Jimenez v. 5454 Airport, LLC et al
MEMORANDUM AND ORDER denying 21 Motion for Partial Summary Judgment.(Signed by Judge Nancy F Atlas) Parties notified.(TDR, 4)
United States District Court
Southern District of Texas
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
ALEX NEFTALY IRAHETA
5454 AIRPORT, LLC, et al.,
October 13, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. H-16-1749
MEMORANDUM AND ORDER
This case is before the Court on the Motion for Partial Summary Judgment
(“Motion”) [Doc. # 21] filed by Defendants 5454 Airport LLC, BFLP Operations
LLC, Little York Plaza LLC, and Patricia Boulos Ganim. Plaintiff Alex Neftaly
Iraheta Jimenez filed a Response [Doc. # 26], and Defendants filed a Reply [Doc.
# 28] and an Amended Reply [Doc. # 29]. At the Court’s direction, Plaintiff filed a
Sur-Reply [Doc. # 31]. Having reviewed the full record and the applicable legal
authorities, the Court denies Defendants’ Motion.
Plaintiff worked as a cashier at the Airport Texaco, Defendants’ gas station and
convenience store. On October 18, 2015, while Plaintiff was working the night shift,
there was an attempted robbery of the Airport Texaco. During the course of the
attempted robbery, Plaintiff and the robbers shot at each other. Plaintiff was wounded
in the shoulder, and the robbers fled the scene. Plaintiff was treated at the hospital and
released the next day.
Plaintiff left Defendants’ employ on March 27, 2016. On May 16, 2016,
Plaintiff filed this lawsuit in Texas state court alleging violations of the Fair Labor
Standards Act (“FLSA”), as well as a claim for “premises liability and negligence.”
See Original Petition [Doc. # 1-1], ¶ 7. Defendants filed a timely Notice of Removal.
Following removal, Plaintiff filed a First Amended Complaint [Doc. # 10], in which
he abandoned the premises liability claim and continued to assert the FLSA and
After the close of discovery, Defendants moved for summary judgment on the
negligence claim.1 The Motion for Partial Summary Judgment has been fully briefed
and is now ripe for decision.
SUMMARY JUDGMENT STANDARD
Summary judgment is proper only if the pleadings, depositions, answers to
interrogatories, and admissions in the record, together with any affidavits filed in
support of the motion, demonstrate 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 FED. R.
Defendants also moved for summary judgment on “Plaintiff’s alleged claim for failure
to maintain worker’s compensation insurance,” but Plaintiff advises that he is not
asserting this claim in the First Amended Complaint.
CIV. P. 56(a); Bacharach v. Suntrust Mortg., Inc., 827 F.3d 432, 434 (5th Cir. 2016).
The moving party bears the burden of demonstrating that there is no evidence to
support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986); Cannata v. Catholic Diocese of Austin, 700 F.3d 169, 172 (5th Cir. 2012).
If the moving party meets this initial burden, the burden shifts to the nonmovant
to set forth specific facts showing the existence of a genuine issue for trial. See
Brandon v. Sage Corp., 808 F.3d 266, 270 (5th Cir. 2015) (citing Bayle v. Allstate Ins.
Co., 615 F.3d 350, 355 (5th Cir. 2010)). The Court construes all facts and considers
all evidence in the light most favorable to the nonmoving party. See Guar. Bank &
Trust Co. v. Agrex, Inc., 820 F.3d 790, 794 (5th Cir. 2016).
“A party may object that the material cited to support or dispute a fact cannot
be presented in a form that would be admissible in evidence.” FED. R. CIV.
P. 56(c)(2); Cutting Underwater Techs. USA, Inc. v. Eni U.S. Operating Co., 671
F.3d 512, 515 n. 5 (5th Cir. 2012). A party challenging evidence presented in
connection with a motion for summary judgment must demonstrate “that this evidence
‘cannot be presented in a form that would be admissible in evidence,’ i.e. that these
exhibits cannot be verified and authenticated at trial.” See Hoffman v. Bailey, __ F.
Supp. 3d ___, 2017 WL 2653073, *15 (E.D. La. June 20, 2017) (quoting FED. R. CIV.
Applicable Legal Principles
A negligence cause of action has three essential elements: (1) a legal duty owed
by the defendant to the plaintiff, (2) a breach of that duty, and (3) damages
proximately caused by the breach. See D. Houston, Inc. v. Love, 92 S.W.3d 450, 454
(Tex. 2002); LMC Complete Auto., Inc. v. Burke, 229 S.W.3d 469, 475 (Tex. App. –
Houston [1st Dist.] 2007, review denied). Defendants seek summary judgment on
Plaintiff’s negligence claim, arguing that it owed no duty to protect Plaintiff from
criminal activity by unknown third parties.
An employer has a duty to use ordinary care in providing a safe workplace for
its employees. See Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex. 2006); Farley
v. M M Cattle Co., 529 S.W.2d 751, 754 (Tex. 1975); LMC, 229 S.W.3d at 476. An
employer is not, however, an insurer of its employees’ safety. Id. (citing Elwood, 197
S.W.3d at 794; Leitch v. Hornsby, 935 S.W.2d 114, 117 (Tex. 1996); Exxon Corp. v.
Tidwell, 867 S.W.2d 19, 21 (Tex. 1993)). “Determining whether an employer
breached its duty to provide a safe workplace is necessarily fact specific.” Browne v.
Kroger Co., 2005 WL 1430473, *2 (Tex. App. – Houston [14th Dist.] June 21, 2005,
no pet.) (citing Great Atlantic & Pac. Tea Co. v. Evans, 142 Tex. 1, 175 S.W.2d 249,
Although a person generally has no legal duty to protect another from the
criminal acts of a third person, a person who controls the premises has a duty to use
ordinary care to protect invitees from criminal acts of third parties if the person
“knows or has reason to know of an unreasonable and foreseeable risk of harm” to the
invitee. Gibbs v. ShuttleKing, Inc., 162 S.W.3d 603, 609-10 (Tex. App. – El Paso,
2005) (citing Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997)). An
employee is an “invitee” on his employer’s premises. See Guerrero v. Mem. Med.
Center of East Tex., 938 S.W.2d 789, 791 (Tex. App. – Beaumont 1997, no pet.)
(citing Hernandez v. Heldenfels, 374 S.W.2d 196, 197 (Tex. 1963)).
“The foreseeability of an unreasonable risk of criminal conduct is a prerequisite
to imposing a duty of care on a person who owns or controls premises to protect
others on the property [including employees] from the risk.” Timberwalk Apartments,
Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998). Whether a risk of criminal
activity was foreseeable “must not be determined in hindsight but rather in light of
what the premises owner knew or should have known before the criminal act
occurred.” Id. at 757. To determine whether the property owner should have foreseen
criminal conduct on the premises, “courts should consider whether any criminal
conduct previously occurred on or near the property, how recently it occurred, how
often it occurred, how similar the conduct was to the conduct on the property, and
what publicity was given the occurrences to indicate that the landowner knew or
should have known about them.” Id.
Plaintiff has presented evidence2 that there had been assaults and other crimes
involving weapons at the Airport Texaco in the months before he was injured. Indeed,
Plaintiff has presented evidence that he was the victim of a different armed robbery
while working at the Airport Texaco only one week before the attempted robbery in
which he was shot. Plaintiff has presented evidence that there were 73 crimes
reported in the area around the Airport Texaco between May 2012 and October 2015.
Of those reported crimes, 66 were reported to have occurred at the Airport Texaco.
Twenty-five of the reported crimes involved Plaintiff or another employee at the
Plaintiff’s evidence regarding the similarity, recency, frequency, proximity, and
publicity of the prior criminal activity at or near the Airport Texaco raises a genuine
issue of material fact regarding whether the risk of criminal activity, including
attempted armed robbery, at the Airport Texaco was foreseeable to Defendants. As
Defendants object to the admissibility of much of Plaintiff’s evidence. Plaintiff has
presented evidence including sworn testimony by himself and others, and records
from the Houston Police Department. Plaintiff’s evidence is either in admissible form
or, as explained in Plaintiff’s Sur-Reply, can be presented in admissible form at trial.
As a result, Defendants’ Rule 56(c) objection is overruled.
a result, Defendants’ Motion for Partial Summary Judgment on the negligence claim
will be denied.
CONCLUSION AND ORDER
As explained above, Plaintiff has presented evidence that is either admissible
or can be presented in a form that would be admissible at trial. Plaintiff’s evidence
raises a genuine issue of material fact regarding his negligence claim based on his
injury during the attempted robbery of the Airport Texaco. Plaintiff has clarified that
he is not asserting a claim for failure to maintain workers’ compensation insurance
coverage. As a result, it is hereby
ORDERED that the Motion for Partial Summary Judgment [Doc. # 21] is
DENIED. The case remains scheduled for docket call on November 13, 2017.
SIGNED at Houston, Texas, this 13th day of October, 2017.
NAN Y F. ATLAS
STATES DISTRICT JUDGE
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