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Given 25 recent crimes at store, employer may have had duty to protect employee who was shot

By Lorene D. Park, J.D.

Denying an employer’s motion for summary judgment on a negligence claim by a convenience store employee who was shot during an attempted robbery, a federal district court in Texas found triable questions on whether the risk of attempted robbery was foreseeable to the employer and therefore whether it had a duty to protect the employee and other invitees from the third-party’s criminal act. Significantly, there were 25 similar crimes at the same store in the prior two-and-a-half years, including an armed robbery a week before the employee was shot (Jimenez v. 5454 Airport, LLC, October 13, 2017, Atlas, N.).

Injured in attempted robbery. The employee worked as a cashier at a Texaco gas station and convenience store. On October 18, 2015, he was working the night shift when there was an attempted robbery. He exchanged gun fire with the robbers and was wounded in the shoulder. He quit his job on March 27, 2016, and sued the employer the following month, alleging violations of the FLSA as well as “premises liability and negligence.”

Duty to protect from unreasonable and foreseeable harm. After discovery, the employer moved for partial summary judgment, arguing that the negligence claim failed because it owed no duty to protect the employee from criminal activity by unknown third parties.

Denying the motion, the court explained that while an employer is not the “insurer of its employees’ safety,” and a person “generally has no legal duty to protect another from the criminal acts of a third person, a person who controls the premises has a duty to use ordinary care to protect invitees from criminal acts of third parties if the person ‘knows or has reason to know of an unreasonable and foreseeable risk of harm’ to the invitee.” Whether a risk of criminal activity is foreseeable depends on what the premises owner knew or should have known before the crime in question. Courts consider prior criminal conduct on or near the property, how often and how recently it occurred, and what publicity was given to the crimes.

Similar crimes in area both frequent and recent. Here, the employee presented evidence of other assaults and crimes involving weapons at the same Texaco in the months before he was injured. Indeed, he was the victim of a different armed robbery only a week before he was shot. He also presented evidence that there were 73 crimes reported in the area around the Texaco location between May 2012 and October 2015—of these reported crimes, 25 involved the employee and another worker at the same Texaco.

In the court’s view, this evidence of recent and frequent crimes of a similar nature in the area raised a triable question on whether the risk of attempted robbery and other criminal activity at the Texaco was foreseeable to the employer so as to impose a duty to protect the employee and other invitees from the criminal acts. Consequently, summary judgment was not warranted. (The court noted that the employee had clarified that he was not asserting a claim against the employer for failing to maintain workers’ compensation insurance coverage.)