*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 97-60414 

Summary Calendar

____________________

TIMOTHY HOUCK,

Plaintiff-Appellant,

v.

SUNSHINE JUNIOR FOOD STORES and

PEOPLES TELEPHONE COMPANY,

 Defendants,

SUNSHINE JUNIOR FOOD STORES,

 Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Mississippi

(1:96-CV-286-CR)

_________________________________________________________________

March 31, 1998

Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant Timothy Houck appeals the district

court’s judgment as a matter or law for defendant-appellee

Sunshine Junior Food Stores on his premises liability claim. We
2

affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 28, 1994, Houck received a page from his employer,

Sears. Houck, who resided at his brother’s home within a block

of a store owned by Sunshine Junior Food Stores (Sunshine),

routinely shopped at the Sunshine store and utilized the pay

telephones there because his brother’s telephone had been

disconnected. The two pay telephones, placed at the Sunshine

store by Peoples Telephone Company (Peoples), were located on the

brick exterior wall approximately three feet from the indentation

leading to the front entrance of the store. Although a cashier

behind the register area could not see patrons using the

telephones, an expert witness testified that a surveillance

camera located inside the store and directed at the cashier area

could have recorded activity at the corner where the phones were

located.

Sometime after dark on May 28, Houck drove to the Sunshine

store, parked in front, and used the telephone located closest to

the store entrance to return the page to his employer. After

receiving a busy signal at his employer’s telephone number, Houck

telephoned his ex-wife to arrange visitation with his children. 

During the conversation with his ex-wife, Houck heard a pager and

noticed two men, approximately twenty yards away, walking toward
3

the Sunshine store.

After reaching the premises, the larger of the two men

approached Houck and told him to get off the phone. Houck told

him to use the other phone or to wait until he finished his call. 

The larger man mumbled and walked into the store. The shorter of

the two men placed a call from the adjacent telephone. While

Houck continued his telephone conversation, the larger man

returned and demanded a quarter. Houck responded that he had no

quarter, but reached in his pocket and gave the man the change he

had which was twenty-three cents. Keeping the two dimes, the man

threw the three pennies on the ground. In response to the larger

man’s subsequent demand for the rest of his money, Houck answered

that he had none. The smaller man told the other that Houck said

he had no money, so “go on.” The larger man went back inside the

Sunshine store. Houck continued his telephone conversation.

The smaller man then attempted to grab Houck’s pager, and 

Houck prevented him from doing so. Houck refused the smaller

man’s subsequent request to look at the pager. The smaller man

began mumbling what Houck described as threats to take the pager. 

As Houck ended his telephone call and turned sidewards to face

the smaller man, the smaller man hit him beneath the eye. Houck

stepped forward, asked him why he hit him, and stared him down

for some amount of time. Shortly thereafter, someone, presumably

the larger man, hit Houck in the back of the head with a metal

object. All of these events transpired within three to four feet
4

of the Sunshine store entrance. Houck was discovered unconscious

at 11:19 p.m. and transported by ambulance to a local hospital,

where he remained for four to five days for treatment of his head

injury.

Houck sued Sunshine and Peoples for negligence in failing to

provide adequate security for the users of pay telephones located

on Sunshine’s premises. The district court granted Peoples’

motion for summary judgment and dismissed Peoples with prejudice

from the suit.

At trial before a jury, Houck presented the video deposition

from his treating physician and testimony from two witnesses--

Houck and Cynthia Payne Swetman Childers, designated by Sunshine

as a security expert. Sunshine moved for judgment as a matter of

law at the end of Houck’s case-in-chief. Concluding that the

evidence was “woefully lacking in showing any negligence” and

“void concerning any proximate cause,” the District Court granted

Sunshine’s motion.

II. DISCUSSION

Houck contends that the District Court erred in granting

Sunshine’s motion for judgment as a matter of law. Because this

is a diversity case, we apply the federal standard to determine

if the judgment as a matter of law was proper. Entente Mineral

Co. v. Parker, 956 F.2d 524, 526 (5th Cir. 1992); Matador

Drilling Co. v. Post, 662 F.2d 1190, 1195 (5th Cir. 1981). We
5

review a district court’s grant of judgment as a matter of law de

novo. Conkling v. Turner, 18 F.3d 1285, 1300 (5th Cir. 1994).

Judgment as a matter of law is appropriate in cases where “a

party has been fully heard on an issue and there is no legally

sufficient evidentiary basis for a reasonable jury to find for

that party on that issue.” FED. R. CIV. P. 50(a); see also

Conkling, 18 F.3d at 1300. The court need not submit an issue to

the jury merely because the party having the burden of proof at

trial introduces a scintilla of evidence to support his position

unless that evidence is such that a jury would be justified in

finding in favor of that party. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251 (1985); Boeing Co. v. Shipman, 411 F.2d 365,

374-75 (5th Cir. 1969). “If the facts and inferences point so

strongly and overwhelmingly in favor of one party that the Court

believes that reasonable men could not arrive at a contrary

verdict, granting of the motion[] is proper.” Boeing, 411 F.2d

at 374. The court must review the entire trial record in the

light most favorable to the non-moving party, reserving

credibility determinations and factual inferences for the jury. 

Conkling, 18 F.3d at 1300 (citing Anderson, 477 U.S. at 255). 

“The ‘decision to grant [judgment as a matter of law] . . . is

not a matter of discretion, but a conclusion of law based upon a

finding that there is insufficient evidence to create a fact

question for the jury.’” Id. at 1300-01 (quoting In re Letterman
6

Bros. Energy Sec. Litig., 799 F.2d 967, 972 (5th Cir. 1986)).

Under Mississippi law, to prevail on a negligence claim,

Houck must prove that (1) Sunshine owed a duty to him;

(2) Sunshine breached that duty; (3) he sustained damages; and

(4) Sunshine’s breach of duty was the proximate cause of his

damages. Lyle v. Mladinich, 584 So. 2d 397, 399 (Miss. 1991). 

In order to bear his burden, Houck must allege specific acts or

omissions rather than make general assertions that Sunshine

failed to exercise ordinary care. McWilliams v. City of

Pascagoula, 657 So. 2d 1110, 1111 (Miss. 1995). Houck contends

that Sunshine breached its duty of care to its patrons through

negligent placement of the pay telephones. 

“Whether a duty exists is a question of law.” Id. at 400. 

Sunshine is not strictly liable to its guests for any injury that

occurs on its premises; rather, Sunshine owes its patrons a duty

to exercise reasonable care to protect invitees from reasonably

foreseeable injuries by third parties. Crain v. Cleveland Lodge

1532, Order of Moose, Inc., 641 So.2d 1186, 1189 (Miss. 1994). 

Liability attaches where the owner has “cause to anticipate the

wrongful or negligent act of [an] unruly patron.” Id. For

Sunshine to have cause to anticipate a potential assault, it

would need to have either “(1) actual or constructive knowledge

of [an] assailant’s violent nature, or (2) actual or constructive

knowledge that an atmosphere of violence exists in the tavern.” 
1 In his initial brief, Houck asserted that he had

introduced police reports to demonstrate the level of criminal

activity at the Sunshine store. He included citations in his

initial brief and submitted copies of criminal reports regarding

incidents of shoplifting and gasoline theft at the Sunshine store

in his record excerpts. Sunshine argued that Houck

misrepresented the evidence to this court. The district court

granted Sunshine’s Motion to Strike Exhibits because Houck failed

to disclose these documents in discovery. In his reply brief,

Houck conceded that the district court had excluded the police

reports and claimed that his assertion to this Court was an

inadvertent mistake. On appeal, he does not argue that the

district court erred in excluding the police reports. 

Consequently, the only evidence before the court regarding

criminal activity is Childers’s testimony. 

7

Id. The Mississippi Supreme Court has expanded the definition of

“in the tavern” to encompass both the exterior and interior of a

business premises. Lyle, 584 So. 2d at 399.

Houck neither submitted evidence at trial nor argues on

appeal that Sunshine had actual or constructive knowledge of the

assailants’ violent nature. Consequently, the question of

foreseeability requires us to determine whether sufficient

evidence exists that Sunshine had actual or constructive

knowledge of a violent atmosphere surrounding its premises. 

Relevant factors include the pattern of criminal activity both in

the general vicinity and on the premises prior to the event which

is the subject of this suit. Crain, 641 So.2d at 1189-90 (citing

Lyle, 584 So. 2d at 399).

Houck introduced evidence of criminal activity in the

vicinity of Sunshine’s store through the testimony of Childers, a

security expert witness.1 Childers testified that, in the two
8

years prior to Houck’s assault, two assaults, one arrest for

concealment of a weapon, and a number of minor criminal incidents

had occurred on Sunshine’s premises. In August 1992, almost two

years prior to Houck’s assault, an incident of domestic violence

occurred inside an automobile parked near the pay telephones. 

That same month, police arrested a store patron for carrying a

concealed weapon. Six months prior to Houck’s assault, a female

clerk had an altercation with a regular customer. Following a

dispute inside the store, the clerk successfully repelled an

attack when a customer grabbed her as she disposed of trash in

the dumpster located in the store parking lot. Houck introduced

evidence of no incidents of violence against a store patron by an

unknown third party other than the assault in which he was the

victim.

Sunshine argues, and the district court agreed, that Crain

v. Cleveland Lodge 1532, Order of the Moose, Inc., 641 So. 2d

1186 (Miss. 1994), controls the disposition of this case. In

Crain, Crain was the victim of an assault that occurred in the

parking lot of Moose Lodge as he unloaded a musical instrument

from the trunk of his car. See id. at 1187. In an attempt to

prove foreseeability, Crain introduced police reports documenting

278 crimes, eleven of which were considered violent crimes,

occurring within a two block radius of the lodge during fiftyfive of the sixty months prior to his assault. Id. Four of the
2 Although Moose Lodge stipulated for purposes of summary

judgment that only one light existed in the parking lot, it

claimed that the parking lot was actually illuminated by more

than one light. Id. at n.2.

9

crimes occurred at the Moose Lodge, including two that occurred

within the year immediately preceding Crain’s assault. Id.

Houck argues that Crain is distinguishable from this case. 

He contends that in Crain, the plaintiff submitted only two

reports of crimes occurring on the Moose Lodge premises, whereas

Houck presented substantial evidence constituting “a pattern of

routine and frequent criminal activity” on Sunshine’s premises. 

Furthermore, he asserts that neither of the two crimes at Moose

Lodge were crimes against the person. See id. at 1192. He fails

to note, however, that the evidence of criminal activity

presented at trial consisted solely of Childers’ testimony. That

testimony described two incidents of crimes against the person

within the two years preceding Houck’s assault, one of which

occurred inside a vehicle located in the parking lot of the

Sunshine store.

The specific claim of negligence in Crain centered on

inadequate lighting. Id. at 1192. Only one light located near

the building illuminated the parking lot. On the evening of

Crain’s assault, inclement weather exacerbated the poor security

situation allegedly caused by bad lighting.2 Id. at 1187. 

Nevertheless, the Mississippi Supreme Court granted the
10

defendant’s motion for summary judgment, holding that two crime

reports on the lodge’s premises within the year prior to Crain’s

assault were insufficient to establish that Moose Lodge should

have reasonably foreseen the assault on Crain. Id. at 1192. 

Addressing the issue of foreseeability, the court stated that

“[e]veryone can foresee the commission of a crime virtually

anywhere and at any time. If foreseeability itself gave rise to

duty to provide ‘police’ protection for others, every residential

curtilage, every shop, every store, every manufacturing plant

would have to be patrolled by the private arms of the owner.” 

Id. at 1190 (citations omitted). 

Houck argues that his claim is similar to Lyle v. Mladinich,

584 So. 2d 397 (Miss. 1991), in which two unknown assailants

accosted James Lyle in the parking lot of the Mladiniches’

restaurant and forced him into their car at gunpoint. See id. at

398. The Mississippi Supreme Court remanded the case for a

determination of whether “discontinuance of its previous policy

of hiring security personnel to patrol the parking lot

constituted a breach of duty and, if so, whether [that] breach

proximately caused or contributed to Lyle’s injuries.” Id. at

400. Houck does not contend that Sunshine has discontinued any

security measure that may have prevented Houck’s injury nor does

he produce any evidence supporting such a contention. He

likewise does not argue that Sunshine breached its duty by not
11

supplying a security officer to patrol the store. 

Houck’s sole argument is that Sunshine breached its duty

through negligent placement of the pay telephones. Yet, Houck

introduced no evidence that the placement of the phones was

problematic or that placement of the phones elsewhere would be

preferable. Although a clerk standing behind the counter is

unable to see patrons using the telephones, a surveillance camera

records activity at the corner where the phones are located. 

Moreover, the telephones are located within three feet of the

indentation leading to the Sunshine store entrance. Childers

testified that nothing in her review of photos of the store,

discussions with an employee who visited the site, or inspection

of police reports would warrant a recommendation to move the pay

telephones to a different location.

Even if sufficient evidence exists to submit the question of

breach of duty to a jury, Houck must still prove a causal link

between Sunshine’s purported breach and his injury. See Crain,

641 So. 2d at 1191. He offered no evidence to show that, had

Sunshine placed the pay telephones in a different location, his

injuries would not have occurred. As such, he offered no

evidence proving that any act or omission on the part of Sunshine

proximately caused his injuries. Although proximate cause is

generally a fact question for the jury, when the plaintiff offers

no evidence, as here, no question exists for the jury to decide. 
12

See Crain, 641 So. 2d at 1192. Houck’s failure to prove an

essential element of his negligence claim is fatal.

The district court rendered judgment as a matter of law

after Houck was fully heard on his claim. Reviewing the entire

trial record in the light most favorable to Houck, this court

concludes that a reasonable person could come to only one

conclusion--that Houck failed to produce sufficient evidence to

demonstrate negligence on the part of Sunshine. We conclude that

the district court did not err in granting Sunshine’s motion for

judgment as a matter of law.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s

judgment.