Mesina v. Walgreen's

Filing 13

ORDER Cancelling Motion Hearing and Granting Defendant's Motion for Summary Judgment. GRANTING 10 MOTION for Summary Judgment filed by Walgreen's. Signed by Judge David A. Ezra. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
MARIA MESINA,
Plaintiff,
vs.
WALGREEN’S,
Defendant.

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No. SA:15–CV–054–DAE

ORDER (1) CANCELING MOTION HEARING AND (2) GRANTING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is a Motion for Summary Judgment filed by
Defendant Walgreen Co., incorrectly sued as Walgreen’s (“Defendant”). (Dkt.
# 10.) Pursuant to Local Rule CV-7(h), the Court finds this matter suitable for
disposition without a hearing. The Court hereby CANCELS the motion hearing
currently set on this matter for Monday, October 26, 2015 at 2:15 PM in
Courtroom 5 of the John H. Wood, Jr. United States Courthouse, 655 East Cesar E.
Chavez Boulevard, San Antonio, Texas. After reviewing the Motion, for the
reasons that follow, the Court GRANTS Defendant’s Motion for Summary
Judgment (Dkt. # 10). However, the Court DENIES Defendant’s request for
attorneys’ fees.

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BACKGROUND
Plaintiff Maria Mesina’s (“Plaintiff”) Original Complaint alleges that
on or about March 6, 2014, she was shopping at the Walgreens store located at
1581 Austin Highway in San Antonio, Texas, when an unidentified African
American assailant entered the store and attempted to grab Plaintiff’s purse. (Dkt.
# 1-1 ¶ 7.) Plaintiff states that she then fell to the ground clutching her purse, and
that the assailant proceeded to jump on top of her and strike her several times.
(Id.) Plaintiff alleges that the contents of her purse spilled onto the floor, and that
the assailant grabbed $300.00 in cash and fled the store. (Id.) Defendant reports
that police have been unable to locate the assailant.
Defendant’s security footage shows that the assailant first entered the
store at 9:43:36 PM (Dkt. # 10, Ex. B at 21:43:36) and exited at 9:45:37 PM (id. at
21:45:37). The assailant re-entered the store at 9:45:47 PM. (Id. at 21:45:47.) The
assailant and Plaintiff enter the frame of the security camera at 9:46:02 PM. (Id. at
21:46:02.) The footage shows the assailant dragging Plaintiff along as he attempts
to wrest her purse away from her. The footage further shows the assailant striking
Plaintiff several times before exiting the store at 9:46:11 PM. (Id. at 21:46:02–
21:46:11.)
Plaintiff filed her Original Complaint in the 225th Judicial District
Court of Bexar County, Texas on December 12, 2014, asserting negligence causes
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of action. (Dkt. # 1-1.) On January 23, 2015, Defendant filed its Notice of
Removal, invoking this Court’s diversity jurisdiction. (Dkt. # 1.) On April 27,
2015, Defendant filed a Motion for Leave to Designate Responsible Third Party,
seeking to leave to designate the unknown assailant as a responsible third party in
this action. (Dkt. # 8.) On May 7, 2015, the Court denied Defendant’s Motion on
the grounds that Defendant failed to comply with the statutory requirements for
designating unknown third parties under Texas law. (Dkt. # 9.) On August 10,
2015, Defendant filed the instant Motion for Summary Judgment. (Dkt. # 10.)
Plaintiff did not file a Response.
LEGAL STANDARD
Summary judgment is proper where the evidence demonstrates “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); Cannata v. Catholic Diocese
of Austin, 700 F.3d 169, 172 (5th Cir. 2012). The party moving for summary
judgment bears the burden of demonstrating the absence of a genuine issue of
material fact. Davis v. Fort Bend Cnty., 765 F.3d 480, 484 (5th Cir. 2014) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party meets its
burden, the burden shifts to the nonmoving party to come forward with specific
facts that establish the existence of a genuine issue for trial. ACE Am. Ins. Co. v.
Freeport Welding & Fabricating, Inc., 699 F.3d 832, 839 (5th Cir. 2012).
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The court evaluates the proffered evidence in the light most favorable
to the nonmoving party. Mace v. City of Palestine, 333 F.3d 621, 623 (5th Cir.
2003). The court “examines the pleadings, affidavits, and other evidence
introduced in the motion, resolves any factual doubts in favor of the non-movant,
and determines whether a triable issue of fact exists.” Leghart v. Hauk, 25 F.
Supp. 2d 748, 751 (W.D. Tex. 1998). However, “[u]nsubstantied assertions,
improbable inferences, and unsupported speculation are not sufficient to defeat a
motion for summary judgment.” Brown v. City of Hous., 337 F.3d 539, 541 (5th
Cir. 2003).
DISCUSSION
Defendant argues that summary judgment should be granted because
there is no genuine issue of material fact as to the foreseeability of the criminal act
in question, and foreseeability is a necessary element of Plaintiff’s negligence
causes of action. (Dkt. # 10 at 2.) To sustain a negligence action under Texas law,
“the plaintiff must produce evidence of a legal duty owed by the defendant to the
plaintiff, a breach of that duty, and damages proximately caused by that breach.”
Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 782 (Tex. 2001) (citing
Praesel v. Johnson, 967 S.W.2d 391, 394 (Tex. 1998)).
As a general matter, citizens do not have a duty to protect others from
third-party criminal acts. Trammell Crow Cent. Tex., Ltd. v. Gutierrez, 267
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S.W.3d 9, 12 (Tex. 2008). “However, one who controls the premises does have a
duty to use ordinary care to protect invitees from criminal acts if he knows or has
reason to know of an unreasonable and foreseeable risk of harm to the invitee.” Id.
(quoting Lefmark Mgmt. Co. v. Old, 946 S.W.2d 52, 53 (Tex. 1997)).
“Foreseeability is established through evidence of specific previous crimes on or
near the premises.” Id. (quoting Timberwalk Apartments, Partners, Inc. v. Cain,
972 S.W.2d 749, 756 (Tex. 1998)).
In analyzing foreseeability, Texas courts normally look to the
foreseeability of general risk—i.e., whether the owner of the premises had or
should have had knowledge of previous criminal incidents. In 2010, however, the
Texas Supreme Court recognized that this general standard is inapplicable to
situations in which a premises owner should have been aware of a specific risk—
i.e., whether the owner should have reasonably anticipated criminal activity at
some particular time. Del Lago Partners v. Smith, 307 S.W.3d 762, 768–69 (Tex.
2010). Defendant argues that under both the specific and general risk standards,
the criminal act at issue was unforeseeable.
I.

General Risk: Timberwalk Test
With respect to general risk, Texas courts weigh evidence of prior

crimes using the following five factors known as the “Timberwalk factors”:
“proximity, publicity, recency, frequency, and similarity.” Trammell, 267 S.W.3d
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at 15 (citing Timberwalk, 972 S.W.2d at 759). “The occurrence of a significant
number of crimes within a short period of time strengthens the claim that the
particular crime at issue was foreseeable; the occurrence of a few crimes over an
extended period negates foreseeability.” Mayers v. Willowbrooke Plaza Ltd.
P’ship, 278 S.W.3d 901, 918 (Tex. App. 2009) (citing Timberwalk, 972 S.W.2d at
758). Courts consider the evidence in light of what the premises owner knew or
should have known at the time of the criminal act in question. Timberwalk, 972
S.W.2d at 757. In this case, Defendant has submitted evidence in the form of an
affidavit from its liability examiner, Raymond Wetzel, stating that there have been
no other reported incidents of assault or theft involving customers at the Walgreens
location on Austin Highway in the past five years. (“Wetzel Aff.,” Dkt. # 10, Ex.
A ¶ 4.)
Texas courts applying the Timberwalk factors have found that a lack
of similar crime within a few years prior to the incident in question indicates a lack
of foreseeability. For example, in Trammell Crow Central Texas, Ltd. v.
Gutierrez, the decedent was shot and killed during a botched robbery at the Quarry
Market shopping center. 267 S.W.3d at 11. The Texas Supreme Court found that
ten violent crimes over a 23-month span prior to the robbery/murder were not
sufficiently frequent and similar so as render the robbery/murder foreseeable. Id.
at 15–17. Similarly, in Mayer v. Willowbrook Plaza Ltd. Partnership, two patrons
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were shot and killed after a confrontation in the parking lot of the Willowbrook
Plaza shopping center sometime after 2:00 AM on the morning of the incident.
278 S.W.3d at 906–07. The Texas Court of Appeals found that five non-violent
crimes occurring after 2:00 AM and two violent crimes occurring before 2:00 AM
in the 16 months before the decedents’ deaths did not make the murders at issue
foreseeable. Id. at 922. Finally, in Texas Real Estate Holdings, Inc. v. Quach, a
woman was shot in the face during a carjacking in the parking lot of her apartment
complex, resulting in permanent neurological damage. 95 S.W.3d 395, 396–97.
The Texas Court of Appeals found that because there were no other incidents of
stranger-initiated violent crime on the apartment complex premises in the two
years prior to the carjacking, the carjacking was not foreseeable to the property
owner and manager. Id. at 400–01. In light of this precedent, the Court finds that
Plaintiff’s assault was not reasonably foreseeable to Defendant under the
Timberwalk factors.
II.

Specific Risk: Del Lago Test
With respect to specific risk, courts examine whether a property

owner “should reasonably anticipate criminal conduct on the part of third persons”
based on location, mode of doing business, observation, or past experience. 1 Del

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The Court is not convinced that the Del Lago test applies to this case, see Del
Lago, 307 S.W.3d at 768, but undertakes the following analysis out of an
abundance of caution.
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Lago, 307 S.W.3d at 769. In other words, where events immediately preceding the
criminal conduct render such conduct reasonably foreseeable, a property owner has
a duty to take precautions against it. See id. In this case, less than three minutes
passed between the time the assailant first entered the store and when he exited
after the assault on Plaintiff. (See Dkt. # 10, Ex. B at 21:43:36–21:46:11.) For a
portion of this time, including the assailant’s first trip into the store between
9:43:36 PM and 9:45:37 PM and the beginning of the assault, the assailant is
outside of the frame of the security footage provided by Defendant.
However, even if the assailant had been acting in an aggressive
manner or indicated that an assault was or may have been imminent, the Court
finds that Defendant still had no duty to take precautions against a potential assault
because of the extremely short timeframe between the assailant’s first entrance and
his final exit from the store. In Del Lago, the court found that a duty to use
reasonable care arose where two groups of intoxicated patrons at a bar were
involved in “heated altercations” for 90 minutes preceding the fight that resulted in
the respondent’s injuries. 307 S.W.3d at 768. Furthermore, the Del Lago court
held that a duty arose in part because “the risk arose in circumstances where the
property owner had readily available opportunities to reduce it.” Id. at 770. The
same cannot be said for this case. Even if the assailant had announced an intent to
commit an assault at some point during the three minutes in question, the short
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timeframe meant that Defendant had no meaningful opportunity to reduce the risk
to Plaintiff.
In sum, because Defendant did not have a duty to protect Plaintiff
from the assailant’s criminal act, Plaintiff’s negligence claims must fail and
Defendant is entitled to summary judgment.
III.

Attorneys’ Fees
Finally, Defendant asks the Court to order Plaintiff and Plaintiff’s

counsel to pay Defendant’s reasonable expenses, costs, and attorneys’ fees
incurred in making the instant Motion. (Dkt. # 10 at 8.) “Attorneys’ fees are
recoverable from an opposing party only as authorized by statute or by contract
between parties.” Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 817
(Tex. 2006). Here, there was no contract between the parties, and no Texas statute
authorizes an award of attorneys’ fees in a negligence cause of action. Gulf States
Utilities Co. v. Low, 79 S.W.3d 561, 568 (Tex. 2002); Prudential Ins. Co. v.
Durante, 443 S.W.3d 499, 513 (Tex. App. 2014). The Court therefore declines to
award attorneys’ fees to Defendant.
CONCLUSION
For the reasons stated above, the Court hereby GRANTS Defendant’s
Motion for Summary Judgment (Dkt. # 10). The Court further DENIES

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Defendant’s request for attorneys’ fees. The motion hearing currently set for
Monday, October 26, 2015 is hereby CANCELED.
IT IS SO ORDERED.
DATED: San Antonio, Texas, October 21, 2015.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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