Barton v. Whataburger, Inc.
2009 Tex. App. LEXIS 1215, 276 S.W.3d 456, 2008 WL 2930114 (2009)
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Rule of Law:
An employer generally has no duty to protect an employee from the criminal acts of a third person, including a co-employee, unless the criminal act was reasonably foreseeable based on specific prior similar incidents on or near the premises, or the employee's known criminal history indicated a propensity for the type of violence that occurred.
Facts:
- In May 2003, Gregory Love was working as a night manager at a Whataburger restaurant in northwest Houston, and Christopher Dean, a mentally impaired employee, was also on duty.
- Love arrived early for his shift, relieving another manager, Arthur Murray, and agreed to count cash from the registers and deposit it in the store safe.
- Love later called Murray, stated he needed to leave, and asked if he could leave Dean in charge, despite Murray's response that Dean could not be delegated managerial power.
- Love disregarded Murray's warnings, left the restaurant without counting or depositing money, and placed Dean in charge.
- Dean subsequently discovered Love had not counted the money, so he counted it and deposited the excess in the safe.
- 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 restaurant by climbing through the drive-through window, chased Dean to the back, and demanded the key to the safe.
- When Dean failed to produce the key (which could only be opened by combination), Marshall shot him in the face, killing him, and the robbers fled without taking anything.
- Police later connected Love to the robbery, and he was subsequently convicted of capital felony murder for his role as a conspirator.
Procedural Posture:
- Rose Barton, individually and on behalf of the estate of Christopher Dean, sued Whataburger, Inc. in the trial court (court of first instance) under the Texas wrongful death statute, asserting negligence.
- Whataburger moved for a no-evidence summary judgment, arguing Barton had no evidence of duty, breach, or proximate cause.
- The trial court granted a final summary judgment in favor of Whataburger.
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Issue:
Does an employer owe a duty to an employee to prevent an aggravated robbery and murder perpetrated by a third party (who conspired with a manager) if the employer was allegedly negligent in hiring the manager (due to prior non-violent felony convictions) or in providing a safe workplace (due to general crime rates or isolated dissimilar incidents), making the crime reasonably foreseeable?
Opinions:
Majority - Justice Jane Bland
No, an employer does not owe a duty to an employee to prevent such criminal acts because the aggravated robbery and murder were not reasonably foreseeable as a matter of law. The court held that Love's prior convictions for selling cocaine and nonpayment of child support, even if Whataburger should have discovered them through a more thorough background check, did not make his eventual participation in a violent aggravated robbery leading to murder reasonably foreseeable. These prior crimes did not inherently involve violence or theft, nor did they indicate a propensity for such violent criminal conduct. The court distinguished a "stereotypical" connection between drugs and violence (sufficient for police stops) from the specific foreseeability required for employer liability. Regarding the safe workplace claim, the court applied the Timberwalk factors for premises liability (proximity, recency, frequency, similarity, and publicity of prior crimes). The court concluded that the prior criminal activity at the Whataburger (isolated, non-violent, or dissimilar incidents over several years) was insufficient to make an aggravated robbery and murder foreseeable. General crime rates or robberies at other distant Whataburger locations, or Whataburger's previous use of a security guard, did not establish foreseeability. Finally, the alleged negligence of other Whataburger employees (e.g., leaving a safe key, failing to count money) merely "afforded an opportunity" for the crime, but the aggravated robbery and murder were extraordinary and unforeseeable, thus constituting a superseding cause that extinguished Whataburger's liability.
Dissenting - Justice Terry Jennings
Yes, the trial court erred in granting summary judgment because the aggravated robbery and murder were not unforeseeable as a matter of law, and there was a fact issue for a jury to decide regarding Whataburger’s negligence. Justice Jennings argued that the majority erroneously characterized the connection between narcotics dealing and violence as merely "stereotypical"; rather, this connection is a real and inherent danger. It is reasonable to infer that someone willing to deal narcotics for unlawful gain, especially with prior convictions, would also be willing to engage in other unlawful conduct like theft and robbery. Therefore, a jury could reasonably conclude that hiring Love, a convicted narcotics dealer, as a night-shift manager foreseeably endangered the restaurant and its employees. The dissent also contended that the majority improperly applied the Timberwalk premises liability analysis to an employer's distinct duties for a safe workplace and negligent hiring claims. This case was not about a random crime or premises defect but about an employer's negligent acts in hiring and placing a manager (Love) who then planned the robbery. Barton was only required to show that the injury was of a "general character as might reasonably have been anticipated," which the evidence of Love's history and industry standards supported as a fact question for the jury.
Concurring - Justice Evelyn V. Keyes
Yes, the trial court erred in granting summary judgment because the duties owed by premises owners and employers are distinct, and the foreseeability of the crime was supported by the nature of Whataburger's business and its negligent hiring of Love. Justice Keyes agreed with Justice Jennings that the Timberwalk analysis (for premises liability for random crime) should not apply to an employer's negligent hiring or safe workplace duties. She emphasized that the character of the business (a late-night eating place known for a high risk of workplace homicides) and general industry practice regarding security and background checks establish a basis for foreseeability. Whataburger hired a manager with discoverable felony convictions despite operating a high-risk business and, according to expert testimony, not following industry standards for background checks and security. Therefore, an employer's "special knowledge" of industry risks and its duty to provide a safe workplace should have made the crime foreseeable.
Analysis:
This case establishes a high bar for plaintiffs in Texas seeking to hold employers liable for criminal acts of third parties, particularly in negligent hiring and safe workplace claims. The majority's broad application of the Timberwalk premises liability factors (requiring specific prior similar incidents) to employer duties makes it difficult to prove foreseeability unless the employer's negligence directly relates to a perpetrator's known propensity for the exact type of violence that occurred. The dissenting opinions underscore a critical distinction in legal duties between premises owners and employers, arguing that an employer's duty to provide a safe workplace and to carefully hire employees should involve a broader consideration of foreseeability, especially concerning positions of trust and in high-risk industries. This ruling implies that employers may not be held liable even for foreseeable harms if the specific criminal act is deemed an 'extraordinary' intervening cause, potentially limiting employer accountability for certain types of employee-instigated violence.
