* 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. 07-40982

SHERRIE GILBERT, Individually and as personal representative 

of the Estate of Chrystal Newby Willis, deceased; 

DARCIE BAGGETT, Individually and as personal representative 

of the Estate of Rebecca Shifflett, deceased

Plaintiffs - Appellants

v.

OUTBACK STEAKHOUSE OF FLORIDA INC

Defendant - Appellee

Appeal from the United States District Court 

for the Eastern District of Texas

USDC No. 5:06-CV-7

Before DAVIS, CLEMENT, and ELROD, Circuit Judges.

PER CURIAM:*

After two employees at an Outback Steakhouse restaurant were murdered

in a robbery, the representatives of their estates sued Outback Steakhouse of

Florida, Inc. (“OSF”) for damages and have appealed the district court’s grant of

OSF’s motion for summary judgment. For the following reasons, we affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

October 10, 2008

Charles R. Fulbruge III

Clerk
No. 07-40982

2

I. FACTS AND PROCEEDINGS

Chrystal Newby Willis and Rebecca Shifflet (the “decedents”) were

employed at an Outback Steakhouse restaurant in Texarkana, Texas. On

September 1, 2003, two former employees who had recently been fired (the

“assailants”) killed the decedents while robbing the restaurant. Matthew Hines,

the managing partner of the restaurant, was also killed in the robbery. In

October 2005, Sherrie Gilbert and Darcie Baggett, individually and as personal

representatives of the estates of the decedents (collectively referred to as

“Gilbert”), filed suit against OSF. The complaint seeks damages against OSF as

the employer of the decedents, alleging that OSF intentionally caused their

deaths, or, alternatively, that OSF’s negligence resulted in the murders. 

As discovery progressed, Gilbert learned that the decedents, the

assailants, and Hines had actually been employed by an independent contractor

of OSF—Outback Steakhouse Restaurant Services (“OSRS”)—pursuant to an

employment services agreement between OSRS and OSF. The premises of the

Texarkana restaurant were owned by OSF and leased to a third entity, Outback

Steakhouse of Dallas-II Ltd. (“OSD”). While OSF held the lease and intellectual

property rights used by the Texarkana restaurant, OSRS was responsible for

managing personnel and all hiring and firing decisions, and OSD was in charge

of maintaining the premises.

Gilbert filed a motion for leave to amend the complaint on October 13,

2006—over eight months after the deadline to amend pleadings set by the

scheduling order. The proposed amended complaint would have added OSRS

and OSD as defendants and set forth more detailed claims of negligence against

OSF, including as the premises owner. A magistrate judge denied the motion,

concluding that the addition of new parties at that juncture would cause undue
No. 07-40982

3

delay, and the assertion of new claims and allegations was potentially

prejudicial to OSF. Gilbert did not object to the magistrate judge’s decision.

On March 22, 2007, OSF filed a motion for summary judgment, arguing

that Gilbert’s claims failed as a matter of law because they were based on OSF’s

status as the employer of the decedents and assailants. In response, Gilbert

conceded that OSRS was the relevant employer, but claimed that OSF

nevertheless owed a duty of care to the decedents as the premises owner and as

the entity in control of the actual operations of the restaurant. While the

summary judgment motion was pending, Gilbert filed a second motion for leave

to amend the complaint by adding references to OSF’s liability as the premises

owner and as a party to the contract with OSRS in the negligence cause of

action. 

On June 29, 2007, the district court denied the motion for leave to amend

as an improper attempt to pursue a new theory of liability on the eve of trial,

finding that the original negligence cause of action did not properly allege a

claim against OSF as the premises owner. On the same day, it entered

summary judgment against Gilbert, concluding that OSF could not be held liable

for the damages suffered by employees of OSRS. The district court noted in its

summary judgment order that Gilbert’s arguments regarding premises liability

were also unavailing and referenced its order denying leave to amend. Gilbert’s

motion to amend or alter the judgment was subsequently denied. Gilbert

appeals the district court’s grant of summary judgment.

II. STANDARD OF REVIEW
No. 07-40982

4

This court “reviews a district court’s grant of summary judgment de novo,

applying the same legal standards as the district court.” Condrey v. SunTrust

Bank of Ga., 429 F.3d 556, 562 (5th Cir. 2005). On review of a grant of summary

judgment,“[t]he evidence and inferences from the summary judgment record are

viewed in the light most favorable to the nonmovant.” Minter v. Great Am. Ins.

Co. of N.Y., 423 F.3d 460, 465 (5th Cir. 2005). Typically, “[s]ummary judgment

is proper when the pleadings, the discovery and disclosure materials on file, and

any affidavits show that there is no genuine issue as to any material fact and

that the movant is entitled to judgment as a matter of law.” Kane v. Nat’l Fire

Ins. Co., 535 F.3d 380, 384 (5th Cir. 2008) (internal quotations omitted); see also

FED. R. CIV. P. 56(c). This court may “affirm a grant of summary judgment on

any grounds supported by the record and presented to the court below.”

Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008) (per curiam).

While “failure to state a claim usually warrants dismissal under Rule

12(b)(6),” it may also serve as a basis for summary judgment. Whalen v. Carter,

954 F.2d 1087, 1098 (5th Cir. 1992). In that case, “the failure to state a claim is

the ‘functional equivalent’ ofthe failure to raise a genuine issue of material fact.”

Id. A motion for summary judgment challenging the sufficiency of a plaintiff’s

pleadings will be “evaluated much the same as a 12(b)(6) motion to dismiss.”

Ashe v. Corley, 992 F.2d 540, 544 (5th Cir. 1993). This court must therefore

“accept all well-pleaded facts as true, viewing them in the light most favorable

to the plaintiff.” Jones v. Greninger, 188 F.3d 322, 324 (5th Cir. 1999) (per

curiam). In this posture, a motion for summary judgment is properly granted

“if, accepting all alleged facts as true,the plaintiffs’ complaint nonetheless failed

to state a claim.” Ashe, 992 F.2d at 544.
No. 07-40982

1 Gilbert’s argument that the district court improperly invoked Texas pleading rules is

meritless. Gilbert is correct that “federal law governs the pleading requirements of a case in

federal court.” TIG Ins. Co. v. Aon Re, Inc., 521 F.3d 351, 357 (5th Cir. 2008) (internal

quotationomitted). The district court, in assessing the sufficiency of Gilbert’s premises liability

claim, made a passing reference to Texas’s requirement that plaintiffs “plead and prove” the

elements of a liability theory. However, it also cited extensively to federal pleading rules and

case law. Ultimately, we apply Rule 8 in conducting our de novo review and are not concerned

with the district court’s mention of Texas pleading requirements.

5

III. DISCUSSION

A. Premises Liability Claim

Gilbert challenges the district court’s holding that her premises liability

claim was insufficiently pleaded.1 Other than in the situations expressly

enumerated in Rule 9(b), a complaint need only recite “a short and plain

statement of the claim showing that the pleader is entitled to relief.” FED. R.

CIV. P. 8(a)(2). Rule 8 thus sets out a “low bar” to evaluate the sufficiency of a

claim, requiring only that a plaintiff’s pleadings “‘give the defendant fair notice

of what the plaintiff’s claim is and the grounds upon which it rests.’” Gen. Elec.

Capital Corp. v. Posey, 415 F.3d 391, 396 (5th Cir. 2005) (quoting Swierkiewicz

v. Sorema N.A., 534 U.S. 506, 512 (2002)). Accordingly, “[t]he notice pleading

requirements of Federal Rule of Civil Procedure 8 and case law do not require

an inordinate amount of detail or precision.” McManus v. Fleetwood Enters.,

Inc., 320 F.3d 545, 551 (5th Cir. 2003) (internal quotation omitted). A complaint

for negligence need not“parse the negligence allegation into separate elements,”

Posey, 415 F.3d at 396, nor is it required to “correctly specify the legal theory”

giving rise to the claim for relief, McManus, 320 F.3d at 551.

However, a plaintiff must “plead sufficient facts to put the defense on

notice of the theories on which the complaint is based.” TIG Ins. Co. v. Aon Re,

Inc., 521 F.3d 351, 357 (5th Cir. 2008) (internal quotation omitted). The
No. 07-40982

6

plaintiff’s pleadings must both “(1) provide notice of circumstances which give

rise to the claim, [and] (2) setforth sufficientinformation to outline the elements

of the claim or permit inferences to be drawn that these elements exist.” Beanal

v. Freeport-McMoran, Inc., 197 F.3d 161, 164 (5th Cir. 1999). The Supreme

Court recently reaffirmed these principles, stating that “[w]ithout some factual

allegation in the complaint, it is hard to see how a claimant could satisfy the

requirement of providing not only ‘fair notice’ of the nature of the claim, but also

‘grounds’ on which the claim rests.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955,

1965 n.3 (2007). 

In denying Gilbert’s motion for leave to amend, the district court noted

that because the proposed addition of a premises liability claim introduced “a

substantial change in [Gilbert’s] theory of recovery,” it would not allow the

amendment at such a late stage in the proceedings. Importantly, Gilbert does

not appeal the denial of leave to amend. Rather, she contends that the second

cause of action alleged in the original complaint—a broad negligence claim

against OSF—adequately encompasses a premises liability theory of recovery,

and that leave to amend was only sought to clarify the various theories of

liability, not to add new ones. The complaint’s negligence cause of action reads

as follows:

6.

Alternative Theories of Recovery

Negligence / Gross Negligence of Outback Steakhouse

In the alternative, Plaintiffs plead that the negligence and gross

negligence of OUTBACK STEAKHOUSE caused the incident made

the basis of this suit.
No. 07-40982

7

6.1 Plaintiffs would show that the assaults which lead to the deaths

of [the decedents] and another employee of the Texarkana

OUTBACK STEAKHOUSE restaurant were committed for reasons

personal to the assailant, i.e. the assailant had a vendetta against

OUTBACK STEAKHOUSE as a result of his being terminated from

employment at this facility.

6.2 Therefore, the assault did not occur within the course of [the

decedents’] employment and Plaintiffs are entitled to recover under

both the Texas Wrongful Death Act and the Survival Statute.

From a fair reading of these and the other allegations ofthe complaint, we

agree with the district court that OSF was not on notice that it was being sued

as the premises owner. Under Texas law, 

[W]hen the injured party is an invitee . . . , the elements of a

premises claim are: (1) Actual or constructive knowledge of a

condition on the premises by the owner or occupier; (2) That the

condition posed an unreasonable risk of harm; (3) That the owner or

occupier did not exercise reasonable care to reduce or eliminate the

risk; and (4) That the owner or occupier's failure to use such care

proximately caused the plaintiff's injury.

CMH Homes, Inc. v. Daenen, 15 S.W.3d 97, 99 (Tex. 2000). In order to properly

plead her claim against OSF, Gilbert was not required to “correctly specify the

legaltheory”—i.e., premises liability—underlying the claim. McManus, 320F.3d

at 551; see also De La Hoya v. Coldwell Banker Mexico, Inc., 125 F. App’x 533,

537 (5th Cir. 2005) (unpublished) (noting that “Plaintiffs’ failure to include the

phrase ‘single business enterprise’” in a complaint seeking to pierce the

corporate veil was not“dispositive”for purposes of dismissal). The complaint did

not even need to outline allthe elements of her claim for premises liability under

Texas law. See Posey, 415 F.3d at 396.
No. 07-40982

8

However, in this case, the claim fails as inadequate because it does not

“permit inferences to be drawn that these elements exist.” Beanal, 197 F.3d at

164. The complaint does not contain a single reference, whether explicit or

implicit, to OSF’s position as the holder of the lease for the premises, to the

existence of any condition or defect of the premises, or to the decedents’ status

as invitees on the premises. While Gilbert correctly notes that under Texas law,

a claim based on premises liability is a negligence action, see Corbin v. Safeway

Stores, Inc., 648 S.W.2d 292, 295 (Tex. 1983), the complaint’s mere inclusion of

a broad cause of action for negligence is insufficient to sustain her claim. “A

complaint which contains a bare bones allegation that a wrong occurred and

which does not plead any of the facts giving rise to the injury, does not provide

adequate notice.” Walker v. S. Cent. Bell Tel. Co., 904 F.2d 275, 277 (5th Cir.

1990) (per curiam) (also noting that “[i]f the complaint had alleged nothing

further [than a claim for intentional infliction of emotional injury], it would have

failed to provide notice”). In fact, the complaint’s consistent allegations that

OSF was the employer of the decedents and the former employer of the

assailants suggested that the negligence claim was brought against OSF as an

employer rather than a premises owner. Therefore, while the “nature of the

claim”—a negligence action—is apparent from the complaint, it cannot be said

that Gilbert provided “fair notice” of the “‘grounds’ on which the claim

rests”—the duty owed by OSF as the premises owner to its invitees. Twombly,

127 S. Ct. at 1965 n.3. 

Gilbert attempts to demonstrate that she provided “fair notice” of the

premises liability claim by noting that OSF denied being in control of the

restaurant’s premises in its own position statement in a Rule 26(f) report, and
No. 07-40982

9

that questions relating to OSF’s potential premises liability were asked during

discovery. These arguments were not raised in response to OSF’s motion for

summary judgment, and thus are waived. See, e.g., Keelan v. Majesco Software,

Inc., 407 F.3d 332, 339–40 (5th Cir. 2005). In addition, there is no support for

the proposition that either the defendant’s pleadings or the discovery process,

without any amendment to a plaintiff’s pleadings, can serve to add new grounds

for relief to the complaint.

Gilbert has failed to state a proper negligence claim based on OSF’s

liability as the owner of the Texarkana restaurant’s premises. Accordingly, we

affirm the district court’s grant of summary judgment on Gilbert’s supposed

premises liability claim.

B. OSF’s Duty to the Decedents

Gilbert also challenges the district court’s granting of summary judgment

on her claim that OSF owed a duty to the decedents as employees of its

independent contractor, OSRS. Under Texas law, “[b]ecause an independent

contractor has sole control over the means and methods of the work to be

accomplished, . . . the individual or entity that hires the independent contractor

is generally not vicariously liable for the tort or negligence of that person.”

Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998).

Therefore, “[o]rdinarily, a general contractor does not owe a duty to ensure that

an independent contractor performs its work in a safe manner.” Lee Lewis

Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). 

However, “a general contractor may owe a duty of reasonable care to a

subcontractor’s employee, and consequently may be liable for injury to that

employee, if the general contractor retains control over part of the work to be
No. 07-40982

10

performed.” Id. The scope of a general contractor’s duty to the employees of its

general contractor is thus “limited to the scope of its retained supervisory

control.” Hoechst-Celanese Corp. v. Mendez, 967 S.W.2d 354, 357 (Tex. 1998).

Accordingly, “[f]or the general contractor to be liable for negligence, its

supervisory control must relate to the condition or activity that caused the

injury.” Id. (internal quotation omitted).

Gilbert argues that OSF had retained sufficient control over the activities

of OSRS to owe a duty of reasonable care to employees of OSRS, including the

decedents. In the proceedings below, the district court rejected this argument,

holding that because OSF had established that OSRS was an independent

contractor that hired the assailants, Gilbert had failed to raise a genuine issue

of material fact as to OSF’s liability for OSRS’s hiring of the assailants. On

appeal, Gilbert contends that its negligence claim was not based on the hiring

of the assailants—which she admits was under OSRS’s control—but rather on

OSF’s retained control over the security and safety of the decedents’ workplace.

This argument is nothing more than an attempt by Gilbert to salvage her

inadequate premises liability claim. As explained above, the complaint relies

entirely on OSF’s alleged status as the employer ofthe decedents and the former

employer of the assailants. It claims that OSF hired and terminated employees

with criminal backgrounds—the assailants—and employed the decedents in

positions that placed them at risk of becoming victims of violent crimes, in

particular in light ofthe assailants’“vendetta” against OSF. The complaint does

not contain a single allegation relating to OSF’s duty to maintain a safe

workplace or to the unsafe condition of the restaurant. Therefore, Gilbert has
No. 07-40982

11

failed to state a negligence claim based on the existence and breach of a duty to

ensure the general safety of the decedents’ workplace. 

Even assuming that the complaint’s broad negligence claim properly

encompassed this theory of liability, Gilbert has failed to raise a genuine issue

of material fact as to OSF’s control over safety and security issues at the

Texarkana restaurant. Gilbert notes that the contract between OSF and OSRS,

which provides that OSRS had sole authority to hire, train and discharge any

restaurant personnel and management, does not expressly address OSRS’s duty

to provide safety and security to its employees. Gilbert also points to statements

made during deposition by Paul Avery,the president of OSF, and Blaise Hadley,

the joint venture partner for the Texarkana and several other Outback

restaurants in Texas. They testified that OSF held the lease to the Texarkana

restaurant, owned the Outback intellectual property rights—including its logo,

recipes, and a document used for training of Outback personnel—, and required

Outback restaurants to follow corporate guidelines and procedures regarding

food preparation and recipes. Avery also testified that he would not allow an

Outback restaurant to be operated in an area he felt was unsafe, that he had at

various points reminded his joint venture partners and franchisees of the need

to utilize and test security alarms, and that he had occasionally retained security

consultants to contribute to Outback restaurants’ security procedures.

According to Gilbert,this evidence shows that OSF had retained control over the

operations of the Texarkana restaurant, including the security and safety of the

facility.

Gilbert’s evidence regarding OSF’s retained supervisory control over food

preparation, recipes and other intellectual property rights is irrelevant to the

negligence claim because this control does not“relate to the activity that actually
No. 07-40982

12

caused the injury.” Coastal Marine Serv. of Tex., Inc. v. Lawrence, 988 S.W.2d

223, 226 (Tex. 1999). The evidence regarding OSF’s concern and input over

safety procedures at restaurants is also unavailing. The standard to determine

whether a general contractor has retained a right to control the activities of its

independent contractor is “narrow”; in order to give rise to a duty of care, the

general contractor must have “at least the power to direct the order in which

work is to be done or the power to forbid it being done in an unsafe manner.” Id.

“It is not enough that he has merely a general right to order the work stopped

or resumed, to inspect its progress or to receive reports, to make suggestions or

recommendations which need not necessarily be followed, or to prescribe

alterations and deviations.” Hoechst-Celanese, 967 S.W.2d at 356.

Here, pursuant to the employment services agreement with OSF, OSRS

had full control over the training and supervision of management and personnel

at the Texarkana restaurant. In addition, the lease between OSF and OSD

provided: “SECURITY. [OSD] shall have full responsibility for protecting the

Premises and the property located therein from theft and robbery.” OSD was

also responsible for all maintenance and improvements, and OSF had limited

rights of access. For Texas law to impose a duty to protect against the criminal

acts of third parties, it must be established that “the defendant had specific

control over the security of the premises where the criminal act took place,”

rather than a “more general right of control over operations.” Centeq Realty, Inc.

v. Siegler, 899 S.W.2d 195, 199 (Tex. 1995). In this case, OSD had sole control

over the Texarkana restaurant’s premises, including any security issue.

Therefore, whether the alleged security defects of the decedents’ workplace

were attributable to a lack of training or supervision, or to the condition of the
No. 07-40982

13

premises, Gilbert has failed to raise a genuine issue of material fact as to OSF’s

retained “supervisory control” over the safety ofthe restaurant. Accordingly, we

affirm the district court’s grant of summary judgment on Gilbert’s claim that

OSF owed a duty to the decedents as employees of OSRS.

IV. CONCLUSION

For the foregoing reasons, the judgment of the district court is

AFFIRMED.