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Fletcher v. CFRA, LLC

Court of Appeals of Tennessee, Nashville

March 8, 2017


          Session Date: November 16, 2016

         Appeal from the Circuit Court for Davidson County No. 14C1630 Hamilton V. Gayden, Jr., Judge

         Henry Fletcher ("Plaintiff") sued CFRA, LLC ("CFRA"), which owns and operates an International House of Pancakes ("IHOP") restaurant in Antioch, Tennessee, alleging that CFRA was liable for the actions of its IHOP employee, Kenneth W. Hale, Jr. ("Hale"), in connection with an assault upon Plaintiff committed by Hale. The Circuit Court for Davidson County ("the Trial Court") granted summary judgment to CFRA. Plaintiff appeals the grant of summary judgment. We find and hold that CFRA made a properly supported motion for summary judgment, that Plaintiff failed to show that there are genuine disputed issues of material fact that would preclude summary judgment, and that CFRA was entitled to summary judgment as a matter of law. We, therefore, affirm the grant of summary judgment to CFRA.

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

          David J. Weissman and Benjamin K. Raybin, Nashville, Tennessee, for the appellant, Henry Fletcher.

          Mark S. LeVan and Christopher M. Jones, Nashville, Tennessee, and Charles T. Hvass, Minneapolis, Minnesota, for the appellee, CFRA, LLC.

          D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which J. STEVEN STAFFORD, P.J., W.S., and BRANDON O. GIBSON, J., joined.




         Hale had been hired as a dishwasher working third-shift at the IHOP. When Hale was hired by IHOP and at the time of the assault upon Plaintiff, Hale was on parole for aggravated battery and felony firearm convictions.

         The assault giving rise to this suit ("the Assault") occurred on May 12, 2013. At approximately 6:30 a.m. on that day, Plaintiff and a friend, DeAries Holland ("Holland"), were customers at IHOP. When Plaintiff and Holland left IHOP, there was a dispute about whether their bill had been paid. Hale and a waitress approached Plaintiff and Holland in the IHOP parking lot, and the issue regarding the bill was resolved. Plaintiff and Holland then left the IHOP parking lot. Hale, who had clocked out after finishing his shift, was picked up by his girlfriend, and they also left the IHOP parking lot. Hale and his girlfriend and Plaintiff and Holland drove to a nearby apartment complex where the Assault occurred.

         Plaintiff sued CFRA alleging that it was vicariously liable for Hale's actions and that it also was directly liable for negligent premises security and for negligently hiring and supervising Hale. CFRA filed a motion for summary judgment supported by, among other things, the deposition testimony of Hale, Hale's girlfriend, Plaintiff, and two IHOP employees.

         Hale's girlfriend, Sandi F. Cox, testified that she and Hale were living together in the Saxony Apartments at the time of the Assault. Cox testified that Hale had started working at the IHOP approximately a month prior to the Assault. Hale had interviewed for a job as a waiter, but he was not hired as a waiter due to his criminal background. Instead, Hale was hired as a dishwasher working third-shift.

         Cox testified that Hale called her on the day of the Assault to tell her that he was finished working, and she could pick him up. Cox stated that after that initial telephone conversation, she called Hale back and asked him to get her some orange juice because she was feeling unwell. During that second telephone call, Hale told Cox about a verbal confrontation he had with Plaintiff and Holland in the IHOP parking lot. She stated that Hale told her that "two guys tried to skip out on their bill, " that he had gone out to the parking lot with a waitress to get them to pay, and that "they threatened to shoot him." Cox further stated:

Well, he told me that he was very calm about it, he didn't get upset with the threat. And I told him I was proud of that, I was proud of him for that.
Because when someone makes threats to you, that can normally trigger anger, and so I was proud of him keeping his cool. But that was basically it.

         Cox testified that when she pulled into the IHOP parking lot, Hale was inside the IHOP. Cox was driving a red Chevy Aveo, and she had her four-year old son in the car with her. Cox noticed a yellow Dodge Charger in the IHOP parking lot. When Hale got into Cox's car, Cox mentioned the yellow Dodge Charger because she "really like[d] those cars." Hale told Cox that the people in the yellow Dodge Charger were the ones who had threatened him.

         The yellow Dodge Charger pulled out of the IHOP parking lot before Cox pulled her car out of the lot. Cox was driving, and Hale was in the passenger seat. Cox stated that she noticed as she was driving that the yellow Dodge Charger was behind her car. She stated:

We both - - well, we both began to panic because we know they left before us. And he had previously threatened - - well, the people in the car had previously threatened [Hale]. And they threatened to shoot him, and so we were both panicking because we didn't know if the threat was credible or not. And so he didn't want us to drive home because he didn't want us to go exactly where we live and they know where we live, so he told me to turn going toward Chimney Top Apartments because he had a friend that lived there.

         Cox testified that her ex-husband also lived at the Chimney Top Apartments ("Chimney Top").

         Chimney Top is a gated community, and Cox had to enter a code to get through the gate. Cox explained that she knew the Chimney Top emergency code because she previously had lived at Chimney Top. Cox input the code and pulled through the gate. The yellow Dodge Charger pulled through the gate right behind her. Cox drove toward the back of the apartment complex toward where Hale's friend lived. The yellow Dodge Charger followed. Cox pulled into a parking spot, and Hale got out of the car. Hale told Cox to leave and take her son home. Cox did so and did not stay to see what happened.

         Cox stated that before she left Chimney Top she saw two people get out of the yellow Dodge Charger, one through the driver's door and one through the passenger's door. Hale started walking toward his friend's apartment. Cox stated that Hale was walking away and "it looked as if [the people from the yellow Dodge Charger] were proceeding towards him."

         Cox went home. She stated that Hale telephoned her as she was arriving home and asked her to pick him up "on the road past Summit, which is the apartment complex right next to Chimney Top." She picked Hale up, and they went home. When they got home, Hale told Cox: "That they got into it. He fought with them, and that he hit them - -hit one of them." Hale then telephoned Cox's mother, his mother, and the police.

         Cox was shown a video taken at the IHOP, and she stated that it showed the yellow Dodge Charger leaving the IHOP. She stated: "He makes it to the bottom of the hill, and it looks as if he is backing into this - - it's a little cut area, it's not an actual road." She stated that the video then showed her car passing the yellow Dodge Charger and the yellow Dodge Charger pulling out and following her car.

         Kara March ("March"), the waitress who accompanied Hale out to the IHOP parking lot, testified that she was working at IHOP as a server, but she was not the person who served Plaintiff and Holland on the date of the Assault. On the date of the Assault, March had just finished cleaning a table "or something" and:

[Hale] came out and he was like, "Are you guys going to let them walk out?" And I had said, "Who?" And he said, "The table back here." At the time, he's walking, so I follow him shortly behind. And I believe we have -- we've seen pictures of that." . . . He continues to walk, to follow the guys outside of the - - outside of the store, outside of the restaurant. . . .

         March followed Hale. She stated: "My point of following him was to get these guys to pay. That was my only focus was to get the guys to pay their ticket." March admitted that Hale was a dishwasher and not a manager, and she was not following what she understood to be the policy about walkouts when she followed Hale. March never had worked with Hale before that day and did not know that he had a criminal record.

         March stated that she and Hale approached the yellow Dodge Charger, and Hale opened the driver's-side door. The driver was inside the car, but the passenger was not yet inside the car. March stated:

And then when he opened the door, the driver got out and said, "Don't touch my car." And then the passenger come around to the front and asked me how much the ticket was. I said, "I will run in and find out."
I ran back into the restaurant. Went to the register. Looked the ticket up on the computer. Got the total. Went back out. Told the passenger the total.
He's standing at the front of the car now. He hands me a 20 and a 10, I believe. He handed me $30 total. I come back, and he tells me, "Leave the rest for the server." I said, "Okay."
I then come back inside and cash out the ticket. And I believe Mr. Hale is close behind me, but I'm not sure. . . . As I walk in and cash out the ticket, then the passenger comes in after that and he takes the rest of the money. I don't know what he does with that. I'm guessing he gives it to his server. And then I go back to work, and it's a regular day after that for me.

         March stated that the only statement she heard from Holland was: "Don't touch my car."

         March testified that she never has seen an IHOP written policy with regard to walkouts. She stated that there is an IHOP employee handbook, and she was given a copy of the employee handbook when she was hired. March was asked what sorts of things were in the employee handbook, and she stated: "I would say your duties, your responsibilities, how you're supposed to dress, your uniform, how you're supposed to wear your hair, the proper way to wash your hands." March was asked if there was a policy with regard to walkouts in the handbook, and she stated: "I'm sure there is in there. I'm not familiar with it because - - as in the book, I'm not familiar with it." March testified that her understanding about the policy with regard to walkouts was that a manager would go out after the customers along with an employee to act as a witness. March stated that she did that on one occasion with a manager, but those customers had already left the parking area.

         Plaintiff was asked if he ever had been to that IHOP prior to the Assault, and he stated: "Yes. Made several trips there. Literally almost weekly." Prior to the day of the Assault, however, Plaintiff never had met Hale. Plaintiff did not believe that Holland ever had met Hale prior to the Assault either. Holland died before Plaintiff was deposed.

         On the date of the Assault, Plaintiff had been drinking but was not driving. He stated that when he and Holland arrived at the IHOP: "I was severely buzzed. I wasn't intoxicated not to be able to handle myself. . . . Because I was still able to function - -walk, talk, mingle - - but I had drinks in my system." He testified that Holland was the driver and that Holland had not been drinking. Plaintiff was asked if he ate anything at the IHOP, and he stated: "Yes. And I know specifically my tab came up to 21.84. . . . I paid for both of us. The meal was 9.99 apiece." Plaintiff was asked if he would have remembered what happened at the IHOP if he had not seen the video, and he stated: "The money? No. I already knew that I paid. I stated that several times. As far as specifically how it went down, no, I wouldn't have recalled specifically, but I said that several times, that the money was on the table."

         Plaintiff testified that from memory he thought the first time Hale spoke to them was inside the IHOP, but on the video it appears to be outside. He stated: "But I just know we had a confrontation right there towards the door." Plaintiff does not remember any details about the confrontation. Plaintiff does not remember any of the ...

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