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An Employer Might Have a Duty to Protect Its Employees If Third Party Criminal Activity Was Foreseeable


Jimenez v. 5454 Airport, LLC - United States District Court, Southern District of Texas, Houston Division


Facts:  Alex Neftaly Iraheta Jimenez ("Jimenez") worked as a cashier at an Airport Texaco gas station and convenience store owned by 5454 Airport, LLC ("5454 Airport").  One evening when he was working, there was an attempted robbery at his store.  During the course of the attempted robbery, Jimenez and the robbers shot at each other.  Jimenez was wounded in the shoulder and went to the hospital.  Approximately five months later, Jimenez left the job and subsequently filed a suit alleging violations of the Fair Labor Standards Act and a claim for negligence. 5454 Airport proceeded to move for summary judgment on the negligence claim.

Holding:  In a call back to the first semester of 1L in law school, to establish a valid cause of action for negligence, it must be established:  1) the defendant owed a legal duty to the plaintiff; 2) the defendant breached that duty; and 3) plaintiff suffered damages proximately caused by the breach.  In the employment context, an employer has a duty to use ordinary care in providing a safe workplace for its employees.  However, an employer is not an insurer of its employees' safety.  As a result, determining whether an employer breached its duty to provide a safe workplace is fact specific.

While a person generally has no legal duty to protect another from the criminal acts of a third party, a person that 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 risk of harm" to the invitee.  (Courts in Texas have previously held that an employee is an "invitee" on his employer's premises.)  Whether a risk of criminal activity was foreseeable "must not be determined by hindsight but rather in light of what the premises owner knew or should have known before the criminal act occurred."  

In this case, evidence had been presented which established that there had been other assaults and crimes at the Airport Texaco in the months before Jimenez was injured.  In fact, Jimenez had been the victim of another armed robbery the week before the attempted robbery in which he was shot.  According to the evidence in the record, there were 73 crimes reported in the area around the Airport Texaco between May 2012 and October 2015 (around the time of the robbery in which Jimenez was injured.)  Based upon this evidence, the Court held the similarity, recency, frequency, proximity, and publicity of the prior criminal activity at or near the Airport Texaco put 5454 Airport on notice of the foreseeable risk of injury to its employees.

Judgment:  The District Court denied 5454 Airport's partial motion for summary judgment on Jimenez's negligence claim on the grounds that sufficient facts had been plead which established that 5454 Airport, as Jimenez's employer, could have foreseen the risk of violence from a third party in the workplace and therefore may have owed a duty to protect its employees.

The Takeaway:  I typically do not come across many negligence claims (in the employment law context) that merit a case brief.  This one was an exception as the Court streamlined the relevant caselaw and narrowed things down quite well.  Of course, bear in mind that at this stage, the Court did not hold that 5454 Airport owed its employees a duty to protect them from the violence of a third party.  Instead, as the caselaw pointed out, each case is analyzed on a fact specific and individual basis.  While Jimenez survived 5454 Airport's partial motion for summary judgment, the issue (and potential liability) of 5454 Airport was not decided at this stage.  It will be interesting to see how this case plays out at trial.

Majority Opinion Judge:  Judge Atlas

Date:  October 13, 2017

Opinion:  http://hr.cch.com/ELD/Jimenez5454Airport101317.pdf

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