Bishop v. Hamya, Inc. et al
MEMORANDUM OPINION OF THE COURT & ORDER: For the reasons set forth above, Defendant Hamya's and Hassan's motions for summary judgment (Doc. 183 and 184) are GRANTED. IT IS FURTHER ORDERED that Defendant Hamya's motion for summary judgment as to the cross-claim filed by Hassan (Doc. 189) is DENIED AS MOOT. Signed by Senior Judge George Caram Steeh, III on 4/24/2019. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(am)
UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
CASE NO. 16-CV-01123
HON. GEORGE CARAM STEEH
HAMYA, INC., HUSNI HASSAN,
GOVERNMENT OF NASHVILLE
AND DAVIDSON COUNTY,
OPINION AND ORDER GRANTING DEFENDANT
HUSNI HASSAN’S MOTION FOR SUMMARY JUDGMENT (Doc. 184)
AND GRANTING DEFENDANT HAMYA, INC.’S MOTION
FOR SUMMARY JUDGMENT (Doc. 183) and
DENYING DEFENDANT HAMYA, INC.’S MOTION FOR SUMMARY
JUDGMENT AS TO CROSS-CLAIMS (Doc. 189) AS MOOT
This negligence action based on diversity jurisdiction arises out of an
incident in which Plaintiff Martin Bishop was assaulted by drug dealers, was
struck by a rock, and left unconscious and prone in the middle of the street,
when a tow truck, driven by an employee of Defendant Metropolitan
Government of Nashville and Davidson County, ran him over causing
catastrophic injuries and rendering him a paraplegic. Metro filed a motion
for summary judgment last summer which this court denied. Now before
the court are motions for summary judgment by the other two remaining
defendants, Hamya, Inc. (“Hamya”) and Husni Hassan (“Hassan”)
(collectively “Defendants”). Because Defendants owed no duty to protect
Plaintiff from the drug dealers who struck him with a rock some quarter of a
mile from their property, and because Plaintiff cannot show that the alleged
lack of security precautions was the proximate cause of his injuries, and for
additional reasons set forth below, Defendants are entitled to summary
The court must view the facts and all reasonable inferences from
those facts in the light most favorable to the non-moving party, here
Plaintiff. On January 13, 2016, at dusk, Plaintiff and another individual,
David Light, were going to visit the Z-Mart convenience store on 24
Lafayette Street in Nashville, Tennessee to buy cigarettes and beer. (Doc.
125-8 at PgID 1062; Doc. 125-10 at PgID 1184-85). At the time of the
incident, Plaintiff and Light were homeless and lived together in an
encampment known as “Tent City” near Fort Negely. (Doc. 125-8 at PgID
1054, 1058-59, Doc. 125-10 at PgID 1184-85). According to Light’s
testimony, the two were also looking to buy marijuana, and Plaintiff was
seeking to purchase crack cocaine. (Doc. 125-8 at PgID 1062-63, 1070,
1084-85). Plaintiff disputes that he was seeking to buy any drugs.
Hamya leases 24 Lafayette from Hassan and operates a convenience store
called Z Mart at that place. (Doc. 142 at ¶ 2, PgID 2127). Hassan owns
the property where the Z Mart is located and the adjoining property at 20
Lafayette Street which is the location of a strip mall. (Doc. 142 at ¶ 3, PgID
2128). Hassan leases the property at 20 Lafayette to several small
businesses, including Staff Zone. Id. Hassan testified that the 20 Lafayette
tenants had leases which provided that Hassan was not liable for loss or
damage suffered by the tenant or anyone else for the failure to provide
security. (Doc. 125-2 at PgID 870-71). Staff Zone closes at five o’clock.
(Doc. 125-2 at PgID 832). The two adjoining parcels located at 20
Lafayette Street and 24 Lafayette Street share a single parking lot. (Doc.
125-2 at PgID 851).
According to Light, the two encountered crack dealers three times on
the night in question. First, Light testified that when he and Plaintiff arrived
at the Z Mart, crack dealers approached Plaintiff by name. (Doc. 125-8 at
PgID 1059-60, 1116). Light testified the two then entered the Z Mart and
purchased two cans of Natty Ice beer and cigarettes. (Doc. 125-8 at PgID
1062, 1111, 1117). Light testified that after they went to the Z Mart, Plaintiff
wanted to approach the drug dealers. (Doc. 125-8 at PgID 1063). Light
testified that they encountered them a second time when they left the Z
Mart, but Light persuaded Plaintiff to follow him looking to buy marijuana.
(Doc. 125-8 at PgID 1069). According to Light, the two walked around the
block, through the housing projects looking for marijuana. (Doc. 125-8 at
PgID 1070, 1100-01). Then, Light testified Plaintiff veered back towards
the Z Mart and crossed over Lafayette Street towards a female drug dealer
in order to buy drugs. (Doc. 125-8 at 1070, 1084-85, 1112-13). At that
time, Light testified the two were in the parking lot near the convenience
store, Z Mart, and the temporary staffing company known as Staff Zone.
(Doc. 125-8 at PgID 1070).
Light further testified that Plaintiff asked the drug dealer how much
she wanted for a rock of cocaine:
I want you to tell me, as much as you can, about what
you remember about the actual conversation between you,
Mr. Bishop, and the drug sellers, if you can remember any
of that conversation?
I was just kind of standing there beside him. Kind of,
you know, right there. Of course when he veered back this
way, I walked behind him, with him. I wasn’t going to leave
him. He asked, okay, how much, what you got. I got 20.
The dope dealer, it was a female dope dealer, kind of
dykish, blackish woman, from what I could see it was
maybe $5 apiece. He said no, I don’t want that.
(Doc. 125-8 at PgID 1071). They approached a young black woman who
had a rock of cocaine in her hand. Specifically, he testified:
Q. Now when you say the young lady that you said was
kind of a butchy black lady, or mixed, she had a rock in her
hand, was the rock cocaine that she had?
Q. And she dropped it onto the ground. Was that because
people pulled weapons that she dropped it? Why did she
drop it on the ground?
A. She was trying to force Marty [Plaintiff] into buying
something that was too small. He didn’t want to spend $20
for $5 worth. So she pulled bully, you know. She was like,
you’re going to buy it, where’s your money? Then
everybody backed her up.
(Doc. 125-8 at PgID 1085). According to Light, the female drug dealer then
dropped the rock of cocaine, and a large number of drug sellers surrounded
the two of them with guns, they “started to jump” on Plaintiff, the two then
fled down Lafayette Street, while Plaintiff tried to flag cars down. (Doc. 1258 at PgID 1072, 1085, 1088-89). Light testified that the drug dealers were
trying to rob Plaintiff. (Doc. 125-8 at PgID 1090, 1113). After they reached
the overpass which was about a quarter mile from the Z Mart, Light testified
that one of the drug dealers smashed Plaintiff in the face with a rock,
knocking him out, and leaving him prone in the middle of the fast lane of the
road. (Doc. 125-8 at PgID 1073, 1106-07). According to Light, Plaintiff was
not hurt prior to being hit by the rock, but had just been in a “little bit of tussle.”
(Doc. 125-8 at PgID1089-90). Light helped the Plaintiff to come to and tried
to get him out of the road when a tow truck hit Plaintiff. (Doc. 125-8 at 107374).
Plaintiff’s version of events is quite different.
Plaintiff does not
remember ever entering the Z Mart, but he testified that he was approached
by four or five individuals who were drinking beer as he was reaching into his
pocket for money to purchase beer on his way to the Z Mart. (Doc. 125-10
at PgID 1194-95, 1202, 1219, 1281). He testified that a female grabbed his
shirt, and he was “hit” as he veered off the sidewalk near the intersection of
Staff Zone. (Doc. 125-10 at PgID 1194-95). Plaintiff claims that the assault
occurred on his way to the Z Mart, when he took a shortcut through the
shared parking lot of Defendants’ property at 20 Lafayette and 24 Lafayette.
(Doc. 125-10 at PgID 1195) He also testified that he was not using crack
cocaine at the time of the incident, but was using marijuana daily. (Doc. 12510 at PgID 1174, 1247).
Plaintiff also testified that he had never gotten drugs from around the
Z Mart. (Doc. 125-10 at PgID 1284). He further testified that the two went
to Z Mart to purchase beer, and that Light was looking for marijuana but
never found any. (Doc. 125-10 at PgID 1185). Plaintiff testified that he had
just sold his motorcycle and was on his way to hike the Appalachian Trial, so
the two were going to share a beer before he left on his adventure, and Light
wanted him to buy the beer because Plaintiff had money from selling his bike.
(Doc. 125-10 at PgID 1163, 1185, 1192). Plaintiff testified that he did not
remember being hit by a rock, but for purposes of the summary judgment
motions, does not contest that he was struck with a rock in the head at the
overpass of 1-40 and Lafayette. (Doc. 195-1 at ¶ 18, PgID 4188). He
contends, however, that the assault began in Defendants’ shared parking lot.
(Doc. 195-1 at ¶¶ 14, 22, 24 at PgID 4187, 4189, 4190, Doc. 125-10 119596). Contrary to Light’s testimony that the two were best friends, (Doc. 1258 at PgID 1054), Plaintiff testified that the two did not have much of a
relationship, although they did smoke marijuana together. (Doc. 125-10 at
It is undisputed that Plaintiff has no memory of how he got from the
parking lot to the underpass where he was unconscious and hit by the tow
truck. (Doc. 194-1 at PgID 4148). At his deposition, Plaintiff circled on a
photograph the area where he believed he was assaulted. (Doc. 125-10 at
PgID 1209-10). Hamya asserts the area circled is an area owned and
operated by solely by Hassan. (Doc. 187 at ¶ 11 at PgID 2904). Plaintiff
admits the area identified at his deposition is owned and operated by
Hassan, but claims that customers of Z Mart are permitted to use the
property at 20 Lafayette as a shared parking lot with other tenants and that
Z Mart controlled the parking lot up to the wall of Staff Zone. (Doc. 195-1 at
¶ 11, PgID 4185).
It is undisputed that a rock and pool of blood were discovered at the
underpass about a quarter mile from Z Mart. (Doc. 195-1 at PgId 4190 at ¶
24). Defendant Hamya asserts that Officer Felipe Pereira viewed Z Mart
surveillance camera footage on the night of the incident, determined that no
crime took place on Z Mart’s property, observed from the surveillance video
that Plaintiff and Light walked from the projects behind Z Mart through
Hassan’s property towards Lafayette Street, observed Plaintiff and Light
approaching a black female in a red jacket on Hassan’s property, and these
three individuals crossed Lafayette Street. (Doc. 187 at ¶¶ 25-30 at PgID
2909-10; Doc. 125112 at PgID 1426-29). Plaintiff, on the other hand, claims
the time of the video is incorrect, disputes that Light and Plaintiff are the
individuals depicted on the video, disputes that Plaintiff and Light are seen
approaching a black female wearing a red jacket, and disputes that the three
are recorded in video footage crossing Lafayette Street. (Doc. 195-1 at ¶¶
25-30 at PgID 4190-4193).
Plaintiff does not dispute that Z Mart is well lit, and that the convenience
store uses security cameras with a live feed inside the store. (Doc. 195-1 at
¶ 40 at PgID 4197). It is also undisputed that a Z Mart employee monitors
the live feed from the security cameras, and that there are anti-loitering signs
on Z Mart’s property. (Doc. 195-1 at ¶ 41 at PgID 4197). There are also
anti-loitering and anti-trespassing signs on Hassan’s side of the parking lot.
(Doc. 125-2 at PgID 852). The manager of the Z Mart at the time of the
incident, Sameer Shohatee, has submitted an affidavit which states that Z
Mart’s security measures are consistent with other gas stations located in
Nashville, and that it would be very unusual to employ private security
personnel which would create unreasonable and additional security
problems. (Doc. 125-6 at ¶9, PgID 977). Shahatee also avers that Metro
Police performed nearly daily checks of Z Mart’s premises for any suspicious
or unsafe conditions. (Doc. 125-6 at ¶ 8, PgID 977). Hamya’s security
expert, Melvin Brown, noted that police records showed that “Z Mart had an
active role in observing and reporting suspected criminal activity to the
MNPD.” (Doc. 125-18 at PgID 1732). Also, Brown opined that even if Z Mart
hired additional security personnel, this would not have prevented the
assault once patrons left the Z Mart property as “private employees and/or
security personnel are not authorized and should not leave the property
under their care. This action is reserved for public law enforcement, not
private security or employees.” (Doc. 125-18 at PgID 1731).
Plaintiff relies on a security expert, John Villines, who opines that
Defendants Hamya and Hassan failed to reasonably address known and
foreseeable crime risks.
(Doc. 125-16 at PgID 1533).
In response to
Defendants’ motion for summary judgment, Plaintiff also relies on the
affidavit of Sergeant Michael Holz, which was submitted in support of the
petition for abatement of nuisance, (Doc. 159-3) in which he states that
numerous officers complained to Z Mart staff about the excessive amount of
crime and calls for service, the selling of alcohol to obviously intoxicated
individuals, and the lack of assistance in the prosecution of individuals
committing crime on the property. (Doc. 159-3 at PgID 2585-90, 2609).
Detective John Daugherty, who had worked as the zone officer for the
Z Mart and Staff Zone, testified that the area at Z Mart and Staff Zone was a
high crime area for a myriad of reasons, including the proximity to the
homeless mission, the fact that it was a low income area, and that Staff Zone
bussed low income workers to jobs and then brought them back to get their
paychecks which they would cash at Z Mart. (Doc. 187, Ex. 20 at 15, 2223). Plaintiff’s security expert, John Villines, testified that he reviewed police
dispatch reports that documented roughly 15 calls per page for a three-year
period from January 2013 to January 2016, but he did not describe with
particularity the nature of those calls. (Doc. 125-16 at PgID 1636-37). Also,
Sergeant Holz averred in his affidavit submitted in support of the Abatement
Petition filed by the State of Tennessee through the Davidson County District
Attorney’s Office against Hassan as the owner of Z Mart, that the level of
crime at Z Mart was more than twice the level at other similar businesses
within a one-mile radius for the same time period. (Doc. 159-3 at PgID 2540).
Also, in his affidavit in support of the Abatement Petition filed against Hassan
as the owner of Staff Zone, Holz avers that from January 10, 2010 to January
1, 2017, the Metropolitan Nashville Police Department responded to 1,163
calls to 20 Layette Street, including 454 calls for suspicious person, 21 calls
of fight or assault, and 11 calls of robbery. (Doc. 159-1 at PgID 2480). There
was also anecdotal evidence from law enforcement officers that the area
around the Z Mart was a high crime area due to its proximity to the housing
projects, homeless mission, and a high drug trafficking area. (Doc. 196-6 at
PgID 4266-69; Doc. 125-12 at PgID 1422).
A brief summary of the procedural history of the motion now pending
before the court is in order here. On May 2, 2018, Defendants Hamya and
Hassan filed motions for summary judgment, and the trial was scheduled to
begin in October, 2018. (Doc. 124, 137). Those motions were denied, and
the trial was adjourned, because the court allowed additional discovery and
permitted Plaintiff to file an amended complaint based on a July, 2018 press
release announcing the closure of Z Mart based on allegations of public
nuisance. (Doc. 157-2, 160, 168, 172). On September 10, 2018, over
Defendants’ objections, but with leave of court, Plaintiff filed his Third
Amended Complaint. (Doc. 169). The amended claims are as follows:
Count I alleges negligence against Hassan and Hamya. Specifically, Plaintiff
alleges that these Defendants were negligent in the following ways: (1) failing
to take proper precautions for safety of Z Mart customers, (2) failing to
provide adequate lighting, (3) failing to monitor Z Mart and adjoining property
for criminal activity, (4) failing to provide adequate security guards, (5) failure
to provide adequate security training to Z Mart employees, (6) failing to
conduct adequate security inspections and monitoring, (7) failing to contact
law enforcement to report criminal activity, and (8) failing to discourage
loitering and criminal activity. Count II alleges governmental tort liability
Count III alleges negligent attraction of criminal activity
against Hamya and Hassan. Count IV alleges Hamya is liable for negligent
hiring, training, and supervision of its employees. Count V alleges nuisance
against Hassan and Hamya.
Following the filing of the Third Amended Complaint, Z Mart deposed
the police officers mentioned in the July, 2018 press release, Detective John
Daugherty and Sergeant Michael Hotz. Both testified that the investigation
of Z Mart did not begin until around August, 2017, a year and a half after the
incident. (Doc. 187, Doc. 20 at 9-10, Doc. 21 at 19-20).
After completing additional discovery, Defendants filed renewed
motions for summary judgment. (Doc. 183, 184). In response to Defendants’
renewed motions for summary judgment, Plaintiff alleges that Hassan acted
negligently by (1) failing to seek coordination or help from his tenants, (2) by
failing to provide for security, (3) by failing to install surveillance cameras,
and (4) by failing to obtain a waiver for the police to freely access his property
to remove loiterers and people drinking or doing drugs in public. Plaintiff
argues that it would have been feasible and efficacious for Hassan to post a
security guard on the premises as he did so for a few months in 2017 for a
part of the day, and Detective John Daugherty testified that the guard made
some progress in deterring crime. (Doc. 187, Ex. 20 at 37-38).
The facts are undisputed that Z Mart was well lit, that anti-loitering
signs were posted, and that nine surveillance cameras were monitored by a
designated employee. As to Hamya, it is not clear what additional security
measures Plaintiff contends it should have utilized, but Plaintiff appears to
complain that the employee viewing the live surveillance feed should have
been better trained, that it should have provided more cooperation to the
police, and it should have hired a security guard. (Doc. 195 at PgID 4167).
Standard of Review
Federal Rule of Civil Procedure 56(c) empowers the court to render
summary judgment "forthwith if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law." See Redding v. St.
Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has
affirmed the court's use of summary judgment as an integral part of the fair
and efficient administration of justice. The procedure is not a disfavored
procedural shortcut. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986);
see also Cox v. Kentucky Dep’t of Transp., 53 F.3d 146, 149 (6th Cir.
The standard for determining whether summary judgment is
appropriate is "'whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party
must prevail as a matter of law.'" Amway Distributors Benefits Ass’n v.
Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all
reasonable inferences must be construed in the light most favorable to the
non-moving party. Tolan v. Cotton, 572 U.S. 650, 660 (2014); Matsushita
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Redding, 241 F.3d at 532 (6th Cir. 2001). "[T]he mere existence of some
alleged factual dispute between the parties will not defeat an otherwise
properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original); see also National
Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900, 907 (6th Cir. 2001).
If the movant establishes by use of the material specified in Rule
56(c) that there is no genuine issue of material fact and that it is entitled to
judgment as a matter of law, the opposing party must come forward with
"specific facts showing that there is a genuine issue for trial." First Nat'l
Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean v.
988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations
or denials in the non-movant's pleadings will not meet this burden, nor will
a mere scintilla of evidence supporting the non-moving party. Anderson,
477 U.S. at 248, 252. Rather, there must be evidence on which a jury
could reasonably find for the non-movant. McLean, 224 F.3d at 800 (citing
Anderson, 477 U.S. at 252).
Negligence (Count I)
Hamya and Hassan are entitled to summary judgment on Plaintiff’s
negligence claim because Plaintiff cannot prove that either owed a duty to
him for injuries that occurred off premises, and Plaintiff has failed to raise a
genuine issue of material fact that their alleged security deficiencies were
the proximate cause of Plaintiff being struck by a rock and then hit by a tow
truck some quarter of a mile away from the Defendants’ property. Under
Tennessee law, in order to establish a prima facie case of negligence, a
plaintiff must prove “(1) a duty of care owed by defendant to plaintiff; (2)
conduct below the applicable standard of care that amounts to a breach of
that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal
cause.” McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).
Defendant Hamya argues that it owed no duty to prevent the criminal
assault that occurred off its property, and that Plaintiff has failed to
demonstrate what additional measures could have been taken to prevent
the incident. Defendant Hassan argues that it owed no duty to Plaintiff as
Plaintiff was not its customer and even if he was, any duty ended once
Plaintiff left the premises, and furthermore, Hassan did not violate any
reasonable standard of care.
“Duty is the legal obligation a defendant owes to a plaintiff to conform
to a reasonable person standard of care in order to protect against
unreasonable risks of harm.” Staples v. CBL & Assocs., Inc., 15 S.W.3d
83, 89 (Tenn. 2000). To determine whether a duty is owed in a particular
case, the court must engage in a balancing inquiry “to identify whether the
risk to plaintiff was unreasonable.” Id. The balancing inquiry requires the
court to balance whether the “foreseeable probability and gravity of harm
posed by defendant’s conduct outweigh the burden upon defendant to
engage in alternative conduct that would have prevented the harm.” Id.
(quoting McCall, 913 S.W.2d at 153).
The seminal Tennessee case regarding what duty a premises owner
or occupier owes to customers to protect them against the criminal acts of
third parties occurring on the premises is McClung v. Delta Square Ltd.
P’ship, 937 S.W.2d 891 (Tenn. 1996). In that case, the estate of a WalMart customer who was abducted from a shopping mall parking lot around
noon and was subsequently raped and murdered brought a negligence
claim against the owner of the mall and the mall’s anchor tenant. Id. at
893-94. The Tennessee Supreme Court grappled with the question of what
duty defendants owed to the plaintiff which the court concluded was “a
question of law to be determined by the court.” Id. at 894. The court
announced the general principle that “[a] business ordinarily has no duty to
protect customers from the criminal acts of third parties which occur on its
premises.” Id. at 902. The court stressed that the “business is not to be
regarded as the insurer of the safety of its customers, and it has no
absolute duty to implement security measures for the protection of its
customers.” Id. However, a business may have a duty to take reasonable
steps to protect its customers “if the business knows, or has reason to
know, either from what has been or should have been observed or from
past experience, that criminal acts against its customers on its premises
are reasonably foreseeable, either generally or at some particular time.” Id.
In determining whether a duty exists, the court must weigh the
foreseeability of the harm against the commensurate burden imposed on
the business to protect against that harm. Id.
In McClung, the court found that based upon detailed crime reports
on or in the immediate vicinity of defendants’ parking lot immediately before
the abduction of plaintiff’s wife, including another kidnapping close in time
to plaintiff’s abduction, the risk of injury to plaintiff’s wife was reasonably
foreseeable. Id. at 904. Thus, the court remanded the case to the trial
court to determine whether a duty existed based on a careful weighing of
the burden to be imposed upon defendants and the magnitude of the
potential harm. Id. The court noted that other nearby major retail centers
utilized security measures to protect customers, as did Wal-Marts in other
locations. Id. The court stated that the burdens to be imposed on the
defendant must be balanced against the degree of foreseeable risk, and
identified security measures to be imposed might be substantial,
presumably hiring security guard(s), or less onerous such as providing
additional lighting, signage, or use of surveillance cameras. Id. at 902.
This case is distinguishable from McClung in several significant
respects. First, as to Defendant Hamya, Plaintiff admits that he was not on
Hamya’s premises, but was in an area of the parking lot owned and
operated by Hassan. (Doc. 195-1 at ¶ 11, PgID 4185). Plaintiff argues that
Helton v. Glenn Enter., 209 S.W.3d 619 (Tenn. Ct. App. 2006) extended
the holding of McClung situations where a plaintiff is on property he
reasonably believes belongs to the defendant. Helton is easily
distinguishable. In that case, a motel guest inquired of a desk clerk if his
truck and trailer would be safe in an adjoining parking lot, and was assured
that it would be. Id. at 622. However, there had been numerous recent
instances of stolen vehicles at the motel. Id. At trial, there was testimony
that the motel had no security guards or outside cameras, and that the
motel could simply have informed guests of the ongoing crime problem and
advised them of where to park. Id. at 623. The trial court granted a
directed verdict for the defendant, but the court of appeals found an issue
of fact as to whether the motel had a duty which it breached. Id. at 628. By
contrast, in this case, requiring Hamya to police private and public property
off its premises would pose an onerous and undue burden, and would
infringe on the police’s jurisdiction. Also, in this case, there is no claim or
evidence that a Hamya employee directed the Plaintiff as was done in
Likewise, Hassan argues it cannot be liable under McClung because
it is undisputed that Plaintiff was never its customer, and unlike the
shopping center where liability depended on how the fact question in that
case was resolved. Here, Hassan is merely the landlord, not the operator
of a shopping center. Plaintiff also argues that Hassan is liable under Berry
v. Houchens Market of Tenn., Inc., 253 S.W.3d 141 (Tenn. Ct. App. 2007)
for the proposition that a landlord is responsible for maintaining common
areas. Berry involved a slip and fall and governed the repair and
maintenance of physical property, not securing property from crime by third
parties. Hassan also argues that the evidence shows that Plaintiff was not
injured in the parking lot based on video evidence, some of Plaintiff’s own
testimony, Plaintiff’s own expert, and other evidence. For purposes of
deciding this motion, however, the court accepts as true Plaintiff’s
deposition testimony that a female grabbed his shirt, and he was “hit” in the
parking lot. (Doc. 125-10 at PgID 1194-95). Even if true, Hassan had no
duty to protect a non-customer/trespasser from the criminal act of a third
Plaintiff has not identified any deficiency in security at 20 Lafayette
Street property that would have prevented the assault. In fact, Plaintiff’s
security expert Villines testified that he was not offering an opinion as to
specific security measures that Hassan should have taken. (Doc. 125-16
at PgID 1636, 1640). However, Villines also testified that Hassan could
have (1) considered coordinating with Hamya to improve their monitoring
capability, (2) considered the use of an extra-duty law enforcement officer
in the parking lot, and (3) considered signage, landscaping and/or painting,
and (4) considered the implementation of a standalone camera system
which is actively monitored for immediate response. (Doc. 125-16 at PgID
1650-51). Although these are measures that Hassan might have
considered, Plaintiff has come forward with no evidence about the cost or
feasibility of these measures. Also, it is undisputed that there were some
surveillance cameras covering the parking lot and some anti-loitering signs.
In fact, Plaintiff’s expert admitted he had undertaken no cost analysis.
(Doc. 125-16 at PgID 1535). Plaintiff’s expert also admitted he had not
done any analysis to determine what similar businesses do as it relates to
security. (Doc. 125-16 at PgID 1592). In essence, Plaintiff argues that
Hassan is liable because he owned property in a bad neighborhood and did
not provide after-hours security to trespassers. This is not a sufficient basis
upon which to impose a duty under Tennessee case law.
In similar circumstances, the Tennessee Court of Appeals has found
no duty where the injury occurred off the business’ premises. In Chowbay
v. Davis, No. M2001-01838-COA-R3-CV, 2002 WL 1389604 (Tenn. Ct.
App. June 27, 2002), for example, a saloon patron threatened plaintiff in
the saloon’s parking lot, whereupon the saloon’s security personnel told the
two to “take it somewhere else.” Id. at * 1. The two then left the premises
for a vacant parking lot where the assailant, joined by a large group of men,
surrounded the plaintiff and physically assaulted him causing serious injury.
Id. Plaintiff sued the saloon claiming that the bar served his assailant too
much alcohol, and failed to protect him from the assault. Id. The court
found the saloon owed plaintiff no duty because the assault took place off
defendant’s property. Id. at *4.
Similarly, in Akridge v. Fathom, Inc., No. E2014-00711-COA-R9-CV,
2015 WL 97946 (Tenn. Ct. App. Jan. 7, 2015), the court found no duty
existed where the plaintiff’s injuries occurred off the defendant’s premises.
In that case, plaintiff was attending a concert at Club Fathom, a business
that ministers to at-risk youth, when an altercation erupted inside the
building. Id. at * 1. Club security shut down the event and evicted all the
patrons. Id. Once outside the club, plaintiff was caught in the crossfire of a
shootout. Id. The court found that the club owed no duty to plaintiff, even
where the club had a history of violent crime and attracted rival gang
members, because plaintiff was no longer on the business premises at the
time of the tortious act. Id. at *6. So too here.
Second, unlike the premises owner in McClung who took no security
measures, here Z Mart was well lit, had nine video surveillance cameras
whose live feed was audited by a designated employee, and had signage
posted against loitering. Plaintiff has not shown that Z Mart’s actions to
protect patrons from criminal acts of third persons were unreasonable. As
to his claims that Z Mart should have had a better relationship with the
police, coordinated better with Hassan, should have better trained the
employee monitoring the surveillance video, or should have hired a security
guard, Plaintiff has not shown that these measures would be cost-effective,
and Hamya’s security expert, Melvin Brown, stated that Z Mart’s security
measures are consistent with other convenience stores/gas stations in the
vicinity. (Doc. 125-18 at PgID 1732).
Even if crime was foreseeable in the dangerous area where the Z
Mart was located, imposing a duty on Z Mart to prevent an assault on a
potential customer located a quarter of a mile away would be an onerous
burden. As Hamya’s security expert testified, it is unreasonable to expect a
security guard to leave the premises to prevent crime. That is a matter left
for law enforcement. Also, Hamya’s security expert testified that its
security measures, which included live monitoring of surveillance cameras
and adequate lighting, were consistent with those of similar businesses in
the vicinity. As the Tennessee Supreme Court stated in McClung, a
business is “not to be regarded as the insurer of the safety of its customers,
and it has no absolute duty to implement security measures for the
protection of its customers.” 937 S.W.2d at 902. In sum, neither Hassan
nor Hamya had a duty to protect Plaintiff from an assault taking place off
their premises, even if Plaintiff first met his assailants in Hassan’s parking
lot before he was ultimately struck by a rock and run over by a tow truck
about a quarter of a mile away.
Defendants also argue they are entitled to summary judgment
because Plaintiff has not raised a genuine issue of material fact that their
alleged negligence caused Plaintiff’s injuries. “[N]o negligence claim can
succeed unless the plaintiff can first prove that the defendant’s conduct
was the cause in fact of the plaintiff’s loss.” Waste Mgmt., Inc. of
Tennessee v. S. Cent. Bell Tel. Co., 15 S.W.3d 425, 430 (Tenn. Ct. App.
1997). Once actual causation is established, the court considers whether
proximate cause exists. The Tennessee Supreme Court has set out a
three-prong test for assessing proximate causation:
(1) The tortfeasor’s conduct must have been a “substantial
factor” in bringing about the harm being complained of; and
(2) there is no rule or policy that should relieve the
wrongdoer from liability because of the manner in which
the negligence has resulted in the harm; and (3) the harm
giving rise to the action could have reasonably been
foreseen or anticipated by a person of ordinary intelligence
McClenham v. Cooley, 806 S.W.2d 767, 775 (1991). “[P]roximate cause is
a jury question unless the uncontroverted facts and inferences to be drawn
from them make it so clear that all reasonable persons must agree on the
proper outcome.” Id.
The proximate cause question asks whether the defendant’s conduct
is closely enough tied to the injury that it makes sense to hold the
defendant legally responsible for the injury. W. Keeton, D. Dobbs, R.
Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 42 (5th ed.
1984). Proximate cause is “said to depend on whether the conduct has
been so significant and important a cause that the defendant should be
legally responsible.” Id. It is a question of “whether the duty includes
protection against such consequences.” Id. The Supreme Court has
observed that “[p]roximate cause is often explicated in terms of
foreseeability or the scope of the risk created by the predicate conduct.”
Paroline v. United States, 572 U.S. 434, 445 (2014). “A requirement of
proximate cause thus serves, inter alia, to preclude liability in situations
where the causal link between conduct and result is so attenuated that the
consequence is more aptly described as mere fortuity.” Id. Such is the
situation here. Plaintiff’s catastrophic injuries are too remote from the
alleged security deficiencies to hold these business owners liable.
Hamya argues that Plaintiff has not provided any explanation or
proof, through its security expert, or otherwise, what Z Mart could have
done differently to prevent the assault. Plaintiff responds that if Z Mart kept
the individuals who later assaulted him off their property, he would not have
been injured. Plaintiff has not raised a genuine issue of material fact that
Hamya’s security measures were unreasonable or were the proximate
cause of his injuries. He was struck in the head some quarter of a mile
away from the Z Mart, clearly far outside the bounds of Z Mart’s ability to
provide security for its customers. Moreover, Plaintiff was not Z Mart’s
customer at the time of the assault. He admits he was in Hassan’s parking
lot when he was first approached by the drug dealers who followed him
down the road to the overpass where he was struck, first by a rock, and
then by a tow truck.
Similarly, Plaintiff has not shown that Hassan’s failure to prevent
persons from loitering on his property after-hours caused Plaintiff’s injuries.
The chain of causation in this case is too attenuated and the injury too
remote. Here, the fact that Plaintiff may have first encountered some of the
persons, allegedly drug dealers, in the parking lot does not make it
reasonably foreseeable that these individuals, and others who joined the
group later, would eventually follow Plaintiff down the street for a quarter of
a mile, before he was struck in the head with a rock, left unconscious on
the highway, and run over by a tow truck. The alleged security deficiencies
here cannot be found to be substantial factors in the catastrophic car
accident which ensued, nor could Plaintiff’s injuries suffered when he was
run over by a tow truck have been reasonably foreseen because drug
dealers loitered in a parking lot. For these reasons, Defendants Hamya
and Hassan are entitled to summary judgment on the negligence claim.
Negligent Attraction of Criminal Activity (Count III)
In addition to his negligence claim, Plaintiff also avers as separate
counts, negligent attraction of criminal activity (Count III). For the same
reasons Defendants are entitled to summary judgment on Plaintiff’s
negligence claim, Defendants are also entitled to summary judgment on the
claim for negligent attraction of criminal activity which must be analyzed
under the same standards. McClung, 937 S.W.2d at 902.
Negligent Training, Hiring and Supervision (Count IV)
Plaintiff also alleges negligent hiring, training, and supervision (Count
IV) against Defendant Hamya only. In order to recover for negligent hiring
or supervision, Plaintiff must establish all the elements of negligence, plus
evidence that the employer had knowledge of the employee’s unfitness for
the job. Doe v. Catholic Bishop for Diocese of Memphis, 306 S.W.3d 712,
717 (Tenn. Ct. App. 2008). Plaintiff argues Hamya should have hired
employees with security training or hired outside contractors, should have
tasked employees other than the employee assigned the duty of monitoring
the surveillance cameras with security duties, and should have conducted
background checks on its employees. Plaintiff also criticizes Hamya for
allegedly failing to train its manager, Sameer Shohatee, in security.
Plaintiff has failed to raise a genuine issue of material fact. Even if
Hamya’s employees could have been better trained in security matters in
general, Plaintiff has failed to show that any Z Mart employee was involved
in the incident at issue here, or that better or different training and
supervision would have prevented Plaintiff’s assault some quarter of a mile
away from the Z Mart.
Nuisance (Count V)
Finally, the court considers Plaintiff’s claim for nuisance against both
Defendants Hamya and Hassan pled in Count V. “A public nuisance is an
act or omission that unreasonably interferes with or obstructs rights
common to the public good.” Wayne Cty. v. Tenn. Solid Waste Disposal
Control Bd., 756 S.W.2d 274, 283 (Tenn. Ct. App. 1988) (citing
Metropolitan Gov’t of Nashville v. Counts, 541 S.W.3d 133, 138 (Tenn.
1976)); see Restatement (Second) of Torts § 821B (1977). But claims
against property owners for the alleged maintenance of a dangerous
condition should apply ordinary principles of negligence. See Counts, 541
S.W.2d at 139.
As Hassan aptly points out in its brief, the modern balancing test
established in McClung governing negligence claims, not the standards
relating to common law public nuisance claims, applies here. See
Tennessee Pattern Jury Instruction § 9.13 (USE NOTE) (instructing that
nuisance actions involving injuries suffered on a defendant’s premises
should use the general negligence instruction § 9.01).
Even if Plaintiff could proceed under a nuisance theory and
demonstrate the existence of criminal conduct on the property, Plaintiff
must demonstrate that the alleged nuisance was the proximate cause of his
injury. See Memphis Light, Gas & Water Div. v. Goss, 494 S.W.2d 766,
769 (Tenn. 1973). For the reasons discussed previously regarding
Plaintiff’s negligence claim, Plaintiff has not shown any nexus between the
operation of Z Mart or Hassan’s parking lot and Plaintiff’s injuries.
Accordingly, Defendants are entitled to summary judgment on Plaintiff’s
Hamya’s Motion for Summary Judgment as to Hassan
Hamya also seeks summary judgment of Hassan’s cross-claim for
indemnification. (Doc. 189). Having found that Hamya and Hassan are
entitled to summary judgment, Hamya’s motion for summary judgment as
to Hassan’s cross-claim for indemnification shall be denied as moot.
For the reasons set forth above, Defendant Hamya’s and Hassan’s
motions for summary judgment (Doc. 183 and 184) are GRANTED.
IT IS FURTHER ORDERED that Defendant Hamya’s motion for
summary judgment as to the cross-claim filed by Hassan (Doc. 189) is
DENIED AS MOOT.
IT IS SO ORDERED.
Dated: April 24, 2019
s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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