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Robles v. Quiktrip Corp.

United States District Court, N.D. Georgia, Atlanta Division

December 19, 2017

ALAN E. ROBLES, Plaintiff,
v.
QUIKTRIP CORPORATION, Defendant.

          OPINION AND ORDER

          WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant QuikTrip Corporation's (the “Defendant”) Motion for Summary Judgment [73].

         I. BACKGROUND

         A. Facts

         1. The Shooting

         The undisputed facts, construed in the light most favorable to Plaintiff Alan E. Robles (“Plaintiff”), show that on the evening of September 6, 2015, Plaintiff, his brother Cesar Robles (“Cesar”), his brother-in-law Victor Sanchez (“Victor”), and Victor's cousins Everet Delgado (“Ever”) and Gustavo Delgado (“Gustavo”), visited the QuikTrip gas station located at 93 Upper Riverdale Road in Riverdale, Georgia (the “QuickTrip”). ([73.2] ¶¶ 3, 5-6). They were all in a white Chevrolet Avalanche (“truck”) driven by Cesar. ([73.2] ¶ 5). Plaintiff sat in the front passenger seat. Id. Victor and his two cousins sat in the back. ([73.2] ¶ 5). Plaintiff does not remember going into the QuikTrip to make a purchase and did not intend to purchase anything at the convenience store. ([73.2] ¶ 88).

         Cesar pulled up to the gas pump and began filling up with gas while Victor, Ever, and Gustavo went into the store to purchase beer. ([73.2] ¶¶ 6-7). When Gustavo returned from the store he refused to get back into Cesar's truck and, instead, walked to the front of the store. ([73.2] ¶¶ 9, 10). Victor and Ever left the truck to persuade Gustavo to return and Cesar pulled his truck to the front of the store. ([73.2] ¶¶ 11, 12).

         Cesar, Victor, and Ever spent approximately fifteen minutes trying to persuade Gustavo to get into the truck. Plaintiff tried to convince his cousin Victor to do the same. ([81] ¶ 17). There was some arguing with raised voices and physical pushing and shoving. ([73.2] ¶ 18). At one point, Gustavo, Victor, and Ever went into the store where Gustavo asked QuickTrip employee Rodtrese Jones for a phone to call a cab. ([81] ¶ 21).

         When they came out of the store, they continued to argue about leaving. ([73.2] ¶ 22). Cesar told Victor he was going to drive off, leaving Victor and his cousins at the store. Ever became angry, opened the door of the truck and pointed a gun at Cesar. ([73.2] ¶ 26).

         When this happened, Plaintiff was standing in front of the driver's door to Ever's immediate left. ([73.2] ¶ 27). Plaintiff disputes whether he saw Ever brandishing the gun, or even whether he could see the argument taking place. ([73.2] ¶¶ 19, 28-30). At Plaintiff's deposition, he was shown surveillance footage and testified as follows:

Q (counsel): Okay. At this point you would have known that the gentleman in the black shirt had a gun; right
A (Plaintiff): Yes. I would have known at that moment; cause I'm look-it looks like I'm looking forward.
Q (counsel): Well, here at 11:02:53 it looks like you're looking directly at the gun; correct?
A (Plaintiff): Yes. Like straight at him with the gun. . . .
Q (counsel): Watching that surveillance video, do you think you should have foreseen this incident when you first saw that gun?
A (Plaintiff): Yes. I would have immediately thought I was - I'm in danger.

([73.2] ¶¶ 28, 32). Plaintiff could not recall whether he knew, prior to this incident, that Victor was carrying a gun. ([73.2] ¶ 31).

         In the moments after Ever drew the gun, Plaintiff was outside the QuikTrip in the vicinity of Ever. Surveillance footage shows that he attempted to leave the area, but was unable to retreat toward the store because Ever stepped into his path. ([81] ¶¶ 33-34, 38, 40).

         Ever then pointed his gun at Cesar, and pulled him from the vehicle. Victor and Cesar tried to calm the situation, but Ever continued to threaten to shoot someone in the group. ([73.2] ¶¶ 35-37). The surveillance footage shows that Plaintiff and Cesar again tried to retreat to the store. ([81] ¶ 40). Ever again prohibited Plaintiff, but not Cesar, from entering the store with his gun still drawn. ([81] ¶ 42). Ever then turned and approached Plaintiff, pointed his gun at Plaintiff's side, and walked him towards the truck. ([73.2] ¶¶ 45, 46). Victor, Gustavo, and Ever engaged in more pushing and shoving. ([73.2] ¶ 47). Plaintiff did not get involved in the altercation. ([82] ¶ 98). Plaintiff testified that his failure to engage may have been due to “shock” or he may have “froze or freaked out.” ([82] ¶¶ 100-101).

         Ever then shot Plaintiff in the neck. ([73.2] ¶ 52). Hearing the gunfire, Cesar emerged from the QuikTrip store to see what happened. He returned and went back in, telling the QuikTrip employees to call the police. ([73.2] ¶¶ 54-56). The bullet hit Plaintiff's neck, shoulder, and spinal cord, leaving him partially paralyzed on his left side. ([82] ¶ 97).

         2. Prior Incidents at the QuikTrip Location

         The following violent incidents were reported to have occurred at the QuikTrip between late 2012 and mid-2015:

5/16/15

Person Armed

Subjects were overheard in QuikTrip parking lot talking about shooting someone. ([82] ¶ 23).

11/3/14

Public Drunkenness, Loitering, Obstruction of Officer.

Subjects in QuikTrip parking lot were reported as fighting, had physical signs of fighting with one another, were intoxicated, and were aggressive to officers. ([82] ¶ 23).

8/5/14

Criminal Attempted Armed Robbery

This incident involved an employee of QuikTrip walking to his vehicle when two suspects attempted to rob him at knifepoint. ([73.2] ¶ 78).

7/21/14

Robbery by Force

Juvenile victim was assaulted and robbed by two subjects as he was leaving the QuikTrip. Victim had bruising & swelling where the assailants punched him in the face. The subjects searched the victim's pockets before leaving the scene. ([82] ¶ 23).

7/14/14

Armed Robbery & Aggravated Assault

The QuikTrip store was robbed at gunpoint. ([73.2] ¶ 80). Store manager, Reubin Harrison had knowledge of this incident. ([82] 41).

3/19/14

Firearms Discharged.

Gunshots in the parking lot were reported. ([81] at ¶ 76).

5/8/13

Fight

There was no incident report generated, it is unknown whether this was a physical or verbal altercation, and no weapons were reported. ([73.2] ¶ 82).

4/10/13

Firearms Discharge

Firearms discharged on QuikTrip premises. ([82] ¶ 23).

4/1/13

Armed Robbery

Subject armed with a gun stole the money from the QuikTrip registers. ([82] ¶ 23).

1/12/13

Robbery by Sudden Snatching

Subject entered store and stole an employee's purse from behind the counter. Another subject stole cola cases while the victim confronted the subject with her purse in the parking lot. ([73.2] ¶ 84).

11/16/12

Loitering, Robbery by Intimidation, Violation of GA Gang Act

Suspicious males were loitering on a sidewalk. Investigation revealed that earlier that day, they had followed a juvenile into the store and robbed him of his cell phone as he entered the parking lot. ([82] ¶ 23).

         B. Procedural History

         On May 18, 2016, Plaintiff filed his Verified Complaint for Damages in the State Court of Fulton County [1.1]. In it, Plaintiff alleges three claims of negligence based on premises liability, failure to make safe, “misleading the Plaintiff, ” a claim for negligence per se, and one for ...


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