Smith v. AAA Travel Agency

• Decision Date: 29 October 2003
• Docket Number: No. 37,728-CA.,37,728-CA.
• Citation: 859 So.2d 286
• Parties: Pierre SMITH, Plaintiff-Appellant, v. AAA TRAVEL AGENCY, et al, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

859 So.2d 286

Pierre SMITH, Plaintiff-Appellant, v. AAA TRAVEL AGENCY, et al, Defendant-Appellee.

No. 37,728-CA.

Court of Appeal of Louisiana, Second Circuit.

October 29, 2003.

The Singleton Law Firm, by W. James Singleton, Shreveport, Curtis R. Joseph, Jr., for Appellant.

Cook, Yancey, King & Galloway, by Sidney E. Cook, Jr., R.D. Evans, Jr., for Appellee AAA Travel Agency.

Voorhies & Labbe', by Cyd Sheree Page, Monroe, for Appellee Bayou Plaza & Associates.

Lunn, Irion, Salley, Carlisle & Gardner, by Walter S. Salley, Shreveport, Gregory S. Barkley, for Intervenor TIG Insurance Company.

Before STEWART, GASKINS and MOORE, JJ.

MOORE, J.

Pierre Smith appeals a summary judgment in favor of two defendants, AAA Travel Agency ("AAA") and Bayou Plaza & Associates, dismissing his claims for personal injuries and other damages arising from an aggravated assault on AAA's premises. For the reasons expressed, we affirm.

Procedural Background

The assault occurred after working hours on the evening of May 24, 2000 at AAA. AAA is located at 6570 Youree Drive in Shreveport, in a small strip mall called Bayou Plaza, owned by Bayou Plaza & Associates LLC ("Bayou Plaza"). It is located directly north of the larger and older Bayou Walk Shopping Center.

Smith worked as a night custodian for a janitorial provider. He recalled reporting to AAA sometime after 7 p.m. to clean up, using a key to enter the front door. He testified that his usual practice was to walk to the back of the office and deactivate the burglar alarm, but because of his injuries he did not remember whether he actually did so on May 24.¹ An unknown person or persons apparently followed Smith into the office and inflicted a very severe beating. Smith was left unconscious in the bathroom, tied up with telephone cords. He woke up in the hospital with severe injuries to his head, face and upper body. The police ascribed the incident to an attempted robbery; the assailants have never been caught.

In April 2001, Smith filed the instant suit for personal injuries and other damages. He named as defendants AAA and Bayou Plaza, the owners of the business and shopping center, as well as American Security and Mid-South Alarms, the manufacturer and installer of the security system. Smith alleged that the defendants knew or should have known that "the entire city of Shreveport * * * was a high crime area on May 24, 2000." TIG Insurance, Smith's employer's compensation carrier, intervened to recover compensation benefits, which by August 2001 had exceeded $96,000. After discovery, Smith voluntarily dismissed Mid-South Alarms with prejudice. American Security later obtained a summary judgment which Smith did not appeal.

AAA moved for summary judgment in August 2002, urging that with no prior burglaries or assaults on its premises, it owed no duty to protect Smith from the criminal acts of unknown third parties. Posecai v. Wal-Mart Stores Inc., 99-1222 (La.11/30/99), 752 So.2d 762.

Smith opposed the motion, offering the affidavit of David Kent, a New Orleans-based expert on crime risk assessment. Kent's affidavit stated that he had analyzed crime data and statistics of crimes reported at Bayou Walk Shopping Center and within a one-mile radius of Bayou Walk. He asserted that AAA's alarm system was insufficient; "enhanced security alarm and/or video monitoring capability" would have deterred Smith's attackers. He also noted that if Bayou Walk Shopping Center had hired a mobile security contractor or in-house security staff, there was a "high probability" the offense could have been averted. By memorandum, Smith argued that the crime statistics showed 431 crimes within the one-mile radius, including 10 business burglaries, four aggravated batteries, one robbery, and 80 miscellaneous crimes that occurred on Bayou Walk's premises. The district court denied summary judgment.

AAA and Bayou Plaza then took Kent's deposition, in which he admitted that he had analyzed only the crime data furnished to him by counsel; however, the industry standard did not approve of using a one-mile radius, and Kent never analyzed the crime rate in Bayou Plaza's police district. He admitted that after visiting Shreveport for the first time and examining Bayou Plaza and its environs, he found no indicia that it was in a "high crime area." He testified that crime reports from Bayou Walk were relevant, as it is contiguous to Bayou Plaza, but conceded that prior to the assault on Smith, he saw nothing even remotely resembling this crime in the area. He admitted that the security systems he had suggested in deposition would not have guaranteed any more safety for Smith, and he declined to say that Bayou Plaza should have employed mobile security or in-house security. His conclusion was he would have to study the situation more.

AAA and Bayou Plaza filed the instant motions for summary judgment in December 2002, attaching Kent's deposition. They argued that because crime had been so infrequent on their premises, under Pinsonneault v. Merchants & Farmers Bank & Trust Co., 2001-2217 (La.4/3/02), 816 So.2d 270, they had no duty to hire live guards or install more sophisticated security devices.

Smith opposed the motion. He offered no expert affidavits or depositions, but argued that Kent's deposition testimony created a genuine issue of material fact regarding the "existence, frequency and similarity of prior incidents on the premises," an element of the claim according to Pinsonneault. He also cited the Tennessee jurisprudence which the supreme court had approved in Posecai.

The district court granted the motions, noting that in deposition, Kent "backtracked off the affidavit" and declined to say the defendants owed better security. The court further noted that Smith presented no further evidence to show that he could meet his burden of proof. The court rendered judgment dismissing Smith's claims. Smith has appealed.

Applicable Law

Louisiana applies a duty-risk analysis to determine whether liability exists under the particular facts presented. The plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of the protection afforded by the duty breached. Posecai v. Wal-Mart Stores, supra at 4, 752 So.2d at 765; Syrie v. Schilhab, 96-1027 (La.5/20/97), 693 So.2d 1173. The threshold issue is, of course, the existence of a duty. Posecai, supra, and citations therein. While business owners generally have no duty to protect others from the criminal acts of third persons, they do have a duty to implement reasonable measures to protect their patrons from criminal acts when those acts are foreseeable. Id. Determining when a crime is foreseeable is the critical inquiry. Id.; Pinsonneault, supra

at 7, 816 So.2d at 276. The supreme court has adopted a balancing test:

The foreseeability of the crime risk on the defendant's property and the gravity of the risk determine the existence and the extent of the defendant's duty. The greater the foreseeability and gravity of the harm, the greater the duty of care that will be imposed on the business. A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances.

The foreseeability and gravity of the harm are to be determined by the facts and circumstances of the case. The most important factor to be considered is the existence, frequency and similarity of prior incidents of crime on the premises, but the location, nature and condition of the property should also be taken into account. It is highly unlikely that a crime risk will be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business' premises. Posecai, supra at 8-9, 752 So.2d at 768.

A motion for summary judgment shall be granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966 B. Summary judgment procedure is designed to secure the just, speedy and inexpensive determination of all except certain disallowed actions; the procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2); Magnon v. Collins, 98-2822 (La.7/7/99), 739 So.2d 191. After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted. La. C.C.P. art. 966 C(1).

The burden of proof remains with the mover; however, if the mover will not bear the burden of proof at trial on the matter before the court on the motion for summary judgment, then the mover may merely point out to the court that there is an absence of factual support for one or more elements essential to the plaintiff's claim. The burden then shifts to the plaintiff to present evidence demonstrating that genuine issues of material fact remain. La. C.C.P. art. 966 C(2); Hardy v. Bowie, 98-2821 (La.9/8/99), 744 So.2d 606; Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41. After the burden has shifted, the plaintiff must make a positive showing of evidence creating a genuine issue as to an essential element of its claim. Mere speculation is not sufficient. Babin v. Winn-Dixie La. Inc., XXXX-XXXX (La.6/30/00), 764 So.2d 37. Appellate review of summary...