Yarufalie et al v. Steak 'N Shake Corporation

Filing 29

ORDER granting 15 Motion for Summary Judgment; denying as moot 16 Motion for Extension of Time to Complete Discovery and to Amend Complaint. The Clerk is DIRECTED to close the case. Signed by Judge Richard W. Story on 03/31/2016. (rsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
FOTIS YARUFALIE and
CHELSEA WALTERS,

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Plaintiffs,
v.
STEAK ‘N SHAKE
CORPORATION,

CIVIL ACTION NO.
1:14-CV-04014-RWS

Defendant.
ORDER
This case comes before the Court on Defendant Steak ‘n Shake
Operations, Inc.’s Motion for Summary Judgment [15] and Joint Motion to
Amend Complaint and Extend Discovery [16]. After reviewing the record, the
Court enters the following Order.
Background
This personal injury action arises out of a robbery at a restaurant
operated by Defendant Steak ‘n Shake Operations, Inc. (“SnS”).1 The robbery
at issue in this case occurred on June 28, 2014 at around 4:00 AM at the Steak

1

Steak ‘n Shake Operations, Inc. is incorrectly named as “Steak ‘n Shake
Corporation” in the Complaint. (Compl., Ex. A to Notice of Removal, Dkt. [1] at 1.)

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‘n Shake restaurant at 3380 Northside Parkway, Atlanta, Georgia. (Def.’s
Statement of Material Facts (“SMF”), Dkt. [15-3] ¶¶ 1-3.) Plaintiffs Fotis
Yarufalie and Chelsea Walters, along with their companions, visited the Steak
‘n Shake. Just after they were served the meals they ordered, two or three
masked individuals robbed the restaurant. (Def.’s SMF, Dkt. [15-3] ¶¶ 1-3;
Walters Dep., Dkt. [22] at 39.) Plaintiffs themselves were not targeted;
however, one of the robbers approached Plaintiff Walters, brushing his boot
against Plaintiff’s arm, and demanded cash from the server who was sitting on
the floor next to Plaintiff Walters. (Def.’s SMF, Dkt. [15-3] ¶¶ 6, 10; Pls.’
Resp. to Def.’s Statement of Material Facts (“Pls.’ SMF”), Dkt. [20-1] ¶ 8.) In
addition, Plaintiff Yarufalie was nudged by one of the robbers. (Def.’s SMF,
Dkt. [15-3] ¶ 19.) The entire robbery lasted less than two minutes. (Id. ¶ 11.)
The Plaintiffs never paid for the food that they ordered. (Yarufalie Dep., Dkt.
[23] at 14; Walters Dep., Dkt. [22] at 39.)
According to Plaintiff, the lights in the restaurant “were dim and the
restaurant was not properly lighted and some lights were not working.” (Pls.’
SMF, Dkt. [20-1] ¶ 4.) Neither Plaintiff Walters nor Plaintiff Yarufalie was
physically injured during the robbery. (Def.’s SMF, Dkt. [15-3] ¶¶ 13, 20-22.)
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However, Plaintiffs claim to have sustained post-traumatic stress disorder and
pain and suffering as a result of the robbery. (Id. ¶ 15.) Neither Plaintiff sought
nor received any medical, psychiatric, psychological, or mental health
treatment or counseling to address mental or physical injuries caused by the
robbery. (Id. ¶¶ 16-17, 24.)
Plaintiffs brought this negligence action in the Superior Court of Fulton
County against Defendant SnS. (Compl., Ex. A to Notice of Removal, Dkt.
[1].) Defendant removed the action to this Court. (Notice of Removal, Dkt. [1]
at 1.) Plaintiffs allege that Defendant failed to exercise reasonable care to
render its premises safe for Plaintiffs by negligently maintaining, inspecting,
securing, patrolling, and managing the premises. (Compl., Ex. A to Notice of
Removal, Dkt. [1] ¶¶ 9, 11.) According to Plaintiffs, Defendant had actual and
constructive knowledge of prior criminal activity similar to the robbery at issue
at the restaurant and in the surrounding neighborhood, but failed to implement
appropriate security measures. (Id. ¶¶ 12-13.) Plaintiffs further contend that
Defendant’s negligence was the cause in fact and proximate cause of Plaintiffs’
injuries. (Id. ¶ 15.)
Defendant moves for summary judgment. The Court now takes up its
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motion.
Discussion
I.

Defendant’s Motion for Summary Judgment [15]
A.

Legal Standard

Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). “The moving party bears ‘the initial responsibility of informing the . . .
court of the basis for its motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, which it believes demonstrate the absence
of a genuine issue of material fact.’” Hickson Corp. v. N. Crossarm Co., 357
F.3d 1256, 1259 (11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (internal quotations omitted)). Where the moving party makes
such a showing, the burden shifts to the non-movant, who must go beyond the
pleadings and present affirmative evidence to show that a genuine issue of
material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257
(1986).
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The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249-50.
In resolving a motion for summary judgment, the court must view all
evidence and draw all reasonable inferences in the light most favorable to the
non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th
Cir. 2002). But, the court is bound only to draw those inferences which are
reasonable. “Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met
its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).
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B.

Analysis

Defendant argues that it is entitled to judgment as a matter of law on
Plaintiffs’ negligence claim for three reasons: (1) because it had no duty to
protect Plaintiff against unforeseeable crimes, (2) even if it did have such a
duty and breached that duty by failing to improve security, any such failure did
not cause Plaintiffs’ injuries, and (3) Plaintiffs suffered no physical or
pecuniary damages. (Def.’s Br. in Supp. of Mot. for Summ. J., Dkt. [15-1] at
10, 11, 17-21.) For the reasons that follow, the Court agrees that Defendant is
entitled to summary judgment.
In Georgia, the essential elements of a cause of action for negligence are:
(1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal
connection between the breach and the injury. Morton v. Horace Mann Ins.
Co., 639 S.E.2d 352, 355 (Ga. Ct. App. 2006) (citations and quotations
omitted). “To establish a negligence claim, a plaintiff must come forward with
specific facts establishing the elements of negligence as to each defendant, and
may not rest upon generalized allegations.” Piedmont Hosp., Inc. v. Reddick,
599 S.E.2d 20, 26 (Ga. Ct. App. 2004). Negligence “may not be presumed, but
must be affirmatively proven, and in the absence of such proof, we must
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presume performance of duty and freedom from negligence.” Davis v. Sykes,
593 S.E.2d 859, 860 (Ga. Ct. App. 2004) (citations and quotations omitted).
Defendant argues that Plaintiffs’ claims must fail as a matter of law
because it had no duty, Plaintiffs have failed to come forward with sufficient
evidence to establish causation, and Plaintiffs suffered no injury. (Def.’s Br. in
Supp. of Mot. for Summ. J., Dkt. [15-1] at 10, 11, 17-21.) Without deciding
whether Georgia law imposed a duty or whether Plaintiffs can establish
causation, the Court agrees with Defendant that Plaintiffs’ claims must fail
because they cannot establish that they suffered either a physical or pecuniary
injury.
Plaintiffs seek to recover for emotional distress and mental pain and
suffering due to Defendant’s negligence. (Compl., Ex. A to Notice of
Removal, Dkt. [1] ¶ 6.) Recovery for emotional distress and mental pain and
suffering hinges on whether Plaintiffs satisfy Georgia’s impact rule. See
Clarke v. Freeman, 692 S.E.2d 80, 84 (Ga. Ct. App. 2010) (“Georgia applies
the impact rule to cases in which a party seeks to recover for emotional distress
in a claim involving negligent conduct.”). The impact rule has three elements:
(1) a physical impact to the plaintiff; (2) the physical impact
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causes physical injury to the plaintiff; and (3) the physical injury
to the plaintiff causes the plaintiff's mental suffering or emotional
distress.
Id.
Plaintiffs have failed to point to evidence in the record that would allow
a reasonable trier of fact to find Plaintiffs met the elements of the impact rule.
First, while there was a physical impact to both Plaintiffs, the impact did not
cause any physical injuries. One of the robbers brushed his foot against
Plaintiff Walters. (Def.’s SMF, Dkt. [15-3] ¶ 10; Pls.’ SMF, Dkt. [20-1] ¶ 8.)
Plaintiff Yarufalie was nudged by one of the robbers. (Def.’s SMF, Dkt. [15-3]
¶ 19.) But neither Plaintiff suffered any injury as a result of the impact. (Def.’s
SMF, Dkt. [15-3] ¶ 13, 20-21; Pls.’ SMF, Dkt. [20-1] ¶ 13, 20-21.) Because
neither Plaintiff experienced injuries caused by a physical impact, they cannot
recover under the physical impact rule.
Next, Plaintiffs contend that, despite the absence of a physical impact
that caused a physical injury to Plaintiffs, they can recover under the pecuniary
loss exception to the impact rule. (Pls.’ Opp’n to Def.’s Mot. for Summ. J.,
Dkt. [20] at 10.) The pecuniary loss exception supports a claim for damages
for emotional distress where the pecuniary loss occurs “as a result of a tort

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involving an injury to the person even though this injury may not be physical.”
Oliver v. McDade, 772 S.E.2d 701, 702 (Ga. 2015); Shores v. Modern Transp.
Servs., Inc., 585 S.E.2d 664, 665 (Ga. Ct. App. 2003) (explaining that to
recover under the pecuniary loss exception, a plaintiff must provide evidence
of an “injury to property where plaintiff showed resulting pecuniary loss upon
mental injury to the plaintiff caused by a tort”).
In Shores, for example, the plaintiff witnessed a train collide with a
tractor trailer and, though he suffered no physical injuries, claimed that he
suffered post-traumatic stress disorder “manifested by dreams, flashbacks, an
episode of incontinence . . . and panic attacks.” Id. But because the plaintiff
could not show an “injury to property resulting in pecuniary loss to him,”
caused by his non-physical injury, the court found the plaintiff had not satisfied
the requirements of the pecuniary loss rule. Id.
Plaintiff Yarufalie claims in an affidavit that he suffered a pecuniary loss
because he lost “$15.00 due to the armed robbery and the defendant not
allowing [him] to re-enter their premises to collect [his] food after the robbery.”
(Yarufalie Aff., Dkt. [20-3] at 2.) Plaintiff Walters claims in an affidavit that
she suffered a pecuniary loss since she “lost about $20.00 because of the armed
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robbery and the defendant not allowing [her] to re-enter their premises to
collect [her] food or receive a refund after the robbery.” (Walters Aff., Dkt.
[20-2] at 2.)
The Court finds that Plaintiffs’ affidavits do not create an issue of
material fact as to the question of pecuniary loss. “When a party has given
clear answers to unambiguous questions which negate the existence of any
issue of material fact, that party cannot thereafter create such an issue with an
affidavit that merely contradicts, without explanation, previously given clear
testimony.” Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656,
657 (11th Cir. 1984). In Plaintiff Yarufalie’s deposition testimony, when asked
who paid for the meal at Steak ‘n Shake, he replied “[n]obody” and went on to
say “[w]e got robbed and we just left.” (Yarufalie Dep., Dkt. [23] at 14.)
Similarly, in Plaintiff Walters’ deposition testimony, when asked whether she
paid for her meal, she responded that “[w]e didn’t get a chance to. We had
literally just had our food served” when the robbery occurred. (Walters Dep.,
Dkt. [22] at 39.)
In their depositions, Plaintiffs were asked clear questions to which they
provided clear answers. They have not explained why their affidavits
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contradict their testimony. Thus, the Court disregards Plaintiffs’ affidavits and
relies on Plaintiffs’ deposition testimony. The deposition testimony indicates
that Plaintiffs suffered no pecuniary loss. Therefore, the pecuniary loss
exception to the impact rule is unavailable to Plaintiffs.
As such, Plaintiffs’ evidence is insufficient to create a genuine issue of
material fact as to injury and Defendant is entitled to summary judgment. See
Matsushita, 475 U.S. at 586 (once the moving party has met its burden under
Rule 56(a), the nonmoving party “must do more than show there is some
metaphysical doubt as to the material facts”).
Accordingly, the Court concludes that no reasonable trier of fact could
find, based on the evidence in the record, that Plaintiffs suffered an injury. The
Court does not make any findings as to whether Defendant’s owed Plaintiffs a
duty or caused injury to Plaintiffs. But because Plaintiffs’ claims fail as a
matter of law on injury, an essential element of negligence, Defendant’s
Motion for Summary Judgment is GRANTED.
II.

Joint Motion to Amend Complaint and Extend Discovery [16]
In light of the Court’s ruling above, no claims remain against Defendant.

Accordingly, Plaintiffs’ Joint Motion to Amend Complaint and Extend
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Discovery2 is DENIED as moot.
Conclusion
In accordance with the foregoing, Defendant Steak ‘n Shake Operations,
Inc.’s Motion for Summary Judgment [15] is GRANTED. Plaintiffs’ Joint
Motion to Amend Complaint and Extend Discovery [16] is DENIED as moot.
The Clerk is DIRECTED to close the case.
SO ORDERED, this 31st day of March, 2016.

________________________________
RICHARD W. STORY
United States District Judge

2

While this motion is styled as a “joint” motion, Defendant filed a Response
and Objections to the joint motion submitted by Plaintiffs.
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