Martin Bishop v. Hamya, Inc.

• Decision Date: 24 April 2019
• Docket Number: CASE NO. 16-CV-01123
• Parties: MARTIN BISHOP, Plaintiff, v. HAMYA, INC., HUSNI HASSAN, and METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, Defendants.
• Court: U.S. District Court — Middle District of Tennessee

MARTIN BISHOP, Plaintiff, v. HAMYA, INC., HUSNI HASSAN,and METROPOLITAN GOVERNMENT OF NASHVILLE AND DAVIDSON COUNTY, TENNESSEE, Defendants.

CASE NO. 16-CV-01123

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE

April 24, 2019

HON. GEORGE CARAM STEEH

OPINION AND ORDER GRANTING DEFENDANT HUSNI HASSAN'S MOTION FOR SUMMARY JUDGMENT (Doc. 184) AND GRANTING DEFENDANT HAMYA, INC.'S MOTION FOR SUMMARY JUDGMENT (Doc. 183) and DENYING DEFENDANT HAMYA, INC.'S MOTION FOR SUMMARY JUDGMENT AS TO CROSS-CLAIMS (Doc. 189) AS MOOT

This negligence action based on diversity jurisdiction arises out of an incident in which Plaintiff Martin Bishop was assaulted by drug dealers, was struck by a rock, and left unconscious and prone in the middle of the street, when a tow truck, driven by an employee of Defendant Metropolitan Government of Nashville and Davidson County, ran him over causing catastrophic injuries and rendering him a paraplegic. Metro filed a motion for summary judgment last summer which this court denied. Now before the court are motions for summary judgment by the other two remaining defendants, Hamya, Inc. ("Hamya") and Husni Hassan ("Hassan") (collectively "Defendants"). Because Defendants owed no duty to protect Plaintiff from the drug dealers who struck him with a rock some quarter of a mile from their property, and because Plaintiff cannot show that the alleged lack of security precautions was the proximate cause of his injuries, and for additional reasons set forth below, Defendants are entitled to summary judgment.

I. Factual Background

The court must view the facts and all reasonable inferences from those facts in the light most favorable to the non-moving party, here Plaintiff. On January 13, 2016, at dusk, Plaintiff and another individual, David Light, were going to visit the Z-Mart convenience store on 24 Lafayette Street in Nashville, Tennessee to buy cigarettes and beer. (Doc. 125-8 at PgID 1062; Doc. 125-10 at PgID 1184-85). At the time of the incident, Plaintiff and Light were homeless and lived together in an encampment known as "Tent City" near Fort Negely. (Doc. 125-8 at PgID 1054, 1058-59, Doc. 125-10 at PgID 1184-85). According to Light's testimony, the two were also looking to buy marijuana, and Plaintiff was seeking to purchase crack cocaine. (Doc. 125-8 at PgID 1062-63, 1070, 1084-85). Plaintiff disputes that he was seeking to buy any drugs.Hamya leases 24 Lafayette from Hassan and operates a convenience store called Z Mart at that place. (Doc. 142 at ¶ 2, PgID 2127). Hassan owns the property where the Z Mart is located and the adjoining property at 20 Lafayette Street which is the location of a strip mall. (Doc. 142 at ¶ 3, PgID 2128). Hassan leases the property at 20 Lafayette to several small businesses, including Staff Zone. Id. Hassan testified that the 20 Lafayette tenants had leases which provided that Hassan was not liable for loss or damage suffered by the tenant or anyone else for the failure to provide security. (Doc. 125-2 at PgID 870-71). Staff Zone closes at five o'clock. (Doc. 125-2 at PgID 832). The two adjoining parcels located at 20 Lafayette Street and 24 Lafayette Street share a single parking lot. (Doc. 125-2 at PgID 851).

According to Light, the two encountered crack dealers three times on the night in question. First, Light testified that when he and Plaintiff arrived at the Z Mart, crack dealers approached Plaintiff by name. (Doc. 125-8 at PgID 1059-60, 1116). Light testified the two then entered the Z Mart and purchased two cans of Natty Ice beer and cigarettes. (Doc. 125-8 at PgID 1062, 1111, 1117). Light testified that after they went to the Z Mart, Plaintiff wanted to approach the drug dealers. (Doc. 125-8 at PgID 1063). Light testified that they encountered them a second time when they left the ZMart, but Light persuaded Plaintiff to follow him looking to buy marijuana. (Doc. 125-8 at PgID 1069). According to Light, the two walked around the block, through the housing projects looking for marijuana. (Doc. 125-8 at PgID 1070, 1100-01). Then, Light testified Plaintiff veered back towards the Z Mart and crossed over Lafayette Street towards a female drug dealer in order to buy drugs. (Doc. 125-8 at 1070, 1084-85, 1112-13). At that time, Light testified the two were in the parking lot near the convenience store, Z Mart, and the temporary staffing company known as Staff Zone. (Doc. 125-8 at PgID 1070).

Light further testified that Plaintiff asked the drug dealer how much she wanted for a rock of cocaine:

Q: I want you to tell me, as much as you can, about what you remember about the actual conversation between you, Mr. Bishop, and the drug sellers, if you can remember any of that conversation?

A: I was just kind of standing there beside him. Kind of, you know, right there. Of course when he veered back this way, I walked behind him, with him. I wasn't going to leave him. He asked, okay, how much, what you got. I got 20. The dope dealer, it was a female dope dealer, kind of dykish, blackish woman, from what I could see it was maybe $5 apiece. He said no, I don't want that.

(Doc. 125-8 at PgID 1071). They approached a young black woman who had a rock of cocaine in her hand. Specifically, he testified:

Q. Now when you say the young lady that you said was kind of a butchy black lady, or mixed, she had a rock in her hand, was the rock cocaine that she had?

A. Yes.

Q. And she dropped it onto the ground. Was that because people pulled weapons that she dropped it? Why did she drop it on the ground?

A. She was trying to force Marty [Plaintiff] into buying something that was too small. He didn't want to spend $20 for $5 worth. So she pulled bully, you know. She was like, you're going to buy it, where's your money? Then everybody backed her up.

(Doc. 125-8 at PgID 1085). According to Light, the female drug dealer then dropped the rock of cocaine, and a large number of drug sellers surrounded the two of them with guns, they "started to jump" on Plaintiff, the two then fled down Lafayette Street, while Plaintiff tried to flag cars down. (Doc. 125-8 at PgID 1072, 1085, 1088-89). Light testified that the drug dealers were trying to rob Plaintiff. (Doc. 125-8 at PgID 1090, 1113). After they reached the overpass which was about a quarter mile from the Z Mart, Light testified that one of the drug dealers smashed Plaintiff in the face with a rock, knocking him out, and leaving him prone in the middle of the fast lane of the road. (Doc. 125-8 at PgID 1073, 1106-07). According to Light, Plaintiff was not hurt prior to being hit by the rock, but had just been in a "little bit of tussle." (Doc. 125-8 at PgID1089-90). Light helped the Plaintiff to come to and triedto get him out of the road when a tow truck hit Plaintiff. (Doc. 125-8 at 1073-74).

Plaintiff's version of events is quite different. Plaintiff does not remember ever entering the Z Mart, but he testified that he was approached by four or five individuals who were drinking beer as he was reaching into his pocket for money to purchase beer on his way to the Z Mart. (Doc. 125-10 at PgID 1194-95, 1202, 1219, 1281). He testified that a female grabbed his shirt, and he was "hit" as he veered off the sidewalk near the intersection of Staff Zone. (Doc. 125-10 at PgID 1194-95). Plaintiff claims that the assault occurred on his way to the Z Mart, when he took a shortcut through the shared parking lot of Defendants' property at 20 Lafayette and 24 Lafayette. (Doc. 125-10 at PgID 1195) He also testified that he was not using crack cocaine at the time of the incident, but was using marijuana daily. (Doc. 125-10 at PgID 1174, 1247).

Plaintiff also testified that he had never gotten drugs from around the Z Mart. (Doc. 125-10 at PgID 1284). He further testified that the two went to Z Mart to purchase beer, and that Light was looking for marijuana but never found any. (Doc. 125-10 at PgID 1185). Plaintiff testified that he had just sold his motorcycle and was on his way to hike the Appalachian Trial, so the two were going to share a beer before he left on his adventure, and Lightwanted him to buy the beer because Plaintiff had money from selling his bike. (Doc. 125-10 at PgID 1163, 1185, 1192). Plaintiff testified that he did not remember being hit by a rock, but for purposes of the summary judgment motions, does not contest that he was struck with a rock in the head at the overpass of 1-40 and Lafayette. (Doc. 195-1 at ¶ 18, PgID 4188). He contends, however, that the assault began in Defendants' shared parking lot. (Doc. 195-1 at ¶¶ 14, 22, 24 at PgID 4187, 4189, 4190, Doc. 125-10 1195-96). Contrary to Light's testimony that the two were best friends, (Doc. 125-8 at PgID 1054), Plaintiff testified that the two did not have much of a relationship, although they did smoke marijuana together. (Doc. 125-10 at PgID 1277-78).

It is undisputed that Plaintiff has no memory of how he got from the parking lot to the underpass where he was unconscious and hit by the tow truck. (Doc. 194-1 at PgID 4148). At his deposition, Plaintiff circled on a photograph the area where he believed he was assaulted. (Doc. 125-10 at PgID 1209-10). Hamya asserts the area circled is an area owned and operated by solely by Hassan. (Doc. 187 at ¶ 11 at PgID 2904). Plaintiff admits the area identified at his deposition is owned and operated by Hassan, but claims that customers of Z Mart are permitted to use the property at 20 Lafayette as a shared parking lot with other tenants and thatZ Mart controlled the parking lot up to the wall of Staff Zone. (Doc. 195-1 at ¶ 11, PgID 4185).

It is undisputed that a rock and pool of blood were discovered at the underpass about a quarter mile from Z Mart. (Doc. 195-1 at PgId 4190 at ¶ 24). Defendant Hamya asserts that Officer Felipe Pereira viewed Z Mart surveillance camera footage on the night of the incident, determined that no crime took place on Z Mart's property, observed from the surveillance video that Plaintiff and Light walked...