Meraz v. El Charro Billiards, LLC et al

Filing 89

ORDER granting 81 Motion for Partial Summary Judgment. Signed by Judge Samuel H. Mays, Jr on 10/10/2013.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

ELMER MERAZ,
Plaintiff,
v.
EL CHARRO BILLIARDS, LLC, et
al.,
Defendants.

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No. 11-2812

ORDER GRANTING MOTION FOR PARTIAL SUMMARY JUDGMENT

Before the Court is Plaintiff Elmer Meraz‟s (“Meraz”) May
30, 2013 Motion for Partial Summary Judgment (the “Motion”) on
the issue of Defendant El Charro Billiards, LLC‟s (“El Charro”)
liability for negligence.

(Mot. for Par. Summ. J., ECF No. 81.)

El Charro has not responded.

For the following reasons, Meraz‟s

Motion for Partial Summary Judgment is GRANTED.
I.

Background
All facts are taken from Meraz‟s Statement of Undisputed

Facts unless otherwise stated.
No. 81-1.)

(Statement of Undisp. Facts, ECF

On September 19, 2010, Meraz intervened in a verbal

altercation at El Charro between Abel Mediano (“Mediano”),
Meraz‟s cousin and companion for the evening, and Santiago Lopez
(“Lopez”), a known trouble maker and regular customer of El
Charro.

(Id. ¶¶ 4-6.)

El Charro‟s security told the three of

them to leave.

(Id ¶ 7.)

When Meraz walked outside the bar

with Lopez, Lopez pulled a gun and shot Meraz six times.

(Id.

at ¶ 8.)
El Charro regularly permitted a variety of “gang activity”
on its premises, including drug sales, drug use, fights between
customers, violent assaults on passersby, and multiple shootings
at the bar and adjoining parking lot.

(Id. ¶¶ 13-17, 19.)

Lopez was a regular customer who started fights with other
customers “every time” he was there.

(Id. ¶ 9.)

Before the

shooting, Lopez had “harassed [other] patrons” with guns inside
the bar.

(Id. ¶¶ 9, 12.)

Lopez was regularly ejected, but the

bar‟s staff, which included two of Lopez‟s sisters, “would
always let [him] back in.”

(Id. ¶¶ 11, 19.)

The management of El Charro did not have any written
policies, procedures, or guidelines about the function of its
security guards.

(Id. ¶ 19.)

Management did not communicate to

security guards the identity of patrons who had been ejected or
banned.

(Id. ¶ 20.)

Security staffing included guards with no

documented experience in the security industry and no prior
training or experience at the bar.

(Id. ¶¶ 19, 20.)

There is

no evidence of a formal training program for any of the staff
about the proper service of alcohol and the handling of
intoxicated and violent guests.

(Id. ¶ 21.)

2

On September 19, 2010, Pedro Mendoza (“Mendoza”) was the
security person on duty.

(Id. ¶ 20.)

Mendoza was at the front

door and was responsible for screening in-coming patrons and
searching them for weapons.

(Id.)

dangerous and violent reputation.

Mendoza was aware of Lopez‟s
(Id.)

When Lopez arrived,

Mendoza allowed him to enter and did not pat him down or
otherwise search him for weapons.

(Id.)

The same evening, Meraz went to El Charro with his cousin,
Mediano.

(Id. ¶¶ 1, 3).

Meraz had been to the bar twice

before, but had not previously met Lopez.

(Id. ¶ 2.)

At some

point in the evening, Lopez and Mediano became entangled in a
verbal altercation, and Meraz intervened by standing between
them.
leave.

(Id. ¶ 6.)

Security instructed all three of them to

(Id. ¶ 7.)

When Meraz walked outside with Lopez, Lopez

“pulled a gun and shot [Meraz] six times.”
II.

(Id. ¶ 8.)

Jurisdiction

This Court has diversity jurisdiction under 28 U.S.C §
1332.

District courts have “jurisdiction of all civil actions

where the matter in controversy exceeds the sum or value of
$75,000, exclusive of interest and costs, and is
between...citizens of different states.”

28 U.S.C § 1332(a)(1).

The Plaintiff, Meraz, is a resident of Mississippi.
ECF No. 1 ¶ 2.)

(Compl.,

The Defendant, El Charro, is a Tennessee

limited liability company with its principal place of business
3

in Memphis, Tennessee.
in damages.

(Id. ¶ 3.)

(Id. ¶ 31.)

Meraz has alleged $1,870,353

The parties are completely diverse,

and the amount in controversy requirement is satisfied.
III. Choice of Law
In

diversity

substantive law.
(1938).

To

actions,

federal

courts

apply

state

Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78

determine

the

appropriate

state

law,

a

federal

district court applies the “choice of law” rules of the state in
which it sits.

Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S.

487, 496 (1941); Montgomery v. Wyeth, 580 F.3d 455, 459 (6th
Cir. 2009) (citation omitted).
For tort claims, Tennessee follows the “most significant
relationship” rule, which provides that “the law of the state
where the injury occurred will be applied unless some other
state has a more significant relationship to the litigation.”
Hicks v. Lewis, 148 S.W.3d 80, 86 (Tenn. Ct. App. 2003) (quoting
Hataway v. McKinley, 830 S.W.2d 53, 59 (Tenn. 1992)).

The

injuries alleged here occurred in Tennessee, Meraz contends that
Tennessee law should apply, and El Charro has not argued that
any other state has a more significant relationship to the
litigation.
IV.

The Court will apply Tennessee substantive law.

Standard of Review

Under Federal Rule of Civil Procedure 56, on motion of a
party, the court “shall grant summary judgment if the movant
4

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 can meet this burden by

pointing out to the court that the non-moving party, having had
sufficient opportunity for discovery, has no evidence to support
an essential element of its case.

See Fed. R. Civ. P. 56(c)(1);

Asbury v. Teodosio, 412 F. Appx. 786, 791 (6th Cir. 2011)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
When

confronted

with

a

properly

supported

motion

for

summary judgment, the non-moving party must set forth specific
facts showing that there is a genuine dispute for trial.
Fed. R. Civ. P. 56(c).
the

evidence

is

such

See

A genuine dispute for trial exists if
that

a

reasonable

verdict for the non-moving party.

jury

could

return

a

See Wasek v. Arrow Energy

Servs., 682 F.3d 463, 467 (6th Cir. 2012) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
party

must

“„do

more

than

simply

show

that

metaphysical doubt as to the material facts.‟”

The non-moving
there

is

some

Phelps v. State

Farm Mut. Auto. Ins. Co., 680 F.3d 725, 735 (6th Cir. 2012)
(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S.

574,

supported
pleadings.

586

(1986)).

summary

A

judgment

party

may

motion

by

not
mere

oppose

a

reliance

properly
on

the

See Beckett v. Ford, 384 Fed. Appx. 435, 443 (6th

Cir. 2010) (citing Celotex Corp., 477 U.S. at 324).
5

Instead,

the non-moving party “must adduce concrete evidence on which a
reasonable

juror

could

return

a

verdict

in

[its]

favor.”

Stalbosky v. Belew, 205 F.3d 890, 895 (6th Cir. 2000) (citations
omitted); see Fed. R. Civ. P. 56(c)(1).

The court does not have

the duty to search the record for such evidence.

See Fed. R.

Civ. P. 56(c)(3); InterRoyal Corp. v. Sponseller, 889 F.2d 108,
111 (6th Cir. 1989).

The non-moving party has the duty to point

out specific evidence in the record that would be sufficient to
justify a jury decision in its favor.

See Fed. R. Civ. P.

56(c)(1); InterRoyal Corp., 889 F.2d at 111.
Although summary judgment must be used carefully, it “is an
integral

part

designed

to

determination

of

the

secure
of

every

procedural shortcut.”

Federal
the

Rules

just,

action[,]

as

a

speedy,
rather

whole,
and
than

which

are

inexpensive
a

disfavored

FDIC v. Jeff Miller Stables, 573 F.3d

289, 294 (6th Cir. 2009) (internal quotation marks and citations
omitted).
The local rules of this district establish specific
requirements that must be satisfied by the non-moving party.
The party opposing summary judgment must respond to each fact
set forth by the moving party by agreeing that it is undisputed,
agreeing that it is undisputed for purposes of ruling on the
summary judgment motion only, or by demonstrating that the fact
is disputed.

W.D. Tenn. L.R. 56.1 (b).
6

The non-moving party

must make specific citations to the record to support each
contention that a particular fact is in dispute.

Id.

The non-

moving party‟s failure to respond as required to the moving
party‟s statement of material facts “shall indicate that the
asserted facts are not disputed for purposes of summary
judgment.”

W.D. Tenn. L.R. 56.1(d).

El Charro has failed to respond to the Motion and the time
to do so has passed.

W.D. Tenn. L.R. 56.1(b).

The facts

asserted in Meraz‟s Statement of Undisputed Facts are taken as
true for purposes of this Motion.
V.

Analysis
Meraz argues that El Charro had a duty to take reasonable

steps to protect him from danger that was foreseeable as a
result of past criminal acts in and around El Charro.
Par. Summ. J., ECF No. 81-2 at 4-5.)

(Mot. for

Meraz argues that El

Charro was on notice of “rampant” criminal and gang activity
inside El Charro, multiple shootings at El Charro and the
adjoining parking lot, and Lopez‟s past violent behavior.
at 4-6.)

(Id.

Meraz argues that, by allowing “open and notorious

criminal activity to take place [on] its premises, and . . .
condon[ing] . . . the criminal activity of Santiago Lopez,” El
Charro breached its duty of care and caused Meraz‟s injuries.
(Id. at 6.)
A. Negligence Standard
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To establish a “prima facie claim of negligence,” a
plaintiff must establish “„(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.‟”
Morrison v. Allen, 338 S.W.3d 417, 437 (Tenn. 2011) (quoting
Giggers v. Memphis Housing Auth., 277 S.W.3d 359, 364 (Tenn.
2009)).
“To determine whether a particular defendant owes a duty of
care to a particular plaintiff, [courts] balance the
foreseeability and gravity of the potential harm against the
feasibility and availability of alternatives that would have
prevented the harm.”
2005).

Hale v. Ostrow, 166 S.W.3d 713, 716 (Tenn.

The “„foreseeability prong is paramount because

foreseeability is the test of negligence.‟”

Id. at 716-17

(quoting Biscan v. Brown, 160 S.W.3d 462, 480 (Tenn. 2005)
(internal quotations omitted)). “[F]oreseeability alone „is not,
in and of itself sufficient to create a duty‟ . . . . Rather
when a minimum threshold of foreseeability is established,
courts must engage in „an analysis of the relevant public policy
considerations‟ to determine whether a duty enforceable in tort
must be imposed.”

Giggers, 277 S.W.3d at 365-66 (quoting

Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 364-66
(Tenn. 2008)).
8

In a negligence action, “the standard of conduct is always
the same.

It is a standard of reasonable care in light of the

apparent risk.”
1995).

McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.

“If a defendant fails to exercise reasonable care under

the circumstances, then he or she has breached his or her duty
to the plaintiffs.”

West v. East Tenn. Pioneer Oil Co., 172

S.W.3d 545, 550 (Tenn. 2005).

“Reasonable care is to be

determined by the risk entailed through probable dangers
attending the particular situation and is to be commensurate
with the risk of injury.”

Id.

“„Causation [in fact] and proximate cause are distinct
elements of negligence, and both must be proven by the plaintiff
by a preponderance of the evidence.‟”

Hale, 166 S.W.3d at 718

(quoting Kilpatrick v. Bryant, 868 S.W.2d 594, 598 (Tenn.
1993)).

Both types of causation are “„ordinarily jury

questions[] 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. (quoting Haynes v.

Hamilton County, 883 S.W.2d 606, 612 (Tenn. 1994)).

A plaintiff

establishes cause in fact when “as a factual matter [defendant‟s
conduct] directly contributed to the plaintiff‟s injury...[and]
the plaintiff‟s injury would [not] have happened „but for‟ the
defendant‟s act.”

Id.

Proximate cause is determined by a

three-pronged test:
9

(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 and prudence.
Id. (quoting Haynes, 883 S.W.2d at 612).
B. Premises Liability
Under a premises liability theory of negligence, merchants
may be held liable for injuries caused by a dangerous condition
on the premises. See Blair v. West Town Mall, 130 S.W.3d 761,
764 (Tenn. 2004).

Because “[l]iability in premises liability

cases stems from superior knowledge of the condition of the
premises,” a plaintiff must:
prove in addition to the elements of negligence, that: (1)
the condition was caused or created by the owner, operator,
or his agent, or (2) if the condition was created by
someone other than the owner, operator, or his agent, that
the owner or operator had actual or constructive notice
that the condition existed prior to the accident.
Blair, 130 S.W.3d at 764 (internal quotations omitted).
The duty to protect invitees from harm resulting from a
dangerous condition includes an obligation to “take reasonable
measures to protect [] customers from foreseeable criminal
attacks.”

McClung v. Delta Square Ltd. P„ship, 937 S.W.2d 891,

899 (Tenn. 1996).

A duty:

to take reasonable steps to protect customers arises if the
business knows, or has reason to know, either from what has
been or should have been observed or from past experience,
10

that criminal acts against its customers on its premises
are reasonably foreseeable, either generally or at some
particular time.
McClung, 937 S.W.2d at 902.

As with the regular negligence

standard, the burden imposed on a merchant must be balanced with
the foreseeability and gravity of the potential harm to
customers.

Id.

“In cases in which there is a high degree of

foreseeability of harm and the probable harm is great, the
burden imposed upon defendant may be substantial.”

Id.

In McClung, the plaintiff was abducted from a shopping mall
parking lot.

Id. at 894.

The court held that the “numerous

reports of crime on or near defendants‟ premises” in the
seventeen months before the abduction made the risk of harm to
defendant‟s customers foreseeable.

Id. at 904.

The court

remanded on the question of the degree of the burden this duty
imposed, instructing the lower court not to impose a burden that
“outweighs the foreseeability and gravity of the possible harm.”
Id.
The McClung standard does not strictly limit liability to
injuries that take place on a defendant‟s property.

See, e.g.,

Estes v. Peels, No. EE199900582COAR3CV, 2000 WL 1424808, at *5
(Tenn. Ct. App. Sept. 21, 2000).

In Estes, the court held that

there are instances in which a landowner has a duty “to protect
[a] plaintiff from an [injury] that occurred off the premises.”

11

Id.

(emphasis in original); see also Helton v. Glenn

Enterprises, Inc., 209 S.W.3d 619, 627 (Tenn. Ct. App. 2006)
(holding that a motel had a duty to prevent reasonably
foreseeable thefts of automobiles in an adjacent parking lot
that the motel led patrons to believe was on motel property).

A

court must determine, “using the balancing approach set forth in
[McClung], whether some condition on [a defendant‟s] property
created an unreasonable risk of harm to the plaintiff despite
[the] lack of contact” with the defendant‟s property at the
point of injury.

Estes, 2000 WL 1424808 at *6.

C. El Charro’s Negligence
El Charro had a duty to take reasonable steps to protect
Meraz from foreseeable criminal attacks.
S.W.2d at 899.

See McClung, 937

El Charro had specific knowledge of dangerous

conditions on the premises, such as open gang activity, the sale
and use of drugs, numerous fights between customers, violent
assaults on passersby, multiple shootings at the bar and
adjoining parking lot, and Lopez‟s consistently violent history.
(See Statement of Undisp. Facts, ECF No. 81-1 ¶¶ 9, 11, 13-17,
19.)

El Charro had actual notice of Lopez‟s violent history,

having ejected him from the bar numerous times for harassing
customers with guns and instigating fights.

(Id. ¶¶ 9, 12.)

Because there “was a high degree of foreseeability of harm and
the probable harm [was] great” as a result of the dangerous
12

conditions at El Charro, El Charro‟s burden those “substantial.”
McClung, 937 S.W.2d at 902.

That substantial burden required,

at the very least, maintaining a competent security staff and
ensuring that known violent customers would not be allowed into
the bar while armed with guns.

The degree of harm foreseeable

from failing to implement those basic security measures
outweighed any burden those measures would impose on El Charro.
See McClung, 937 S.W.2d at 904.

El Charro‟s duty to Meraz did

not disappear when El Charro ejected Meraz and Lopez from the
bar because it was foreseeable that Meraz would be subject to
harm as a result of El Charro‟s failure to secure the premises
adequately.

See Estes, 2000 WL 1424808 at *6.

Based on the undisputed facts, no reasonable jury could
find that El Charro met its standard of care.
F.3d at 467.

See Wasek, 682

El Charro allowed gang activity to continue inside

the bar.

(See Statement of Undisp. Facts, ECF No. 81-1 ¶¶ 13-

17, 19.)

It did not establish policies preventing violent

customers from returning to the bar.

(See Id. ¶ 19.)

guards did not have adequate training or experience.
19, 20.)

Security
(Id. ¶¶

On the evening of the attack, Mendoza, the security

guard on duty, allowed Lopez to enter the bar without searching
him for weapons, despite Mendoza‟s knowledge of Lopez‟s previous
violence toward customers.

(Id.)

13

El Charro‟s failure to take reasonable steps to protect
Meraz actually and proximately caused Meraz‟s injuries.

Moments

after being ejected from El Charro, Lopez shot Meraz six times.
(Id. ¶ 8.)

Meraz would not have been shot “but for” El Charro‟s

allowing an armed Lopez into the bar, a result of El Charro‟s
failure to maintain reasonable security procedures and employ
competent security guards.

See Hale, 166 S.W.3d at 718.

El

Charro‟s breach of duty also proximately caused Meraz‟s
injuries.

El Charro‟s failure to prevent Lopez from entering

the bar, or search him for weapons, was a “substantial factor”
in Lopez‟s shooting Meraz immediately after both were ejected.
See Id. at 719.
liability.

No rule or policy favors relieving El Charro of

See Id.

The harm to Meraz was reasonably

foreseeable given the gang activity in the bar and Lopez‟s
history of violence.
VI.

See Id.

Conclusion

For the foregoing reasons, no reasonable jury could find
that El Charro is not liable to Meraz for negligence, and
Meraz‟s Motion for Partial Summary judgment on the issue of
negligence is GRANTED.
So ordered this 10th day of October, 2013.

s/ Samuel H. Mays, Jr. ______
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
14