CAIN v. SHELL OIL COMPANY

Filing 65

ORDER DENYING 52 CIRCLE K STORES, INC.'S MOTION FOR SUMMARY JUDGMENT. Signed by JUDGE MARK E WALKER on 1/8/2014. (dlt)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
RALPH REGINALD CAIN,
Plaintiff,
v.

CASE NO. 4:13-cv-77-MW/CAS

SHELL OIL CO. and
CIRCLE K STORES, INC.,
Defendants.
_______________________________/
ORDER DENYING CIRCLE K STORES, INC.’S
MOTION FOR SUMMARY JUDGMENT
This is a premises liability claim arising out of a shooting which occurred in
the early morning hours of July 10, 2010 at a Circle K convenience store located at
2807 South Monroe Street in Tallahassee, Florida (the “store”). At the time of the
incident, Plaintiff Ralph Reginald Cain (“Mr. Cain”) was at the store to purchase
gas and was shot multiple times when a gunfight broke out in the parking lot.
Defendant Circle K Stores, Inc. (“Circle K”) has moved for summary judgment
arguing that the shooting was not foreseeable as a matter of law, and thus it cannot
be held liable for the independent act of an unknown third party. This is
particularly true, Circle K argues, because it is entitled to a presumption against
liability pursuant to section 768.0705, Florida Statutes. Upon consideration of the

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parties’ papers 1 and exhibits and for the reasons discussed below, this Court denies
summary judgment concluding that the question of foreseeability is a question of
fact for the jury.
The foreseeability of a particular harm is a question of law for the court for
purposes of determining duty but is generally a question of fact for the jury for
purposes of determining proximate causation. See, e.g., McCain v. Fla. Power
Corp., 593 So. 2d 500, 504 (Fla. 1992) (“Unlike in the ‘duty’ context, the question
of foreseeability as it relates to proximate causation generally must be left to the
fact-finder to resolve.”). The Florida Supreme Court has explained:
[H]arm is ‘proximate’ in a legal sense if prudent human
foresight would lead one to expect that similar harm is likely to be
substantially caused by the specific act or omission in question. In
other words, human experience teaches that the same harm can be
expected to recur if the same act or omission is repeated in similar
context. However, . . . it is immaterial that the defendant could not
foresee the precise manner in which the injury occurred or its exact
extent. In such instances, the true extent of the liability would remain
questions for the jury to decide.
On the other hand, an injury caused by a freakish and
improbable chain of events would not be ‘proximate’ precisely
because it is unquestionably unforeseeable, even where the injury may
have arisen from a zone of risk. The law does not impose liability for
freak injuries that were utterly unpredictable in light of common
human experiences. Thus, . . . a trial court has discretion to remove
the issue from the jury if, ‘after the event and looking back from the
harm to the actor’s negligent conduct, it appears to the court highly
extraordinary that [the conduct] should have brought about the harm.’
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Counsel for Mr. Cain appears to have mistakenly filed the same response in opposition to
the motion twice, ECF Nos. 58 and 61 respectively.

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Id. at 503-04 (internal citations omitted). Accord Palma v. BP Products N.A., Inc.,
594 F. Supp. 2d 1306, 1309-10 (quoting McCain). See also Roberts v. Shop & Go,
Inc., 502 So. 2d 915, 917 (Fla. 2d DCA 1986) (“We recognize that the
‘foreseeability’ of an intervening causation is frequently a question to be
determined by the trier of fact, but it may also be determined as a matter of law in
the circumstance where . . . the intervening act is merely ‘possible’ rather than
‘probable.’” (internal citations omitted)).
Circle K urges this Court to grant summary judgment suggesting that
Mr. Cain’s injuries were caused by a freakish and improbable chain of events and,
as such, his injuries were utterly unpredictable in light of common human
experiences. And, that’s the nub of this case. Considering the evidence in the light
most favorable to Mr. Cain, as I must, was the shootout resulting in his injuries so
freakish and improbable that Circle K is entitled to judgment as a matter of law?
The store is located in a high crime area. Circle K’s own loss prevention
and risk manager, Gerald Bailie, conceded that he recommended that the store be
permanently operated with enhanced security measures prior to the shooting;
namely, requiring there be two employees on duty during certain hours. He
acknowledged that closing the store during certain hours was an enhanced security
measure which Circle K chose not to implement. Mr. Bailie also conceded that he
was contacted by the Tallahassee Police Department (“TPD”) prior to the shooting.
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Specifically, TPD contacted Circle K to express concerns regarding issue of crowd
control at the store. When nearby bars and clubs closed in the early morning
hours, the patrons were relocating to the Circle K parking lot. TPD requested, and
received permission from Circle K, to “basically shut the store down, turn the
lights out, and they would have officers in the area in hopes that the crowd would
just move past the” store. Circle K did not close the store unless TPD so
requested. However, Mr. Bailie acknowledged that the store manager had the
authority to shut down the store and turn out the lights independent of any such
request.
A former Circle K employee working at the store at the time of the shooting,
Rickia Hush Mathis, testified that “let out” crowds accumulated in the store’s
parking lot every Friday and Saturday night around 2 to 3 a.m. after nearby bars
and clubs closed. Ms. Mathis also testified that she repeatedly contacted the store
manager to remind him of the let outs and to request security to control the crowd;
she repeatedly called the police department to remind them of the let outs and to
request an officer ride by; she asked the store manager on a number of occasions if
she could close the store for a couple hours until the let out crowd dispersed but he
refused; she frequently smelled marijuana and saw open alcohol containers in the
store’s parking lot during the let outs; the let out crowd was so thick that customers
had difficulty or were unable to park in the store’s parking lot or access the gas
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pumps; customers complained about the loud music being played and reported
threats of fights; and while she had no personal knowledge of any violent crimes
taking place at the store itself, there had been a homicide directly across the street
at a McDonalds before the shootout resulting in Mr. Cain’s injuries. Finally,
Ms. Mathis testified that there were approximately 60 to 70 cars and roughly 220
people in the parking lot on the night of the shooting and she called the store
manager asking cut out the lights until the crowd dispersed but he refused stating
“[y]ou’re losing money, and Circle K does not like to lose money.”
In sum, the store was located in a high crime area. Circle K recognized the
need for enhanced security measures at the store and implemented enhanced
security measures for the safety of its employees; namely requiring there be two
employees on duty during certain hours. TPD specifically contacted Circle K
about the problem with crowds gathering at the store in the early morning hours
after nearby bars and clubs closed. TPD suggested an enhanced security measure
recognized by Circle K’s own loss prevention and risk manager; namely, closing
the store until the crowds dispersed. The crowds were composed of people who
had been drinking at bars and continued to drink and smoke marijuana in the
parking lot. Moreover, the crowds were so large, more than 200 people, so as to
create a logjam where cars could not get into and of out the parking lot. One of
Circle K’s own employees repeatedly complained to management that the crowds
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were dangerous and reported threats of fights. And, prior to the shooting at issue,
there had been a shooting at the McDonalds across the street from the store where
the same crowds gathered when the bars and clubs closed.
Under these facts, this Court finds that the shootout resulting in Mr. Cain’s
injuries was not so freakish and improbable that Circle K is entitled to judgment as
a matter of law. Stated otherwise, Mr. Cain has presented sufficient facts for a
reasonable jury to find that the shooting was foreseeable and not merely a freakish,
improbable, or extraordinary event. See Hall v. Billy Jack’s, Inc., 458 So. 2d 760,
761-62 (Fla. 1984) (“Foreseeability may be established by proving that a proprietor
has actual or constructive knowledge of . . . a dangerous condition on his premises
that was likely to cause harm to a patron. A dangerous condition may be indicated
if, according to past experience (i.e., reputation of a tavern), there is a likelihood of
disorderly conduct by a third person in general which might endanger the safety of
patrons or if security staffing is inadequate. These indicia are not exhaustive. . . .
The question of foreseeability is for the trier of fact.” (internal citations omitted));
Allen v. Babrab, Inc., 438 So. 2d 356, 357-58 (Fla. 1983) (“The Gemini Club had a
history of fighting and other disturbances. . . . Despite urgings to the corporate
officers by the bartenders that . . . security was needed, no such [security] was on
duty the night of Pearl Allen’s assault. The evidence was sufficient for the jury to
reasonable find that Babrab should have known of the likelihood of injury to
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patrons caused by disorderly conduct on the part of third parties in general and
failed to do anything about it.”); Stevens v. Jefferson, 436 So. 2d 33, 35 (Fla. 1983)
(“A tavern owner’s actual or constructive knowledge, based upon past experience,
that there is a likelihood of disorderly conduct by third persons in general which
may endanger the safety of his patrons is . . . sufficient to establish foreseeability. .
. . It is incumbent upon the plaintiff to prove legal causation. [The plaintiff] met
her burden by showing that the bar was a ‘rough’ place with a history of fights and
gunplay and that the owner had terminated all security service and left the premises
in the charge of a female employee who could not maintain order. Under these
facts, a jury could determine that a foreseeable risk of harm to patrons existed, that
the risk was either created or tolerated by [the defendant], that he could have
remedied the danger but failed to do so, and that because of that failure to perform
his duties [the plaintiff] was killed.”).
The cases relied on by Circle K are readily distinguishable inasmuch as
those cases involved random tortious acts in which the defendants had no warning
of the potential risk. See, e.g., Palma, 594 F. Supp. 2d at 1310-11 (finding that the
attack on the plaintiff when he confronted the tortfeasor regarding a traffic accident
in the defendant’s parking lot was not foreseeable to the defendant); Roberts, 502
So. 2d at 918 (finding that the tortfeasor’s act of buying gas from the defendant

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only to walk across the street and set another person on fire was not foreseeable to
the defendant).
Finally, it is no answer that Circle K is entitled to a presumption against
liability pursuant to section 768.0705, Florida Statutes, because it substantially
implemented the security measures set forth sections 812.173 and 812.174, Florida
Statutes. Assuming arguendo it was undisputed that Circle K substantially
implemented such security measures and is entitled to a presumption, the
presumption is rebuttable and has been rebutted by the facts detailed above for
purposes of summary judgment.
For these reasons,
IT IS ORDERED:
Circle K’s motion for summary judgment, ECF No. 52, is DENIED.
SO ORDERED on January 8, 2014.
s/Mark E. Walker
United States District Judge

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