                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                    February 9, 2007
                            FO R TH E TENTH CIRCUIT                Elisabeth A. Shumaker
                                                                       Clerk of Court

    TIM O TH Y S. TH ER RIEN ,
    an individual,

                Plaintiff-Appellant,
                                                        No. 06-5110
    v.                                        (D.C. No. 06-CV-217-JHP-FHM )
                                                        (N.D. Okla.)
    TA RG ET C OR PO RA TIO N ,
    a M innesota corporation,

                Defendant-Appellee.



                             OR D ER AND JUDGM ENT *


Before HO LM ES, M cKA Y, and BROR BY, Circuit Judges.




         Timothy S. Therrien was shopping at a Target store when a Target

loss-prevention employee confronted a suspected shoplifter. The Target

employee and the suspect became involved in a physical confrontation. W hen the

suspect began to overw helm the employee, the employee called out to bystanders




*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent w ith Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
for help, and M r. Therrien responded. During the ensuing struggle, the suspect

stabbed and injured M r. Therrien.

      Alleging various theories of negligence, M r. Therrien filed suit against

Target Corporation in Oklahoma state court. Target removed the case to federal

district court and moved under Fed. R. Civ. P. 12(b)(6) for dismissal of the

complaint. The district court granted Target’s motion, and M r. Therrien appeals.

W e have jurisdiction under 28 U .S.C. § 1291, and we REVERSE and REM AND

for further proceedings.

                              I. Standard of Review

      W e review de novo a district court’s Rule 12(b)(6) dismissal of a complaint

for failure to state a claim for relief. Ruiz v. M cDonnell, 299 F.3d 1173, 1181

(10th Cir. 2002). W e take all well-pleaded factual allegations as true and view

them in the light most favorable to the plaintiff. Id. “[A] complaint should not

be dismissed for failure to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). “The issue in reviewing

the sufficiency of a complaint is not whether the plaintiff will prevail, but

whether the plaintiff is entitled to offer evidence to support [his] claims.” Ruiz,

299 F.3d at 1181. Because this is a diversity case, we apply federal law to

procedural questions, but state law to the analysis of the underlying claims.

Haberman v. The Hartford Ins. Group, 443 F.3d 1257, 1264 (10th Cir. 2006).

                                         -2-
                                    II. Analysis

      M r. Therrien argues that he set forth at least five distinct claims:

(1) negligent provision of store security; (2) negligent training and supervision;

(3) negligent handling of the situation with the suspect leading to the physical

altercation; (4) negligently requesting assistance and directing such assistance

from bystanders; and (5) liability under the rescue doctrine. To proceed with

a claim of negligence under Oklahoma law, M r. Therrien must establish that

(1) Target owed him a duty to protect him from injury; (2) Target failed properly

to perform its duty; and (3) he suffered injuries that were proximately caused by

Target’s breach of its duty. See Jackson v. Jones, 907 P.2d 1067, 1071-72

(O kla. 1995).

            A. O klahoma Landow ner Liability for Criminal Attacks

      The primary issue is whether Target owed M r. Therrien a duty to protect

him from injury from a criminal attack by a third party. M r. Therrien contends

that, under Oklahoma law , Target has a duty to use reasonable care to prevent a

criminal attack when it knows that the attack is occurring or is about to occur.

See Taylor v. Hynson, 856 P.2d 278, 281 (O kla. 1993).

      Oklahoma premises liability law classifies M r. Therrien as an invitee.

See id. (“It is well established that a person w ho goes on land to conduct business

is a business invitee for the purposes of establishing liability.”). A business

generally does not have a duty to protect an invitee from criminal attacks by third

                                         -3-
persons. Id. Oklahoma, however, has recognized such a duty in “unique

circumstances.” Id. An invitor’s knowledge “that the acts of the third person

are occurring, or are about to occur” may constitute such circumstances. Id. at

281-82 (quotation omitted). Thus, Oklahoma law recognizes that, “[w]hen an

invitor has knowledge that an invitee is in imminent danger, the invitor must act

reasonably to prevent injury.” Id. at 281.

      In M organ v. Southland Associates, 883 P.2d 205, 206 (Okla. Civ. App.

1994), a case involving a criminal attack on plaintiff at a mall food court, the

Oklahoma Court of Civil Appeals reversed the trial court’s dismissal of plaintiff’s

petitions. After describing Taylor’s teachings, the court stated that because

plaintiff had pleaded defendant’s knowledge of the attack, which would give rise

to a duty on defendant’s part, as well as breach of the duty and damages, the trial

court had erred in dismissing the petitions for failure to state a claim. Id. at 207.

“To hold otherwise would be to find that the rule a business invitor has no duty to

protect invitees from criminal acts of third parties is absolute.” Id. at 206-07.

      Similarly, M r. Therrien pleaded that Target was aware that a criminal act

was imminent or occurring, so that Target had a duty to use reasonable care to

prevent the suspect from harming M r. Therrien; that Target breached its duty; and

that M r. Therrien suffered harm as a “direct and proximate result” of Target’s

breach. Aplt. App. at 7-9. As in M organ, these allegations are sufficient to state

a claim under Taylor.

                                          -4-
      Target urges us to decide that the fight between the Target employee and

the suspect was an open and obvious condition and that M r. Therrien had

knowledge equal to Target of the unsafe condition, so that Target owed

M r. Therrien no duty of care. See, e.g., Dover v. W.H. Braum, Inc., 111 P.3d 243,

245 (Okla. 2005) (“There is no duty to warn the invitee of any defect or danger

which is as w ell-known to the invitee as to the owner or occupant or which is

obvious or which should be observed by the invitee in the exercise of ordinary

care.”); Pickens v. Tulsa M etro. M inistry, 951 P.2d 1079, 1084 (Okla. 1997)

(“Even vis-a-vis an invitee, to whom a landowner owes the highest duty . . ., the

law does not require that the landowner protect the invitee against dangers which

are so apparent and readily observable that one would reasonably expect them to

be discovered.”). But since Taylor, Oklahoma’s premises liability cases involving

criminal attacks focus on the invitor’s knowledge of criminal activity; they do

not appear to incorporate the “open and obvious danger” analysis found in

physical-defects cases. See, e.g., Taylor, 856 P.2d at 281-82; Rogers v. Burger

King Corp., 82 P.3d 116, 122-23 (Okla. Civ. App. 2003); Young v. Bob Howard

Auto., Inc., 52 P.3d 1045, 1048-49 (Okla. Civ. App. 2002); M cClure v. Group K

Enters., Inc., 977 P.2d 1148, 1150-51 (Okla. Civ. App. 1999); Folmar v. M arriott,

Inc., 918 P.2d 86, 87-89 (Okla. Civ. App. 1996); Edington v. A & P Enters., Inc.,

900 P.2d 453, 455 (Okla. Civ. App. 1994); M organ, 883 P.2d at 206-07; see also

Wells v. Boston Ave. Realty, 125 F.3d 1335, 1340 (10th Cir. 1997) (“Plaintiff has

                                         -5-
cited no cases that support treating a criminal assault as a ‘defect’ creating

premises liability.”). In any event, whether or not a particular condition is open

and obvious generally requires an examination of all of the circumstances. Zagal

v. Truckstops C orp. of Am ., 948 P.2d 273, 275 (Okla. 1997). Thus, we decline to

hold, at this initial stage of the proceedings, that the “open and obvious danger”

rule necessarily bars M r. Therrien’s claim as a matter of law.

      Target also argues that M r. Therrien’s “attempt to create five distinct

claims is contrary to law.” A plee. Br. at 9. W e agree that four of M r. Therrien’s

five claims (the exception being the negligent training and supervision claim)

appear to stem from Taylor, rather than stating separate bases for recovery.

But in light of the limited record before this court, we w ill let the district court

evaluate each of M r. Therrien’s claims in the first instance to determine whether

each should proceed separately.

                      B. Negligent Training and Supervision

      M r. Therrien also alleges that Target was negligent in its training and

supervision of the loss prevention employee. This claim invokes a recognized

basis for recovery in Oklahoma: “[e]mployers may be held liable for negligence

in hiring, supervising or retaining an employee.” N.H. v. Presbyterian Church

(U.S.A.), 998 P.2d 592, 600 (Okla. 1999); see also M organ, 883 P.2d at 206-07

(reversing dismissal of petition that included claims of negligent training).

Negligent hiring and supervision is a separate theory of recovery based on the

                                           -6-
employer’s direct negligence, rather than liability under the doctrine of

respondeat superior. N .H ., 998 P.2d at 600. In Oklahoma, this claim is only

available if an employer’s vicarious liability is not established. Id.

Consequently, while M r. Therrien has stated a claim sufficient to withstand a

Fed. R. Civ. P. 12(b)(6) motion to dismiss on this issue, how far this claim can

proceed will depend on the evidence before the district court during further

proceedings.

                                         III.

      The judgment of the district court is REVERSED and the case is

REM ANDED for further proceedings in the district court.


                                                     Entered for the Court



                                                     M onroe G. M cKay
                                                     Circuit Judge




                                          -7-
