                 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 wounded. The parents of the deceased victim and the wounded victim and
his wife filed suit in the 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 summary judgment and dismissed the negligence claim against it. The plaintiffs, relying on
McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891 (Tenn. 1996), assert on this appeal that
the trial court erred by granting the restaurant’s summary judgment motion. We concur with the trial
court’s conclusion that the material facts are not in dispute and that the restaurant is entitled to a
judgment as a matter of law because it demonstrated that the plaintiffs would be unable to prove an
essential element of their case. Accordingly, we affirm the trial court’s order dismissing the claims
against the restaurant.

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

WILLIAM C. KOCH , JR., J., delivered the opinion of the court, in which BEN H. CANTRELL , P.J., M.S.,
and WILLIAM B. CAIN , J., joined.

Ben Boston, Charles W. Holt, Jr. and Christopher V. Sockwell, Lawrenceburg, Tennessee, for the
appellants, Paul David Crews and Sue Crews, as surviving parents and next of kin of Gregory Paul
Crews, and Nathan Orton and Katrina Orton.

Tom Corts, Nashville, Tennessee, for the appellees, Hooters Restaurant of Nashville, Inc.; Hooters
of Nashville, L.P.; RMD Corporation d/b/a Hooters; and John Doe d/b/a Hooters.

Gregory D. Smith, Clarksville, Tennessee, for the appellee, Lane D. Locke.
                                              OPINION

        One of Nashville’s several Hooters restaurants is located on Largo Drive near the Harding
Road exit for Interstate 24. On August 17, 1996, Fred Washington, the manager, arrived 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 for the bank at approximately
9:20 a.m., he left the front door of the restaurant unlocked because of the expected arrival of other
employees. He had deactivated the restaurant’s burglar alarm because other employees were
working in the restaurant.

       Approximately twenty minutes after Mr. Washington had left for the bank two armed
gunmen, Antonio Brewster and James M. Grant, entered the restaurant and demanded the receipts
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
waited for Mr. Washington to return. When Mr. Washington entered the restaurant, he saw the
gunmen and ran for the front door. The gunmen began shooting and chased Mr. Washington outside.
Even though one of 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 in the calf and knocked him down. Even though he was unable to stand, Mr. Washington
crawled into the road and flagged down a passing motorist.

        At about the same time that Mr. Washington ran out of the front door of the restaurant,
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 for 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
Court for Davidson County against the owners and operators of the Hooters restaurant, Messrs.
Brewster and Grant, Lane D. Locke who had driven the getaway car and Mark Thomas Springer who
had assisted Messrs. Brewster and Grant in evading the police.1 Hooters and Mr. Locke filed
answers denying liability. Mr. Crews’s parents and the Ortons took default judgments 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,


        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 ).

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

                                              I.
                                    THE STANDARD        OF   REVIEW

         The standards for reviewing summary judgments on appeal are well-settled. Summary
judgments are proper in virtually any civil case 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 not, however, appropriate
when genuine disputes regarding material facts exist. Tenn. R. Civ. P. 56.04. Thus, a summary
judgment should be granted only when the undisputed facts, and the inferences reasonably drawn
from the undisputed facts, support one conclusion – that the party seeking the summary judgment
is entitled to a judgment as a matter of law. Goodloe v. State, 36 S.W.3d 62, 65 (Tenn. 2001);
Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 88 (Tenn. 2000); White v. Lawrence, 975 S.W.2d
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 judgment as a matter of law. Shadrick v.
Coker, 963 S.W.2d 726, 731 (Tenn. 1998); Belk v. Obion County, 7 S.W.3d 34, 36 (Tenn. Ct. App.
1999). In order 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. Hall, 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.
Martin, 958 S.W.2d 643, 647 (Tenn. 1997). Mere conclusory generalizations will not suffice.
Cawood v. Davis, 680 S.W.2d 795, 796-97 (Tenn. Ct. App. 1984). The non-moving party must
convince the trial court that there are sufficient factual disputes to warrant a trial (1) by pointing to
evidence either overlooked or ignored by the moving party that creates a factual dispute, (2) by
rehabilitating evidence challenged by the moving party, (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. West 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 because, as our courts have repeatedly
observed, the “failure of proof concerning an essential element of a cause of action necessarily
renders all other facts immaterial.” Alexander v. Memphis Individual Practice Ass'n, 870 S.W.2d
278, 280 (Tenn. 1993); Strauss v. Wyatt, Tarrant, Combs, Gilbert & Milom, 911 S.W.2d 727, 729
(Tenn. Ct. App. 1995).




                                                  -3-
        Summary judgments enjoy no presumption of correctness on appeal. Penley v. Honda Motor
Co., 31 S.W.3d 181, 183 (Tenn. 2000); 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 (Tenn. 1997). We must consider the evidence in the light most
favorable to the non-moving party, and we must resolve all inferences in the non-moving 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. 1998); Tamco Supply v. Pollard, 37 S.W.3d 905, 908 (Tenn. Ct. App.
2000). When reviewing the evidence, we must determine first whether factual disputes exist. If a
factual dispute exists, we must then determine whether the fact is material to the claim or defense
upon which the summary judgment is predicated and whether the 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.
             THE LIABILITY OF HOOTERS FOR THE CRIMINAL ACTS OF THIRD-PARTIES

        The ultimate fate of the negligence claims against Hooters hinges on whether Hooters owed
a duty to protect persons who drove into its parking lot before the restaurant opened from the
criminal acts of third-parties. Hooters asserts that it does not have this duty and, therefore, 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
had a duty to protect potential customers and the general public from the criminal acts of third-
parties because of its employees’ knowledge of criminal activity in the vicinity.

                                                           A.

       Owners and occupiers of business premises are not insurers of the safety of their customers,
potential customers, or the general public. Basily v. Rain, Inc., 29 S.W.3d 879, 883 (Tenn. Ct. App.
2000); Shofner v. Red Food Stores (Tenn.), Inc., 970 S.W.2d 468, 470 (Tenn. Ct. App. 1997);
Hardesty v. Service Merchandise Co., 953 S.W.2d 678, 681 (Tenn. Ct. App. 1997). They do,
however, have a duty to use reasonable care to protect customers and potential customers from
unreasonable risks of harm. Rice v. Sabir, 979 S.W.2d 305, 308 (Tenn. 1998); Hudson v. Gaitan,
675 S.W.2d 699, 703 (Tenn. 1984).

       Determining whether a defendant owes a particular plaintiff a duty of care is a question of
law for the court. Staples v. CBL & Assocs., Inc., 15 S.W.3d at 89; Jennings 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 becomes
unreasonable, and a risk of harm becomes unreasonable “if the foreseeable probability and gravity


         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. Vanderbilt Univ., 970 S.W.2d 958,
960 (Tenn. Ct. App. 1998).

                                                          -4-
of the harm posed by the defendant’s conduct outweigh the burden upon the defendant to engage in
alternative conduct that would have prevented 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 foreseeable probability of the harm or injury occurring; the
               possible magnitude of the potential harm or injury; the importance
               or social value of the activity engaged in by defendant; the usefulness
               of the conduct to defendant; the feasibility of alternative, safer
               conduct and the relative costs and burdens associated with that
               conduct; the relative usefulness of the safer conduct; and the relative
               safety of alternative conduct.

Coln v. City of Savannah, 966 S.W.2d 34, 39 (Tenn. 1998) clarified in Cross v. City of Memphis,
20 S.W.3d 642, 644 (Tenn. 2000); McCall v. Wilder, 913 S.W.2d at 153.

       The extent that harm is foreseeable plays a pivotal role in this analysis. The courts will
decline to impose a duty on a business to protect its customers from harm that 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 Supreme Court has noted, “the degree of
foreseeability needed to establish a duty of care decreases in proportion to the [increase in the]
magnitude of the foreseeable harm.” Pittman v. Upjohn 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 protect their customers from the criminal acts of third parties unless they knew or should
have known that a criminal act was occurring or about to occur that posed an imminent probability
of harm to its customers. Cornpropst v. Sloan, 528 S.W.2d 188, 198 (Tenn. 1975). In 1996, using
the balancing analysis described above, the court abandoned this approach and thereby greatly
expanded the duty of businesses to protect their customers from criminal acts of third parties. The
court imposed on businesses the duty to protect their customers from the criminal acts of third-
persons if the business knows, or has reason to know, that criminal acts against its customers on its
premises are reasonably foreseeable. Staples v. CBL & Assocs., Inc., 15 S.W.3d at 90; McClung v.
Delta Square Ltd. Partnership, 937 S.W.2d at 902.

        Under the Tennessee Supreme Court’s new analysis, a business’s duty did not rest 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. Parthership, 937
S.W.2d at 902. Thus, the court held that, when conducting a foreseeability analysis, the courts must
consider “the location, nature, and extent of previous criminal activities and their similarity,
proximity, or other relationship to the crime giving rise to the cause of action.” McClung v. Delta
Square Ltd. Partnership, 937 S.W.2d at 902.


                                                 -5-
                                                            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 robbery and, therefore,
should have taken steps to protect its potential customers or members of the public in its parking lot
from the harm that might befall them if the armed robbers used their weapons. In pursuing these
questions, we must view the evidence in the light most favorable to Mr. Crews’s parents and the
Ortons. Even when we do so, the only reasonable conclusion 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 before
the restaurant had opened for business.

         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 at the
restaurant other than one attempted burglary occurring one night after the restaurant had closed.
There is no evidence regarding when this burglary occurred. In addition, the owners and operators
of Hooters provided uncontradicted evidence that there had never been a day-time armed robbery
at any of the twenty-nine Hooters restaurants in the four-state franchise area.

        Knowing that they could not base their case on the criminal activity at the restaurant itself,
Mr. Crews’s parents and the Ortons based their claim on their assertion that Hooters should have
taken more security precautions because of their knowledge regarding the incidence of crime in the
vicinity of the restaurant. However, their evidence is far too general to provide a foundation for their
claim. Unlike the plaintiffs in the McClung and Staples cases who produced specific information
regarding crimes on and around the defendant’s business premises,3 Mr. Crews’s parents and the
Ortons came forward with little precise evidence regarding the nature, extent, and proximity of other
crimes in the area.

        The evidence regarding the incidence of crime in the vicinity of the 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 aware from newspaper reports and conversations with
customers about unspecified crimes being committed in the area where the restaurant was located.
These answers provided no information regarding the nature or number of the other crimes or where
and when these crimes occurred. This sort of general awareness of criminal activity 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.


         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 criminal incidents occurring at the Hamilton
Place Mall during the fourteen mo nths immed iately preced ing the plaintiff’s injury. Staples v. CBL & Assocs., Inc., 15
S.W.2d at 90, 90 n.3. In McClung, the plaintiff introduced evidence of 164 criminal incidents that had occurred 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-
        The second piece of evidence regarding the criminal activity in the area is a sworn statement
by a sales manager of an armored car service stating the crime rate in the Harding Road area where
the restaurant is located “would be considered definitely higher than average or higher than normal.”
The opinion of the sales manager of the armored car service must be excluded under Tenn. R. Civ.
P. 56.06 because he failed to demonstrate that he is competent to provide an opinion regarding the
crime rate in the area around the restaurant. First, he did not demonstrate that he possesses the
scientific, technical, or other specialized knowledge that would enable him to provide an expert
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 own 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 other relevant
information concerning the number or nature of the other crimes in the area or where or when these
other crimes occurred.

        Finally, Mr. Crews’s parents and the Ortons submitted Mr. Locke’s affidavit. Mr. Locke,
who drove the getaway car for Messrs. Brewster and Grant, stated that he and his confederates had
heard from a “reliable source” that Hooters kept money on its premises overnight. He also stated
that he observed Hooters operation and that Hooters was “much more lackadaisical in its security
efforts than the other restaurants/businesses in the immediate area/vicinity” and that he and his
associates would not have attempted to rob Hooters if there had been more visible security. Mr.
Locke also observed that had Mr. Washington not escaped into the parking lot when he encountered
the robbery “gunfire would not have occurred, and the two boys outside the restaurant . . . would not
have been shot.”

       Mr. Locke’s affidavit has little, if any, relevance to the question at hand. This case is not
about whether Hooters took adequate precautions to protect itself and its employees from robbery
or burglary, but rather whether Hooters took sufficient precautions to protect its customers and
persons entering its parking lot before hours from the 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
robbed Hooters, it sheds little light on what Hooters and its employees knew or should have known
about the incidence of crime in the area surrounding the restaurant.

       The facts surrounding the botched armed robbery at the Hooters restaurant and the tragic
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 parents and the Ortons will be unable to prove that Hooters owed a duty to Messrs.
Crews and Orton to protect them from the criminal acts of Messrs. Brewster, Grant, Locke, and
Springer. Accordingly, we find that the trial court correctly granted the summary judgment
dismissing the negligence claims against Hooters.




                                                 -7-
                                               III.

        We affirm the summary judgment dismissing the negligence claims against Hooters and
remand the 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.



                                                      _____________________________
                                                      WILLIAM C. KOCH, JR., JUDGE




                                               -8-
