IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-60661 Summary Calendar _____________________

NEDDA TILLMAN; KEITH TILLMAN,

Plaintiffs-Appellants,

versus

WENDY’S INTERNATIONAL, INC.,

Defendant-Appellee. _________________________________________________________________

Appeal from the United States District Court for the Southern District of Mississippi, Jackson USDC No. 3:99-CV-143-BN _________________________________________________________________ March 13, 2001

Before JOLLY, SMITH, and DeMOSS, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:*

Nedda Tillman was assaulted by a vagrant while eating lunch in

a Wendy’s restaurant in Jackson, Mississippi. Mrs. Tillman and her

husband sued the restaurant chain, alleging that Wendy’s should

have foreseen the risk of assault on customers by third persons.

The district court granted summary judgment for Wendy’s. For the

reasons set forth below, we affirm.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I

On April 1, 1997, at approximately two o’clock on a weekday

afternoon, Nedda Tillman stopped for lunch at a Wendy’s restaurant

in Jackson, Mississippi. Mrs. Tillman sat in a dining area on the

east side of building that was not readily observable by restaurant

employees. As she was eating, a vagrant entered the restaurant by

a side door, struck her on the head with a concrete block, and

stole her purse.

According to Tillman, the restaurant’s policy of locking this

door after 5:00 p.m. suggests that the restaurant was concerned

about customer safety. Jackson police officers had been called to

the restaurant nine times during the prior three years to

investigate minor complaints, such as vagrants harassing customers.

There were no reports of assault, robbery, or other violent crime

on the restaurant’s premises. In the general vicinity of the

restaurant, however, approximately twenty violent crimes had been

reported in the five years prior to the assault on Mrs. Tillman.

The Tillmans filed a complaint against Wendy’s International,

Inc. in January 1999, seeking $3 million in actual and punitive

damages. The Tillmans argued that the assault was reasonably

foreseeable because of the high crime rate in the area. Wendy’s

filed a motion for summary judgment, which the district court

granted in September 2000. This appeal followed.

II

2 A

This court reviews a district court’s grant of summary

judgment de novo, applying the same substantive test set forth in

Federal Rule of Civil Procedure 56. Horton v. City of Houston,

(5th Cir. 1999).

Contrary to the Tillmans’ suggestion, negligence actions are

not governed by a more lenient summary judgment standard. As this

court has emphasized,

summary judgment is appropriate in any case "where critical evidence is so weak or tenuous on an essential fact that it could not support a judgment in favor of the nonmovant." . . . Our cases have sometimes stated in dicta that summary judgment is generally not appropriate in certain types of cases, such as products liability or negligence. That dicta is essentially empty chatter, however. . . . [W]e reject any suggestion that the appropriateness of summary judgment can be determined by such case classification.

Little v. Liquid Air Corp.,

, 1075 & n.14 (5th Cir.

1994)(en banc)(citations omitted); see also Stearns Airport Equip.

Co. v. FMC Corp.,

(5th Cir. 1999)(“We no longer

maintain that summary judgment is especially disfavored in

categories of cases.”).

Furthermore, while the court may not weigh the evidence or

resolve factual disputes, the court is obligated to determine

whether facts are material. A fact is material only if it might

affect the outcome of the suit under the applicable substantive

law, assuming that any genuine dispute over that fact is resolved

favorably to the nonmovant. See Peavy v. WFAA-TV, Inc.,

(5th Cir. 2000); Willis v. Roche Biomedical Laboratories,

, 315 (5th Cir. 1995)(“Only disputes over facts that

might affect the outcome of the suit under the governing law will

preclude summary judgment.”).

B

Under Mississippi premises liability law, business owners have

a legal “duty to protect invitees from foreseeable attacks by third

persons.” Crain v. Cleveland Lodge 1532, Order of Moose, Inc.,

(Miss. 1994); see also Whitehead v. Food Max of

Miss., Inc.,

(5th Cir. 1998). The issue on

appeal is whether the criminal assault on Mrs. Tillman was

reasonably foreseeable and, thus, whether Wendy’s had a duty to

protect her from the assailant. See Crain,

.

A criminal attack is foreseeable if the business owner had

“actual or constructive knowledge that an atmosphere of violence

exists [on the premises].” Grisham v. John Q. Long V.F.W. Post,

(Miss. 1988). In making this determination,

one must consider (1) “prior similar incidents” of crime on the

business premises, and (2) “the amount and type of criminal

activity” in the vicinity of the defendant’s business. Crain,

; see also Lyle v. Mladinich,

(Miss. 1991).

As the Mississippi Court of Appeals recently pointed out, the

“prior similar incidents” prong is not offense-specific. See Am.

Nat’l Ins. Co. v. Hogue,

(Miss. App. 2000).

4 The court of appeals upheld a jury’s finding that an attempted

kidnaping in the parking lot of a shopping mall was reasonably

foreseeable even though there were no prior incidents of kidnaping

on the premises. The court noted that in one year prior to the

assault, the city police were called to investigate “thirteen auto

thefts, two strong arm robberies and one robbery with a knife, one

rape, and two assaults with injuries” in the mall parking lot.

Although no kidnapings were reported, the frequency and nature of

the service calls indicated a reasonable likelihood of “assaultive

conduct” on the premises.

The court thus held that, given the

high rate of “assaultive” crimes at the mall and the fact that the

mall employed only one security guard to patrol a 3000-space

parking lot during the Christmas shopping season, the attempted

kidnaping and beating of the plaintiff could have been considered

reasonably foreseeable.

.

In the light of the relevant substantive law, the question is

whether the Tillmans’ evidence of (1) prior similar criminal

incidents on the premises and (2) the amount and type of criminal

activity in the neighborhood is sufficient to allow a reasonable

jury to conclude that Wendy’s should have foreseen the midday

assault on Mrs. Tillman.

5 C

The Tillmans point to four categories of evidence suggesting

that the assault was foreseeable: (1) statistical evidence that the

restaurant was located in a high crime area; (2) affidavits of two

store employees who stated that the store had a problem with

vagrants and aggressive panhandlers; (3) expert testimony showing

a correlation between vagrancy and the incidence of crime in the

area; and (4) a compilation of police incident reports for

disturbances in and around the restaurant. We examine each

category of evidence in turn.

First, much of the statistical evidence is immaterial. The

Mississippi Supreme Court has explained that evidence of criminal

activity off the premises is relevant only if the crimes were

committed in the business’s “vicinity” or “surrounding

neighborhood.” Crain,

. The statistical evidence

presented here is broken down by precinct and beat. Because there

are only four precincts and thirty-eight beats within the entire

city of Jackson, most of the documented criminal activity did not

occur within the “surrounding neighborhood” of the restaurant.

Thus, the fact that the Wendy’s restaurant was located in a

precinct and beat with relatively high rates of crime is not

probative and hence not material to whether the attack on Mrs.

Tillman was foreseeable.1

1 When the statistics are broken down into “reporting zones” within each beat, however, a more accurate picture of criminal

6 Second, the employees’ affidavits are not sufficient to create

a genuine issue of material fact.2 The affidavits contain

basically scripted language: “During the time of my employment at

[Wendy’s], there has been a constant problem with vagrants

harassing and threatening customers inside and outside the

restaurant including before April 1, 1997. Customers frequently

complain about being approached by vagrants, panhandling and

harassing them for money.” The affiants further stated that if a

vagrant entered the restaurant and bothered the customers, the

manager would approach the vagrant and ask him to leave; and on a

few occasions, restaurant employees called the police, who then

asked the vagrant to leave. These affidavits, which are couched in

very general terms, undoubtedly suggest that vagrants were a

nuisance, but there is no indication that any of these encounters

turned violent or rose to the level of simple assault. Cf. MISS.

CODE ANN. § 97-3-7(1) (2000). For that reason, these affidavits do

not speak to, and thus are not material to, the question of whether

prior similar criminal incidents had occurred on the premises.

Third, the Tillmans’ “expert testimony” on the safety risk

posed by vagrants is not sufficient to create a genuine issue of

activity in the vicinity emerges. That information will be considered below. 2 The fact that the employees signed subsequent affidavits recanting their earlier testimony is not relevant. For the purposes of summary judgment, we assume that the original affidavits were completely truthful and accurate.

7 material fact. One expert testified (based solely on his own

observation and experience) that “bums can tend to be unstable,

that they can have mental deficiencies, that they can be addicts of

one sort or another, that they can be alcoholics, and that they can

be irrational. It’s my opinion that such people pose a potential

danger to the public.” While not questioning the accuracy of this

assessment, these general and banal observations tell us very

little that fits into the two-part test for foreseeability that was

articulated in Grisham and Crain. Therefore, this expert’s opinion

on the possible danger posed by vagrants, who indeed regularly

patronize many businesses without incident, is not probative on the

ultimate question of whether a reasonable business owner under

these circumstances would have foreseen the criminal assault on

Mrs. Tillman.

Fourth, the Tillmans presented a compilation of data relating

to criminal activity in the vicinity of the Wendy’s restaurant.

The Tillmans rely on two types of information: (1) records of

“calls for service” and (2) incident reports, which are produced

when the police have confirmed that a criminal offense has actually

occurred. (As the Tillmans’ expert admitted, incident reports are

a better indicator of the level of crime in an area.) The evidence

may be summarized as follows: (1) In the five years covered by the

incident report data, there is not a single report of a crime being

committed on the restaurant’s premises, either inside the

restaurant or in the parking lot. (2) In the three years covered by

8 the “call for service” records, the police were called to the

restaurant’s premises nine times. (3) The nine calls for service

involved complaints of vagrants harassing customers (three times),

approaching cars in the parking lot (twice), spitting on a

customer, “causing a disturbance” within the restaurant, and

“trying to get money”; the ninth service call involved a drive-thru

customer who was seen with a gun. (4) Of the nine calls for police

service at Wendy’s, only one occurred during the daylight hours.

(5) Over this same three-year period, there were 386 calls for

service at several fast-food restaurants, gas stations, and

convenience stores in the area, and most of these complaints were

minor: fights in parking lots, aggressive panhandlers, public

drunkenness, and so on. (6) From 1992 to 1997, there were incident

reports of ten robberies, seven assaults, two kidnapings, one

carjacking, and one rape in the area.

Applying Mississippi’s premises liability law to the facts

summarized in the preceding paragraph, we conclude that summary

judgment is appropriate. The evidence presented by the Tillmans is

not sufficient to permit a reasonable finder of fact to conclude

that it was reasonably foreseeable that a vagrant would enter the

Wendy’s restaurant and, in midday, assault a customer and steal her

purse.

In no relevant way can this case be distinguished from Crain,

in which the Mississippi Supreme Court held that an assault on a

patron in a dark parking lot was not foreseeable. The court noted

9 that (1) there were two confirmed crimes (both thefts) on the

premises of the Moose Lodge within the year prior to the assault,

but “no evidence of prior violent, unprovoked attacks”; and (2)

there were only eleven violent crimes committed in the area within

five years prior to the assault. Crain,

. To be

sure, the Tillmans presented evidence of nine calls for police

service, but (as explained above) not one of those calls qualifies

as a prior similar criminal incident.

As the district court correctly observed, imposing liability

on Wendy’s would effectively create a standard of strict liability

on all businesses located in neighborhoods with relatively high

crime rates. The Mississippi Supreme Court has unequivocally

stated that Mississippi law does not impose such a burden. Crain,

(emphasizing that a business owner is

not an insurer of his guests’ safety); Kelly v. Retzer & Retzer,

Inc.,

(Miss. 1982)(“[T]he responsibility of

enforcing the law is on the government chosen by the people of the

area and does not necessarily rest upon the business involved.”).

10 III

For the reasons set forth above, the summary judgment for

Wendy’s is

A F F I R M E D .

11