Campbell v. RaceTrac Petroleum Inc

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

DAVID CAMPBELL and §

KORI CAMPBELL, §

§

Plaintiffs, §

§

v. § CIVIL ACTION NO. 3:21-CV-0516-B

§

RACETRAC PETROLEUM, INC. §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

Before the Court is Defendant RaceTrac Petroleum, Inc. (“RaceTrac”)’s Rule 12(b)(6)

Motion to Dismiss (Doc. 12). For the reasons explained below, the Court GRANTS IN PART and

DENIES IN PART Defendant’s motion.

I.

BACKGROUND

A. Factual Background

This case arises out of an altercation over a closed gas station restroom. The facts below are

taken from Plaintiffs’ account of the event.

On the evening of May 24, 2020, David and Kori Campbell (“David”, “Kori”, or “the

Campbells”), stopped at a RaceTrac gas station (“the RaceTrac”) to buy gas and cigarettes. Doc 1-1,

Original Pet., ¶ 10. David “went inside the RaceTrac to purchase cigarettes and use the restroom.”

Id. The store’s clerk (“Woods”) “confronted [David] and told him that the restrooms were closed.”

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Id. at ¶ 11. After David “questioned why the restrooms were closed … [Woods] became immediately

belligerent and confrontational” and “[a] brief argument ensued.” Id. at ¶ 12. David left and Woods

followed, threatening him and “brandish[ing] a screwdriver and a box cutter.” Id. at ¶ 13. This made

David fear “for his life and his wife’s life,” so he “reached for a gun he kept in his vehicle” and told

Woods “to back off.” Id. at ¶ 14. The Campbells got into their vehicle and drove away. Id. at ¶ 16.

But, Woods chased their car and threw “a large windshield squeegee” that struck the departing car.

Id. at ¶ 16. So, “the Campbells returned to the RaceTrac” where “[Kori] called 911 for police

assistance.” Id. at ¶ 18. Woods, now with “two screwdrivers and the box cutter” threatened them

again. Id. at 19. David again got out his gun. Id. at 20. At last, the police arrived and the altercation

ended. Id. at ¶ 21. Woods was arrested and charged with aggravated assault. Id.

B. Procedural Background

On December 28, 2020, the Campbells brought this suit against Defendant RaceTrac, the

Richardson RaceTrac’s operator, in the 68th Judicial District Court, Dallas County, Texas. Doc. 1-1,

Original Pet. On March 5, 2021, RaceTrac removed the case to the Northern District of Texas. Doc.

1, Notice of Removal. Upon RaceTrac’s motion, the case was abated until May 28, 2021, to comply

with the notice requirement of the Texas Deceptive Trade Practices Act (“DTPA”), found at

Section 17.505(a) of the Tex. Bus. & Com. Code. Doc. 11, Elec. Order. On June 3, RaceTrac filed

a Motion to Dismiss for Failure to State a Claim under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. Doc. 12, Def.’s Mot. The Motion is fully briefed and ripe for consideration. The Court

considers it below.

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II.

LEGAL STANDARD

A. Federal Rule of Civil Procedure 12(b)(6)

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must contain “a

short and plain statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P.

8(a)(2). If a plaintiff’s complaint fails to state such a claim, Rule 12(b)(6) allows a defendant to file

a motion to dismiss. FED. R. CIV. P. 12(b)(6). In analyzing a motion to dismiss for failure to state a

claim under Rule 12(b)(6) “[t]he ‘court accepts all well-pleaded facts as true, viewing them in the

light most favorable to the plaintiff.’” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.

2007) (quoting Martin K. Eby Constr. Co. v. Dall. Area Rapid Transit, 369 F.3d 464, 467 (5th Cir.

2004)).

A Rule 12(b)(6) motion to dismiss should be granted only if the complaint does not include

“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that

allows the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).

Well-pleaded facts of a complaint are to be accepted as true. Iqbal, 556 U.S. at 664. But, legal

conclusions are not “entitled to the assumption of truth,” nor will a complaint suffice “if it tenders

‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at

556). Further, a court is not to strain to find inferences favorable to the plaintiff or accept conclusory

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allegations, unwarranted deductions, or legal conclusions. R2 Invs. LDC v. Phillips, 401 F.3d 638, 642

(5th Cir. 2005) (citations omitted). The court does not evaluate the plaintiff’s likelihood of success

but only determines whether the plaintiff has pleaded a legally cognizable claim. United States ex rel.

Riley v. St. Luke’s Episcopal Hosp., 355 F.3d 370, 376 (5th Cir. 2004).

II.

ANALYSIS

Below, the Court considers the Campbells’ claims. First, the Court examines whether the

Campbells have standing to assert claims against RaceTrac under the DTPA, concluding they do

not. Second, the Court considers the Campbells’ claims that RaceTrac is vicariously liable for the

alleged assault committed by its employee, Woods. The Court concludes that RaceTrac is not

vicariously liable for Woods’s alleged assault under either a theory of respondeat superior or

ratification. Third, the Court turns to the Campbells’ claims of negligence per se, which the Court

rejects as a matter of law, finding no statutory violation. Fourth, the Court considers the Campbells’

claim for general negligence, finding that the claim is inadequately pled. Fifth, the Court considers

the Campbells’ claims for negligent hiring and supervision, finding that the Campbells have stated

a claim for negligent supervision but that the negligent hiring claim is inadequately pled. Sixth, the

Court considers the Campbells’ claim for exemplary damages, finding that no basis for exemplary

damages has been adequately pled. Finally, the Court grants Plaintiffs leave to amend their complaint

as to the general negligence, negligent hiring, and exemplary damages claims.

A. The DTPA Claims

The Campbells bring claims under the DTPA, stating that they relied on RaceTrac’s “false,

misleading and deceptive” representations and statements regarding its goods and services and were

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thereby injured. Tex. Bus. & Com. Code § 17.46 et seq.; Doc. 1-1, Original Pet., ¶¶ 55–57.

Specifically, the Campbells state that RaceTrac: (1) misrepresented that it “maintained clean public

restrooms;” (2) “misrepresented that customer service would be friendly;” (3) “falsely and/or

recklessly represented and promised it would diligently, competently and faithfully provide friendly

service and make [their] visit and use of the RaceTrac’s services enjoyable;” (4) “misrepresented that

[they] would be safe from harm or danger from one of RaceTrac’s employees;” and (5)

“misrepresented that a manager was on the premises and would adequately and competently

supervise the employees, including [Woods].” Id. at ¶ 57. Additionally, the Campbells claim

RaceTrac “knowingly” made these misrepresentations, entitling them to additional damages and

attorney’s fees. Id. at ¶ 59–61. RaceTrac urges the Court to dismiss the Campbells’ DTPA claims,

as the Campbells are not “consumers” as defined by the DTPA and therefore lack standing to bring

such claims or to recover under the DTPA. Doc. 13, Def.’s Br., 8–10. Below, the Court considers

whether the Campbells are consumers as defined by the DTPA and concludes that they are not.

1. The Campbells lack “consumer” standing.

The DTPA provides consumers a cause of action for “false, misleading, or deceptive acts or

practices.” Bus. & Com. § 17.50(a)(1). To recover under the DTPA, a “[p]laintiff must establish that

he is a consumer under the statute and that his consumption was the producing cause of his injuries.”

McClung v. Wal-Mart, 866 F. Supp. 306, 308 (N.D. Tex. 1994) (citing Rojas v. Wal-Mart, 857 F.

Supp. 533, 535–37 (N.D. Tex. 1994) (citing Riverside Nat’l Bank v. Lewis, 603 S.W.2d 169, 173

(Tex. 1980))). Whether a plaintiff is a consumer—and thus has standing to sustain a claim under

the DTPA—“is a question of law to be determined by the court.” Johnson v. Walker, 824 S.W.2d 184,

187 (Tex. App.—Fort Worth 1991, writ denied).

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The DTPA defines a “consumer” as “an individual . . . who seeks or acquires by purchase or

lease, any goods or services.” Bus. & Com. § 17.45(4); Amstadt v. U.S. Brass Corp., 919 S.W.2d 644,

649 (Tex. 1996)(citations omitted). “Goods” are defined as “tangible chattels . . . purchased or

leased for use.” Bus. & Com. § 17.45(1). Services are defined as “work, labor, or service purchased

or leased for use, including services furnished in connection with the sale or repair of goods.” Id. §

17.45(2). No privity of contract with a defendant is required for the plaintiff to be a consumer.

Amstadt, 919 S.W.2d at 649 (citations omitted). Instead, “[i]n determining whether a plaintiff is a

consumer, [the] focus is on the plaintiff’s relationship to the transaction.” Arthur Andersen & Co. v.

Perry Equip. Corp., 945 S.W.2d 812, 815 (Tex. 1997) (citing Amstadt, 919 S.W.2d at 650). The key

inquiry in determining consumer status is “whether the goods or services regarding which the plaintiff

claims an injury were an objective of a qualifying transaction or ‘merely incidental to it.’” Perry Equip.

Corp., 945 S.W.2d at 815 (quoting Hand v. Dean Witter Reynolds Inc., 889 S.W.2d 483, 500 (Tex.

App.—Houston [14th Dist.] 1994, writ denied)).

Here, the Campbells state that they went to the RaceTrac “to purchase gas and cigarettes,”

and that “[David] went inside the RaceTrac to purchase cigarettes and to use the restroom.” Doc.

1-1, Original Pet., ¶ 10. Below, the Court explains why these alleged facts do not qualify them as

consumers of goods or services under the DTPA.

I. The Campbells do not assert DTPA claims based on gas and cigarette purchases.

The Campbells do not plead that they were harmed by any alleged misrepresentation made

by RaceTrac regarding the gas or cigarettes they sought to purchase. See Doc. 1-1, Original Pet., ¶ 29

(stating that the argument and resulting injuries “stem[med] directly” from Woods’s communication

that the restrooms were closed). Therefore, the intended transactions in gas and cigarettes (goods

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under the DTPA) were not the producing cause of the Campbells’ injuries and will not support the

Campbells’ DTPA claims. See McClung, 866 F. Supp. at 308 (finding that a customer’s purchase of

a cell phone did not support a DTPA claim where his claimed injury was false imprisonment related

to the store’s failure to remove a security sensor, not a complaint about the quality of the phone);

Rutherford v. Whataburger, Inc., 601 S.W.2d 441, 444 (Tex. App.—Dallas 1980, writ ref’d n.r.e.)

(finding that a customer’s purchase of a fast food meal did not support a DTPA claim where his

claimed injury was based on the quality of the no-purchase-required sweepstakes prize he received

after his purchase, not the quality of the food he purchased).

ii. The Campbells cannot maintain DTPA claims based on free public restroom

services or customer service.

The Campbells do complain about the lack of an available restroom and about Woods’s

“unfriendly” customer service. Doc. 16, Pl.’s Resp., ¶¶ 51–52. They state that “[t]he availability to

use its public restrooms is part of RaceTrac’s business operations and a service to its customers.” Id.

¶ 52. The Campbells further state that David’s desire to use the RaceTrac’s bathrooms was an

objective of their visit because he went inside “to use the restroom” and that RaceTrac “expressly

invites” members of the public to visit, promising “friendly customer service [and] clean restrooms.”

Doc. 1-1, Original Pet., ¶ 10. However, even if the use of the restrooms was “an objective” of the

Campbells’ visit to the RaceTrac, use of the restrooms was not a qualifying “service” under the

DTPA, nor was Woods’s customer service, as the Court explains below. The Campbells therefore

lack standing to bring DTPA claims based on the restroom closure and resulting altercation.

A DTPA claim based on a “service” requires that either (1) the customer sought or acquired

the service by purchase or lease, or (2) that the service was furnished in connection with the sale of

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goods. See Bus. & Com. § 17.45(2).

The first prong applies when the service itself “was the objective” of an attempted or

completed purchase or lease and the service leased or purchased caused the injury. Henry v. Cullum

Cos., Inc., 891 S.W.2d 789, 796 (Tex. App.—Amarillo 1995, writ denied). Here, the Campbells do

not plead that they sought to lease or purchase use of the restrooms, or that use of the restrooms or

Woods’s customer service were part of some larger service package offered for purchase or lease. See

Doc. 1-1, Original Pet.; c.f. Rickey v. Hou. Health Club, Inc., 863 S.W.2d 148, 151–52 (Tex.

App.—Texarkana 1993, writ denied) (finding that the plaintiff was a consumer under the DTPA

where he had purchased a health club membership that included use of the track on which he was

injured); Craig v. Mixon, 1998 WL 466133, at *4 (Tex. App.—Amarillo, Aug. 11, 1998, pet. denied)

(finding that a caterer who was injured in a rented banquet facility could bring a DTPA claim

regarding the quality of the facility).Therefore, the Campbells are not customers under the first

prong, because the RaceTrac’s public restroom was not sought or obtained by purchase or lease, nor

was its customer service.

The second prong applies for services furnished in connection with the sale of goods. In these

claims, a person intended to obtain or obtained goods by lease or purchase, and the complained-of

services were “collateral to that end.” Henry, 891 S.W.2d at 796. Texas law limits DTPA claims

based on such collateral services to those directly related to a specific sale and that “might enter into

a consumer’s consideration when buying a good.” McClung, 866 F. Supp. at 309 (citing Schmueser

v. Burkburnett Bank, 937 F.2d 1025, 1029 (5th Cir. 1991)); see also Henry, 891 S.W.2d at 796;

Rowhanian, 774 S.W.2d at 682. Examples include a product warranty, maintenance obligation,

guarantee to replace stolen traveler’s checks, or financial counseling as part of a securities

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transaction. See McClung, 866 F. Supp. at 309; Henry, 891 S.W.2d at 796; Rowhanian, 774 S.W.2d

at 682. By contrast, courts disallow DTPA claims based on services only incidentally related to a sale

of goods. E.g., Henry, 891 S.W.2d at 796. Examples of incidental services include use of a store’s

floors or customer services while shopping. See McClung, 866 F. Supp. at 308 (finding that the

plaintiff’s complaints about customer service were noncognizable under the DTPA and, at most, only

incidental to his purchase of goods); Henry, 891 S.W.2d. at 795 (finding no DTPA consumer status

based on condition of the floor for customer who walked on grocery store floor while shopping for

goods); Rojas, 857 F. Supp. at 535–37 (finding same); Geri v. Starbucks Corp., 2020 WL 3883255,

at *2 (W.D. Tex. July 9, 2020)(finding same).

In considering how this second-prong standard applies to the present case, the court finds

McClung—a case from this district with materially analogous facts—instructive. See 866 F. Supp. at

309. In McClung, a customer purchased a cell phone from Wal-Mart. Id. at 308. The cashier

neglected to remove the phone’s security device and the customer triggered an anti-theft alarm

leaving the store. Id. In the parking lot, Wal-Mart employees confronted the customer, detained him,

and took the phone. Id. The customer brought DTPA claims against Wal-Mart, claiming in relevant

part that Wal-Mart “advertise[d] and promise[d] . . . a superior shopping experience that it failed

to provide because he was assaulted by a Wal-Mart employee . . . and that Wal-Mart expressly

promises satisfaction with every transaction and a superior level of friendliness which it failed to

provide.” Id. at 309. The McClung court emphatically rejected the idea that the DTPA’s definition

of services could stretch to include such claims. See id. “The ‘services’ that the Plaintiff complains

of are not services under the Act, see § 17.45(2),” the court explained. Id. Indeed, “[i]t would be

absurd to allow a DTPA claim to stand on the grounds that the customer did not receive a ‘superior

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shopping experience’ or because one of the employees was not ‘friendly.’” Id. Moreover, the employee

interactions the plaintiff complained of were “incidental to, rather than in connection with, his

purchase of a telephone and cord from Wal-Mart." Id. (citing Rojas, 857 F. Supp. at 537).

As McClung shows, the Campbells cannot claim customer status under the second prong.

Accepting as true the Campbells’ statement that RaceTrac provides restrooms as a service for its

goods-buying customers, Doc. 16, Pl.’s Resp., ¶ 52, this public restroom service is merely incidental

to customers’ goods purchases, not directly related to a specific sale. C.f. McClung, 866 F. Supp. at

309. Nor is, under these circumstances, customer service itself a service under the DTPA. Id.

For these reasons, the Court finds that the Campbells are not consumers under the DTPA

and therefore lack standing to maintain DTPA claims. Accordingly, the Court DISMISSES WITH

PREJUDICE Plaintiffs’ DTPA claims.

B. The Assault Claim

Plaintiffs bring a claim for “civil assault” against RaceTrac, stating that Woods assaulted

David and that RaceTrac is vicariously liable for this assault under theories of respondeat superior

and ratification. Doc. 1-1, Original Pet., 62–76; Doc. 16, Def.’s Reply, 29–32. RaceTrac states that

the assault claim must be dismissed because “[t]he intentional tort of assault . . . cannot be imputed

vicariously to RaceTrac . . . occurr[ing], if it did, outside the scope of Woods’s employment.” Doc.

19, Def.’s Reply, 7.

The Court agrees that the facts as recounted by the Campbells, if true, would support a claim

for assault against Woods, who is not a defendant in this case. Below, the Court analyzes whether

RaceTrac is vicariously liable for Woods’s alleged assault under either a theory of respondeat superior

or ratification. Concluding that the Campbells have not established that Woods was acting in the

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scope of his employment or in the interest of RaceTrac, the Court finds the Campbells fail to state

a claim for assault against RaceTrac on either basis.

1. Respondeat Superior

“Under the doctrine of respondeat superior, an employer is vicariously liable for the

negligence of an agent or employee acting within the scope of his or her agency or employment,

although the principal or employer has not personally committed a wrong.” Baptist Mem’l Hosp. Sys.

v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998) (citations omitted). Here, the parties do not dispute

that Woods was a RaceTrac employee at the time of the alleged assault, so the issue is whether

Woods was acting within the scope of his employment.

Under Texas law, “it is not ordinarily within the scope” of employment for an employee to

“commit an assault on a third person.” Texas & P. Ry. Co. v. Hagenloh, 247 S.W.2d 236, 239 (Tex.

1952) (citation omitted). Most often, assault committed by an employee is “the expression of

personal animosity.” Id. at 239. Generally, such an act is not done for the employer but is personal

to the employee. Id.; see also Green v. Jackson, 674 S.W.2d 395, 398 (Tex. App.—Amarillo 1984, writ

ref’d n.r.e.); Kendall v. Whataburger, Inc., 759 S.W.2d 751 (Tex. App—Houston [1st] 1988, no writ);

Viking v. Circle K Convenience Stores, Inc., 742 S.W.2d 732, 734 (Tex. App.—Houston [1st] 1987,

writ denied).

The cases where assault is found to be within the scope of employment “are comparatively

few.” Hagenloh, 247 S.W.2d at 239. A key consideration is whether the employee, in assaulting the

third party, was “acting in furtherance of [the employer’s] business.” Id. An assault may be within

the scope of employment “when the assault is of the same general nature as the conduct authorized

by the employer or is incidental to the conduct authorized,” as with bouncers or other employees

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whose position “involves the use of force.” Knight v. City Sts., L.L.C., 167 S.W.3d 580, 583 (Tex.

App.—Houston [14th] 2005, no pet.) (citing Smith v. M. Sys. Food Stores, Inc., 297 S.W.2d 112, 114

(Tex. 1957)). In such cases, “the employer can be found liable for its employee’s actions even if the

employee uses greater force than is necessary” or authorized. Id. at 583 (citing Hagenloh, 247 S.W.2d

at 239). Or, an assault may be in the scope of employment where “the employee’s duty is to guard

the employer’s property” and the assault occurs as the employee seeks to protect, retain, or claim

such property. Hagenloh, 247 S.W.2d at 239–240; see also Frito Lay v. Ramos, 770 S.W.2d 887, 888

(Tex. App.—El Paso 1989), rev’d on other grounds, 784 S.W.2d 667 (Tex.1990).

Here, the Campbells claim that Woods was acting within the course and scope of his

employment at the time of the assault because Woods was employed by RaceTrac, “was on the

[p]remises,” and “interacted with customer David Campbell as a RaceTrac [customer service]

employee.” Doc. 16, Pl.’s Resp., ¶ 37. In his role as clerk, “[Woods] refused [David] access to the

public restrooms, and rather than delivering the ‘friendly service’ advertised by RaceTrac, [Woods]

was belligerent, attacked and threatened [David] with instrumentalities of his work at RaceTrac”:

a box-cutter, two screwdrivers, and a squeegee. Id.

However, the Campbells’ account of David and Woods’s encounter does not plausibly support

an inference that Woods was acting to further any business of RaceTrac’s when he assaulted David.

Instead, it supports the more usual inference that Woods assaulted Campbell out of personal

animosity. See, e.g., Hagenloh, 247 S.W.2d at 198; Sheffield v. Cent. Freight Lines, Inc., 435 S.W.2d

954, 956 (Tex. App.—Dallas 1968, no writ) (citing Home Tel. & Elec. Co. v. Branton, 7 S.W.2d 627,

629 (Tex. App. 1928), aff’d, 23 S.W.2d 294 (Tex. Comm’n App. 1930)).

Specifically, the Campbells plead that the encounter proceeded in this way: After David

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entered the RaceTrac, Woods “confronted [David] and told him that the restrooms were closed.”

Doc 1-1, Original Pet., ¶¶ 10–11. When David “questioned why the restrooms were closed,” Woods

“became immediately belligerent and confrontational.” Id. ¶ 11. “A brief argument ensued.” Id. ¶ 12.

David then exited the store, followed by Woods, who “threatened [David] and brandished a

screwdriver and a box cutter.” Id. ¶ 13. David responded by retrieving a gun from his vehicle and

using the threat of the gun to hold Woods off. Id. ¶ 14. The Campbells then drove away, while

Woods gave chase and threw a “large windshield squeegee” that hit the car. Id. ¶ 16. The Campbells

came back to the RaceTrac and called 911, and the men’s altercation resumed, now with Woods

threatening David with two screwdrivers and a box cutter, and David threatening Woods with his

gun. Id. ¶¶ 18–20. This continued until the police arrived. Id. ¶ 21.

This account includes no facts to suggest that Woods, employed as a clerk, was authorized

by RaceTrac to use force in interacting with customers, or that his assaultive actions were incidental

to his authorized actions, as in the bouncer cases. C.f. Knight, 167 S.W.3d at 583 (finding that a

plaintiff had not shown that the club employees who assaulted him were bouncers); Kendall, 759

S.W.2d at 752–53 (finding that a fast food customer service employee’s assault on a complaining

customer “could not possibly have been so connected with and immediately arising out of his job of

taking food orders, and preparing and delivering food orders to customers” that the assault was

imputable to the employer).

Nor was Woods plausibly acting to protect RaceTrac’s property, where the Campbells do not

allege that Woods acted to prevent David from entering the closed restroom, nor that Woods had

authority to do so. Compare Ramos, 770 S.W.2d at 888 (finding that a manager was acting in the

scope of his employment when he assaulted a customer who would not part with company property

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to take the property back, where evidence showed that maintaining custody of store property was

within his duties), with ANA, Inc. v. Lowry, 31 S.W.3d 765, 770 (Tex. App.—Houston [1st] 2000,

no pet.)(finding that a plaintiff had not introduced evidence that the convenience store employee’s

duties included maintaining control over company property).

Instead, the Campbells merely claim Woods “informed” David the restroom was closed,

David “questioned” the closure, Woods “became belligerent and confrontational,” and David exited,

pursued by the angry and threatening Woods. Doc. 1-1, Original Pet., ¶¶ 10–13. This suggests only

that some personal animosity quickly arose between the two men. See id. ¶ 33 (stating that the two

men “got into an argument that escalated to the point that Mr. Woods threatened and attacked the

Campbells”).

Neither does the Campbells’ claim that Woods assaulted the Campbells with

“instrumentalities” of his employment at RaceTrac (the box cutter, screwdrivers, and squeegee),

Doc. 16, Pl.’s Resp., ¶ 37, itself establish vicarious liability. Use of “instrumentalities of employment”

to perpetrate an assault does not necessarily make the assault within the scope of employment. See

Kendall, 759 S.W.2d at 755 (fast food employee’s assault on customer with french fry basket not

within scope of employment).

As explained above, the Campbells have not pled facts to support a claim that Woods was

acting within the scope and course of his employment, an essential element of liability under the

theory of respondeat superior. The Court next considers RaceTrac’s vicarious liability under the

theory of ratification, which it also rejects.

2. Ratification

The Campbells argue that RaceTrac ratified its employee Woods’s assault “because at no

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point did a manager or assistant manager at RaceTrac intervene or attempt to de-escalate Woods’s

assault, and/or [Woods] was acting as a manager.” Doc. 16, Pl.’s Resp., ¶ 39.

Under Texas law, an employer may be liable for its employee’s “intentional, malicious, or

grossly negligent” acts if the employer or a manager for the employer ratifies the acts. Prunty v. Ark.

Freightways, Inc., 16 F.3d 649, 652–53 (5th Cir. 1994). In tort cases, “ratification may occur when

the employer or its vice-principal confirms, adopts, or fails to repudiate the acts of its employee.” Id.

at 653. Texas courts generally also require that the employee have committed the assault to further

the interest of the employer for the employer to later ratify it.1 E.g., Sheffield, 435 S.W.2d at 956

(citing Dillingham v. Anthony, 11 S .W. 139 (Tex. 1889)); Branton, 7 S.W.2d at 629. Where the

employee’s tort “consists of an assault and battery,” there are “but a few situations” in which the

employer “may be constituted a wrongdoer by ratification.” Sheffield, 435 S.W.2d at 956 (citing

Branton, 7 S.W.2d at 629).

Here, the Campbells base their ratification claim on RaceTrac’s failure to “intervene, attempt

to stop the events, [or] apologize for the outrageous behavior of its employee,” or to “follow-up with

or contact the Campbells to check on their vehicle or their condition.” Doc. 1-1, Original Pet., ¶ 22.

1 The Fifth Circuit has held that Texas ratification law does not require that an employee’s tortious

act be done in the employer’s interest. Prunty, 16 F.3d at 654 (“Where a ratification claim is based on an

employer's retention of an employee who has committed a tortious act that was not done in the employer’s

interest, an employer may confirm, adopt, or fail to repudiate the acts of its employee when it: ‘(1) knows

about the employee’s tortious acts, (2) recognizes that the employee’s acts will continue if he is retained, (3)

does nothing to prevent the ongoing tortious acts, and (4) chooses to retain the employee.’” (citing Gulf,

Colo., & Santa Fe Ry. Co. v. Reed, 15 S.W. 1105, 1107 (Tex.1891)); Intl. & Great N. R.R. Co. v. McDonald,

12 Sw. 860, 862 (Tex.1889)). See also Smith v. Michels Corp., 2014 WL 708416, at *3 (E.D. Tex. Feb. 24,

2014) (finding a triable issue of fact on whether an employer’s retention of its employee on year-long paid

leave constituted ratification of the employee’s tortious act and discussing the Prunty holding). But see

Donahue v. Melrose Hotel, 1997 WL 148012, at *1 n.5 (N.D. Tex. Mar. 26, 1997) (reading the cases cited

in Prunty as establishing that “mere retention cannot constitute ratification under Texas law”).

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In support, the Campbells cite Sheffield,435 S.W.2d at 956. Doc. 16, Pl.’s Resp., ¶ 38. However,

Sheffield shows why the Campbells’ ratification claim fails.

In Sheffield, two freight truck drivers got into an argument following a minor collision. 435

S.W.2d at 955. One driver, Jarvis, insulted the other, Sheffield, and each man called his supervisor

to the scene. Id. When Sheffield’s supervisor, Williams, arrived, a fist fight quickly erupted between

Williams and Jarvis. Id. Jarvis, a skilled boxer, swiftly got the better of Williams and Sheffield

attempted to break up the fight, sustaining “numerous blows to his head and body” for his trouble.

Id. Sheffield argued that Jarvis’s employer was liable for his injuries “because of the failure of its other

employee, [Jarvis’s supervisor] Vincell, to intercede and endeavor to stop the fight, which . . .

amounted to ratification by [Jarvis and Vincell’s employer] of the assault.” Id. at 956. Finding “no

evidence of ratification” in these facts, the court rejected the vicarious liability claim. Id. The

conflicts involved, it noted, were “personal altercations” and not within or incidental to the

employees’ truck driving or supervisory duties. Id. Therefore, the supervisor’s failure to intervene in

the fight did not amount to ratification of the employee’s assault. Id.

Like the battered truck driver in Sheffield, the Campbells claim that a manager on duty at the

RaceTrac should have intervened to stop Woods’s assault. Doc. 16, Pl.’s Resp., ¶ 39. Alternatively,

they suggest for the first time in their Response that Woods may have been acting as the RaceTrac’s

manager at the time of the assault. Id. In either case, a RaceTrac employee also should have followed

up with the Campbells after the assault, they state, and the fact that no employee did so shows that

RaceTrac ratified Woods’s actions. Doc. 1-1, Original Pet., ¶ 22. Like the Sheffield court, this Court

finds these facts insufficient to state a claim for ratification. As discussed above, the Campbells’

account of the altercation between Woods and David supports only a plausible inference that the

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two men’s dispute was based on personal animosity. If a manager was on the premises, as the

Campbells plead, the manager, like the supervisor in Sheffield, had no duty to intervene in a personal

altercation. See 435 S.W.2d at 956. In the alternative, if Woods was alone and acting as a manager,

he could not ratify his own personal act on RaceTrac’s behalf. See Doc. 16, Pl.’s Resp., ¶ 39. Finally,

Plaintiffs cite no case law to support their claim that an employer’s failure to “follow-up with or

contact” a person who has been assaulted on the employer’s premises constitutes ratification. See id.

For these reasons, the Court concludes that Plaintiffs fail to state a claim for RaceTrac’s

vicarious liability for the assault, on either a theory of respondeat superior or ratification. The Court

thus DISMISSES WITH PREJUDICE the assault claims.

C. Negligence per se

The Campbells state that “RaceTrac’s conduct was negligent” because the Richardson

location “violate[d] laws and fell below the standards of care.” Doc. 16, Pl.’s Resp., ¶ 41. Specifically,

they claim that RaceTrac violated Sections 341.061, 341.091, and 341.069 of the Texas Health &

Safety Code, which requires “all gas stations to maintain public restrooms.” Doc. 1-1, Original Pet.,

¶ 28. This alleged violation establishes RaceTrac’s negligence toward the Campbells as a matter of

law, the Campbells claim. Id., ¶¶ 28–32.

An unexcused violation of a statute setting an applicable standard of care may constitute

negligence per se. El Chico Corp. v. Poole, 732 S.W.2d 306, 312 (Tex.1987). Here, the statutory

provisions at issue require the operator of a filling station to “provide and maintain sanitary toilet

accommodations.” Tex. Health & Safety Code Ann. § 341.061. Failure to do so is a misdemeanor.

Id. § 341.091. Public health departments or certain government actors may also impose fines or

engage in civil enforcement actions. Id. § 341.092.

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The Campbells plead that “[i]t was a violation of the Texas Health and Safety Code for the

RaceTrac not to provide public restrooms for the Campbells and other customers.” Doc. 16, Pl.’s

Resp., ¶¶ 58–60. However, the Campbells’ pleadings clearly establish that the RaceTrac did provide

public restrooms—restrooms that were closed at the time of their visit. Doc. 1-1, Original Pet., ¶¶ 11,

29, 40, 46. While the Campbells state that it was a violation of Texas law for the RaceTrac not to

keep those restrooms open to the public, see id. ¶¶ 54, 60, they do not plead that the closure was

permanent and cite no case law in support of their contention that it is a violation of the statute to

temporarily close a public restroom. See Doc. 16, Pl.’s Resp. Indeed, the Campbells state that David

“chose to go to the RaceTrac because he was accustomed to finding a safe, clean store with clean

public restrooms.” Id. ¶ 54. A customer who expects to find a clean public gas station restroom

should not be astonished that it may sometimes be closed, perhaps for cleaning or maintenance.

Therefore, the Court declines to read into the Texas statute the “always open” restroom requirement

the Campbells seek to impose. See id. ¶ 60.

Because the Campbells have not plausibly claimed that RaceTrac committed a statutory

violation, they have failed to state a claim for negligence per se. Therefore, the Court DISMISSES

WITH PREJUDICE this claim.

D. General Negligence

The Campbells claim that RaceTrac was negligent because the RaceTrac’s operation “fell

below the standards [RaceTrac] represents and promises to the public” and was not “healthy and

safe” for customers. Doc 1-1, Original Pet., ¶¶ 36, 40. RaceTrac urges the Court to dismiss the

Campbells’ “generic” negligence claim because it fails to comply with the Rule 8 pleading

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requirements. Doc. 13, Def.’s Br., 18.2

Under Texas law, the elements of a negligence cause of action are duty, breach of the duty,

and damages proximately caused by the breach. Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778,

782 (Tex. 2001). The Campbells plead that RaceTrac had a duty “to exercise reasonable care to

provide a gas station and convenience store environment that was safe.” Doc. 16, Pl.’s Response,

¶ 44. RaceTrac does not deny that it owes invitees like the Campbells a duty. See Doc. 13, Def.’s Br.,

26. Therefore, the Court finds that the Campbells have pled sufficient facts to support the element

of duty.

To avoid breach, a property owner must “do what a person of ordinary prudence in the same

or similar circumstances would have done” with regards to an invitee on the property. United

Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017). The Campbells plead that RaceTrac

breached its duty “by failing to operate the RaceTrac convenience store and gas station in a safe,

healthy and reasonable manner.” Doc. 16, Pl.’s Resp., ¶¶ 44, 46. Specifically, they claim RaceTrac

“allow[ed] its employees to close the restrooms to the general public and allow[ed] its employees to

harass, threaten and endanger the lives of RaceTrac’s customers including Plaintiffs.” Doc. 1-1, Pl.’s

Original Pet., ¶ 41. As explained above, the Campbells have not pled that RaceTrac instructed or

authorized Woods to assault, harass, threaten, or endanger its customers, or that such actions were

2 RaceTrac also states that the Campbells appear to base their negligence claim, in part, on a theory

of premises liability. Doc. 13, Def.’s Br., 26. However, under Texas law, their claim does not sound in

premises liability but in general negligence. United Scaffolding, Inc. v. Levine, 537 S.W.3d 463, 471 (Tex. 2017)

(“A person injured on another’s property may have either a negligence claim or a premises-liability claim

against the property owner.… When the injury is the result of the property’s condition rather than an activity,

premises-liability principles apply;” otherwise, the claim sounds in general negligence.) (citations omitted).

Because the Campbells claim injuries flowing from RaceTrac’s operational choices and not a physical

condition, theirs’ is a general negligence claim. See id.

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related to the scope of his authority. And closing the restroom was not a statutory violation.

Therefore, the Court finds that this bare and conclusory factual assertion does not support a

reasonable inference that RaceTrac breached its duty in this way. See Iqbal, 556 U.S. at 678.

The Court finds that the Campbells have not pled specific facts that plausibly support an

inference that RaceTrac breached its duty under a theory of general negligence. Therefore, they have

not stated a claim for general negligence. Accordingly, the Court DISMISSES WITHOUT

PREJUDICE the Campbells’ general negligence claim.

E. Negligent Hiring and Negligent Supervision3

The Campbells bring a negligent hiring and supervision claim, stating that Woods was a

RaceTrac employee, that “RaceTrac negligently hired and retained [Woods] as an employee who

was incompetent or unfit for the job” when it “had a duty to make sure [Woods] was competent and

qualified to work in a position of customer service and interaction with the general public,” and that

“on information and belief, [RaceTrac] also negligently hired” the supervisor on duty at the time of

the alleged assault. Doc. 1-1, Original Pet., ¶¶ 50–51. The Campbells allege that a store manager was

present at the time of the events and that this manager deliberately chose not to adequately and

competently supervise Woods. Id. ¶ 51. Instead, this supervisor “chose not to become involved or

otherwise take control of the situation.”4 Id. RaceTrac states that the Campbells’ claims related to

3 The Campbells include allegations of RaceTrac’s negligent supervision within their general

negligence claim. However, Texas courts often consider negligent supervision with negligent hiring, using

the same elements and analysis for both. See Harris v. Mastec N. Am., Inc, 2020 WL 6305028, at *7 (Tex.

App.—Dallas Oct. 28, 2020, no writ); Houser v. Smith, 968 S.W.2d 542, 544 (Tex. App.—Austin 1998, no

pet.) The Court therefore construes the Campbells’ supervisory-based negligence claims as a claim for

negligent supervision and considers this claim together with the negligent hiring claim.

4 The Campbells alternatively claim that Woods was alone and serving as a manager, as discussed

infra note 5. Id. at ¶ 39.

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negligent hiring and supervision are conclusory and unsupported by factual allegations. Doc. 12,

Def.’s Mot., 6.

The Texas Supreme Court “ha[s] not ruled definitely on the existence, elements, and scope

of torts such as negligent retention and supervision of an employee by an employer and related torts

such as negligent hiring and training.” Pagayon v. Exxon Mobil Corp., 536 S.W.3d 499, 505 (Tex.

2017) (quoting Waffle House, Inc.v. Williams, 313 S.W.3d 796, 804 n.27 (Tex. 2010)) (alteration in

original); Endeavor Energy Res., L.P. v. Cuevas, 593 S.W.3d 307, 311 (Tex. 2019). But lower courts

have held that “[a]n employer may have direct liability for an employee’s negligent conduct if the

employer failed to properly hire, train, or supervise the employee and the plaintiff’s injuries arose from

the employer’s conduct.” Harris v. Mastec N. Am., Inc., 2020 WL 6305028, at *7 (Tex. App.—Dallas

Oct. 28, 2020, no pet.) (citing Patino v. Complete Tire, Inc., 158 S.W.3d 655, 660 (Tex. App.—Dallas

2005, pet. denied)); Houser v. Smith, 968 S.W.2d 542, 544 (Tex. App.—Austin 1998, no pet.). A

claim for negligent hiring or supervision is based upon two separate acts: (1) the employer’s

negligence in hiring or supervising the employee, and (2) the employee’s subsequent negligent act

that caused the plaintiff’s injuries. See Cuevas at 311; Harris, 2020 WL 6305028, at *7 (discussing

a negligent hiring and supervision claim based on an employee’s assault of a customer). The plaintiff

must show “that the [employee’s] negligence proximately caused the harm” and “that the risk that

caused [the hiring or supervision] to be negligent also proximately caused the plaintiff’s injuries.” See

Cuevas, 593 S.W.3d at 311 (citing TXI Transp. Co. v. Hughes, 306 S.W.3d 230, 240 (Tex. 2010));

Harris, 2020 WL 6305028, at *7.

Here, to avoid dismissal for failure to state a claim, the Campbells must plead facts that, taken

as true and viewed in the light most favorable to them, would plausibly support an inference that

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RaceTrac’s hiring process negligently failed to discover some information that would have put it on

notice that Woods might foreseeably assault a customer, or that RaceTrac’s supervision was negligent

in some specific way that resulted in the Campbells’ injury. See, e.g., Houser, 968 S.W.2d at 545;

LaBella v. Charlie Thomas, Inc., 942 S.W.2d 127, 137 (Tex. App.—Amarillo 1997, writ denied); see

also Lozano v. Baylor Univ., 408 F. Supp. 3d 861, 896 (W.D. Tex. 2019).

The Campbells have met this burden for their negligent supervision claim, but not for their

negligent hiring claim. As to negligent hiring, the Campbells offer only conclusory statements that

RaceTrac negligently hired an “incompetent or unfit” employee and supervisor. Doc. 1-1, Original

Pet., ¶¶ 50–51. This is not sufficient. See Iqbal, 556 U.S. at 664 (noting that legal conclusions are not

“entitled to the assumption of truth”). Therefore, the Court finds that the Campbells have failed to

state a claim for negligent hiring.

The Campbells plead negligent supervision with slightly more specificity, stating that “a store

manager was present during the altercation and deliberately chose” not to “adequately and

competently supervise [Woods],” take control of the situation, or otherwise intervene. Doc. 1-1,

Original Pet., ¶ 51 (emphasis added). Assuming (as the Court must) that this is true, such a choice

might breach a duty owed by an employer to a customer.5 See Pagayon, 536 S.W.3d at 506. And, such

5 The Court notes that the Texas Supreme Court has disapproved of finding that an employer had

a duty to a third party, based on a theory of negligent supervision, in Pagayon, which presented somewhat

analogous facts. 536 S.W.3d at 506. In that case, the court emphasized that ascertaining whether a duty exists

is a threshold “question of law for the court to decide from the facts surrounding the occurrence in question.”

Id. at 503. Before finding that the employer has a duty on which a claim of negligent supervision can stand,

a court must “analyze[]the risk, foreseeability, and likelihood of injury in requiring employers to control

employees, versus the burdens on and consequences to employers, and the social utility and realities of the

workplace.” Id. at 506. “It is not enough simply to require employers, or others, to exercise ordinary care in

all circumstances.” Id. Instead, “Texas law requires the court to be more specific, to balance the relevant

factors in determining the existence, scope, and elements of legal duties.” Id. In conducting this duty analysis,

“the material facts are . . . viewed in the light required by the procedural posture of the case,” while “[t]he

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nonaction in the face of a volatile argument might foreseeably lead to further conflict and a

customer’s injury. But see id. (finding that “[t]he foreseeability of injury is small” where

“disagreements . . . had been matters of words until the fistfight suddenly broke out”). Moreover, the

Campbells plead that the alleged assault caused them injury including “severe anxiety, fear, and

mental anguish” and “damages to their vehicle.” Id. ¶ 33. Viewed in the light most favorable to the

Campbells, these facts might plausibly support an inference that RaceTrac owed a duty to the

Campbells in this situation and that its negligent supervision and Woods’ negligence were the but

for and proximate cause of the Campbells’ claimed injuries. Thus, the Court finds that the Campbells

have pled sufficient facts to state a claim for negligent supervision.

The Court finds that the Campbells have stated a claim for negligent supervision but have

not pled specific facts to state a claim for negligent hiring. Accordingly, the Court DISMISSES

WITHOUT PREJUDICE the Campbells’ negligent hiring claim.

F. Exemplary Damages

The Campbells state that RaceTrac is liable, as a principal, for punitive or exemplary damages

as a result of the acts of its agent Woods. Doc. 16, Pl.’s Resp., ¶ 64–65. The Campbells base this

policy components of the factors—including the nature of the covered risks and general foreseeability—are

policy issues for the court to consider as a matter of law.” Id. at 504. Pagayon was decided after the case’s

factual issues had been resolved at trial. Id. at 503. Noting that the facts were therefore undisputed, the court

held that the employer convenience store operator did not have a duty to stop its employees from engaging

in a fistfight that led to a third-party’s death, where the dispute was personal, the employees’ “disagreements

. . . had been matters of words until the fistfight suddenly broke out,” and the injuries incurred as a result of

the fight were unforeseeable. Id. at 506. By contrast, the instant case is before the Court on a 12(b)(6) motion

to dismiss. The facts as presented by the Campbells are somewhat distinguishable from those presented in

Pagayon and are less developed. Therefore, the Court declines to find at this stage that RaceTrac did not owe

a supervisory duty to the Campbells as a matter of law.

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argument on the fact that RaceTrac “failed to act and deliberately chose to ignore the situation and

[Woods’s] acts and failed to de-escalate his behavior.” Id., ¶ 65. RaceTrac states that the Campbells

“fail to plead any facts to demonstrate or even suggest that RaceTrac acted with ‘malice’ or ‘specific

intent’ to harm the Campbells” and that their claims therefore fail to meet the pleading standard

required by Rule 8. Doc. 19, Def.’s Reply, 10.

Under Texas law:

A principal . . . is liable for exemplary or punitive damages because of the acts of his agent,

but only if: ‘(a) the principal authorized the doing and the manner of the act, or (b) the agent

was unfit and the principal was reckless in employing him, or © the agent was employed in

a managerial capacity and was acting in the scope of employment, or (d) the employer or a

manager of the employer ratified or approved the act.’

Purvis v. Prattco, Inc., 595 S.W.2d 103, 104 (Tex. 1980) (quoting Fischer v. Carrousel Motor

Hotel, Inc., 424 S.W.2d 627 (Tex. 1967)).

Here, the Court has explained above that the pleadings do not establish that RaceTrac

“authorized the doing or manner of” Woods’s alleged assault. See Purvis, 595 S.W.2d at 104. So, the

first prong does not apply. Likewise, the Court has explained above that the Campbells have not

sufficiently alleged that RaceTrac was reckless in employing Woods. So, the second prong does not

apply. Further, the Court has concluded above that Woods’s alleged assault was not within the scope

of his employment, so even if he was employed in a managerial capacity, the third prong does not

apply.6 Finally, as the Court explained above, there is no evidence that RaceTrac ratified Woods’s

6 The Campbells have alternatively pled that Woods was working alone at the time of the event and

therefore may have been functioning as a manager. Doc. 16, Pl.’s Resp.,¶ 65. They appear to cite Purvis for

the proposition that an employee who is left charge of the premises overnight may be a manager. See Doc. 16,

Pl.’s Resp.,¶ 65 (citing Purvis, 595 S.W.2d at 105). However, Purvis involved an employee who was acting

in the scope of his employment when committing the allegedly tortious act. 595 S.W.2d at 105. The same

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acts. So, the fourth prong does not apply.

Accordingly, the Court DISMISSES WITHOUT PREJUDICE the Campbells’ exemplary

damages claim.

G. Amendment of Pleadings

The Campbells did not request leave to amend their pleadings if the Court determined they

have failed to state a claim upon which relief can be granted. But see Doc. 16, Pl.’s Resp., 29

(requesting all relief to which Plaintiff may be justly entitled). However, under the Federal Rules of

Civil Procedure, the court should freely give leave to amend when justice so requires. See Fed. R. Civ.

P. 15(a)(2). The decision to allow amendment of a party’s pleadings is within the sound discretion

of the district court. Foman v. Davis, 371 U.S. 178, 182 (1962); Norman v. Apache Corp., 19 F.3d

1017, 1021 (5th Cir. 1994). In determining whether to allow such amendment, a court considers the

following: “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to

cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue

of allowance of the amendment, [and] futility of amendment.” Foman, 371 U.S. at 182; Schiller v.

Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003) (citation omitted).

Here, the Court finds that it is in the interest of justice that the Campbells be given one

opportunity to replead the claims the Court has deemed insufficiently alleged and for which

amendment would not be futile. Accordingly, the Court GRANTS LEAVE to Plaintiffs to file an

amended complaint pleading additional facts to sufficiently support their claims for general

is true in the other case cited by the Campbells, Ramos. See Doc. 16, Pl.’s Resp.,¶ 65 (citing 784 S.W.2d at

668).

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negligence, negligent hiring, and exemplary damages (as to the reckless hiring prong only), within

FOURTEEN (14) days of the date of this Order, should they choose to do so.

IV.

CONCLUSION

For the reasons stated above, the Court GRANTS IN PART and DENIES IN PART

Defendant’s motion to dismiss (Doc. 12).

The Court DENIES Defendant’s motion with regard to the negligent supervision claim.

The Court GRANTS Defendant’s motion and DISMISSES WITH PREJUDICE Plaintiffs’

claims for violation of the DTPA, assault, and negligence per se.

The Court DISMISSES WITHOUT PREJUDICE Plaintiffs’ claims for general negligence,

negligent hiring, and exemplary damages. Plaintiffs may file an amended complaint as to the general

negligence, negligent hiring, and exemplary damages claims only, either omitting or remedying any

claims deemed insufficiently alleged, within FOURTEEN (14) days of this Order.

SO ORDERED.

SIGNED: October 5, 2021.

JA}E J. BOY

ff S DISTRICT JUDGE

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