     Case: 17-30282      Document: 00514174444         Page: 1    Date Filed: 09/28/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                    No. 17-30282                              FILED
                                  Summary Calendar                    September 28, 2017
                                                                         Lyle W. Cayce
                                                                              Clerk
SUSAN SIMPSON; JERRY SIMPSON,

                     Plaintiffs - Appellants

v.

DOLLAR TREE STORES, INCORPORATED,

                     Defendant - Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:15-CV-2107


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM:*
       The Simpsons sued Dollar Tree for negligence, alleging that Dollar Tree
was liable for injuries Susan Simpson received when she was robbed in the
Dollar Tree store’s parking lot in Monroe, Louisiana.                The district court
determined that the Simpsons had failed to show a genuine issue of material
fact that Dollar Tree owed a duty to protect Susan Simpson from the criminal
act of a third party and granted summary judgment against the Simpsons. The


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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Simpsons timely appealed. Because we determine that the Simpsons have
raised a genuine issue of material fact regarding whether or not Dollar Tree
owed a duty to protect Susan Simpson from the criminal act of a third party,
we VACATE the district court’s judgment and REMAND for further
proceedings.
      We review grants of summary judgment de novo. Moody v. Farrell,
868 F.3d 348, 351 (5th Cir. 2017). Summary judgment is appropriate where
“the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
We review “the evidence introduced and all factual inferences from the
evidence in the light most favorable to the party opposing summary judgment.”
Moody, 868 F.3d at 352 (quotation omitted).
      Whether or not a business owner has a duty to protect its patrons from
third party criminal acts is determined by state law. The highest court of
Louisiana has adopted a balancing test to determine when such a duty exists.
The court described the test as follows:
      The foreseeability of the crime risk on the defendant's property and
      the gravity of the risk determine the existence and the extent of
      the defendant's duty. The greater the foreseeability and gravity of
      the harm, the greater the duty of care that will be imposed on the
      business. A very high degree of foreseeability is required to give
      rise to a duty to post security guards, but a lower degree of
      foreseeability may support a duty to implement lesser security
      measures such as using surveillance cameras, installing improved
      lighting or fencing, or trimming shrubbery. The plaintiff has the
      burden of establishing the duty the defendant owed under the
      circumstances.

      The foreseeability and gravity of the harm are to be determined by
      the facts and circumstances of the case. The most important factor
      to be considered is the existence, frequency and similarity of prior
      incidents of crime on the premises, but the location, nature and
      condition of the property should also be taken into account. It is

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      highly unlikely that a crime risk will be sufficiently foreseeable for
      the imposition of a duty to provide security guards if there have
      not been previous instances of crime on the business' premises.


Posecai v. Wal-Mart Stores, Inc., 752 So.2d 762, 768 (La. 1999). Though the
existence of prior incidents is the most important factor, other factors should
also be taken into account. In Posecai, the Supreme Court reversed a plaintiff’s
judgment after noting, inter alia, police testimony that they had rarely been
called out to the Sam’s Club and that only one arguably similar assault had
occurred in over six years. In a subsequent decision, the Louisiana Supreme
Court explained:
      As we cautioned in Posecai, while the existence, frequency, and
      similarity of prior incidents of crime on the premises is an
      important consideration in the duty determination, other factors,
      such as the location, nature, and condition of the property should
      also be taken into account. Posecai in no way implies, nor should
      it be interpreted to imply, that a business' duty to protect
      customers from the criminal attacks of third persons does not arise
      until a customer is actually assaulted on the premises. To the
      contrary, Posecai recognizes, and we reiterate, that while
      businesses are generally not responsible for the crime that haunts
      our communities, “business owners are in the best position to
      appreciate the crime risks that are posed on their premises and to
      take reasonable precautions to counteract those risks.”


Pinsonneault v. Merchants & Farmers Bank & Trust Co., 816 So.2d 270, 277-
78 (La. 2002) (emphasis added).       Therefore, the absence of prior similar
incidents does not guarantee that the business owed no duty to protect its
customers against third party criminal acts.
      In Pinsonneault, a bank customer had been murdered at the bank’s
night deposit box and the customer’s parents sued the bank for wrongful death.
Id. at 273. The court determined that the bank did not have “a duty to employ
heightened security measures for the protection of patrons of its night

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depository” because there had been no similar prior incidents, the bank was in
a comparatively low crime area for its district, and there was a low statistical
likelihood that night deposit crimes would occur. Id. at 276-77. However, the
court still determined that the bank “had a duty to implement reasonable
security measures” because the bank’s written security plan “clearly
envision[ed] the recognition of a duty by [the bank] to implement reasonable
security measures for the protection of its customers.” Id. at 278. The steps
the bank had taken to implement this plan, “providing lighting at its night
time depository, erecting fencing along vulnerable perimeters, and setting up
a schedule for the installation of modern surveillance cameras at each of its
branches” also supported the court’s conclusion. Id.
      In Schweitzer, a Wal-Mart customer alleged she was injured during an
abduction attempt on Wal-Mart’s parking lot at night. Schweitzer v. Wal-Mart
Stores, Inc., 861 So.2d 747 (La. Ct. App 2003). This Wal-Mart had begun to
operate twenty-four hours a day a few months before the customer was
attacked. Id. As in Pinsonneault, the court determined that the store “did not
have a duty to employ heightened security measures for its patrons” because
it was in a low crime area and there had never before been a crime committed
on the parking lot. Id. at 751. However, Wal-Mart’s steps to increase security
as it transitioned to a twenty-four hour schedule, such as requesting police
patrols at night and hiring greeters, showed that Wal-Mart itself recognized
the increased risk of crime while operating after dark. Id. at 748-49. In
addition, Wal-Mart’s corporate risk management officer wrote a memo on the
increased risk of crime after dark. Id. at 751. Therefore the court found that
“Wal-Mart had a duty to implement reasonable security measures to provide
protection to its patrons who shop at night” at that location. Id. at 752.
      In this case, the Simpsons have alleged facts which, if proved, might
show that the Dollar Tree store was aware of a foreseeable risk of violent crime
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to its customers. These facts include: (1) the store’s practice of escorting or
watching female employees to their cars at night, (2) the store’s practice of
either escorting customers to their car or providing an escort even if unasked,
(3) the assistant manager’s requests to install security cameras, (4) whether or
not the store ever employed security personnel and (5) a prior armed robbery.
      We express no opinion on the ultimate outcome of this case, but for these
reasons, we VACATE the district court’s judgment and REMAND this case to
the District Court for the Western District of Louisiana.




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