Barton v. Whataburger, Inc.

Citation276 S.W.3d 456
Decision Date31 July 2008
Docket NumberNo. 01-06-01121-CV.,01-06-01121-CV.
PartiesRose BARTON, Individually and as Personal Representative of the Estate of Christopher Martin Dean, Appellant, v. WHATABURGER, INC., Appellee.
CourtCourt of Appeals of Texas

Carl V. Crow, Carl V. Crow, P.L.L.C., Russell S. Post, David M. Gunn, Beck, Redden & Secrest, LLP, Houston, TX, for Appellant.

Hubert A. Crouch III, Court Dean Smith, Crouch & Ramey, LLP, Dallas, TX, Raul A. Gonzalez Jr., Law Office of Raul A. Gonzalez, Austin, TX, Frank Gerhardt Cawley, Whitehurst & Cawley, L.L.P., Addison, TX, for Appellee.

Panel consists of Chief Justice RADACK and Justices ALCALA and BLAND.


JANE BLAND, Justice.

This negligence case arises from the aggravated robbery of a Whataburger restaurant and the resulting murder of one of its employees on duty during the robbery. Rose Barton, individually and on behalf of the estate of her son, Christopher Dean, the Whataburger employee who was murdered, appeals the trial court's summary judgment entered in favor of Whataburger, Inc. Barton contends that the trial court erred in granting summary judgment on her claim that Whataburger was negligent in (1) hiring Gregory Love to manage its restaurant, as he conspired to commit the robbery that led to the murder; (2) failing to provide a safe workplace for Dean; and (3) failing to exercise reasonable care to prevent the robbery. We conclude that the trial court properly granted summary judgment because the aggravated robbery leading to murder was not foreseeable as a matter of law.


On a night in May 2003, Love was working as a night manager at a Whataburger restaurant in northwest Houston. Also on duty that night was Dean, a mentally impaired employee who had worked for Whataburger for fourteen years. Love arrived early for his shift that evening, allowing Arthur Murray, another manager, to leave. Murray and Love agreed that Love would count the cash that had accumulated in the registers during Murray's shift and place it in the store safe.

Shortly after Murray left the Whataburger, Love called Murray and told him that he also needed to leave work. Love asked Murray if he could leave Dean in charge of the restaurant. Murray responded that Dean was capable of running the restaurant, but he could not authorize Love to delegate his managerial power to Dean.

Love did not ask Murray to return, and instead disregarded Murray's warnings, left the restaurant, and put Dean in charge. Love did not count the money in the cash registers or deposit any money in the safe before he left. When Dean discovered that Love had not counted the money in the registers, he counted it and deposited the excess in the safe. Love never returned to the restaurant that night.

At around 4:00 a.m., three men, later identified as Gerald Marshall, Ronald Worthy, and Kenny Calliham, attempted to rob the Whataburger. Marshall gained access to the interior of the restaurant by climbing through the drive-through window. Marshall chased Dean, eventually into the back of the restaurant, where he demanded that Dean give him the key to the safe. Marshall told Dean that if Dean did not give him the key to the safe, Marshall would shoot him. Dean repeatedly told Marshall that he did not have a key to the safe and could not comply with Marshall's demands. When Dean failed to produce the key, Marshall shot him in the face and fled the scene with Worthy and Calliham. Dean died immediately. The robbers left with nothing, but afterward robbed a Shipley Doughnut store equipped with video surveillance.

Police later connected Love to the robbery, and the State charged him with capital felony murder under the law of parties. Love v. State, 199 S.W.3d 447, 449, 452 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd). A jury found Love guilty, and the trial court assessed punishment at life in prison. Id. at 449. Our court affirmed the conviction. Id.

Barton sued Whataburger under the Texas wrongful death statute, asserting that Whataburger's negligence proximately caused Dean's death. See TEX. CIV. PRAC. & REM.CODE ANN. §§ 71.002(a)-(b), 71.004(a) (Vernon 2008). Whataburger moved for a no-evidence summary judgment on Barton's negligence claim, asserting that Barton had produced no evidence of duty, breach, or proximate cause. The trial court granted a final summary judgment in favor of Whataburger.

Standard of Review

In a Rule 166a(i) no-evidence summary judgment, the movant represents that no evidence exists as to one or more essential elements of the non-movant's claims, upon which the non-movant has the burden of proof at trial. TEX.R. CIV. P. 166a(i). The non-movant then must present evidence raising a genuine issue of material fact on the challenged elements. Id. A no-evidence summary judgment is essentially a pre-trial directed verdict. Bendigo v. City of Houston, 178 S.W.3d 112, 113-14 (Tex. App.-Houston [1st Dist.] 2005, no pet.). A fact issue exists if the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.2003) (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). If the evidence does no more than create a mere surmise or suspicion of fact, less than a scintilla of evidence exists, and summary judgment is proper. Transp. Ins. Co. v. Faircloth, 898 S.W.2d 269, 282 (Tex. 1995); Macias v. Fiesta Mart, Inc., 988 S.W.2d 316, 317 (Tex.App.-Houston [1st Dist.] 1999, no pet.). A respondent is not required to marshal its proof to defeat a no-evidence motion for summary judgment; she need only point out evidence that raises a fact issue on the challenged elements. TEX.R. CIV. P. 166a(i) cmt. (1997).

Because the trial court's summary judgment does not specify the ground on which the court relied for its ruling, we should affirm it if any theory advanced by Whataburger has merit. See Weiner v. Wasson, 900 S.W.2d 316, 317 n. 2 (Tex.1995).

Nonsubscribers and Negligence

Whataburger is a nonsubscriber to the Texas Workers' Compensation Act. See TEX. LAB.CODE ANN. § 406.002(a) (Vernon 2006) ("Except for public employers and as otherwise provided by law, an employer may elect to obtain workers' compensation insurance coverage."). "In an action ... against an employer who does not have workers' compensation insurance coverage, the plaintiff must prove negligence of the employer or of an agent or servant of the employer acting within the general scope of the agent's or servant's employment." Id. § 406.033(d) (Vernon 2006). Contributory negligence is not a defense in nonsubcriber cases. Id. § 406.033(a)(1); Kroger Co. v. Keng, 23 S.W.3d 347, 352 (Tex.2000).

A negligence cause of action has four elements: (1) a legal duty owed by one person to another, (2) a breach of that duty, and (3) damages (4) proximately caused by the breach. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex.2002). In the context of the employer-employee relationship, a company has a duty (1) to provide rules for the safety of employees, and to warn them of reasonably foreseeable hazards; (2) to furnish reasonably safe machinery and equipment; (3) to furnish a reasonably safe place to work; and (4) to exercise ordinary care to select careful and competent fellow employees. Fort Worth Elevators Co. v. Russell, 123 Tex. 128, 135-36, 70 S.W.2d 397, 401 (1934); see also Kroger Co. v. Elwood, 197 S.W.3d 793, 794 (Tex.2006); Humble Sand & Gravel, Inc. v. Gomez, 146 S.W.3d 170, 186 n. 45 (Tex. 2004). An employer, however, is not an insurer of its employees' safety. 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).

Whataburger does not dispute that it owed a duty to Dean, as its employee, but observes that its duty is to protect its employees from foreseeable harms. The issue in this case, whether analyzed as a part of the duty element of negligence or the causation element, is the foreseeability of the criminal conduct that led to Dean's murder. As the Texas cases that discuss the foreseeability of intervening criminal conduct do so, in the main, in the context of the element of duty, we do so as well. See, e.g., Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex.1998) (holding no legal duty exists to prevent unforeseeable criminal acts); Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996) (holding that duty to protect from criminal acts "does not arise in the absence of a foreseeable risk of harm"); Houser v. Smith, 968 S.W.2d 542, 544-45 (Tex.App.-Austin 1998, no pet.) (in negligent hiring case, holding that employer had no duty to prevent unforeseeable criminal conduct of employee); cf. Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 478 (Tex.1995) (in intervening criminal conduct case, holding that plaintiffs failed to raise fact issues on key elements of each of their claims, particularly on elements of proximate and producing cause).

Duty and Intervening Criminal Conduct

The threshold inquiry in a negligence case is duty. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). The existence of duty is a question of law for a court to decide from the facts surrounding the occurrence in question. Van Horn v. Chambers, 970 S.W.2d 542, 544 (Tex.1998); Siegler, 899 S.W.2d at 197; Greater Houston Transp. Co. v. Phillips, 801 S.W.2d 523, 525 (Tex.1990). In determining the scope of a defendant's duty, we consider the foreseeability of injury weighed against the magnitude of the burden of guarding against the injury and the consequences of placing the burden on the defendant. See Otis Eng'g Corp. v. Clark, 668 S.W.2d 307, 309 (Tex.1983).

As a general rule, "a person has no legal duty to protect another from the criminal acts of a third person." Timberwalk, 972 S.W.2d at 756. This is because the criminal conduct...

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