In a 2011 premises liability case, two sisters appealed a summary judgment in favor of Little Caesar’s Pizza. The case arose when the sisters were in a restaurant when an armed robbery occurred. Two masked robbers came into the pizzeria, brandished their guns, and threatened the people in the restaurant. The robbers were wearing restaurant uniforms. A robber shot one of the women (Viera) when she and her sister left through the back door, and her sister (Estrada) saw the shooting.
The report showed that the robbers shot at the store managers. They ordered people to the back of the pizzeria and told the customers to run. Several customers, including the sisters, ran out of the open back door. Estrada left before Viera and when she looked back, she saw a gunman shoot three times at her sister. When the police investigated, they found the shooting was an inside job conducted with the help of a restaurant worker who left the back door open.
The sisters sued for negligent security. They claimed that the pizzeria failed to offer adequate security and that it was foreseeable an assault would happen on the property. They sought personal injury damages based on physical injuries, as well as mental anguish and PTSD. The pizzeria moved for summary judgment, arguing that the shooting happened outside the restaurant, there was no duty owed to the sisters, no evidence of causation, no evidence of foreseeability, and alternatively that the claims were barred by the statute of limitations.
The sisters filed a response. They included affidavits by a security consultant, a doctor, and the sister who got shot. The trial court granted the motion for summary judgment
The sisters appealed. On appeal, the restaurant argued it didn’t have a duty to protect the sisters against the possibility of the armed robbery because it wasn’t foreseeable. The sisters presented evidence of prior criminal actions in the restaurant and around the premises that made the armed robbery foreseeable.
In Texas, a “negligent security” claim is a premises liability claim. Usually, someone has no duty to protect others from criminal activities by third parties. However, an owner or operator owes a duty to use ordinary care to protect any invitees from third parties’ criminal acts if it knows or has reason to foresee the harm. The sisters were invitees, but the pizzeria disputed the foreseeability. The appellate court explained that while crime could happen anywhere, that alone didn’t make a third-party criminal act foreseeable.
Foreseeability depends on a plaintiff’s ability to show specific prior crimes on or near the premises using five factors: proximity, publicity, recency, frequency, and similarity. The evidence cannot be considered with the benefit of hindsight but instead focuses on what the pizzeria knew or should have known beforehand.
The plaintiffs in this case had presented a security expert’s affidavit that the pizzeria had been on the premises for four years at the time of the armed robbery, and a similar crime had happened less than six months earlier. Attached to the affidavit were police records regarding five incidents that happened near the strip mall in question, but not in the pizzeria itself. The incidents mostly involved fights, but there was one robbery by an armed man in which no shots were fired. In that instance, the robber hit the employee on the head with a gun.
The appellate court explained that the pizzeria knew or should have known about an unarmed robbery outside the pizzeria and the armed robbery that didn’t actually include a shooting. The court explained that only one substantially similar event over the four years when the Little Caesar’s was on the premises meant that the armed robbery was not foreseeable. Summary judgment was affirmed on the grounds that the pizzeria didn’t owe a legal duty to the plaintiffs.
If you or a loved one is injured on someone else’s property due to a lack of appropriate security measures, the experienced San Antonio premises liability attorneys at Carabin & Shaw may be able to help. Call our office for more information at 1-800-862-1260.