Robbins v. Circle K Stores Incorporated

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Jalen Robbins, et al., No. CV-22-00298-PHX-JJT 10 Plaintiffs, ORDER 11 v. 12 Circle K Stores Incorporated, et al., 13 Defendants. [14] 15 At issue is Defendant Circle K Stores, Inc.’s Motion for Summary Judgment 16 (Doc. 33, MSJ), to which Plaintiffs Jalen Robbins, Luranna Perez, and Twyla Jones filed a 17 Response (Doc. 39, Resp.) and Defendant filed a Reply (Doc. 41). The Court held oral 18 argument on the Motion on June 29, 2023. (Doc. 44; 06/29/2023 Hr’g Tr.) 19 I. BACKGROUND 20 Sometime between 2:00 and 3:00 a.m. on July 3, 2020, Robert Blackwater entered 21 a Circle K store in Scottsdale, Arizona (the “Store”) armed with a loaded assault rifle and 22 ordered the Store clerk to hand over cash. Joseph Toki, a customer, entered the Store while 23 Blackwater was robbing it, and Blackwater shot and killed him. As Blackwater left the 24 Store, Plaintiff Jalen Robbins, who was seated in a car in the parking lot, pulled out a gun 25 and Blackwater and Robbins exchanged gunfire. Blackwater collapsed as he tried to return 26 to a waiting vehicle and died from his wounds. Robbins sustained injuries but survived. 27 In addition to Robbins, Plaintiffs in this action are Toki’s beneficiaries: his partner, 28 Twyla Jones, for and on behalf of their three minor children, and his mother, Luranna 1 Perez. Plaintiffs bring a claim of negligence against Circle K, claiming it breached its duty 2 to keep the Store reasonably safe. Among other evidence, Plaintiffs support their claim by 3 records showing Blackwater had committed armed robbery at two other Circle K stores in 4 the area the same night, the Store had a record of at least four armed robberies in the 5 preceding three years, and the Scottsdale Police had been summoned to the Store multiple 6 times each month. Circle K now moves for summary judgment on Plaintiffs’ claim. 7 II. LEGAL STANDARD 8 Under Federal Rule of Civil Procedure 56(a), summary judgment is appropriate 9 when the movant shows that there is no genuine dispute as to any material fact and the 10 movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. 11 Catrett, 477 U.S. 317 , 322–23 (1986). “A fact is ‘material’ only if it might affect the 12 outcome of the case, and a dispute is ‘genuine’ only if a reasonable trier of fact could 13 resolve the issue in the non-movant’s favor.” Fresno Motors, LLC v. Mercedes Benz USA, 14 LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 15 242, 248 (1986)). The court must view the evidence in the light most favorable to the 16 nonmoving party and draw all reasonable inferences in the nonmoving party’s favor. 17 Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011). 18 The moving party “bears the initial responsibility of informing the district court of 19 the basis for its motion, and identifying those portions of [the record] . . . which it believes 20 demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 232 . 21 When the moving party does not bear the ultimate burden of proof, it “must either produce 22 evidence negating an essential element of the nonmoving party’s claim or defense or show 23 that the nonmoving party does not have enough evidence of an essential element to carry 24 its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., [25] 210 F.3d 1099, 1102 (9th Cir. 2000). If the moving party carries this initial burden of 26 production, the nonmoving party must produce evidence to support its claim or defense. [27] Id. at 1103 . Summary judgment is appropriate against a party that “fails to make a showing [28] 1 sufficient to establish the existence of an element essential to that party’s case, and on 2 which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322 . 3 In considering a motion for summary judgment, the court must regard as true the 4 non-moving party’s evidence, as long as it is supported by affidavits or other evidentiary 5 material. Anderson, 477 U.S. at 255 . However, the non-moving party may not merely rest 6 on its pleadings; it must produce some significant probative evidence tending to contradict 7 the moving party’s allegations, thereby creating a material question of fact. Id. at 256–57 8 (holding that the plaintiff must present affirmative evidence in order to defeat a properly 9 supported motion for summary judgment); see also Taylor v. List, 880 F.2d 1040 , 1045 10 (9th Cir. 1989) (“A summary judgment motion cannot be defeated by relying solely on 11 conclusory allegations unsupported by factual data.” (citation omitted)). 12 III. ANALYSIS 13 A. Duty 14 In their briefs, the parties dispute whether the principal question before the Court in 15 this case is, as Defendant argues, simply whether a duty exists—a question of law—or, as 16 Plaintiffs argue, whether there is sufficient evidence from which a reasonable jury can 17 determine that the applicable standard of care was breached. Under Arizona law, “a 18 negligence action may be maintained only if there is a duty or obligation, recognized by 19 law, which requires the defendant to conform to a particular standard of conduct in order 20 to protect others against unreasonable risks of harm.” Markowitz v. Ariz. Parks Bd., 706 21 P.2d 364, 366 (Ariz. 1985). “The issue of duty is usually one for the court as a matter of 22 law.” Id. In determining whether there is a duty, courts must not “equate the concept of 23 duty with specific details of conduct.” Id. at 367 . For example, in Markowitz, the Arizona 24 Supreme Court stated that the question of duty was not whether the state of Arizona had “a 25 duty to place warning signs at every hundred paces along the forty-five mile shoreline,” 26 but rather “whether the state as a possessor of land is under any duty of care with respect 27 to the safety of those it has invited to use the particular parcel of land.” Id. [28] 1 Put another way, that Court taught that “it is ‘better to reserve ‘duty’ for the problem 2 of the relation between individuals which imposes upon one a legal obligation for the 3 benefit of the other.’” Id. (quoting W. Prosser and W. Keeton, The Law of Torts, § 53 at 4 356 (5th ed. 1984)). But, contrary to Defendant’s argument, “the existence of a duty is not 5 to be confused with details of the standard of conduct,” such as whether the state has a duty 6 to post warning or traffic signs or fix potholes. Id. The question of duty is simply “whether 7 the relationship of the parties was such that the defendant was under an obligation to use 8 some care to avoid or prevent injury to the plaintiff.” Id. at 368. 9 Thus, the question of duty before the Court is not whether Defendant “had a duty to 10 prevent the violent criminal attack,” as framed by Defendant, but rather whether Defendant 11 had a duty to its invitees to avoid or prevent injury to them. The answer in this context is 12 straightforward. Under section 344 of the Restatement of Torts (“Restatement”), which 13 Arizona follows, [14] A possessor of land who holds it open to the public for entry for his business 15 purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, [16] negligent, or intentionally harmful acts of third persons. [17] 18 No genuine dispute exists that Toki and Robbins were at Defendant’s place of business— 19 the Store—as customers and invitees and were harmed by Blackwater’s intentionally 20 harmful acts.1 As a matter of law, Defendant had a duty to avoid or prevent injury to its 21 customers, Toki and Robbins, caused by the intentionally harmful acts of third persons 22 such as Blackwater. 23 B. Negligence: Evidence of Breach of the Standard of Care 24 The crux of the matter here is, as Plaintiff correctly frames it, whether Plaintiff has 25 produced sufficient evidence from which a reasonable jury could conclude that 26 1 Defendant argues that, once Robbins pulled his gun to use in self-defense, he became a trespasser (MSJ at 10-11), but that contention is unsupported by the legal 27 authority Defendant cites. In this instance, Defendant proffers no evidence that Robbins did not conduct himself as an invitee when Blackwater shot and killed Toki seconds before 28 exiting the Store. Rather, a factfinder may consider whether Robbins’s acts in self-defense constituted contributory negligence. See Markowitz, 706 P.2d at 371. 1 Defendant’s actions or inactions breached the applicable standard of care—“an issue of 2 fact that turns on the specifics of the individual case,” Gipson v. Kasey, 150 P.3d 228 , 230 3 (Ariz. 2007). Once a duty is established, a defendant must conform to a standard of care 4 that is reasonable under the circumstances “in light of the known and foreseeable risks.” 5 Markowitz, 706 P.2d at 368–69; see also Gipson, 150 P.3d at 231 (holding that 6 “foreseeability often determines whether a defendant acted reasonably under the 7 circumstances or proximately caused injury to a particular plaintiff” and is thus “more 8 properly applied to the factual determinations of breach and causation than to the legal 9 determination of duty”). “[W]here reasonable people could differ as to whether the danger 10 of some injury is foreseeable, the question of negligence is one of fact for a jury to decide.” [11] Id. at 369–70. “Sometimes, of course, it may be possible to say as a matter of law that 12 particular conduct was or was not negligence,” not because the defendant was not under a 13 duty to keep the plaintiff safe, but “because reasonable people would all agree that the 14 [defendant] had fulfilled its duty to act with reasonable care.” Id. at 369 . 15 Accordingly, whether Defendant here fulfilled its duty to act with reasonable care 16 hinges on whether the danger that invitees would be injured by third persons robbing the 17 Store was known and foreseeable. See Simon v. Safeway, Inc., 173 P.3d 1031 , 1037–38 18 (Ariz. Ct. App. 2007) (citing Martinez v. Woodmar IV Condos. Homeowners Ass’n, Inc., [19] 941 P.2d 218 , 219–20 (Ariz. 1997); Robertson v. Sixpence Inns of Am., Inc., 789 P.2d 1040 , 20 1044–45 (Ariz. 1990)) (stating that the duty of care to business invitees to maintain the 21 safety of common areas encompasses not only physical conditions but also dangerous 22 activities). With regard to foreseeability, Plaintiffs proffer evidence from Jeff Gentry, an 23 expert in threat assessment and management, that convenience stores such as the Store, 24 which operate 24 hours a day, are at “high risk” for armed robberies and that Defendant’s 25 training of its employees as to actions they should take during and after an armed robbery 26 do not meet industry standards. (Doc. 38, Pls.’ Controverting Statement of Facts (“CSOF”) 27 ¶¶ 1–3; Ex. 1, Gentry Aff. & Report ¶¶ 3–5.) Plaintiffs also point to evidence that the 28 incident at the Store giving rise to Plaintiffs’ claims was Blackwater’s third robbery and 1 shooting at Defendant’s stores that night (within a three-hour period), and although the 2 three stores were located in relatively close proximity, there is no record that Defendant’s 3 employees attempted to contact supervisors or warn neighboring stores. (CSOF ¶¶ 7–9; 4 Gentry Aff. & Report ¶¶ 8–10.) Plaintiffs’ evidence also shows that four armed robberies 5 had occurred at the Store in the three years prior to the incident in question and that 6 Scottsdale police have been summoned to the Store multiple times each month. (CSOF 7 ¶¶ 15–16 & Exs. 4, 6; Gentry Aff. & Report ¶ 12.) 8 In its briefing, Defendant states that “there is no evidence that Circle K voluntarily 9 assumed a duty to protect Plaintiffs from criminal attacks by armed robbers on the 10 premises.” (MSJ at 11.) Here again, Defendant improperly conflates duty with whether 11 conduct constitutes a breach of the standard of care. See Martinez, 941 P.2d at 211 (“[W]e 12 disapprove of attempts to equate the concepts of duty with specific details of conduct.” 13 (citing Markowitz, 706 P.2d at 367)). As the Court stated infra, there is no question that, 14 under the Restatement, a business owner has a duty to provide reasonable protection to 15 invitees from intentional harmful acts by third persons. That duty does not disappear when 16 a business chooses not to employ a security guard. 17 In arguing that by not “voluntarily assum[ing] a duty to provide security services at 18 the Store,” Defendant did not have “a duty to protect Plaintiff against the violent criminal 19 attacks” (MSJ at 11–12), Defendant relies on language it plucked from Simon, 173 P.3d at 20 1040. But there, the Arizona Court of Appeals was addressing whether Safeway could be 21 held liable for the alleged physical and sexual assault of a customer by the security guard 22 Safeway hired as an independent contractor. Id. at 1033 . That court stated that Safeway 23 “did not initially have a specific, nondelegable duty to provide security services”—the 24 language to which Defendant in the present case refers. Id. at 1040 . But the court made that 25 statement only in the context of whether, “[h]aving assumed the task of providing security 26 services on the premises, Safeway . . . created for itself a personal, nondelegable duty to 27 protect its invites from the intentionally tortious conduct of those with whom it had 28 contracted to maintain a presence and provide security on the premises.” Id. at 1040 1 (emphasis added). The court did not hold that a business has no duty to protect its customers 2 from harmful conduct of third persons if it does not employ security services at the store, 3 as Defendant argues (MSJ at 11–12). 4 Two Arizona appellate court decisions are instructive here. First, in Cotterhill v. 5 Bafile, the Arizona Court of Appeals concluded that a reasonable jury could infer 6 negligence on the part of a bar owner for taking no action to prevent an attack by regular 7 bar patrons causing serious injuries to another bar patron, where the “tension between the 8 two groups . . . existed for ten to fifteen minutes.” 865 P.2d 120 , 121–22 (Ariz. Ct. App. 9 1993). The plaintiff “need only present facts from which negligence can reasonably be 10 inferred,” and “[a] reasonable jury could have inferred that the probability of a fight was 11 evident for several minutes before it occurred, and that the bartender neglected to take 12 reasonable action to avert violence,” such as “ask anyone to leave, threaten to call the police 13 or call the police.” Id. at 122 . 14 Second, in Martinez, the Arizona Supreme Court examined whether the plaintiff— 15 the guest of a tenant of a condominium unit owner—produced sufficient evidence from 16 which a reasonable jury could find a condominium homeowners association negligent for 17 injuries the guest sustained after “local ruffians” shot him in the back in the parking lot of 18 the condominium complex. 941 P.2d at 219 , 223–24. The Court stated, in relevant part: [19] The trial judge should grant summary judgment if the facts supporting 20 the negligence claim or defense have so little probative value, given the quantum required, that reasonable people could not disagree with the [21] conclusion advanced by the proponent of the claim or defense. Foreseeability 22 of harm defines and limits the scope of conduct necessary to fulfill a land possessor’s duty to act reasonably to protect tenants and their guests from [23] criminal attacks. If the possibility of some injury from Defendant’s acts or 24 omissions was not foreseeable, Defendant was not negligent, and the trial judge properly granted summary judgment. . . . [25] [T]here is evidence presented that Defendant knew of the incursion 26 by gangs in the parking lot and other common areas of the property, knew the gangs engaged in drug dealing and other criminal activity, was warned [27] by its own security guard of the need for 24-hour patrols, had hired a second 28 guard for a short period but terminated him because of expense considerations, and knew a neighboring condominium complex had hired 1 off-duty Phoenix police officers to patrol. We therefore hold there is sufficient evidence from which a jury could find the danger foreseeable and [2] Defendant negligent. 3 On this record, also, we cannot say as a matter of law Defendant could 4 not have taken reasonable measures that probably would have prevented the attack. It may be that increased security patrols, better fencing, calls for 5 police control, or other measures might have prevented injury. This question 6 of causation in fact is, of course, one especially for the jury. [7] Id. at 223–24 (internal quotations and citations omitted). 8 Under the Arizona case law, the question here is simply whether Plaintiffs have 9 proffered sufficient evidence from which a reasonable jury could find that the shooting of 10 Toki and Robbins at the Store in the early morning of July 3, 2020, was foreseeable and 11 that Defendant could have taken reasonable measures that probably would have prevented 12 the attack. 2 See Martinez, 941 P.2d at 223–24; Cotterhill, 865 P.2d at 122 . With regard to 13 foreseeability, as the Court referred to infra, Plaintiff points to evidence that convenience 14 stores are at high risk for violent criminal activity, that this was at least the fifth armed 15 robbery at the Store in three years, that regular criminal activity has occurred at the Store 16 for which the Scottsdale Police have been summoned, and that Blackwater had engaged in 17 the armed robbery of two other of Defendant’s stores shortly before he robbed the Store 18 (killing Toki and injuring Robbins in the process) but Defendant’s employees took no 19 action to warn supervisors or neighboring stores. (Gentry Aff. & Report.) As the Arizona 20 Supreme Court found in Martinez, this Court cannot conclude that Plaintiffs’ evidence “has 21 so little probative value, given the quantum required, that reasonable people could not 22 disagree with the conclusion” that Defendant met the standard of care and is not negligent. 23 Martinez, 941 P.2d at 223 . Put another way, “there is sufficient evidence from which a jury 24 could find the danger foreseeable and Defendant negligent.” Id. at 224 ; see also Circle K [25] 2 Defendant argues that Blackwater’s criminal act was the “intervening/superseding 26 cause of Plaintiffs’ injuries and death” (MSJ at 12), but the Court disagrees. As in Martinez and Cotterhill, Blackwater’s violent conduct was a type of intentionally harmful act of a 27 third person contemplated by the Restatement in defining the duty of a business owner to protect its invitees. In other words, Blackwater’s armed robbery was the dangerous 28 condition or activity causing injury to Toki and Robbins, not the superseding cause of those injuries. See Restatement § 344; Martinez, 941 P.2d at 223-24 ; Cotterhill, 865 P.2d at 122 . 1|| Corp. v. Rosenthal, 574 P.2d 856, 861 (Ariz. Ct. App. 1977) Gin determining whether an || armed robbery causing injury to a Circle K store clerk was foreseeable, “evidence of 3 || numerous previous robberies at Circle K stores in the Tucson area [and] the testimony of 4|| an expert witness regarding security practices and devices available to Circle K at the time but not being used at the store in question” was sufficient for the factfinder to infer that the 6 || armed robbery causing injury to the clerk was foreseeable under the circumstances). 7 Plaintiffs’ causation evidence is likewise sufficient to survive summary judgment. || As the Arizona Supreme Court found in Martinez, a jury could find that reasonable measures identified by Plaintiffs’ expert—such as employing a security guard or security 10 || services, setting modified hours of operation, and/or implementing a notification system of |} armed robberies from store to store within Defendant’s local network and enabling 12 || employees to react to notification by locking the store doors, among other measures 13 || (Gentry Aff. & Report)—could probably have prevented the violent attack at the Store, which is generally a question “especially for the jury.” Martinez, 941 P.2d at □□□□□□□ see || also Circle K Corp., 574 P.2d at 861 (concluding the factfinder could infer from the 16 || evidence that the store clerk’s “injury could have been prevented with reasonable care by 17 || additional security measures or the presence of another employee’’). 18 For all these reasons, Defendant is not entitled to summary judgment as to Plaintiffs’ || negligence claim, and this matter will proceed to trial after the close of discovery. 20 IT IS THEREFORE ORDERED denying Defendant Circle K Stores, Inc.’s 21 || Motion for Summary Judgment (Doc. 33). 22 Dated this 31st day of January, 2024. CN 23 “wok: 74 wefhlee— United State$District Judge [28] -9-