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

Opinion Issued July 31, 2008

Opinion Issued

July 31, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-01121-CV

ROSE BARTON, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF CHRISTOPHER MARTIN DEAN, Appellant

V.

WHATABURGER, INC., Appellee

On Appeal from the 157th District Court

Harris County, Texas

Trial Court Cause No. 2003-30240

O P I N I O N

This negligence case arises from the aggravated

robbery of a Whataburger restaurant and the resulting murder of one of its

employees on duty during the robbery. Rose Barton, individually and on behalf

of the estate of her son, Christopher Dean, the Whataburger employee who was

murdered, appeals the trial court’s summary judgment entered in favor of

Whataburger, Inc. Barton contends that the trial court erred in granting summary

judgment on her claim that Whataburger was negligent in (1) hiring Gregory Love

to manage its restaurant, as he conspired to commit the robbery that led to the

murder; (2) failing to provide a safe workplace for Dean; and (3) failing to

exercise reasonable care to prevent the robbery. We conclude that the trial court properly

granted summary judgment because the aggravated robbery leading to

murder was not foreseeable as a matter of law.

Background

On a night in May 2003, Love was working as a

night manager at a Whataburger restaurant in northwest Houston. Also on duty that night was Dean, a mentally impaired

employee who had worked for Whataburger for fourteen years. Love arrived early

for his shift that evening, allowing Arthur Murray, another manager, to leave.

Murray and Love agreed that Love would count the cash that had accumulated in

the registers during Murray’s shift and place it in the store safe.

Shortly after Murray left the Whataburger, Love

called Murray and told him that he also needed to leave work. Love asked Murray if he could leave Dean in charge of the restaurant. Murray responded that Dean was

capable of running the restaurant, but he could not authorize Love to delegate

his managerial power to Dean.

Love did not ask Murray to return, and instead

disregarded Murray’s warnings, left the restaurant, and put Dean in charge.

Love did not count the money in the cash registers or deposit any money in the safe before he left. When Dean discovered that Love had not counted the money in

the registers, he counted it and deposited the excess in the safe. Love never

returned to the restaurant that night.

At around 4:00 a.m., three men, later identified

as Gerald Marshall, Ronald Worthy, and Kenny Calliham, attempted to rob the

Whataburger. Marshall gained access to the interior of the restaurant by

climbing through the drive-through window. Marshall chased Dean, eventually

into the back of the restaurant, where he demanded that Dean give him the key

to the safe. Marshall told Dean that if Dean did not give him the key to the

safe, Marshall would shoot him. Dean repeatedly told Marshall that he did not

have a key to the safe and could not comply with Marshall’s demands. When Dean

failed to produce the key, Marshall shot him in the face and fled the scene

with Worthy and Calliham. Dean died immediately. The robbers left with nothing, but

afterward robbed a Shipley Doughnut store equipped with video surveillance.

Police later connected Love to the robbery, and

the State charged him with capital felony murder under the law of parties. Love

v. State , 199 S.W.3d 447, 449, 452 (Tex. App.—Houston [1st Dist.] 2006,

pet. ref’d). A jury found Love guilty, and the trial court assessed punishment

at life in prison. Id. at 449 . Our court affirmed the conviction. Id.

Barton sued Whataburger

under the Texas wrongful death statute, asserting that Whataburger’s negligence

proximately caused Dean’s death. See Tex.

Civ. Prac. & Rem. Code Ann . §§ 71.002(a)–(b), 71.004(a) (Vernon

2008). Whataburger moved for a no-evidence summary judgment on Barton’s

negligence claim, asserting that Barton had produced no evidence of duty,

breach, or proximate cause. The trial court granted a final summary judgment

in favor of Whataburger.

Analysis

Standard of

Review

In a Rule 166a(i)

no-evidence summary judgment, the movant represents that no evidence exists as

to one or more essential elements of the non-movant’s claims, upon which the

non-movant has the burden of proof at trial. Tex.

R. Civ. P. 166a(i). The non-movant then must present evidence raising a

genuine issue of material fact on the challenged elements. Id. A

no-evidence summary judgment is essentially a pre-trial directed verdict. Bendigo v. City of Houston , 178 S.W.3d 112 , 113–14 (Tex. App.—Houston [1st Dist.] 2005, no pet.). A fact issue exists if the evidence “rises to a level

that would enable reasonable and fair-minded people to differ in their

conclusions.” King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003) (quoting Merrell Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997)). If the evidence does no more than create a mere surmise or suspicion of fact,

less than a scintilla of evidence exists, and summary judgment is proper. Transp.

Ins. Co. v. Faircloth , 898 S.W.2d 269, 282 (Tex. 1995); Macias v. Fiesta

Mart, Inc. , 988 S.W.2d 316, 317 (Tex. App.—Houston [1st Dist.] 1999, no

pet.). A respondent is not required to marshal its proof to defeat a

no-evidence motion for summary judgment; she need only point out evidence that

raises a fact issue on the challenged elements. Tex. R. Civ. P. 166a(i) cmt. (1997).

Because the trial court’s summary judgment does

not specify the ground on which the court relied for its ruling, we should

affirm it if any theory advanced by Whataburger has merit. See Weiner v.

Wasson , 900 S.W.2d 316 , 317 n.2 (Tex. 1995) .

Nonsubscribers and Negligence

Whataburger is a nonsubscriber to the Texas

Workers’ Compensation Act. See Tex.

Lab. Code Ann. § 406.002(a) (Vernon 2006) (“Except for public employers

and as otherwise provided by law, an employer may elect to obtain workers’ compensation

insurance coverage.”). “In an action . . . against an employer who does not

have workers’ compensation insurance coverage, the plaintiff must prove

negligence of the employer or of an agent or servant of the employer acting

within the general scope of the agent’s or servant’s employment.” Id. § 406.033(d) (Vernon 2006). Contributory negligence is not a defense in

nonsubcriber cases. Id. § 406.033(a)(1); Kroger Co. v. Keng , 23

S.W.3d 347, 352 (Tex. 2000) .

A negligence cause of action has four elements:

(1) a legal duty owed by one person to another, (2) a breach of that duty, and

(3) damages (4) proximately caused by the breach. D. Houston, Inc. v. Love ,

92 S.W.3d 450, 454 (Tex. 2002). In the context of the employer-employee relationship, a

company has a duty (1) to provide rules for the safety of employees, and to

warn them of reasonably foreseeable hazards; (2) to furnish reasonably safe

machinery and equipment; (3) to furnish a reasonably safe place to work; and

(4) to exercise ordinary care to select careful and competent fellow

employees. Fort Worth Elevators Co. v. Russell , 123 Tex. 128 , 135–36, 70 S.W.2d 397, 401 (1934); see also Kroger Co. v. Elwood ,

197 S.W.3d 793, 794 (Tex. 2006); Humble Sand & Gravel, Inc. v. Gomez ,

146 S.W.3d 170 , 186 n.45 (Tex. 2004). An employer, however, is not an insurer

of its employees’ safety. Elwood , 197 S.W.3d at 794 ; Leitch v.

Hornsby , 935 S.W.2d 114, 117 (Tex. 1996); Exxon Corp. v. Tidwell ,

867 S.W.2d 19, 21 (Tex. 1993).

Whataburger does not dispute that it owed a duty

to Dean, as its employee, but observes that its duty is to protect its

employees from foreseeable harms. The issue in this case, whether analyzed as

a part of the duty element of negligence or the causation element, is the

foreseeability of the criminal conduct that led to Dean’s murder. As the Texas cases that discuss the foreseeability of intervening criminal conduct do so, in the

main, in the context of the element of duty, we do so as well. See, e.g., Timberwalk

Apartments, Partners, Inc. v. Cain , 972 S.W.2d 749, 756 (Tex. 1998) (holding

no legal duty exists to prevent unforeseeable criminal acts); Walker v.

Harris , 924 S.W.2d 375, 377 (Tex. 1996) (holding that duty to protect from

criminal acts “does not arise in the absence of a foreseeable risk of harm”); Houser

v. Smith , 968 S.W.2d 542 , 544–45 (Tex. App.—Austin 1998, no pet.) (in

negligent hiring case, holding that employer had no duty to prevent

unforeseeable criminal conduct of employee); cf. Doe v. Boys Clubs of

Greater Dallas, Inc. , 907 S.W.2d 472, 478 (Tex. 1995) (in intervening

criminal conduct case, holding that plaintiffs failed to raise fact issues on

key elements of each of their claims, particularly on elements of proximate and

producing cause).

Duty and Intervening

Criminal Conduct

The threshold inquiry in a negligence case is duty. Centeq Realty,

Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995). T he

existence of duty is a question of law for a court to decide from the facts

surrounding the occurrence in question. Van Horn v. Chambers ,

970 S.W.2d 542, 544 (Tex. 1998); Siegler ,

899 S.W.2d at 197 ; Greater Houston Transp. Co. v. Phillips ,

801 S.W.2d 523, 525 (Tex. 1990 ). In determining the scope of a

defendant’s duty, we consider the foreseeability of injury weighed against the

magnitude of the burden of guarding against the injury and the consequences of

placing the burden on the defendant. See Otis Eng’g Corp. v.

Clark , 668 S.W.2d 307, 309 (Tex. 1983).

As a general rule, “a person has no legal duty

to protect another from the criminal acts of a third person.” Timberwalk ,

972 S.W.2d at 756 . This is because the criminal conduct of a third party is a

superseding cause that extinguishes any liability of the previous actor. See

Phan Son Van v. Pena , 990 S.W.2d 751, 753 (Tex. 1999); Nixon v. Mr.

Prop. Mgmt. Co., Inc. , 690 S.W.2d 546, 550 (Tex. 1985); Garcia v. El Paso Ltd.

P’ship ,

203 S.W.3d 432, 436 (Tex. App.—El Paso 2006, no pet.); Cowart

v. Kmart Corp. ,

20 S.W.3d 779, 783 (Tex. App.—Dallas 2000, pet. denied). However, if a

criminal’s conduct is a foreseeable result of the prior negligence of a party,

the criminal act may not excuse that party’s liability. See Pena , 990

S.W.2d at 753 ; Nixon , 690 S.W.2d at 550 ; Cowart , 20 S.W.3d at

783 . To impose liability on a defendant for negligence in

failing to prevent the criminal conduct of another, the facts must show more

than conduct that creates an opportunity to commit crime—they must show both

that the defendant committed negligent acts and that it knew or should have

known that, because of its acts, the crime (or one like it) might occur. This

legal principle is imparted in the Restatement (Second) of Torts, which states:

The act of a third person in committing an

intentional tort or crime is a superseding cause of harm to another resulting

therefrom, although the actor’s negligent conduct created a situation which

afforded an opportunity to the third person to commit such a tort or crime,

unless the actor at the time of his negligent conduct realized or should have

realized the likelihood that such a situation might be created, and that a

third person might avail himself of the opportunity to commit such a tort or

crime.

Restatement

(Second) of Torts § 448 (1965); see also Pena ,

990 S.W.2d at 753 ; Humble Oil & Ref. Co. v. Whitten , 427 S.W.2d 313,

315 (Tex. 1968) (discussing Restatement (Second) of Torts § 442,

which identifies factors to be considered in determining whether intervening

force rises to level of superseding cause).

Thus, to impose a legal duty to

prevent the criminal conduct of another, the crime must have been reasonably

foreseeable at the time the defendant engaged in negligent conduct. Foreseeability

exists if the actor, as a person of ordinary intelligence, should have

anticipated the dangers his negligent act creates for others. D. Houston , 92 S.W.3d at 454 . A danger is foreseeable if its general character might

reasonably be anticipated, if not its precise manner. Travis v. City of Mesquite , 830 S.W.2d 94, 98 (Tex. 1992); Nixon , 690 S.W.2d at 551 . The

question involves a practical inquiry, based on common experience applied to

human conduct, and asks whether the injury might reasonably have been

contemplated as a result of the defendant’s conduct. Doe , 907 S.W.2d at

478 . Importantly, “[f]oreseeability requires more than someone, viewing the

facts in retrospect, theorizing an extraordinary sequence of events whereby the

defendant’s conduct brings about the injury.” Id. Under the Texas

Supreme Court’s jurisprudence, we examine whether Barton raises facts that

could lead a reasonable juror to conclude that Whataburger should have

anticipated the criminal danger created by its alleged negligence. See id.

Negligent Hiring

Barton first contends

that Whataburger’s negligence in hiring Love as a restaurant manager caused the

aggravated robbery that led to Dean’s murder. Although no copy of the actual

conviction and judgment appears in this record, Barton produced evidence of an

investigative report that states that, in September 1993, Love was convicted of

a felony offense of “dealing cocaine” in Indiana, and served one year in jail.

Deposition testimony also indicates that a report exists that, nine years

later, Love was convicted of felony nonpayment of child support in Texas, in November 2002, the week before he applied for a managerial position at Whataburger. [1]

Whataburger performed a background check on Love before hiring him, but only

searched for criminal convictions in Harris County that occurred between

November 1995 and November 2002. The search did not reveal either of the two

felony convictions. Barton alleges that Whataburger’s failure to conduct an

adequate background check ultimately caused the aggravated robbery that led to

Dean’s murder.

While Love’s convictions,

if discovered, should have raised Whataburger’s suspicions about his fitness to

manage a restaurant, under Texas law, they did not make his eventual

participation in an aggravated robbery leading to murder reasonably

foreseeable. See Houser v. Smith , 968 S.W.2d 542, 545 (Tex. App.—Austin

1998, no pet.) (“[w]hether [defendant] would have fired [the criminal actor]

had he discovered . . . forgery convictions is irrelevant . . . the question

presented is whether . . . criminal conduct and the type of harm that befell

[plaintiff] were foreseeable and presented a risk that [defendant] was required

to guard against . . . . Under these facts, we hold the conduct and

harm were not foreseeable . . . .”). Even assuming that information about

Love’s prior convictions, if known, would have torpedoed Love’s employment with

Whataburger, his criminal acts of selling cocaine and failing to pay child

support are different from an aggravated robbery—neither crime inherently

requires violence or theft, the two essential ingredients of an aggravated

robbery. See Tex. Penal Code Ann .

§ 29.03 (Vernon 2003) (defining aggravated robbery as robbery in which person

either causes serious bodily injury or uses or exhibits deadly weapon) and §

29.02 (defining robbery as theft coupled with bodily injury or threat of

imminent bodily injury or death). The record contains no evidence that the

events underlying either of Love’s convictions involved violence or theft, or

that Love engaged in any conduct during the seven months he was employed at

Whataburger that would have made his participation in an aggravated robbery

foreseeable. Even viewed in hindsight, Love’s convictions for selling cocaine

and nonpayment of child support do not indicate a propensity for violent

criminal conduct, like aggravated robbery and murder. Thus, we hold that Love’s

own criminal behavior, and that of his cohorts, is a superseding cause that

precludes Whataburger’s liability for these crimes. Compare Fifth Club, Inc. v. Ramirez , 196

S.W.3d 788 , 796–97 ( Tex. 2006) (holding that

employee’s failure to comply with requirement in peace officer manual and his

reprimand for using profanity to member of public did not make his assault of

customer foreseeable), Doe , 907 S.W.2d at 478 (holding

that employee’s two DWI convictions did not make his sexual assault

foreseeable), Houser , 968 S.W.2d at 545 (holding that mechanic’s three

prior forgery convictions did not present foreseeable risk that he would commit

sexual assault), and Frith v. Fairview Baptist Church , No.

05-01-01605-CV, 2002 WL 1565664 , at *1, *4 (Tex. App.—Dallas July 17, 2002,

pet. denied) (mem. op.) (holding that employee’s convictions for burglary,

possession of controlled substance, public intoxication, possession of

marijuana, unlawful carrying of weapon, and evading arrest did not make his

sexual assault of child foreseeable) with Read v. Scott Fetzer Co. ,

990 S.W.2d 732, 734, 737 (Tex. 1998) (holding that employee’s deferred

adjudication for indecency with child could make sexual assault of customer

foreseeable when sales were made in customers’ homes), and Deerings W.

Nursing Ctr. v. Scott , 787 S.W.2d 494, 496 (Tex. App.—El Paso 1990,

writ denied) (holding that nurse’s fifty-six prior convictions for theft made

his assault on elderly female visitor foreseeable).

In her appellate

brief, Barton calls our attention to criminal cases that note the connection

between drugs and violence. See, e.g. , Harmelin v. Mich. , 501

U.S. 957, 1002 , 111 S. Ct. 2680, 2706 (1991) (Kennedy, J., concurring)

(upholding life sentence for possession of 650 grams of cocaine against Eighth

Amendment challenge, noting that “Petitioner’s suggestion that his crime was

nonviolent and victimless . . . is false to the point of absurdity. To the

contrary, petitioner’s crime threatened to cause grave harm to society.”); United

States v. Brown , 188 F.3d 860, 865 (7th Cir. 1999) (“ Drug

dealing is a ‘crime infused with violence.’” (quoting United States v.

Gambrell , 178 F.3d 927, 929 (7th Cir. 1999))) ; United

States v. Brown , 913 F.2d 570 , 572 (8th Cir.

1990) (“Since weapons and violence are frequently associated with drug

transactions, the officers reasonably believed that the individuals with whom

they were dealing were armed and dangerous.”); United States v. Trullo ,

809 F.2d 108, 113 (1st Cir. 1987) (“In the instant case, the officer suspected

appellant of dealing in narcotics, a pattern of criminal conduct rife with

deadly weapons.”); United States v. Post , 607 F.2d 847, 851 (9th Cir.

1979) (“It is not unreasonable to suspect that a dealer in narcotics might be

armed.”); United States v. Oates , 560 F.2d 45, 62 (2d Cir. 1977)

(“Indeed, even apart from the agent’s personal experiences, we have recognized

that to ‘substantial dealers in narcotics’ firearms are as much ‘tools of the

trade’ as are most commonly recognized articles of narcotics paraphernalia.”

(quoting United States v. Wiener ,

534 F.2d 15, 18 (2d Cir. 1976) )); Carmouche v. State , 10

S.W.3d 323, 330 (Tex. Crim. App. 2000) (“In the instant case, Largent stopped

appellant pursuant to an articulable suspicion that appellant was trafficking

in cocaine. Based on this limited knowledge of appellant’s suspected

activities, the officers justifiably approached appellant with caution. It was

not unreasonable to conduct a limited search for weapons in these circumstances.”);

Lemons v. State , 135 S.W.3d 878, 884 (Tex. App.—Houston [1st Dist.]

2004, no pet.) (“McGann testified that, as a result of his experience and

training, when he is involved in narcotics situations, he conducts pat-downs to

check for weapons because there is a greater chance of weapons being

present.”). These decisions in criminal cases address the constitutionality of

a Terry stop by a police officer, or of severe punishment for possession

of large quantities of drugs.

We acknowledge

that courts, including ours, have recognized a street-level connection between

drugs, weapons, and violence. This connection provides police officers with

the constitutionally required reasonable suspicion to conduct a Terry

stop, or a legislature with a justification for imposing harsher sentences on

drug offenders. See Harmelin , 501 U.S. at 1002–03, 111 S. Ct. at 2706 ; Terry

v. Ohio , 392 U.S. 1, 27 , 88 S. Ct. 1868, 1883 (1968). But this connection

is stereotypical, and is necessary to protect police officers and to deter drug

crimes. See Harmelin , 501 U.S. at 1002 , 111 S. Ct. at 2706 ; Terry ,

392 U.S. at 27 , 88 S. Ct. at 1883 .

A stereotypical

connection, however, is insufficient to raise more than a scintilla of evidence

that a person convicted of selling cocaine, without any accompanying evidence

of violence, will foreseeably commit aggravated robbery leading to murder in

the future. Here, we have no evidence that Love’s cocaine sale involved any

sort of violence or a weapon. While the smell of marijuana or the suspicion

that a defendant possesses narcotics might provide a police officer sufficient

justification to frisk a suspect for weapons under Terry , a

seven-year-old conviction for “dealing” cocaine, standing alone, does not make

it foreseeable that a defendant will commit a violent crime in the future.

Compare Terry , 392 U.S. at 27 , 88 S. Ct. at 1883 , Brown , 188 F.3d at

865 , Brown , 913 F.2d at 572, and

Trullo , 809 F.2d at 113 , with Ramirez ,

196

S.W.3d at 796–97, Doe , 907 S.W.2d at 478 , and Frith ,

2002 WL 1565664 , at *4. Without any indication that a past crime involves

weapons or violence, that past crime does not indicate a propensity for future violent,

assaultive criminal conduct sufficient to impose liability on another who

failed to detect the past crime. See Ramirez ,

196

S.W.3d at 796–97; Doe , 907 S.W.2d at 478 ; Frith ,

2002 WL 1565664 , at *4. We therefore hold that Barton has failed to produce

more than a scintilla of evidence that, even assuming that Whataburger should

have discovered Love’s criminal history, given that history, it was reasonably

foreseeable that Love would conspire in the aggravated robbery that resulted in

Dean’s murder. See Chapman , 118 S.W.3d at 751 ; Jackson v. Fiesta Mart, Inc. , 979 S.W.2d 68 , 70–71 (Tex. App.—Austin 1998, no pet.).

Failure to Provide a Safe

Workplace

Barton further contends that, even if it was

not legally foreseeable that Love would engineer the crime that resulted in

Dean’s murder, Whataburger generally knows of an increased risk of a violent

crime occurring at restaurants open late at night and should have taken

reasonable security measures to prevent it. Relying on the Texas Supreme

Court’s decision in Timberwalk , Whataburger responds that the robbery

that occurred was not reasonably foreseeable on this basis either. 972 S.W.2d

at 756 .

Employees are the invitees of their employer. Hernandez

v. Heldenfels , 374 S.W.2d 196, 197 (Tex. 1963) ; Allen v. Connolly ,

158 S.W.3d 61, 65 (Tex. App.—Houston [14th Dist.] 2005, no pet.). In

Timberwalk , the Texas Supreme Court held that “[w]hen general danger

to invitees is the risk of injury from criminal activity by third parties, the

evidence must reveal specific previous crimes on or near the premises in order

to establish foreseeability of harm.” 972 S.W.2d at 756 ; Allen ,

158 S.W.3d at 66 . We determine whether the risk of criminal conduct was

foreseeable to Whataburger “in light of what the premises owner knew or should

have known before the criminal act occurred.” Timberwalk , 972 S.W.2d at

757 ; Allen , 158 S.W.3d at 66 . In that vein, we consider (1) whether

any criminal conduct previously occurred on or near the property, (2) how

recently it occurred, (3) how often it occurred, (4) how similar the conduct

was to the conduct under review, and (5) the publicity of the occurrences, as

to indicate that the landowner knew or should have known about them. Timberwalk ,

972 S.W.2d at 757 ; Stewart v. Columbia Med. Ctr. of McKinney Subsidiary,

L.P. , 214 S.W.3d 659, 663 (Tex. App.—Dallas 2007, pet. denied).

As an initial matter,

Barton contends that the Timberwalk analysis should not apply in this

case because Timberwalk dealt with premises liability and the duty owed

to invitees, not the nondelegable duties an employer owes to its employees. Although

premises liability and employer liability are distinct theories, the Texas

Supreme Court has observed that “the nature of the duty of the landowner to use

reasonable care to make his premises reasonably safe for the use of his

invitees may, in all material respects, be identical with the nature of the

duty of the master to use reasonable care to provide his servant with a

reasonably safe place to work . . . .” Sears, Roebuck &

Co. v. Robinson , 154 Tex. 336, 340 , 280 S.W.2d 238, 240 (1955); see Allen ,

158 S.W.3d at 65 . The incidence of violent crime, the foreseeability of

violent crime on Whataburger’s premises, and the preventative measures that

Whataburger could or did implement in view of the risk of such crime were the

same for Whataburger in its capacity as employer as they were for Whataburger

in its capacity as premises occupier. See Allen , 158 S.W.3d at 66 ; see

also Wise v. Complete Staffing Servs., Inc. , 56 S.W.3d 900, 905 (Tex.

App.—Texarkana 2001, no pet.) (in context of preventing criminal conduct,

noting lack of authority “imposing an expanded duty on an employer or

suggesting that an employee under this type of allegation of harm is a part of

a specially protected group”). In Texas, no legal basis exists to treat Whataburger’s duty to exercise reasonable care, as an

employer, in providing a reasonably safe workplace differently from

Whataburger’s duty, as premises occupier, to use ordinary care in protecting

invitees from criminal acts of third parties. Robinson ,

280 S.W.2d at 240 ; Allen , 158 S.W.3d at 66 . We thus agree with our

sister court of appeals that the Timberwalk analysis applies in the

context of an employer’s duty to exercise reasonable care in providing a safe

workplace for its employees when an employee asserts that the employer breached

its duty by failing to protect the employee from criminal acts. See Allen ,

158 S.W.3d at 66 ; see also Gibbs v. ShuttleKing, Inc. , 162 S.W.3d 603 ,

609–10 (Tex. App.—El Paso 2005, pet. denied) (applying Timberwalk

analysis in context of employer-employee relationship).

Barton further contends

that the Timberwalk analysis should not apply in this case because the

robbers perpetrated their crime with the assistance of Love, Whataburger’s

manager on duty. Barton asserts that the Timberwalk factors, which are

used to determine the foreseeability of a criminal act on an owner’s premises,

apply only to random crime, not to a targeted crime accomplished by, or with

the assistance of, an insider. See Timberwalk , 972 S.W.2d at 757–59.

Barton is correct that the Timberwalk factors are more applicable to

random crime than targeted crime, but the preventative measures that Barton

contends Whataburger should have implemented to prevent a robbery by a random

criminal or an insider are the same, save for Whataburger’s decision to hire

Love in the first instance. In this sense, the Timberwalk factors

assist in determining whether fact issue exists as to the foreseeability of the

robbery based on the evidence that Barton advances regarding the general

foreseeability of criminal activity at the restaurant. See id. And, the

Dallas Court of Appeals used the Timberwalk factors in analyzing the

foreseeability of targeted crime. See Stewart , 214 S.W.3d at 663

(applying Timberwalk to test foreseeability of targeted shooting of

employee).

Barton produced

some evidence of criminal activity at the Whataburger in the years preceding

Dean’s murder: in July 1997, six years before the incident, a customer was shot

in the parking lot, and another customer in the drive-through lane was robbed

and shot in the thigh; in July 1998, a customer was robbed in the drive-through

lane; in June 1999, a customer’s purse was stolen; in July 2000, a customer

reported an assault (without injury); in April 2001, a woman sought help in the

Whataburger, reporting that she had been shot; in August 2001, a woman reported

an assault (without injury); in February 2002, a woman reported that her car

was stolen from her in the parking lot; in April 2002, one customer

intentionally hit another customer’s vehicle in the drive-through lane (with

property damage but not injury); and, in February 2003, police arrested a

person who refused to leave the premises. [2]

In contrast,

no evidence exists that the Whataburger was the scene of any aggravated

assault, aggravated robbery, sexual assault, or murder in the three years prior

to Dean’s murder. No crime similar to this one had ever occurred: no one had

ever robbed the restaurant before, nor had it ever been the scene of any

workplace violence, nor had anyone ever committed any sort of crime against a

Whataburger employee, nor had anyone ever been murdered.

Comparing this evidence with other, similar

cases in Texas, we agree with the trial court that the evidence does not show

the rampant, violent criminal activity sufficient to raise a fact issue about

the foreseeability of the aggravated robbery that resulted in Dean’s murder. See

Timberwalk , 972 S.W.2d at 758 (“On the other hand, the complete absence of

previous crimes, or the occurrence of a few crimes over an extended time

period, negates the foreseeability element.”); Allen , 158 S.W.3d at 67 ; compare

Jai Jalaram Lodging Group, L.L.C. v. Leribeus , 225 S.W.3d 238 , 245–46 (Tex.

App.—El Paso 2006, pet. denied) (holding that no duty existed when incident

reports within two years before, while showing a rise in criminal activity, did

not show any notable frequency nor were they of the kind that would have

facilitated the violent personal crime in question), Gibbs , 162 S.W.3d

at 612 (holding that robbery of bus was not foreseeable because plaintiff

produced no evidence of similar robberies on same bus line), and Allen ,

158 S.W.3d at 67 (holding that sexual assault was not foreseeable because

plaintiff produced no evidence of similar criminal acts on or near defendant’s

premises), with Trammell Crow Cent. Tex., Ltd. v. Gutierrez , 220 S.W.3d 33, 40 (Tex.

App.—San Antonio 2006, pet. granted) (holding that murder at shopping mall was

foreseeable because plaintiff produced evidence of ten violent crimes at mall

in previous two years), and Dickinson Arms-Reo, L.P.

v. Campbell , 4 S.W.3d 333 , 335–36,

346 (Tex. App.—Houston [1st Dist.] 1999, pet. denied) (holding that carjacking

and murder were foreseeable in light of 184 reported criminal incidents on

premises during previous three years).

Barton’s expert also

averred that an undefined area surrounding the restaurant had a crime “index

rate” four times greater than a national average and noted evidence of three

drive-through robberies at other Whataburger restaurants, namely, an attempted

drive-through robbery five miles away at Store No. 263, in November 1998, an

attempted drive-through robbery sixteen miles away at Store No. 462 in December

1998, and a drive-through robbery five miles away at Store No. 605 in April

2003. The expert opined that “an industry standard of foreseeability” exists

because of the well-known high risk of armed robbery to late-night convenience

stores and restaurants, pointing in particular to a study of convenience store

robberies and literature that concludes that “the greatest risk of workplace

violence including homicide (80%) comes from being a victim of an armed

robbery.” Barton further asserts that Whataburger foresaw the risk of crime on

its premises because a previous manager had employed a security guard on the

weekends to work the early morning hours. A new store manager discontinued the

practice in 2002, after determining that it was not cost-effective.

Under Timberwalk ,

general evidence of crime rates and of robberies in other locales cannot create

“an industry standard of foreseeability” sufficient to impose a duty to prevent

crime. See Timberwalk , 972 S.W.2d at 757 ( “Statistics

regarding large or undefined geographic areas do not by themselves make crime

foreseeable at a specific location.”). None of the

robberies occurred at a restaurant closer than five miles to the Whataburger at

issue in this case. “ For a landowner to foresee criminal conduct on

property, there must be evidence that other crimes have occurred on the

property or in its immediate vicinity.” Id. Courts

generally rely on small geographic areas in considering crime in the “immediate

vicinity.” See id. at 757, 759 . (considering apartment complex,

neighboring complexes, and one-mile radius around complex );

see also Mellon Mortgage Co. v. Holder , 5 S.W.3d

654, 664 (Tex. 1999) (considering parking garage and one-quarter mile radius

around garage); Gibbs ,

162 S.W.3d at 612 (holding that evidence of bus robberies in other states did

not make bus robbery in Texas foreseeable); Tex. Real Estate

Holdings, Inc. v. Quach , 95 S.W.3d 395 , 398–99 (Tex. App.—Houston [1st

Dist.] 2002, pet. denied) (considering premises and area of 3.5 square miles

around premises); Campbell ,

4 S.W.3d at 338–39 (considering apartment complex, nearby hotel, two nearby apartment complexes, all located within

one-square-mile); Plowman v. Glenn Willows Apartments , 978 S.W.2d 612,

618 (Tex. App.—Corpus Christi 1998, pet. denied) (considering apartment complex

and neighborhood surrounding complex).

Finally,

Barton’s contention that Whataburger’s earlier employment of a security guard

on the weekends proves the foreseeability of the robbery is unavailing. “ The

mere act of taking preventative measures to protect against the possibility of

future crime is not the same as foreseeing that criminal activity.”

Allen , 158 S.W.3d at 67 . If we equated preventative measures to

foreseeability, we would “ virtually eliminate the foreseeability

requirement for a negligence claim against a person who installs a security

system or takes other preventative measures to guard against crime.” Id. ; accord Stewart , 214 S.W.3d at 665 ; Garcia , 203 S.W.3d at

437–38 (holding that targeted murder committed on premises of Sonic restaurant

was not foreseeable result of Sonic’s failure to employ security guard).

Applying the Timberwalk factors of

proximity, recency, frequency, similarity, and publicity, we conclude that

Barton has failed to raise a fact issue that the aggravated robbery resulting

in Dean’s murder at the Whataburger restaurant was foreseeable, so as to impose

a duty on Whataburger to take reasonable measures to prevent it. See Timberwalk , 972 S.W.2d at 757, 759

(holding that criminal conduct on premises was not foreseeable); Allen ,

158 S.W.3d at 66–67 (same); Quach , 95 S.W.3d at 400–01

(same). [3]

Other Acts of Negligence

Lastly, Barton

contends that Whataburger’s employees were negligent in violating its own

company policies and procedures to minimize the risk of theft or robbery.

Specifically, Barton alleges that Whataburger’s employees committed the

following acts of negligence: (1) store manager Davilyn Spencer left her safe

key at the restaurant at the end of her shift; (2) Murray left his shift early

without notifying Spencer; (3) Murray failed to count the money in the

registers and deposit the excess in the safe at the end of his shift; and (4)

Murray failed to notify Spencer that no manager would be on duty during the

shift in which Dean was killed. Readily available cash, and a key to the safe,

Barton argues, “gave Greg Love exactly what he was looking for” in planning the

robbery.

But, as Texas cases and the Restatement observe, foreseeability requires more than “afford[ing] an

opportunity” to commit a crime. The aggravated robbery and murder at the

Whataburger was an extraordinary event, with the record containing no evidence

that anyone had ever attempted to rob the restaurant, much less at gunpoint,

before. Nothing in the record indicates that Love had any history of

violence. An aggravated robbery and murder is not the ordinary result of the

situation created by Spencer and Murray’s alleged negligence. See Pena ,

990 S.W.2d at 755–56; Whitten , 427 S.W.2d at 315 (noting that

intervening force can rise to level of superseding cause when its operation or

consequences are extraordinary). The evidence is undisputed that t he

robbery was a wrongful act and that at least three of the men involved have been

convicted of Dean’s murder—Marshall is sentenced to death and Love to life in

prison. See Pena ,

990 S.W.2d at 754 ; Whitten , 427 S.W.2d at 315 ; see also

Marshall v. State , 210 S.W.3d 618, 620, 637 (Tex. Crim. App.

2006); Love , 199 S.W.3d at 449,

457 . We hold that these wrongful acts are a superseding cause

of Dean’s death, and the trial court properly granted Whataburger’s no-evidence

summary judgment on Barton’s ordinary negligence claims. See Pena ,

990 S.W.2d at 756 (holding that murder committed by minor gang members was not

foreseeable result of sale of alcohol to gang members); Pichardo

v. Big Diamond, Inc. , 215 S.W.3d 497 , 502–03 (Tex. App.—Fort Worth 2007, no

pet.) (holding that injury caused by criminal fleeing after stealing gas from

gas station was not foreseeable result of station’s policy of not requiring

customers to pre-pay for gas); Garcia , 203 S.W.3d at 437–38

(holding that targeted murder committed on premises of Sonic restaurant was not

foreseeable result of Sonic’s failure to employ security guard); Boggs v. Bottomless Pit

Cooking Team , 25 S.W.3d 818 , 824–25 (Tex. App.—Houston [14th Dist.] 2000, no

pet.) (holding that murder committed by customer was not foreseeable result of

excessive sale of alcohol to customer); Cowart , 20

S.W.3d at 784–86 (holding that murder committed by third party was not

foreseeable result of ammunition sale to minor).

Conclusion

We hold that

the trial court properly granted summary judgment

because the diabolic conduct of others—men who committed aggravated robbery and

murder—was a superseding cause of Dean’s death that was not reasonably

foreseeable to Whataburger. We therefore affirm the judgment of the trial

court.

Jane Bland

Justice

Panel

consists of Chief Justice Radack and Justices Alcala and Bland.

[1]

None of the Indiana or Texas criminal court records, or copies of Love’s convictions, are part of the record in

this case. A “possible matching record” internet report states that Love was

convicted of an offense for “dealing-coke/narcotics,” and that he was sentenced

to two years, five months, and four days. The report provides no further

information about the nature of the offense. The record also shows that one of

Love’s previous employers, Taco Bell, fired him for falsifying his employment

application after the conviction came to light. Love similarly falsely stated

on his application to Whataburger that he had never been convicted of a felony.

[2] Relying on our court’s opinion in Love

v. State , the parties note that, the day before Dean’s murder, Love

met with his fellow conspirators outside the restaurant. 199 S.W.3d 447, 449 (Tex.

App.—Houston [1st Dist.] 2006, pet. ref’d) . As part of his alibi , Love told coworkers that these men “were attempting to

rob someone at the restaurant,” but he had convinced them not to. Id. Love told his boss, Davilyn Spencer, that the men merely had complained

about their food. Id. at 450. Love did not notify police

or management of this event. Id.

[3]

Barton’s expert lists a number of

security measures that the restaurant lacked that placed it below the standard

in the industry for security for an all-night establishment. Among these are

Whataburger’s failures to provide video surveillance, to assess and report

security risks, and to physically prevent ingress to the restaurant through the

drive through window. Whataburger responds that none of these measures would

have prevented this crime, given Love’s involvement and the fact that, later

the same evening, the criminals robbed a Shipley doughnut store that had some

of the security measures that Barton’s expert recommended. Given our holding

that this crime was unforeseeable, we do not address Barton’s allegations of

departure from industry standards or Whataburger’s response that additional

security would have been fruitless, negating any “but for” causation for this

evidence.