Robles v. Quiktrip Corp.

• Decision Date: 19 December 2017
• Docket Number: 1:16-cv-2050-WSD
• Court: U.S. District Court — Northern District of Georgia
• Parties: ALAN E. ROBLES, Plaintiff, v. QUIKTRIP CORPORATION, Defendant.

ALAN E. ROBLES, Plaintiff,
v.
QUIKTRIP CORPORATION, Defendant.

1:16-cv-2050-WSD

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION

December 19, 2017

OPINION AND ORDER

This matter is before the Court on Defendant QuikTrip Corporation's (the "Defendant") Motion for Summary Judgment [73].

I. BACKGROUND

A. Facts

1. The Shooting

The undisputed facts, construed in the light most favorable to Plaintiff Alan E. Robles ("Plaintiff"), show that on the evening of September 6, 2015, Plaintiff, his brother Cesar Robles ("Cesar"), his brother-in-law Victor Sanchez ("Victor"), and Victor's cousins Everet Delgado ("Ever") and Gustavo Delgado ("Gustavo"), visited the QuikTrip gas station located at 93 Upper Riverdale Road in Riverdale, Georgia (the "QuickTrip"). ([73.2] ¶¶ 3, 5-6). They were all in a white Chevrolet

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Avalanche ("truck") driven by Cesar. ([73.2] ¶ 5). Plaintiff sat in the front passenger seat. Id. Victor and his two cousins sat in the back. ([73.2] ¶ 5). Plaintiff does not remember going into the QuikTrip to make a purchase and did not intend to purchase anything at the convenience store. ([73.2] ¶ 88).

Cesar pulled up to the gas pump and began filling up with gas while Victor, Ever, and Gustavo went into the store to purchase beer. ([73.2] ¶¶ 6-7). When Gustavo returned from the store he refused to get back into Cesar's truck and, instead, walked to the front of the store. ([73.2] ¶¶ 9, 10). Victor and Ever left the truck to persuade Gustavo to return and Cesar pulled his truck to the front of the store. ([73.2] ¶¶ 11, 12).

Cesar, Victor, and Ever spent approximately fifteen minutes trying to persuade Gustavo to get into the truck. Plaintiff tried to convince his cousin Victor to do the same. ([81] ¶ 17). There was some arguing with raised voices and physical pushing and shoving. ([73.2] ¶ 18). At one point, Gustavo, Victor, and Ever went into the store where Gustavo asked QuickTrip employee Rodtrese Jones for a phone to call a cab. ([81] ¶ 21).

When they came out of the store, they continued to argue about leaving. ([73.2] ¶ 22). Cesar told Victor he was going to drive off, leaving Victor and his

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cousins at the store. Ever became angry, opened the door of the truck and pointed a gun at Cesar. ([73.2] ¶ 26).

When this happened, Plaintiff was standing in front of the driver's door to Ever's immediate left. ([73.2] ¶ 27). Plaintiff disputes whether he saw Ever brandishing the gun, or even whether he could see the argument taking place. ([73.2] ¶¶ 19, 28-30). At Plaintiff's deposition, he was shown surveillance footage and testified as follows:

Q (counsel): Okay. At this point you would have known that the gentleman in the black shirt had a gun; right
A (Plaintiff): Yes. I would have known at that moment ; cause I'm look—it looks like I'm looking forward.
Q (counsel): Well, here at 11:02:53 it looks like you're looking directly at the gun; correct?
A (Plaintiff): Yes. Like straight at him with the gun. . . .
Q (counsel): Watching that surveillance video, do you think you should have foreseen this incident when you first saw that gun?
A (Plaintiff): Yes. I would have immediately thought I was - I'm in danger.

([73.2] ¶¶ 28, 32). Plaintiff could not recall whether he knew, prior to this incident, that Victor was carrying a gun. ([73.2] ¶ 31).

In the moments after Ever drew the gun, Plaintiff was outside the QuikTrip in the vicinity of Ever. Surveillance footage shows that he attempted to leave the area, but was unable to retreat toward the store because Ever stepped into his path. ([81] ¶¶ 33-34, 38, 40).

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Ever then pointed his gun at Cesar, and pulled him from the vehicle. Victor and Cesar tried to calm the situation, but Ever continued to threaten to shoot someone in the group. ([73.2] ¶¶ 35-37). The surveillance footage shows that Plaintiff and Cesar again tried to retreat to the store. ([81] ¶ 40). Ever again prohibited Plaintiff, but not Cesar, from entering the store with his gun still drawn. ([81] ¶ 42). Ever then turned and approached Plaintiff, pointed his gun at Plaintiff's side, and walked him towards the truck. ([73.2] ¶¶ 45, 46). Victor, Gustavo, and Ever engaged in more pushing and shoving. ([73.2] ¶ 47). Plaintiff did not get involved in the altercation. ([82] ¶ 98). Plaintiff testified that his failure to engage may have been due to "shock" or he may have "froze or freaked out." ([82] ¶¶ 100-101).

Ever then shot Plaintiff in the neck. ([73.2] ¶ 52). Hearing the gunfire, Cesar emerged from the QuikTrip store to see what happened. He returned and went back in, telling the QuikTrip employees to call the police. ([73.2] ¶¶ 54-56). The bullet hit Plaintiff's neck, shoulder, and spinal cord, leaving him partially paralyzed on his left side. ([82] ¶ 97).

2. Prior Incidents at the QuikTrip Location

The following violent incidents were reported to have occurred at the QuikTrip between late 2012 and mid-2015:

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5/16/15	Person Armed	Subjects were overheard in; QuikTrip parking lot talking about; shooting someone. ([82] ¶ 23).
11/3/14	Public Drunkenness,; Loitering, Obstruction; of Officer.	Subjects in QuikTrip parking lot; were reported as fighting, had; physical signs of fighting with one; another, were intoxicated, and; were aggressive to officers. ([82]; ¶ 23).
8/5/14	Criminal Attempted; Armed Robbery	This incident involved an; employee of QuikTrip walking to; his vehicle when two suspects; attempted to rob him at knifepoint.; ([73.2] ¶ 78).
7/21/14	Robbery by Force	Juvenile victim was assaulted and; robbed by two subjects as he was; leaving the QuikTrip. Victim had; bruising & swelling where the; assailants punched him in the face.; The subjects searched the victim's; pockets before leaving the scene.; ([82] ¶ 23).
7/14/14	Armed Robbery &; Aggravated Assault	The QuikTrip store was robbed at; gunpoint. ([73.2] ¶ 80). Store; manager, Reubin Harrison had; knowledge of this incident. ([82]; 41).
3/19/14	Firearms Discharged.	Gunshots in the parking lot were; reported. ([81] at ¶ 76).
5/8/13	Fight	There was no incident report; generated, it is unknown whether; this was a physical or verbal

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		altercation, and no weapons were; reported. ([73.2] ¶ 82).
4/10/13	Firearms Discharge	Firearms discharged on QuikTrip; premises. ([82] ¶ 23).
4/1/13	Armed Robbery	Subject armed with a gun stole the; money from the QuikTrip; registers. ([82] ¶ 23).
1/12/13	Robbery by Sudden; Snatching	Subject entered store and stole an; employee's purse from behind the; counter. Another subject stole cola; cases while the victim confronted; the subject with her purse in the; parking lot. ([73.2] ¶ 84).
11/6/12	Loitering, Robbery by; Intimidation, Violation; of GA Gang Act	Suspicious males were loitering on; a sidewalk. Investigation revealed; that earlier that day, they had; followed a juvenile into the store; and robbed him of his cell phone; as he entered the parking lot. ([82]; ¶ 23).

B. Procedural History

On May 18, 2016, Plaintiff filed his Verified Complaint for Damages in the State Court of Fulton County [1.1]. In it, Plaintiff alleges three claims of negligence based on premises liability, failure to make safe, "misleading the

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Plaintiff," a claim for negligence per se, and one for punitive damages.¹ On June 17, 2016, Defendant removed the action to this Court, ([1]).

On June 19, 2017, Defendant moved for summary judgment [73], arguing that (i) Plaintiff assumed the risk of his injuries by remaining in the vicinity after Ever brandished the gun; (ii) Plaintiff and his group, after completing their purchases and remaining on the premises, lost their status as invitees and were only owed a duty to refrain from willful or wanton conduct; (iii) the shooting by a third party was not reasonably foreseeable because prior incidents at the QuikTrip were not substantially similar; (iv) Plaintiff's claims are barred by Plaintiff's contributory negligence; and (v) Plaintiff had superior knowledge of the risk of the shooting.

II. LEGAL STANDARD FOR SUMMARY JUDGMENT

"Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits show 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." Ahmed v. Air France-KLM, 165 F. Supp. 3d 1302, 1309 (N.D. Ga. 2016); see Fed. R. Civ. P. 56. "An issue of fact is material if it 'might affect the outcome of the suit under the governing law.'" W. Grp. Nurseries, Inc. v. Ergas,

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167 F.3d 1354, 1360 (11th Cir. 1999) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). "An issue of fact is genuine 'if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Id. at 1361 (quoting Anderson, 477 U.S. at 248).

The party seeking summary judgment "bears the initial responsibility of informing the district court of the basis for its motion, and identifying [materials] which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). "The movant[] can meet this burden by presenting evidence showing there is no dispute of material fact, or by showing that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1281-82 (11th Cir. 1999). The moving party need not "support its motion with affidavits or other similar materials negating the opponent's claim." Celotex, 477 U.S. at 323. Once the moving party has met its initial burden, the nonmoving party must demonstrate that summary judgment is inappropriate by designating specific facts showing a genuine issue for trial. Graham, 193 F.3d at 1282. The nonmoving party "need not present evidence in a form necessary for admission at trial; however, he may not merely rest on his pleadings." Id. "[T]he mere existence of some alleged

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