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Lilley v. CVS Health

United States District Court, D. New Mexico

March 27, 2019



         This matter comes before the Court upon “Plaintiff's Opposed Motion for Partial Summary Judgment on the Issue of CVS' Liability under U.J.I. 13-1320” (Motion for Partial Summary Judgment), filed on July 26, 2018. (Doc. 61). Defendant CVS Pharmacy, Inc. (CVS) responded on August 24, 2018. (Doc. 66). Plaintiff replied on September 7, 2018, and filed a Notice of Errata and Correction on September 10, 2018. (Docs. 74 and 75). Having reviewed the Motion for Partial Summary Judgment, the accompanying briefing, and the Notice of Errata and Correction, the Court denies the Motion for Partial Summary Judgment.

         A. Summary of Material Facts Viewed in the Light Most Favorable to CVS[1]

         This is a premises liability lawsuit arising from a shooting and carjacking that occurred close to midnight on May 1, 2014, in an Albuquerque CVS store parking lot. The shooter severely injured Plaintiff.

         Between April 17, 2011, and May 1, 2014, the Albuquerque Police Department (APD) responded to 298 police calls at the CVS store.[2] Not all calls for police service resulted in formal police reports. CVS expert witness, Patrick Murphy, reviewed 82 police reports “from within the CVS Pharmacy or on the parking lot” for the period of March 27, 2011, to May 14, 2014.[3](Doc. 75-1) at 24. Of those police reports, Murphy found one aggravated assault occurred in 2011, eight robberies occurred from April 2012 through March 2013, one robbery occurred in March 2014, and only one of those robberies occurred in the parking lot.[4] Id. at 25. During that time period, police reports reflect an auto break-in in August 2012, an auto break-in in February 2013, a vehicle stolen from the CVS parking lot in October 2012, and a stolen vehicle located in the parking lot in February 2013.[5] Plaintiff's Ex. 3 at 30-40, 76-87.

         On the night of May 1, 2014, the CVS exterior surveillance camera did not capture the parking lot area where the incident occurred. (Doc. 61) at 15. Although CVS did not undertake its own investigation of the incident, it “cooperates with criminal investigations conducted by the appropriate law-enforcement authorities with jurisdiction over such matters.” Id. at 37. Also, CVS did not have a “policy in May 2014 requiring any CVS employee to report intentional acts of third-party violence on CVS exterior premises to any other CVS employee, ” but “any store employee may report a crime to law enforcement….” Id. at 38. On the night of May 1, 2014, CVS did not have warning signs posted in the parking lot, nor did it have a security guard in the parking lot. Id. at 44. Between May 1, 2009, and May 1, 2014, CVS did not keep any “reports, logs or data compilations” of criminal activity or suspected criminal activity. Id. at 42.

         B. The Complaint for Money Damages (Doc. 1-1)

         Plaintiff asserts that CVS acted in a negligent manner by breaching “a duty to use reasonable efforts to make the Location, which includes the parking lot, safe for business patrons by providing enough security to protect Plaintiff against the foreseeable acts of third persons.” (Doc. 1-1) at ¶ 24. Plaintiff alleges that the CVS exterior cameras did not detect the incident and that the parking lot was dangerous “well before the incident date.” Id. at ¶¶ 17 and 19. Plaintiff further alleges that CVS did not adequately warn him of the dangers of the parking lot, “especially after dark.” Id. at ¶ 23.

         C. Standard of Review

         Summary judgment is appropriate if the moving party shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the burden shifts to the nonmoving party to set forth specific facts showing that there is a genuine issue for trial. See Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013). A dispute over a material fact is “genuine” only if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court views the facts in the light most favorable to the nonmoving party and draws all reasonable inferences in the nonmoving party's favor. Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013).

         D. Discussion

         Plaintiff moves for summary judgment only on the issue of CVS' liability. Plaintiff recognizes “only a jury can compare that liability to the shooter.” (Doc. 61) at 11. CVS opposes the Motion for Partial Summary Judgment arguing that Plaintiff cannot support his claim of negligence against CVS.

         “Generally, a negligence claim requires the existence of a duty from a defendant to a plaintiff, breach of that duty, which is typically based upon a standard of reasonable care, and the breach being a proximate cause and cause in fact of the plaintiff's damages.” Herrera v. Quality Pontiac, 2003-NMSC-018, ¶ 6, 135 N.M. 43. In New Mexico, “[a]n owner … owes a visitor the duty to use ordinary care to keep the premises safe for use by the visitor….”[6] UJI 13-1309, NMRA 1998 (2018 ed.). An owner's duty to protect a visitor extends to protecting the visitor from harm by a third party if “a foreseeable risk that a third person will injure a visitor” exists. UJI 13-1320, NMRA 1998 (2018 ed.). “[A]s the risk of danger increases, the amount of care to be exercised by the owner … also increases.” Id.

         “[B]reach of duty questions [are] usually reserved for the jury.” Rodriguez v. Del Sol Shopping Ctr. Assocs., L.P., 2014-NMSC-014, ¶ 14, 326 P.3d 465. “Foreseeability as it relates to breach of duty is a general analysis and does not require that the particular harm to the plaintiff have been anticipated.” Id. at ¶ 4. Put another way, “[t]he duty element of negligence focuses on whether the defendant's conduct foreseeably created a broader ‘zone of risk' that poses a general threat of harm to others.” Herrera, 2003-NMSC-018 at ¶ 8. The question before the jury in determining if an owner breached its duty “is whether the foreseeable likelihood and severity of injuries that might have occurred due to the defendant's conduct warranted the additional precautions argued by the plaintiff.” Rodriguez, 2014-NMSC-014 at ¶ 4.

         Like foreseeability in the context of a breach of duty, “proximate cause is generally a question of fact for the jury.” Herrera, 2003-NMSC-018 at ¶ 8. Proximate causation also has a foreseeability element that “is concerned with whether and to what extent the defendant's conduct ...

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