Lewter v. O'Connor Management Inc.

• Decision Date: 29 June 1994
• Citation: 886 S.W.2d 253
• Parties: Jean LEWTER, Plaintiff/Appellant, v. O'CONNOR MANAGEMENT INCORPORATED and O'Connor Management Incorporated, d/b/a Rivergate Mall, Defendants/Appellees.
• Court: Tennessee Court of Appeals

Page 253

886 S.W.2d 253

Jean LEWTER, Plaintiff/Appellant, v. O'CONNOR MANAGEMENT INCORPORATED and O'Connor Management Incorporated, d/b/a Rivergate Mall, Defendants/Appellees.

Court of Appeals of Tennessee Middle Section, at Nashville.

June 29, 1994.

Application for Permission to Appeal Denied

by Supreme Court Oct. 3, 1994.

Joseph M. Dalton, Jr., Catherine S. Hughes, Eason, Lawson & Dalton, Nashville, for plaintiff/appellant.

Michael K. Bassham, Robert E. Parker, Parker, Lawrence, Cantrell & Dean, Nashville, for defendant/appellee O'Connor Management, Inc. d/b/a Rivergate Mall.

OPINION

TODD, Presiding Judge.

This is an action against a shopping center for a criminal assault upon an employee of a tenant in the parking lot of the shopping center. The Trial Judge granted summary judgment of dismissal, and plaintiff appealed, presenting for review the following issue:

I. Whether the Trial Court erred in granting summary judgment in favor of the defendant when there were genuine issues of material fact regarding its liability for the criminal assault upon the plaintiff. Specifically, the issues of material fact which were raised in the Trial Court include the following:

a) Whether the defendant breached its duty to the plaintiff to provide security and adequate lighting in the area where the plaintiff was physically assaulted and injured on April 30, 1991 at approximately 9:45 p.m.

b) Whether the assault involving the plaintiff was foreseeable by the defendant in view of at least eighteen prior reported incidents of crime on the subject premises in fifteen months prior to the assault on plaintiff.

c) Whether the assault involving the plaintiff was forseeable when the defendant had actual knowledge of the plaintiff's presence at the specific time and place where the assault occurred based upon the "special relationship" of the parties.

d) Whether the defendant's breach of duty owed to the plaintiff proximately resulted in the injuries she sustained from a physical assault by an unknown third person.

Defendants present the following issues:

Whether the defendant owed a duty to the plaintiff to provide additional security in the parking lot of the mall where the plaintiff's employer was located.

a) Whether there existed a special relationship between the plaintiff and defendant.

b) Whether the defendant knew, or should have known, that acts were occurring or were about to occur which posed an imminent probability of harm to the plaintiff.

The motion for summary judgment reads as follows:

Defendants, O'Connor Management, Inc. and O'Connor Management, Inc. d/b/a Rivergate Mall (these two defendants are one and the same and will hereinafter be referred to as "Rivergate Mall"), pursuant to Rule 56 of the Tennessee Rules of Civil Procedure, move for summary judgment in their favor on all issues in this case, and in support thereof state that there is no genuine issue as to any material fact because the plaintiff is unable to establish the essential elements of her case. Therefore, these defendants are entitled to judgment as a matter of law.

Specifically, in order to prove negligence under Tennessee law, the plaintiff must show that Rivergate Mall knew or had reason to know that acts were occurring or were about to occur on the premises that posed an imminent probability of harm to an invitee. Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975). The plaintiff has no proof, however, that the defendant knew or had reason to know that acts were occurring or were about to occur on the premises that posed an imminent probability of harm to her. Because there is no proof of such knowledge, the defendant is entitled to be dismissed.

This motion is based on the pleadings, the deposition of the plaintiff, Norma Jean Lewter, filed contemporaneously herewith, and portions of which are attached hereto as Exhibit A, the affidavits of Terry Hutcherson and Mickey Miller, attached hereto as Exhibit B and C, respectively, and on the Memorandum in support of this motion, filed contemporaneously herewith.

A party seeking summary judgment has the burden of showing the court that there are not disputed material facts creating a genuine issue for trial, and that the moving party is entitled to judgment as a matter of law; a conclusory assertion that the non-moving party has no evidence is clearly insufficient. T.R.C.P. Rule 56.03, Byrd v. Hall, Tenn.1993, 847 S.W.2d 208, 215.

In the context of the present case, the motion should have averred that its supporting evidence showed without contradiction that defendant had no duty to provide protection of plaintiff from assault. The motion did not so state, and was subject to being stricken for insufficiency. However, the parties have apparently treated the motion as including by inference the proper allegation, and the Trial Court did likewise. This Court will follow the same course.

In Cornpropst v. Sloan, Tenn.1975, 528 S.W.2d 188, the question on appeal was whether a complaint stated a cause of action against merchants who are members of a shopping center association, for personal injuries to an invitee who was assaulted by a third party in the parking lot of the center. The complaint alleged:

5. On October 18, 1973, at or around 8:00 p.m. to 8:30 p.m., plaintiff, Marie Cornpropst, came to the Eastgate Shopping Center for the purpose of shopping. Plaintiff was therefore an invitee. It was dark. Plaintiff parked her vehicle in front of defendant Woolco store and went in there to shop. Having made her purchases, and after leaving said store, as the plaintiff was preparing to re-enter her vehicle in order to depart from said shopping center, the defendant, Marcus Sloan, Jr., suddenly drove up by the side of her car, jumped out, violently grabbed the plaintiff, with whom he wrestled and fought and tried to force her from her vehicle into his vehicle. The defendant Sloan viciously attacked the plaintiff and beat her about the person as she resisted with all her might and screamed for help.

....

6. Prior to this attack upon the plaintiff there had been committed various crimes, assaults, and other acts of violence, either on the premises or in the immediate areas of the Eastgate Shopping Center, which rendered said vicinity unsafe and potentially dangerous, particularly for the individual female shopper at nighttime. Throughout the times and afterwards of these criminal occurrences which preceded the incident complained of herein, there were no security guards posted, no precautions taken and no other protective measures used or installed in the Eastgate Shopping Center premises for the safety of customers; ...

The Supreme Court affirmed dismissal and said:

We are not called upon, in this case, to draft a rule applicable to all of the many types of business and entertainment and service establishments or of every premises liability, or special relationship situation wherein a duty of protection of invitees might be asserted, and we do not propose to do so.

In our opinion the appropriate rule applicable to this case is as follows: There is no duty upon the owners or operators of a shopping center, individually or collectively, or upon merchants and shopkeepers generally, whose mode of operation of their premises does not attract or provide a climate for crime, to guard against the criminal acts of a third party, unless they know or have reason to know that acts are occurring or about to occur on the premises that pose imminent probability of harm to an invitee; whereupon a duty of reasonable care to protect against such act arises.

The resolution of the present issue on appeal depends upon the interpretation of the quoted verbiage in Cornpropst [A]cts are occurring or are about to occur on the premises that pose imminent probability of harm....

In Cornpropst, there was an allegation of previous acts of violence. The Supreme Court did not recognize such previous acts as sufficient notice that "acts are occurring or are about to occur ... that pose imminent probability of harm...."

This Court interprets the rule in Cornpropst to be that, ordinarily, to establish premises liability for assault upon an invitee, there must be proof of acts or events contemporaneous with or so closely connected in time with the injury of plaintiff as to "pose an imminent probability of harm" to the invitee.

In his deposition, defendants' manager testified at length regarding the security situation in the 95 acre, 5,500 space parking lot and stated unequivocally and repeatedly that the isolated incidents coming to his attention were insufficient to require additional security measures. He specifically denied knowledge of any incident at or near the time of the attack on plaintiff which would suggest an imminent probability of harm to plaintiff.

The affidavit of Terry Hutcherson, security guard, states:

... 3. On the evening in question, my first knowledge of the attack on the plaintiff came over my police radio. Immediately upon learning of the attack, I went directly to the scene. Prior to receiving the call over my police radio, I was not aware of any acts which...