Marullo et al v. Dollar General Corporation et al

Filing 88

ORDER AND REASONS granting in part and denying in part 23 Motion for Summary Judgment as set forth in document. Signed by Judge Helen G. Berrigan on 3/25/2015. (kac)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RICHARD MARULLO AND
TAMMY RICHARD

CIVIL ACTION NO. 14-cv-1131

VERSUS

SECTION “C”

DOLLAR GENERAL CORP., ET AL

HON. HELEN BERRIGAN

Order and Reasons
This matter comes to the Court on defendants’ motion for summary judgment. Rec. Doc.
23. Plaintiffs oppose the motion. Rec. Doc. 54. The motions are before the Court on the briefs
without oral argument. Having considered the record, the law, and the memoranda of counsel,
the Court hereby, and for the reasons that follow.

I.

Factual background
This matter arises out of an armed robbery that took place on February 23, 2013 at the

Dollar General store at 1111 Poland Avenue in New Orleans, Louisiana (“Dollar General”). Rec.
Doc. 1-2. According to Tammy Richard and Richard Marullo (“plaintiffs”), on that morning they
had gone to the Dollar General for coffee and breakfast. Rec. Doc. 54-2 at 29:4-23; 54-3 at
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36:17-24, 41:1-13. Unbeknownst to them, an armed robbery was in progress at the time. Rec.
Doc. 54 at 3. The perpetrator had forced two Dollar General employees, Tamika Sparks and
Evangeline Moses, to the back of the store to open its safes, which were on a “timer-control” that
prevented them from opening immediately. Rec. Doc. 54-4 at 42-59. When plaintiffs entered the
store, the perpetrator had compelled the employees to return to the front of the store where the
cash register was situated. Rec. Doc. 54-4 at 50-51; Rec. Doc. 54-5 at 30-31. Ms. Richard states
that the perpetrator held a gun to the back of her head. Rec. Doc. 54-3 at 37:1-5. The perpetrator
then forced the plaintiffs and the employees, as well as another customer who had entered the
store with the plaintiffs, to the office in the back of the store where the safes still had not opened
because of their timer-control locks. Rec. Doc. 54-2 at 31:1-7; Rec. Doc. 54-3 at 38:1-9; Rec.
Doc. 54-2 at 32:13-19; Rec. Doc. 54-3 at 38:14-19. While the plaintiffs were held in the office,
they saw a police officer enter the store, heard shots, and watched him fall to the ground. Rec.
Doc. 54-2 at 32:20-24; Rec. Doc. 54-3 at 38:22-39:15. Mr. Marullo used the injured officer’s
radio to call for assistance and stayed with the officer while waiting for help to arrive. Rec. Doc.
54-2 at 31:1-13; Rec. Doc. 54-3 at 39:5-20; Rec. Doc. 54-3 at 39:6-15. No security guard was on
duty at the time of the robbery. Rec. Doc. 1-2 at 12.
Plaintiffs claim that following the incident, they have experienced acute pain and
suffering, debilitating mental anguish and emotional distress, and loss of enjoyment of life. Rec.
Doc. 1-2 at 3-4. They subsequently sued the defendants for negligently failing to have a security
plan in place, have a security guard on duty, and take other actions to prevent the incident and
the case was removed to this Court. Id. at 3.

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II.

Standard of review
Summary judgment is proper when the record indicates that there is not a “genuine issue

as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56. A genuine issue of fact exists if the evidence is such that a reasonable jury could
return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1996).
A party seeking summary judgment “bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of ‘[discovery], together
with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the initial burden is met,
the nonmoving party must “designate specific facts showing there is a genuine issue for trial”
using evidence cognizable under Rule 56. Id. at 324. “[U]nsubstantiated assertions” and
“conclusory allegations” will not defeat a properly supported motion for summary judgment.
Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,
871-73 (1990). “If the evidence is merely colorable, or is not significantly probative,” summary
judgment is appropriate. Anderson, 477 U.S. at 249-50 (internal citations omitted). “Only
disputes over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.” Id. at 248.
When reviewing a motion for summary judgment, a court must view the evidence and
inferences drawn therefrom in the light most favorable to the non-moving party. Daniels v. City
of Arlington, Texas, 246 F.3d 500, 502 (5th Cir. 2001). Summary judgment does not allow a
court to resolve credibility issues or weigh evidence. Int’l Shortstop, Inc. v. Rally’s, Inc., 939
F.2d 1257, 1263 (5th Cir. 1991).

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III.

Law and Analysis
a. Defendants’ Motion for Summary Judgment
In their motion for summary judgment, defendants argue that in order to prevail in this

negligence action, the plaintiffs must show that defendants had a duty to provide security and
protect them from the acts of a third party. Defendants assert that plaintiffs’ action must fail
because they cannot show that the armed robbery was foreseeable, and thus cannot show that
defendants owed plaintiffs this duty. Rec. Doc. 23-3.
Because this matter is in federal court under 28 U.S.C. §1332, the underlying claim is
governed by Louisiana law on premises liability. Erie R. Co. v. Tompkins, 304 U.S. 64, 78
(1938). To determine state law, “federal courts sitting in diversity look to the final decisions of
the state’s highest court,” or in the absence of a final decision, “it is the duty of the federal court
to determine . . . how the highest court of the state would resolve the issue.” Am. Int’l Specialty
Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260 (5th Cir. 2003) (internal citations
omitted).
The Supreme Court of Louisiana has held that courts should conduct a balancing test to
determine whether a landowner owes a duty to protect patrons from the violent acts of third
parties. In Posecai v. Wal-Mart Stores, Inc., the Louisiana Supreme Court provided that:
The foreseeability of the crime risk on the defendant’s property and the gravity of the risk
determine the existence and the extent of the defendant’s duty. The greater the
foreseeability and gravity of the harm, the greater the duty of care that will be imposed on
the business. A very high degree of foreseeability to post security guards, but a lower
degree of foreseeability may support a duty to implement lesser security measures such
as surveillance cameras, installing improved lighting or fencing, or trimming shrubbery.
752 So.2d 762, 768 (La. 1999). The most important factor in performing the balancing test is the
“existence, frequency and similarity of prior incidents of crime on the premises.” The “location,
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nature and condition of the property should also be taken into account. Id. In addition, the
balancing test allows courts to consider the
various moral, social, and economic factors, including the fairness of imposing liability;
the economic impact on the defendant and on similarly situated parties; the need for an
incentive to prevent future harm; the nature of defendant’s activity; the potential for an
unmanageable flow of litigation; the historical development of precedent; and the
direction in which society and its institutions are evolving.
Id. at 766. In particular, the court specified that
[t]he economic and social impact of requiring businesses to provide security on their
premises is an important factor. Security is a significant monetary expense for any
business and further increases the cost of doing business in high crime areas that are
already economically depressed.
Id. at 768.
Moreover, as plaintiffs point out, a business owner may assume a duty through its own
actions. In Harris v. Pizza Hut, the Louisiana Supreme Court stated that “when a duty to protect
others against [the criminal activities of third persons] has been assumed, liability may be created
by a negligent breach of that duty.” 455 So.2d 1364, 1371 (La. 1984). In that case, the court
found that because the defendant, Pizza Hut, had accepted the duty of hiring a security guard, it
was also under a duty to ensure that the security guard discharged his obligations in a reasonable
and prudent manner. Id. at 1372. See also, Thomas v. Eagle Properties of Alexandria, 100 So.3d
382, 384 (La. App. 3 Cir. 2012) (“A duty of protection which has been voluntarily assumed must
be performed with due care.”) (internal citations and quotations omitted).
The Court finds that when applying the Prosecai factors, Dollar General did not have a
duty to protect plaintiffs from an armed robbery. Although the store was apparently the site of
frequent thefts, there is no evidence of previous violent crimes on the Dollar General premises
that would have put Dollar General on notice that an armed robbery was likely to occur. See,
e.g., Rec. Doc. 54-5 at 21:1-9. In Posecai, the Louisiana Supreme Court held that three previous
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predatory incidents on store premises in the six and a half years prior to the robbery at issue in
that case did not create a duty to protect customers from armed robbery. The court looked closely
at the timing and nature of the incidents and found that only one bore resemblance to the robbery
that the plaintiff experienced. Posecai, 752 So.2d at 768-69. Here, plaintiffs have not shown any
previous crimes on Dollar General premises that resembled the armed robbery of February 23,
2013.
Moreover, while plaintiffs contend that the Dollar General was located in a high crime
area, the Court, like the Louisiana Supreme Court, finds that being located in a high crime area
alone is insufficient to create a duty to protect from third party criminal acts. In Posecai, the
Louisiana Supreme Court held that the defendant, Sam’s Wholesale Club, owed no duty to
protect plaintiff from violent crime in its parking lot though the surrounding area was “heavily
crime impacted.” Posecai, 752 So.2d at 769. Indeed, as Dollar General points out, if mere
location in a high crime area created a duty to protect from third party criminal activity, then the
cost of taking additional safety measures might deter many businesses in New Orleans from
entering economically depressed areas that often experience high crime rates. Rec. Doc. 23-3 at
13. For this reason, the Court also finds that there was no heightened duty to provide security
guards.
However, the Court finds that there is an issue of material fact as to whether defendants
assumed a duty to protect plaintiffs from the criminal acts of third parties by utilizing the Iverify
video monitoring and intercom system and its own security protocols. As noted above, the
Louisiana courts have affirmed the principle that “a duty of protection which has been
voluntarily assumed must be performed with due care.” Thomas, 100 So.3d at 384. In this case,
defendants employed the Iverify video monitoring and intercom system for security purposes.

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Rec. Doc. 54-8 at 23:2-26:7. Plaintiffs cite to evidence that there may have been a conflict
between defendants’ Standard Operating Procedures, which instructed its employees to “comply
with the robber’s demands,” and “not make any sudden movements and keep hands in sight at all
times,” and testimony from the store manager, Anthony Baker, that one of the employees on duty
should have “hit a panic button” to summon help. Rec. Doc. 54-17 at 3; Rec. Doc. 54-8 at 41:742:3. Plaintiffs also show that there was significant misunderstanding over how the Iverify
system actually worked and how often the store was monitored, and that this may have resulted
from a lack of formal training about the Iverify system. Rec. Doc. 54-4 at 30-31; Rec. Doc. 54-8
at 23:9-12; Rec. Doc. 54-4 at 27:24-28:13. Thus, plaintiffs have raised an issue of material fact
over whether Dollar General’s implementation of the Iverify system and its own security
protocols amounted to the assumption of a duty to protect against third party crimes, and whether
that duty was breached.
Accordingly, IT IS ORDERED that Dollar General’s Motion for Summary Judgment is
GRANTED IN PART and DENIED IN PART. Plaintiffs’ claims that defendants had a duty to
protect against armed robbery by having a security guard on duty or putting in place security
measures beyond the Iverify system and its Standard Operating Procedures are DISMISSED.
The Court finds that there is an issue of material fact as to whether defendants assumed a duty to
implement its existing security protocols with due care, and will allow the action to proceed on
this ground alone.
New Orleans, Louisiana, this 25th day of March 2015.

________________________________
HELEN G. BERRIGAN
UNITED STATES DISTRICT JUDGE

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