plaintiff’s duty to exercise ordinary care to avoid the
consequences of a defendant’s negligence does not arise until the
defendant’s negligence exists and the plaintiff knew or, in the exercise
of ordinary care, should have known of such negligence.
The jury’s verdict here reflects that it followed Georgia law and the district
court’s instructions by consistently finding that: (1) under the comparative
34
negligence rule in the second sentence of § 51-11-7, Antoine’s own negligence
contributed in part to her injuries and accounted for twenty-five percent of the
liability; but (2) under the first sentence of § 51-11-7, Chevron did not show that,
after Shukla’s negligent act, Antoine by ordinary care could have avoided the
consequences caused by Shukla’s negligence.
Accordingly, we conclude that the district court did not err in denying
Chevron’s motion for judgment as a matter of law or a new trial on the ground that
Antoine failed to exercise ordinary care for her own safety to avoid the
consequences of Shukla’s negligence.
AFFIRMED.
35