Session November 16, 2016
from the Circuit Court for Davidson County No. 14C1630
Hamilton V. Gayden, Jr., Judge
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
R. App. P. 3 Appeal as of Right; Judgment of the Circuit
Court Affirmed Case Remanded
J. Weissman and Benjamin K. Raybin, Nashville, Tennessee, for
the appellant, Henry Fletcher.
S. LeVan and Christopher M. Jones, Nashville, Tennessee, and
Charles T. Hvass, Minneapolis, Minnesota, for the appellee,
MICHAEL SWINEY, C.J., delivered the opinion of the court, in
which J. STEVEN STAFFORD, P.J., W.S., and BRANDON O. GIBSON,
MICHAEL SWINEY, CHIEF JUDGE
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.
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.
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
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.
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
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.
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.
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.
testified that her ex-husband also lived at the Chimney Top
Apartments ("Chimney Top").
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.
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
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.
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.
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. . . .
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
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.
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
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.
stated that the only statement she heard from Holland was:
"Don't touch my car."
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.
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.
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 ...