Business 8th Edition by Marianne Jennings

Exercise 8

Pump First, Don ' t Pay Liability for the Gas and Dash
Facts
On the afternoon of November 23, 2002, James C. Luedtke, Jr. and his girlfriend, Heather Roberts, drove into the Diamond Shamrock gas station on White Settlement Road, in Forth Worth, Texas. The attendant activated the pump, and Roberts pumped gas into the vehicle. Roberts hopped in the vehicle, and Luedtke drove away without paying for the gas. As Luedtke drove off, an employee of the gas station ran outside and attempted to get the license plate number of the vehicle. In an effort to escape, Luedtke accelerated the vehicle, ran a red light, and collided with a vehicle driven by Alexis Pichardo, Sr., who had his son Andrew Warren Pichardo with him. Peggy Pichardo, Alexis Pichardo, Jr., and Richard Anderson were following Alexis Pichardo, Sr. in a separate vehicle and witnessed the collision. Alexis Pichardo, Sr. and Andrew were injured in the collision.
The Pichardos sued Luedtke; Selma Arm Roberts, the owner of the car Luedtke had been driving; and Big Diamond, the believed operator of the gas station. The Pichardos later added Diamond Shamrock, the correct operator of the gas station, as a defendant.
Big Diamond and Diamond Shamrock (Appellees) then filed a joint motion for summary judgment, because neither breached a legal duty owed to the pichardos, that Luedtke's actions were not foreseeable, and that any acts or omissions they committed were not a proximate cause of the Pichardos' injuries. The trial court granted the motion for summary judgment. The pichardos appealed.
Judicial Opinion
WALKER, Justice
The common law doctrine of negligence consists of three elements: (1) a legal duty owed by one person to another; (2) a breach of that duty; and (3) damages proximately resulting from the breach. The threshold inquiry in a negligence case is duty. The plaintiff must establish both the existence and violation of a duty owed to the plaintiff by the defendant to establish liability in tort. Whether a duty exists is a question of law for the court to decide from the facts surrounding the occurrence in question.
As a general rule, "a person has no legal duty to protect another from the criminal acts of a third person." An exception is that "[o]ne who controls... premises does have a duty to use ordinary care to protect invitees* from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee." The exception applies, of course, to a landlord who "retains control over the security and safety of the premises."
Likewise, third-party criminal conduct is a superseding cause of damages arising from a defendant's negligence unless the criminal conduct is a foreseeable result of the defendant's negligence. A defendant who seeks a summary judgment on the ground that the defendant has negated foreseeability as an element of proximate cause must prove, however, more than simply that the intervening third-party criminal conduct occurred. The defendant must show the third-party criminal conduct rises to the level of a superseding cause.
If the defendant does this, it has negated the ordinary foreseeability element of proximate cause, and the burden shifts to the plaintiff to raise a genuine issue of fact on foreseeability by presenting controverting evidence that, despite the extraordinary and abnormal nature of the intervening force, there was some indication at the time that such a crime would be committed.
Big Diamond was not the owner of the property where the gas and dash occurred and therefore could not have owed the Pichardos a duty. Therefore, the trial court properly granted Big Diamond's motion for summary judgment.
The Pichardos argue that Diamond Shamrock knew that it was foreseeable that [not requiring] prepayment for gasoline purchases would in all likelihood result in foreseeable criminal activity such as theft of gasoline, and an attempt by the criminal to run away after the commission of the crime, and the possible injury of third persons such as [the Pichardos].
Here, the accident that injured the Pichardos occurred because Luedtke ran a red light after leaving the Diamond Shamrock gas station. The Pichardos were not invitees at the Diamond Shamrock gas station and the accident did not occur on the gas station premises. Consequently, we hold that the factors utilized to determine the scope of the duty owed by "[o]ne who controls... premises" to "protect invitees from criminal acts of third parties" is not applicable here.
[W]e note at the outset that the Pichardos claim Diamond Shamrock was negligent by not requiring prepayment for the gas before an attendant would activate the gas pump. Diamond Shamrock conclusively established that Luedtke drove away from the gas station and ran a red light, hitting the Pichardos' vehicle. The accident did not occur on the gas station premises.
[T]he "harm"-Alexis Sr.'s and Andrew's injuries- is a harm different in kind from that which would otherwise have resulted from the alleged negligence of not requiring prepayment for gasoline. Luedtke's actions in running a red light and striking the Pichardos' vehicle appear to be extraordinary rather than normal and appear to be independent of any negligence by Diamond Shamrock in not requiring prepayment for gasoline. Luedtke's action in running the red light is clearly due to his own decision to run the red light, and Luedtke is subject to liability to the Pichardos for his action in running the red light. Finally, we cannot see how Diamond Shamrock possesses more than possibly a minute degree of culpability for setting Luedtke's running of the red light in motion; the escape of any criminal following unauthorized criminal conduct could involve the running of a red light. Thus, we hold that Diamond Shamrock negated the foreseeability element of proximate cause by conclusively establishing that Luedtke's act of running the red light was a superseding cause of Alexis Sr.'s and Andrew's injuries. The burden then shifted to the Pichardos to raise a genuine issue of fact on foreseeability by presenting controverting evidence that, despite the extraordinary and abnormal nature of the intervening force, there was some indication at the time that this crime-the running of the red light-would be committed.
The Pichardos presented no such controverting evidence. The record is devoid of any evidence showing that similar accidents had occurred, that the Diamond Shamrock gas station was a frequent victim of gas and dashes, or that the area was crime laden. The record contains no evidence that other crimes or gas and dashes had occurred on the property or in its immediate vicinity, or even that individuals committing a gas and dash frequently run red lights or drive recklessly. Because Diamond Shamrock conclusively negated the foreseeability element of the Pichardos' negligence claim, the trial court properly granted summary judgment in favor of Diamond Shamrock.
We affirm the trial court's take-nothing summary judgment rendered in favor of Big Diamond and Diamond Shamrock.
What is the connection between Diamond Shamrock and the injuries the Pichardos experienced?