United States District Court, Eastern District of Louisiana
ORDER AND REASONS
HELEN G. BERRIGAN UNITED STATES DISTRICT JUDGE
This matter comes to the Court on defendants’ motion for summary judgment. Rec. Doc. 23. Plaintiffs oppose the motion. Rec. Doc. 54. The motions are before the Court on the briefs without oral argument. Having considered the record, the law, and the memoranda of counsel, the Court hereby, and for the reasons that follow.
I. Factual background
This matter arises out of an armed robbery that took place on February 23, 2013 at the Dollar General store at 1111 Poland Avenue in New Orleans, Louisiana (“Dollar General”). Rec. Doc. 1-2. According to Tammy Richard and Richard Marullo (“plaintiffs”), on that morning they had gone to the Dollar General for coffee and breakfast. Rec. Doc. 54-2 at 29:4-23; 54-3 at 36:17-24, 41:1-13. Unbeknownst to them, an armed robbery was in progress at the time. Rec. Doc. 54 at 3. The perpetrator had forced two Dollar General employees, Tamika Sparks and Evangeline Moses, to the back of the store to open its safes, which were on a “timer-control” that prevented them from opening immediately. Rec. Doc. 54-4 at 42-59. When plaintiffs entered the store, the perpetrator had compelled the employees to return to the front of the store where the cash register was situated. Rec. Doc. 54-4 at 50-51; Rec. Doc. 54-5 at 30-31. Ms. Richard states that the perpetrator held a gun to the back of her head. Rec. Doc. 54-3 at 37:1-5. The perpetrator then forced the plaintiffs and the employees, as well as another customer who had entered the store with the plaintiffs, to the office in the back of the store where the safes still had not opened because of their timer-control locks. Rec. Doc. 54-2 at 31:1-7; Rec. Doc. 54-3 at 38:1-9; Rec. Doc. 54-2 at 32:13-19; Rec. Doc. 54-3 at 38:14-19. While the plaintiffs were held in the office, they saw a police officer enter the store, heard shots, and watched him fall to the ground. Rec. Doc. 54-2 at 32:20-24; Rec. Doc. 54-3 at 38:22-39:15. Mr. Marullo used the injured officer’s radio to call for assistance and stayed with the officer while waiting for help to arrive. Rec. Doc. 54-2 at 31:1-13; Rec. Doc. 54-3 at 39:5-20; Rec. Doc. 54-3 at 39:6-15. No security guard was on duty at the time of the robbery. Rec. Doc. 1-2 at 12.
Plaintiffs claim that following the incident, they have experienced acute pain and suffering, debilitating mental anguish and emotional distress, and loss of enjoyment of life. Rec. Doc. 1-2 at 3-4. They subsequently sued the defendants for negligently failing to have a security plan in place, have a security guard on duty, and take other actions to prevent the incident and the case was removed to this Court. Id. at 3.
II. Standard of review
Summary judgment is proper when the record indicates that there is not a “genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. A genuine issue of fact exists if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996).
A party seeking summary judgment “bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘[discovery], together with the affidavits, if any, ’ which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the initial burden is met, the nonmoving party must “designate specific facts showing there is a genuine issue for trial” using evidence cognizable under Rule 56. Id. at 324. “[U]nsubstantiated assertions” and “conclusory allegations” will not defeat a properly supported motion for summary judgment. Hopper v. Frank, 16 F.3d 92, 97 (5th Cir. 1994); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 871-73 (1990). “If the evidence is merely colorable, or is not significantly probative, ” summary judgment is appropriate. Anderson, 477 U.S. at 249-50 (internal citations omitted). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Id. at 248.
When reviewing a motion for summary judgment, a court must view the evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Daniels v. City of Arlington, Texas, 246 F.3d 500, 502 (5th Cir. 2001). Summary judgment does not allow a court to resolve credibility issues or weigh evidence. Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263 (5th Cir. 1991).
III. Law and Analysis
a. Defendants’ Motion for Summary Judgment
In their motion for summary judgment, defendants argue that in order to prevail in this negligence action, the plaintiffs must show that defendants had a duty to provide security and protect them from the acts of a third party. Defendants assert that plaintiffs’ action must fail because they cannot show that the armed robbery was foreseeable, and thus cannot show that defendants owed plaintiffs this duty. Rec. Doc. 23-3.
Because this matter is in federal court under 28 U.S.C. §1332, the underlying claim is governed by Louisiana law on premises liability. Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938). To determine state law, “federal courts sitting in diversity look to the final decisions of the state’s highest court, ” or in the absence of a final decision, “it is the duty of the federal court to determine . . . how the highest court of the state would resolve the ...