### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE June 7, 1999 Session PAUL DAVID CREWS, ET AL 

### . v. HOOTERS RESTAURANT OF

NASHVILLE, INC., ET AL 

### . Appeal from the Circuit Court for Davidson County No. 97C-2627 Barbara N. Haynes, Judge

No. M1999-02813-COA-R3-CV - Filed May 2, 2001

This appeal involves two shootings during an attempted armed robbery of a restaurant that left one man dead and one man w ounded. The pare

nts of the deceas

ed victim and the wounded

victim and his wife filed suit in th

e Circuit Court for

Davidson County

against the restaurant and

the persons who attempted to rob the restaurant, alleging that the restaurant had negligently failed to use reasonable

care to protect its patrons from foreseeable harm. The trial court granted the restaurant
a summaryjudgment an d dismiss ed the negli gence claim aga inst it. T he plainti ffs, relying o n McClung v. Delta

Square Ltd. Partners

hip , 937 S.W.2d 891 (Tenn. 1996), assert on this appeal that the trial court err

ed by g ranting t he restau rant’s su mmary j udgment m

otion. We

concur with the trial court’s conclusion that the material facts are not in dispute and that the r estaurant is entitled to a judgment as a matter of law be

cause it demonstrated that the plaintiffs would be unable to prove an essential element of their case. Accordingly, we af firm the trial court’s order dismissing the cla

ims against the res

taurant. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W ILLI AM C. K OCH , J R ., J., delivered the opinion of the court, in which B EN H. C ANTRELL , P.J., M.S., and W ILLI

AM B. C AIN , J., joined.
Ben Boston, Char

les W. Holt, Jr. and Christopher V. Sockwell, Lawrenceburg, Tennessee, for the appellants,

Paul David

Crews andSue Crews, as surviving parents and next of kin of Gregory Paul Crews, and Nathan Orton and Katrina Orton.

TomCorts, Nashville, T

ennessee, for th

e appellees,

Hooters Restaurant of Nashville, Inc.; Hooters of Nashville, L

.P.; RMD Corporation

d/b/a Hooters; and

John Doe d/b/a Hoote

rs. Gregory D. Smith, Clarksville, Tennessee, for the appellee, L ane D. Locke.1 State v. Brewster, No. M1999-00989-CCA-R3- CD, 2000 WL 549277, at *2 (Tenn . Ct. App. May 5, 2000)

perm. app. denied

(Tenn. Ja n. 8, 2001 ).
-2- OPINION

One of Nashville ’s several H ooters rest aurants is located on Lar go Drive near the Harding Road exit for Interstate 24. On August 17, 1996, Fred Washington, the manager, ar rived at work at approximately

7:00 a.m. and began

preparing for the restaurant’s normal 11:00 a.m. opening. Part of his work included preparing and making the daily bank deposit of the receipts from

the preceding day. By the time Mr. Washington was ready to go to the bank, three other employees had arrived and were preparing food in the kitchen. When Mr. Washington left f

or the bank at app

roximately 9:20 a.m., he left the front door of the restaurant u

nlocked because

of the expected arrival of other employees.

He h ad deac tivated the restaurant’s burglar alarm because other employ ees were working in the re

staurant. Approximately

twenty minute

s after Mr . Washingto n had left for the bank two armed gunmen, AntonioBrewster and James M. Grant, entered the restaurant a

nd demanded the r

eceipts from the previous day’s business. When the employees told them that the manager had already left to deposit the money in the bank, the gunmen locked the employees in the restaurant’s cooler and waitedfor Mr. Washington to return. When Mr. Washing ton enter ed the restaurant, he saw the gunmenand ran for thefront door. The gunmen began shooting and chased Mr. Washington outside. Even though one o f the shots struck him in the leg, Mr. Washington escaped to the parking lot with the gunmen in pursuit.

The gunmen continued to shoot at Mr. Washington, and another bullet struck him i n the ca lf and knocked him down. Even though he was unable to stand, Mr. Washington crawled into the r

oad and flagg

ed down a passing

motorist.

At abo ut th e same time that Mr . Washington ran o

ut of the front door

of the restaura

nt, Gregory Crews and Nathan

Orton pulled into the

parking lot to

find out whether the restaurant was open. Before they

could get out of their truck, one of the gunmen began firing at them. Mr. Orton, the driver, opened his door and dove for the ground; however, Mr. Crews was shot before he could take cover. When Mr. Orton saw blood falling from Mr. Crews’s mouth, he decided to run to a nearby Waffle House to call for help. As Mr. Orton ran, a bullet struck him the back near the left shoulder. After calling f

or help, Mr. Orton

returned to his

truck to help Mr. Crews. Regrettably, Mr. Orton’s efforts to revive Mr. Crews were unsuccessful, and Mr. Crews died in the Hooters parking lot.

On August 18, 1997, Mr. Crews’s parents and Mr. Orton and his wife filed suit in the Circuit Courtfor Davids on County ag ainst the owners a

nd operators of th

e Hooters restau

rant, Messrs. Brewster and Grant, Lane D. Locke who had driven the getaway car and Mark Thomas Spring er who hadassisted Messrs. B r ewster and Grant in evading the police. 1 Hooters and Mr. Locke filed
answers denying liability. Mr. Crews’s pare nts and the Ortons took default judg ments against Messrs. Brewster, Grant, and Springer. Later, following discovery, Hooters moved for a summary judgment. Mr. Crews’s parents and the Ortons opposed the summary judgement motion with,-3-

among other things, an affidavit from a now-repentant Mr. Locke. The trial court granted the motion anddismissed the claims against Hooters. Mr. Crews’s parents and the Ortons have pe

rfected this appeal.

I. T HE S TANDARD OF R EVIEW
The standards for re

viewing summary

judgments on appe

al are well-set

tl ed. Summary judgments

are proper in vir

tually any civilcase that can be resolved on the basis of legal issues alone. Fruge v. Doe , 952 S.W.2d 408, 410 (Tenn. 1997); Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 1993); Church v. Perales , 39 S.W.3d 149, 156 (Tenn. Ct. App. 2000). They are n ot, however, app

ropriate when genuine disputes regar ding m aterial facts exist. Tenn. R. Civ. P. 56.04. Thus, a summary judgment should be grante

d only when th

e undisputed fac

ts, and the infere

nces reasonab ly drawn from the undisputed facts, support one conclusion – that theparty seeking the summary judgment i s en titled to a judgment as a matter of law. Goodloe v. State , 36 S.W.3d 62, 65 (Tenn. 2001); St aples v. CBL & Assocs., Inc. , 15 S.W.3d 83, 88 (Ten n. 2000); White v. Lawrence , 975 S .W.2 d 525, 529-30 (Tenn. 1998).

The party seeking a summary judgment bears the burden of demonstrating that no genuine dispute of material fact exists and that it is entitled to a judgmen t as a ma tter of law. Shadrick v. Coker , 963 S.W.2d 726, 731 (T enn. 1998); Belk v. Obion County , 7 S.W.3d 34, 36 (Tenn. Ct. App. 1999). In o rder to be entitled to a judgment as a matter of law, the moving party must either affirmatively

negate an essential element of the non-moving party’s claim or establish an affirmative defense that conclusively defeats the non-moving party ’s claim. Byrd v. H all , 847 S.W.2d at 215 n. 5; Cherry v. Williams , 36 S.W.3d 78, 82-83 (Tenn. Ct. App. 2000).

Once the moving party demonstrates that it has satisfied Tenn. R. Civ. P. 56's

requirements, the non-moving party must demonstrate how these requirements have not been satisfied. Nelson v. Ma rtin , 958 S.W.2d 643, 647 (T enn. 1997). Mere

conclusory

generalization

s will not suffic

e
. C awood v. Davis , 680 S.W.2d 795, 796-97 (Tenn. Ct. App. 1984). The non-moving party mus t convince the trial court that there are sufficient fact

ual disputes to war

rant a trial (1) b

y pointing to evidenceeither overlooked or ignored by the moving part y that cr eates a factual dispute, (2) by rehabilitating evidence challenged by the moving part y, (3) by producing additional evidence that creates a material factual dispute, or (4) by submitting an affidavit in accordance with Tenn. R. Civ. P. 56.07 requesting additional time for discovery. McCarley v. W est Quality Food Serv. , 960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall , 847 S.W.2d at 215 n. 6. A non-moving party who fails to carry its burden faces summary dismissal of the challenged claim beca use, as our courts

have repeated

ly observed, the “failure of

proof concerni

ng an essential e

lement of a cause

of action necess

aril y renders all other facts immaterial.” Alexander v. Memphi

s Individu al Practic e Ass'n , 870 S.W.2d 278, 280 (Tenn. 1993); Strauss v. Wya tt, Tarrant, Combs, Gil

bert & Milom , 911 S.W.2d 727, 729 (Tenn. Ct. App. 1995).2 One of the essential ingr edients in any co mmon-law negligence a ction is the existence of a duty of care owed by the defendant to the plaintiff. White v. Lawrence , 975 S.W .2d at 529 ; Dillard v. Vanderbil t Univ. , 970 S.W.2d 958, 960 (Tenn. Ct. App. 1998).
-4- Summary judgments

enjoy no presumption of correctness on appeal. Penley v. Honda Motor Co. , 31 S.W.3d 181, 183 (Tenn. 2 00 0); Burress v. Sanders , 31 S.W.3d 259, 262 (Tenn. Ct. App. 2000). Accordingly, appellate courts must make a fresh determination that the requirements of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown , 955 S.W.2d 49, 50-51 ( Tenn. 1997); Mason v. Seaton , 942 S.W.2d 470, 472 (T enn. 1997). We must c

onsi der the evidence in th e light most favorable to the non-moving party, and we must resolve all inferences in the no n-mov ing party's favor. Memphis

Hous. Auth. v. Thompson , 38 S.W.3d 504, 507 (Tenn. 2001); Terry v. Niblack , 979 S.W.2d 583, 585 (Tenn. 199 8); Tamco Supply v. Po llard , 37 S.W.3d 905, 908 (Ten n. Ct. App. 2000). When reviewing the evidence, we must determine first whether factual disputes exist. If a factual dispute e

xists, we must

then determine whether the fact is material to the claim or defense upon which the summary judgment is predicated and whethe r th e disputed fact creates a genuine issue for trial. Byrd v. Hall, 847 S.W.2d at 214; Rutherford v. Polar Tank Trailer, Inc. , 978 S.W.2d 102, 104 (Tenn. Ct. App. 1998).

II. T HE L IABILITY OF H OOTERS FOR THE C RIMINAL A CTS OF T HIRD -PARTIES
The ultimate fate of the negligence claims against Hooters hinges on whether Hooters owed
a duty to protect persons who drove into its p arking lot before the restaurant opened from the criminal acts of third-pa

rties. Hooters asserts t

hat it does not have this d

uty and, the

refore, that it is entitled to a summary judgment because it has negated one of the essential elements of the negligence

claim against it. 2 For their part, Mr. Crews’s parents and the Ortons assert that Hooters hada duty

to protect po tential customers and the general public from the criminal acts of thirdpart ies beca use of i ts e mpl oyees ’ kn owl edge of cr imi nal act ivi ty in the vic ini ty.
A.

Owners and occupiers of business premises are not insurersof the safety of their customer

s, potential customers, or the general public. Basily v. Rain, Inc. , 29 S.W.3d 879, 883 (T enn. Ct. App. 2000); Shofner v. Red Food Stores (Tenn.), Inc. , 970 S.W.2d 468, 470 (Tenn. Ct. App. 1997); Hardesty v. Service Merchand

ise Co. , 953 S.W.2d 678, 681 (Tenn. Ct. App. 1997). They do, however, have a duty

to use rea sonable care to protect customers and potential customers from unreasonable risks of harm. Rice v. Sabir , 979 S.W.2d 305, 308 (T enn. 1998); Hudson v. Gaitan , 675 S.W.2d 699, 703 (Tenn. 1984). Determining whether a defendant owes a particular pla intiff a duty

of care is a question of law for the court. Staples v. CBL & Assocs., Inc. , 15 S.W.3d at 89; J ennings v . Case , 10 S.W.3d 625, 627 (Tenn. Ct. App. 1999). A duty to act with due care arises when the risk of harm bec omes unreasonable, and a risk of harm becomes unreasonable “if the foreseeable pr

obability an

d gravity-5-

of the harm posed by

the defendant’s

conduct outweig

h the burden upon th

e defendant to e

ngage in alternative conduct that would haveprevented the harm.” Rice v. Sabir , 979 S.W.2d at 308; McCall
v. Wilder , 913 S.W.2d 150, 153 (Tenn. 1995). In determining whether a risk of harm is unreasonable, the courts consider

the fore seeable probab

ility of the ha

rm or injury o

ccurring; th

e possible magnitude of the potential harm or injury; the im portance or social value of the activity engaged in by defendant; the usefulness of the conduct to defend ant; the feasibility of alternative, safer
con duct and the relative

costs and burdens

associated with

tha t conduct; the relative usefulness of thesafer conduct; and the relative safety of a

lternative condu

ct.
Coln v. City of Savannah , 966 S.W.2d 34, 39 (Tenn. 1998) clarified in Cro ss v. City of Memphis, 20 S.W.3d 642, 644 (Te

nn. 2000); McCall v. Wilder , 913 S.W.2d at 153.

The extent that harm is f oreseeable pla

ys a pivotal r

ole in this analy

sis. The courts w

il l decline to impose a duty on a business to pro tect its cust omers from harm th

at is essentially unforeseeable

but, by the same token, will impose a duty on a business to protect its customers from harm that is reasonably foreseeable. As the Tennessee Sup reme Court h as noted, “the degree of foreseeability

needed to est

ablish a duty

of care decreases in proportion to the [increase in the] magnitude of the foreseeable harm.” Pittman v. Upjo hn Co. , 890 S.W.2d 425, 433 (Tenn. 1994). Until five years ago,the Tennessee Supreme Court had held that businesses did not have a duty to pr otect t

heir customers fr

om the criminal ac

ts of third parties

unless they k

new or should have known that a criminal act was occurring or about to occur that posed an imminent pr

obability of harm to its customers. Cornpropst v. Sloan , 528 S.W.2d 188, 198 (Tenn. 1975). In 1996, using the balancing an a lysis descr ibed above, the c

ourt abandoned th

is approach and t

hereby g reatly expanded the duty

of businesses to protect

their customers from criminal acts of third parties. The court impose d on businesses the duty to protect their customers from the criminal acts of thirdpersons if the business knows, or has reason to know, that criminal act s against its custo

mers on its premises are reasonably foreseeable. Staples v. CBL & Assocs., Inc. , 15 S.W.3d at 90; McClung v. Delta Square Ltd. Pa

rtnership , 937 S.W.2d at 902.

Under the Tennessee Supreme Court’s new analysis, a business’s duty did notrest solely on its knowledge that a particular criminal act was occurring or about to occur on its premises or even
on the business’s awareness of prior similar criminal acts on its premises. Rather, the court held that the foreseeability of a criminal act could be premised on prior criminal acts occurring “in the immediate vicinity of the defendant’s premises.” McClung v. Delta Square Ltd. Pa rthership , 937 S.W.2d at 902. Thus, the co urt held that, when conducting

a foreseeabili

ty analy sis, the courts must consider “the location, nature, and extent of previous crimina l ac tiv iti es an d th eir sim ila rit y, pro xim ity, or other relation ship to the crime giving rise to the cause of action.” McClung v. Delta Square Ltd. Partners

hip , 937 S.W.2d at 902.3 Even though the Tennessee Supreme Court has rejected the “prior instan ces appro ach” in case s of this sort,

it has observed that prior c riminal acts will inevitably factor into its balancing analysis. Staples v. CBL & Assocs., Inc. , 15 S.W.3d at 90 n.3. In Staples , the plaintiff presen ted eviden ce of 2 86 cri minal i ncidents occurrin

g at the Hamilton Place Mall during the fourteen mo nths immed iately preced ing the plaintiff’s injury. Stapl es v. CBL & Assocs., I

nc. , 15 S.W.2d at 90, 90 n.3. In McClung , the pl ainti ff in troduced ev

idence of

164 crimin

al inci dents t hat had occu

rred on or
near the Delta Square S hopping Center pa rking lot within the se venteen mo nths prior to the plaintiff’s injury. McClung v. Delta Sq uare Ltd . Parthersh ip , 937 S.W .2d at 903

. -6- B.

We must apply the balancing test used in McClung and Staples to determine whether Hooters should have foreseen that its restaurant might become the scene of an armed robber y and, therefore, should have taken steps to prot

ect its potential c

ustomers or member

s of the public in its

parking lot from the harm that might befall them if the armed robbers us ed t heir weapons. I n pursuing these questio ns, we m ust view the evidence in the light most favorable to Mr. Crews’s parents and the Ortons. Even when we do so, the only re asonable conclu

sion to be drawn from

their proof is that they have been unable

to establish facts

sufficient to warrant a conclusion that Hooters had a duty to protect its potential customers from the possible consequences of a botched armed robbery bef ore the restaurant h

ad opened for bus

iness.

This record contains no evidence of significant or recent criminal activity at the restaurant itself. In fact, it

is undisputed that no violent crimes against person or property had occurred a t the restaurant other than one attempted burg lary occurring one night after the r estaurant had closed. There is no evidence regarding when this burglary occurred. In addition, the owners and operators of Hooters provided

uncontradicted e

vidence that ther

e had never bee

n a day-time

armed robbery at any of the twenty-nine Hooter s restaurants in the four-state franchise area. Knowing that they co

uld not base their

case on the crimi

nal activity

at the restaurant itself, Mr. Cr ews’ s parents and the Ortons based their claim on their assertion that Hooters should have taken more security precautions because of their knowledg e regarding the incidence of crime in the vicinity of the restaura

nt. However, the

ir evidence is fa

r too general to

provide a foundation for the

ir claim. Unlike the plaintiffs in the McClung and Staples cases who produced specific information regarding crimes on and aro

und the defendan

t’s business premis

es, 3 Mr. Crews’s paren ts an d the Ortons came forward

with little precise evidenceregarding the nature, extent, and proximity of other crimes in the area.

The evidence regarding the incidence of crime in the vicini ty of t he restaurant takes two forms. The first consists of Hooters’s answers to the plaintiffs’ interrogatories in which it concedes that its manager and employees were awar e from ne wspaper

reports and conv

ersations with customers about unspecified crimes beingcommitted in the area where the restaurant was located. These answers provided no information regarding the nature or number of the other cr imes or where
a nd when the se crimes occurred. This sort of general awareness of criminal ac tivity in the community

is not the sort of knowledge that would trigger a restaurant’s obligation to

take additional precautions to protect the persons who enter its parking lot.-7-

The second piece of

evidenceregarding the criminal activity in the area is a sw orn statement by a sales manager of an armored car service stating the crime rate in the Harding Road area where the restaurant is loc

ated “would

be considered de

finitely higher than average or higher than normal.” The opinion of the sales mana ger of the armo

red car servic

e must be excluded un

der Tenn. R. Civ. P. 56.06 because he

failed to demonstr

atethat he is competent

to provide an opinion regarding the crime rate in the area

ar ound the restaurant. First, he did not demonstrate that he possesses the scientific, technical, or other specialized knowledge that would enable him to provide an e xpert opinion that would assist the trier of fact.

Tenn. R. Evid. 702. Second, he failed to demonstrate that his opinion about the crime rate in the area is based upon some relevant scientific method or data rather than on his ow n speculation. McDaniel v. CSX Transp., Inc. , 955 S.W.2d 257, 265 (Tenn. 1997). Without this opinion, the sales manager’s sworn statement contains no otherrelevant information concerning the number or nature of the other crimes in the area or wh

ere or when thes

e other crimes occurred.

Fin all y, Mr. Crews’s parents and the Orton s submitted Mr. Locke’s affidavit. Mr. Locke, who drove the getaway car for Messrs. B rewster and

Grant, stated

that he and his confederates had heard from a “reliable

source” that Hoo

ters kept money

on its premises ove

rnig ht. He also stated that he observed Hooters operation a nd that Hooters was “

much more lackad

aisical in its secu

rity effortsthan the other restau rants/businesses in the immediate ar

ea/vicinity

” and that he and h

is associates would not have attempted to rob Hooters if there had been more visibl e security. Mr. Locke also observed tha

t had Mr. Washingto

n not escaped into

the parking lot when he

encountered the robbery “gunfire would not have occurre d, and the two boys outside the restaurant . . . would not have been shot.”

Mr. Locke’s aff

idavit has little, if

any, relev

ance to the questi

on at hand. This c

ase is no t about whether Ho

oters took adequa

te precautions to

protect itself and its employees from robbery
or burglary , but rather whet

her Hooters to

ok su fficient precautions to protect its customers and persons entering its parking lot bef ore hours fromthe criminal acts of third parties in

light of its knowledge of the incidence of crime on its property

and in the surrounding area. While Mr. Locke’s affidavit provides some interesting insights into the motives and modus operandi of the gunmen who robbedHooters, it

sheds little light on what Hooters and its employees knew or should have known about the incidenc

e of crime in the a

rea surrounding

the restaurant.

The fa cts surrounding

the botched arme

d robbery a

t the Hooters rest

aurant and the tr

agi c death of Mr. Crews and the injury of Mr. Orton are essentially undisputed. Based

on these facts, we have concluded

that Hooters is entitled to a judgment as a matter of law because it demonstrated that Mr. Crews’s p arents and the Ortons will be unable to prove that Hooters owed a duty to Mes srs
. Crews and Orton to protect them from the criminal acts of Messrs. Brewster, Gran t , Locke, and Springer. Accordingly

, we find that the tr

ia l court correctly granted the summary judgment dismissing the neg

ligence claims

against Hooter

s.-8- III.

We affirm the summar

y judgment d

ismi ssing the negligence claims against Hooters and remandthe case to the trial court for further proceedings consistent with this opinion. We tax the costs of this appeal, in equal proportions, to Paul David Crews and Sue Crews and to

Nathan Orton and Katrina Orton and their surety for which execution, if necessary , may issue.

_____________________________ WILLIA M C. KOCH, JR., JUDGE