Catherine Evans, Et Al. v. Abubaker, Inc., Et Al.

FOR IMMEDIATE NEWS RELEASE NEWS RELEASE #022
FROM: CLERK OF SUPREME COURT OF LOUISIANA
The Opinions handed down on the 10th day of May, 2024 are as follows:
BY Hughes, J.:
2023-CC-00955 CATHERINE EVANS, ET AL. VS. ABUBAKER, INC., ET AL. (Parish
of Natchitoches)
REVERSED; SUMMARY JUDGMENT GRANTED; REMANDED. SEE
OPINION.
Weimer, C.J., concurs in the result and assigns reasons.
Genovese, J., dissents and assigns reasons.
Crain, J., concurs and assigns reasons.
Griffin, J., concur s for the reasons assigned by Chief Justic e Weimer and
Justice Crain.

SUPREME COURT OF LOUISIANA
No. 2023-CC-00955
CATHERINE EVANS, ET AL.
VERSUS
ABUBAKER, INC., ET AL.
On Supervisory Writ to the 10th Judicial District Court,
Parish of Natchitoches
HUGHES, J.
In this wrongful death suit, arising out of a shooting in a convenience store
parking lot, the defendant store owner filed a motion for summary judgment seeking
dismissal of the action against it , asserti ng it had no duty to protect against the
criminal actions of the decedent and other third parties on its premises. The district
court denied the motion for summary judgment, finding questions of fact remained.
The appellate court denied the defendant ’s writ application. For the following
reasons, we reverse, grant the motion for summary judgment, and remand for further
proceedings consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
The shooting in question occurred on November 7, 2016, in the parking lot of
the “Super Stop” convenience store, owned by the defendant, Abubaker, Inc.
(“Abubaker”). T he plaintiff’s decedent, Tommy Wiley, allegedly went to the
parking lot to shop at Super Stop, and a verbal altercation ensued between Mr. Wiley
and Cedric Daniels. It is undisputed that Mr. Wiley struck Mr. Daniels in the face
with his hand, and Mr. Daniels shot and killed Mr. Wiley.1
1 In the plaintiff’s petition, she alleges that “on or about November 7, 2016 between approximately
10:00-10:30 p.m. Tommy Wiley went to the Super Stop parking lot … to shop at Super Stop. ”
The plaintiff further states, in Item No. (6) of her “statement of contested facts,” filed in the district
court in connection with the Abubaker’s motion for summary judgment, that she “do[es] not

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Thereafter, the plaintiff/mother of Mr. Wiley ’s children, Catherine Evans,
filed this wrongful death and survival action on behalf of Mr. Wiley’s four minor
children, naming Abubaker as a defendant.
The petition alleged, in essence, that the shooting of Mr. Wiley was
foreseeable, as the convenience store parking lot was known to be a site of frequent
criminal activity ; therefore, the store owner had a d uty to provide heightened
security measures on its premises to deter criminal activity . The petition further
alleged this duty was breached by Abubaker’s failure to implement appropriate
security measures, such as hiring a security guard to patrol its premises, rendering
Abubaker liable for the pain and suffering of Mr. Wiley prior to his death and for his
wrongful death.
After filing an answer denying liability, Abubaker filed a motion for summary
judgment, essentially arguing that the shooting was not foreseeable and pointing out
that Mr. Wiley was not an innocent bystander , since he was engaged in criminal
activity at the time of the shooting. In support of the motion, Abubaker relied on the
deposition of Lt. Victor Pinkney of the Natchitoches Police Department, who
testified he was familiar with Mr. Wiley , who had been involved in prior criminal
activity. Lt. Pinkney also testified as to significant criminal activity at or near the
Super Stop store, prior to the incident at issue herein , indicating that the store is
located in a high crime area.
The deposition testimony of M ajed Abubaker also accompanied the motion
for summary judgment . Mr. Abubaker testified that his business has security
measures in place, including extensive interior and exterior lighting, interior and
exterior security cameras, exterior chain-link fencing on both sides of the store, and

contest that during the verbal altercation” Tommy Wiley “struck” the shooter, Cedric Daniels, “in
the face with his hand in the parking lot of the Super Stop on November 7, 2016.” In Item No. (8)
of the plaintiff’s “statement of contested facts,” she states that she “do[es] not contest that Tommy
Wiley, Jr. was shot and killed by Cedric Daniels on November 7, 2016.”

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signage facing the parking lot expressly prohibiting loitering, drinking, and loud
music on the premises. Mr. Abubaker also stated that his company has a security
policy in place requiring employees to call the police if prohibited activities occur
or if any fights break out on the premises.
In opposition to the motion for summary judgment , the plaintiff argued that
Abubaker had notice of prior criminal activity that had occurred in its parking lot
(its employees having frequently called for police assistance) , and it should have
provided heightened security measures to deter criminal activity. Lt. Pinkney also
testified that Mr. Wiley’s shooting was not the only shooting that occurred in the
defendant’s parking lot in 2016.
After a hearing, the district court judge denied the defendant’s motion for
summary judgment and issued a written judgment , which included rulings on
objections made to evidence submitted and provided reasons for the rulings, stating
in pertinent part as follows:
… Plaintiff’s objection to the exhibits to the Deposition of Lt.
Pinkney attached to Abubaker’s Motion for Summary Judgment … is
SUSTAINED IN PART AND OVERRULED IN PART : The
objection as to
… Exhibits 1 -11 in globo is OVERRULED and the exhibits
[are] admissible finding the subject photos are pictures of the crime
scene at which Lt. Pinkney was present at the time the photos were
taken and had personal knowledge of their content …
… Exhibit 12 to the Deposition of Lt. Pinkney is SUSTAINED
and is struck from the motion for summary judgment finding it is a
police report authored by one other than the deponent …
… Exhibit 13 is SUSTAINED and the exhibit is struck from the
motion finding the subject rap sheet is not certified as a record of the
Louisiana Bureau of Criminal Identification and Information pursuant
to La. R.S. 15:585, and movants have not laid the proper foundation to
show that this document falls into the business records exception of the
hearsay rule. …
… Exhibit 14 is OVERRULED and the exhibit [is] admissible
finding the exhibit is a handwritten list of witnesses who Lt. Pinkney
testified by personal knowledge as to those he interviewed and those he
did not …
… Exhibit 15 is SUSTAINED and the exhibit is struck from the
motion finding the transcript unsworn out -of-court testimony being
offered for the truth of the matters asserted therein. La. Code E. art.
801(C) …

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… Exhibit 16 is OVERRULED and the exhibit [is] admissible
but is limited only to what particular facts therein of which Lt. Pinkney
had personal knowledge, and that there was a finding of sufficient
probable cause for the arrest of Cedric Daniels.
… ABUBAKER ’s Motion for Summary Judgment be and is
hereby respectfully DENIED finding:
… a genuine issue of material fact exists as to whether the subject
crime was foreseeable given [the] number of calls made to the
Natchitoches Police Department over the preceding years concerning
crimes reported being committed at the subject location … and Lt.
Pinkney’s testimony that he personally spoke with Abubaker about
additional security because of [the] number of police calls about crimes
being committed at McFarland’s Center and the Super Stop;
… Abubaker relies heavily on the contradictory hearsay
statements made by witnesses interviewed by Lt. Pinkney as well as Lt.
Pinkney’s self-described “speculation” as to events leading up to the
date in question requiring this court to weigh the credibility of the
various declarants. Such testimony requires credibility determinations
thus precluding summary judgment. …

(Emphasis original.)
Abubaker’s application for supervisory review to the appellate court was
denied, on the appellate court’s summary ruling that “[w]e find no error in the trial
court’s ruling.” Evans v. Abubaker, Inc. , 23-00092 (La. 6/15/23) (unpublished).
This court granted Abubaker ’s writ application. Evans v. Abubaker, Inc. , 23 -
00955 (La. 12/19/23), 374 So.3d 971.
In this court, Abubaker assigns as error the denial by “[t]he lower court” of
summary judgment “on the basis that the shooting of Mr. Wiley was foreseeable
without first addressing whether Defendant/Applicant owed a duty to provide
security measures to protect the criminal element intruding on the premises of the
business.” In support of this assignment of error, Abubaker argues that “[n]o court
in Louisiana has ever extended the duty to provide reasonable security measures to
a person involved in the commission of a violent crime, nor should they, ” and that
Mr. Wiley had engaged in a battery on Mr. Daniels (striking Daniels in the face with
his hand) before Mr. Daniels shot and killed Mr. Wiley. Abubaker further asserts
that the duty o f merchants to implement security measures is for the protection of

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patrons, not those engaged in criminal activity; therefore, summary judgment should
have been granted in its favor, dismissing it from the lawsuit.
LAW AND ANALYSIS
This court applies a de novo standard of review in considering lower court
rulings on summary judgment motions. Bolden v. Tisdale , 21-00224, pp. 10 -11
(La. 1/28/22), 347 So.3d 697, 706-07; Bufkin v. Felipe’s Louisiana, LLC, 14-0288,
p. 3 (La. 10/15/14), 171 So.3d 851, 854; Catahoula Parish School Board v.
Louisiana Machinery Rentals, LLC, 12-2504, p. 8 (La. 10/15/13), 124 So.3d 1065,
1071. Thus, we use the same criteria that govern the district court ’s consideration
of whether summary judgment is appropriate. Id. Pursuant to La. C.C.P. art.
966(A)(3)-(4), a court must grant a motion for summary judgment if the pleadings,
memoranda, affidavits, depositions, answers to interrogatories, certified medical
records, certified copies of public documents or public records, certified copies of
insurance policies, authentic acts, private acts duly acknowledged, promissory notes
and assignments thereof, written stipulations, and admissions show that there is no
genuine issue as to material fact and that the mover is entitled to judgment as a matter
of law.2 Id. The summary judgment procedure is designed to secure the just, speedy,
and inexpensive determination of every action, except those disallowed by Article
969; the procedure is favored and shall be construed to accomplish these ends. La.
C.C.P. art. 966(A)(2).
The burden of proof rests with the mover; nevertheless, if the mover will not
bear the burden of proof at trial on the issue that is before the court on the motion
for summary judgment, the mover ’s burden on the motion does not require him to

2 Article 966 was amended by 2023 La. Acts, Nos. 317 and 368 and revised the language of this
provision to, inter alia, add to the list of documents that may be filed, or referenced, on motion for
summary judgment, as set forth in Subsection (A)(4)(a): “certified copies of public documents or
public records, certified copies of insurance policies, authentic acts, private acts duly
acknowledged, promissory notes and assignments thereof….”

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negate all essential elements of the adverse party ’s claim, action, or defense, but
rather to point out to the court the absence of factual support for one or more
elements essential to the adverse party ’s claim, action, or defense. La. C.C.P. art.
966(D)(1). The burden is on the adverse party to produce factual support sufficient
to establish the existence of a genuine issue of material fact or that the mover is not
entitled to judgment as a matter of law. Id. “When a motion for summary judgment
is made and supported as provided [in La. C.C.P. art. 967(A)3], an adverse party may
not rest on the mere allegations or denials of his pleading, but his response, by
affidavits or as otherwise provided [in La. C.C.P. art. 967(A)], must set forth specific
facts showing that there is a genuine issue for trial. If he does not so respond,
summary judgment, if appropriate, shall be rendered against him. ” La. C.C.P. art.
967(B). A motion for summary judgment shall be granted if the motion,
memorandum, and supporting documents show that there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P.
art. 966(A)(3).
The district court based its decision to deny Abubaker’s motion for summary
judgment on a finding that material questions of fact remain in this case as to whether
prior criminal activity on and around its premises made it foreseeable that the instant
shooting could occur, such that Abubaker had a duty to provide additional security.
A fact is material if its existence or nonexistence may be essential to a
plaintiff’s cause of action under the applicable theory of recovery. Penalber v.
Blount, 550 So.2d 577, 583 (La. 1989). Facts are material if they potentially insure
or preclude recovery, affect a litigant ’s ultimate success, or determine the outcome

3 Paragraph (A) of Article 967 provides: “Supporting and opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein. The supporting
and opposing affidavits of experts may set forth such experts ’ opinions on the facts as would be
admissible in evidence under Louisiana Code of Evidence Article 702, and shall show
affirmatively that the affiant is competent to testify to the matters stated therein.”

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of the legal dispute. Id. Because it is the applicable substantive law that determines
materiality, whether a particular fact in dispute is material for summary judgment
purposes can be seen only in light of the substantive law applicable to the case.
Jackson v. City of New Orleans, 12-2742, p. 6 (La. 1/28/14), 144 So.3d 876, 882;
Richard v. Hall, 03-1488, p. 5 (La. 4/23/04), 874 So.2d 131, 137.
Because a plaintiff bears the burden of proof at trial, a defendant’s burden on
summary judgment is to show an absence of factual support for one or more elements
essential to a plaintiff’s claim. See Hester v. Walker, 20-01278, p. 5 (La. 5/13/21),
320 So.3d 362, 366 (per curiam). The threshold issue in any negligence action is
whether the defendant owed the plaintiff a duty, and whether a duty is owed is a
question of law.4 Bufkin, 14-0288 at p. 5, 171 So.3d at 855; Milbert v. Answering
Bureau, Inc. , 13 -0022 (La. 6/28/13), 120 So.3d 678, 688 ; Pinsonneault v.
Merchants & Farmers Bank & Trust Co. , 01-2217, p. 7 (La. 4/3/02), 816 So.2d
270, 276.
The duty, upon which the petition in the instant case alleges a right to damages
for the wrongful death of Tommy Wiley, arises from a business owner’s duty under
La. C.C. art. 2317 (“We are responsible, not only for the damage occasioned by our
own act, but for that which is caused by … the things which we have in our
custody.”) and La. C.C. art. 2317.1 (“The owner or custodian of a thing is answerable
for damage occasioned by its ruin, vice, or defect, only upon a showing that he knew
or, in the exercise of reasonable care, should have known of the ruin, vice, or defect

4 As we stated in Christy v. McCalla, 11-0366 (La. 12/6/11), 79 So.3d 293, Louisiana courts have
adopted a duty-risk analysis in determining whether liability exists under the facts of a particular
case. Under this analysis, a plaintiff must prove five separate elements: (1) the defendant had a
duty to co nform his or her conduct to a specific standard of care; (2) the defendant failed to
conform his or her conduct to the appropriate standard of care; (3) the defendant ’s substandard
conduct was a cause-in-fact of the plaintiff’s injuries; (4) the defendant’s substandard conduct was
a legal cause of the plaintiff’s injuries; and (5) actual damages were sustained. Christy, 11-0366
at pp. 8-9, 79 So.3d at 299 (citing Pinsonneault v. Merchants & Farmers Bank & Trust Co. ,
01-2217, p. 6 (La. 4/3/02), 816 So.2d 270, 275 -76). See also Bufkin, 14-0288 at pp. 4-5, 171
So.3d at 855.

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which caused the damage, that the damage could have been prevented by the
exercise of reasonable care, and that he failed to exercise such reasonable care….”).
See Bufkin, 14-0288 at p. 5, 171 So.3d at 855. While business owners generally
have no duty to protect others from the criminal acts of third persons (a vice) on their
business premises, they do have a duty to implement reasonable measures to protect
their patrons from criminal acts when those acts are foreseeable. Pinsonneault, 01-
2217 at p. 7, 816 So.2d at 276; Posecai v. Wal-Mart Stores, Inc., 99-1222, p. 5 (La.
11/30/99), 752 So.2d 762, 766.
There is an allegation in the plaintiff’s petition that Mr. Wiley went to the
parking lot at Abubaker’s convenience store to shop. An argument with Mr. Daniels
ensued in the parking lot. Thus, it is unclear whether Mr. Wiley actually entered the
store. Regardless, when Mr. Wiley entered into an argument with Mr. Daniels, he
was certainly not acting as a store patron, but acting on his own behalf on a personal
matter. Furthermore, when Mr. Wiley struck Mr. Daniels in the face with his hand,
he was committing the crime of battery, in violation of La. R.S. 14:33 ( “Battery is
the intentional use of force or violence upon the person of another….”). When Mr.
Wiley began to engage in criminal behavior, he became the type of person a business
owner, such as Abubaker, had the duty to protect i ts current patrons from, if such
activity was foreseeable.
Our jurisprudence has exonerated business owners from negligence liability
in circumstances when a former business patron intentionally chooses to engage
another person in a verbal altercation , which escalates to physical violence and
results in personal injury, outside of the business premises (in a parking lot or
adjoining public area), on the basis that a business is unable to prevent the voluntary
criminal actions of former patrons when they have no specific warning of impending
criminal behavior . See Albritton v. Woods , 34,073 , pp. 9 -10 (La. App. 2 Cir.
9/28/01), 795 So.2d 1239, 1244. Further, when a former business patron chooses to

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escalate his or her verbal altercation with another person outside of the business
premises, by engaging in non-consensual physical contact, he or she becomes an
aggressor and may be found completely responsible for any injuries incurred,
including when the other person responds in self -defense. See e.g. Seymour v.
House of Blues New Orleans Restaurant Corp. , 20-0297, pp. 10-11 (La. App. 4
Cir. 11/25/20), 309 So.3d 805, 813, writ denied, 20-01441 (La. 2/9/21), 310 So.3d
181; Broussard v. Gallo , 12-0239, p. 5 (La. App. 1 Cir. 11/2/12) (unpublished);
Landry v. Bellanger, 02-1443, p. 16 (La. 5/20/03), 851 So.2d 943, 955.
In the instant case, Mr. Wiley intentionally engaged in non -consensual
physical contact against Mr. Daniels when he struck Mr. Daniels in the face ,
committing the crime of battery , and no evidence was submitted in opposition to
Abubaker’s motion for summary judgment to suggest that such behavior was
imminent and/or foreseeable. Th erefore, under the particular facts and
circumstances of this case, Abubaker had no duty to protect Mr. Wiley against the
consequences of his own intentionally criminal actions.
Since Abubaker had no duty to this particular person under these
circumstances, an essential element (the duty element) of the plaintiff ’s negligence
action was lacking; therefore, Abubaker’s motion for summary judgment should
have been granted without regard to whether the defendant conformed its conduct to
the applicable standard of care.
Once Abubaker demonstrated that the plaintiff would be unable to bear h er
burden to prove an essential element of her negligence action - that a duty was owed
by Abubaker to Mr. Wiley - then the burden shifted to the plaintiff to demonstrate
that she would be able to meet her burden at trial. See Bufkin, 14-0288 at p. 10, 171
So.3d at 858; Schultz v. Guoth, 10-0343, p. 6 (La. 1/19/11), 57 So.3d 1002, 1006.
Yet the plaintiff failed to produce any affidavit, deposition, or other evidence
admissible on motion for summary judgment to show that Abubaker did have a duty

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to protect Mr. Wiley from his own intentional criminal behavior under the particular
circumstances of this case.
As stated by La. C.C.P. art. 967(B), when a motion for summary judgment is
made and supported, an adverse party may not rest on the mere allegations or denials
of his pleadings, but his response, by affidavits or as otherwise provided in Article
967, must set forth specific facts showing that there is a genuine issue for trial. See
Bufkin, 14-0288 at p. 11, 171 So.3d at 858; Luther v. IOM Company LLC , 13-
0353, p. 6 (La. 10/15/13), 130 So.3d 817, 822; Cheramie Services, Inc. v. Shell
Deepwater Production, Inc., 09-1633, p. 16 (La. 4/23/10), 35 So.3d 1053 , 1062.
Once a motion for summary judgment has been properly supported by the moving
party, the failure of the non-moving party to produce evidence of a material factual
dispute mandates the granting of the motion. Bufkin, 14-0288 at p. 11, 171 So.3d
at 858; Dauzat v. Curnest Guillot Logging Inc., 08-0528, p. 6 (La. 12/2/08), 995
So.2d 1184, 1187; Babin v. Winn -Dixie Louisiana, Inc. , 00 -0078, p. 4 (La.
6/30/00), 764 So.2d 37, 40. See also Alexander v. Toyota Motor Sales, U.S. A.,
13-0756, p. 4 (La. 9/27/13), 123 So.3d 712, 714 (per curiam) (“All elements must
be proven to succeed on this claim; therefore, a lack of factual support for just one
element renders summary judgment in favor of [the defendant] appropriate.”).
Because the plaintiff in this case failed to show (on the defendant’s motion for
summary judgment) that she would be able to bear her burden at trial to prove a duty
was owed by Abubaker, summary judgment in favor of Abubaker should have been
granted. See Bufkin, 14-0288 at pp. 11-12, 171 So.3d at 858; Cheramie, 09-1633
at pp. 9-17, 35 So.3d at 1059-63; Dejoie v. Medley, 08-2223, p. 10 (La. 5/5/09), 9
So.3d 826, 832 (“If he does not so respond, summary judgment, if appropriate, shall
be rendered against him.”).
Therefore, we conclude the district court erred in failing to consider whether
there was a duty owed by Abubaker to Mr. Wiley, prior to ruling on whether the

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general duty a merchant owes to a patron was breached . Abubaker’s motion for
summary judgment should be granted on the basis that it did not owe a duty to Mr.
Wiley under the particular facts and circumstances of this case, as herein expressed.
DECREE
For the reasons stated, we reverse the district court’s denial of the motion for
summary judgment filed by the defendant, Abubaker, Inc., and we hereby order that
summary judgment be entered in favor of Abubaker, Inc., dismissing it as a
defendant in this action. The matter is remanded to the district court for further
proceedings consistent with this opinion.
REVERSED; SUMMARY JUDGMENT GRANTED; REMANDED.

SUPREME COURT OF LOUISIANA
No. 2023-CC-00955
CATHERINE EVANS, ET AL.
VS.
ABUBAKER, INC., ET AL.
On Supervisory Writ to the 10th Judicial District Court,
Parish of Natchitoches
WEIMER, C.J., concurring.
I agree with the result reached by the majority opinion, but find the issue
presented is more appropriately analyzed as a “scope of duty” question.
Whether a claim arises in negligence under La. C.C. art. 2315 or in premises
liability under La. C.C. art. 2317.1, 1 determining whether liability exists under a
particular set of facts uses the same duty/risk analysis. Farrell v. Circle K Stores,
Inc., 22-00849, p. 5 (La. 3/17/23), 359 So.3d 467, 473; Malta v. Herbert S. Hiller
Corp., 21-00209, p. 11 (La. 12/10/21), 333 So.3d 384, 395. Under the duty/risk
analysis, the plaintiff must prove five separate elements: (1) the defendant had a duty
to conform his conduct to a specific standard (the duty element); (2) the defendant’s
conduct failed to conform to the appropriate standard (the breach of duty element);
(3) the defendant’s substandard conduct was a cause-in-fact of the plaintiff’s injuries
(the cause-in-fact element); (4) the defendant’s substandard conduct was a legal cause
of the plaintiff’s injuries (the scope of duty element); and (5) proof of actual damages
(the damages element). Malta, 21-00209 at 11, 333 So.3d at 395; Pinsonneault v.
1 Although the majority employs La. C.C. art. 2317 and 2317.1, addressing damages caused by a
thing, I find the alleged negligence concerning the failure of a business to provide adequate security
is more aligned with La. C.C. art. 2315, addressing damages caused by an action. See, e.g.,
Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217, p. 6 (La. 4/3/02), 816 So.2d
270, 275.

Merchants & Farmers Bank & Trust Co., 01-2217, p. 6 (La. 4/3/02), 816 So.2d
270, 276.
The threshold issue in any negligence action is whether the defendant owed the
plaintiff a duty. Malta, 21-0209 at 11, 333 So. 3d 384 at 395; Pinsonneault, 01-2217
at 7, 816 So.2d at 276; Posecai v. Wal-Mart Stores, Inc., 99-1222, p. 4 (La.
11/30/99), 752 So. 2d 762, 766. Louisiana C.C. arts. 2315 and 2317.1 create broad
accountability for fault, imposing general obligations to use reasonable care. See Doe
v. Mckesson, 21-00929 (La. 3/25/22), 339 So.3d 524, 537 (Weimer, C.J.,
concurring). The “duty” inquiry can narrow the scope of potential liability and
financial responsibility. Id. (citing Posecai, 99-1222 at 4, 752 So.2d at 766).
Determining whether a duty is owed is a policy-driven decision that considers various
moral, social, and economic factors. Id.
This court previously established a duty on business owners “to implement
reasonable measures to protect their patrons from criminal acts when those acts are
foreseeable.” Posecai, 99-1222 at 5, 752 So.2d at 766. While that duty is clearly
intended to protect usual patrons conducting business on the premises, the question
in this case concerns whether that duty encompasses the risk of harm to a patron (or
one otherwise on the business premises) who intentionally instigates and engages in
criminal conduct.
This court recently discussed “scope of duty” in Malta:
There is no rule for determining the scope of the duty. The
scope-of-the-duty inquiry is fact sensitive and ultimately turns on a
question of policy as to whether the particular risk falls within the scope
of the duty. The determination of legal cause/scope of the duty involves
a purely legal question.
In some instances a risk may not be found within the scope of a
duty where the circumstances of that particular injury to that plaintiff
2

could not be reasonably foreseen or anticipated because there was no
ease of association between that risk and the legal duty. Foreseeability,
as the determining test, is neither always reliable nor the only criterion
for comparing the relationship between a duty and a risk. Some risks
that arise because of a defendant’s conduct are not within the scope of
the duty owed to a particular plaintiff simply because they are
unforeseeable. Ease of association is the proper inquiry. Such an
inquiry questions how easily one associates the plaintiff’s complained
of harm with the defendant’s conduct. Although ease of association
encompasses the idea of foreseeability, it is not based on foreseeability
alone.
Malta, 21-0209 at 17-18, 333 So.3d at 399 (internal citations removed).
Determination of the risks encompassed within the duty was also explained in Hill
v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972):
The same policy considerations which would motivate a
legislative body to impose duties to protect from certain risks are applied
by the court in making its determination. All rules of conduct,
irrespective of whether they are the product of a legislature or are a part
of the fabric of the court-made law of negligence, exist for purposes.
They are designed to protect Some persons under Some circumstances
against Some risks. Seldom does a rule protect every victim against
every risk that may befall him, merely because it is shown that the
violation of the rule played a part in producing the injury. The task of
defining the proper reach or thrust of a rule in its policy aspects is one
that must be undertaken by the court in each case as it arises. How
appropriate is the rule to the facts of this controversy? This is a question
that the court cannot escape.
Hill, 260 La. at 550, 256 So.2d at 623 (internal citation omitted).
After examining the policy considerations underlying this court’s imposition
of the duty in Posecai, it is clear that a duty should not be extended to encompass the
harm incurred in this case.2 Mr. Wiley engaged in intentional criminal conduct which
2 In Posecai, the court identified the following factors to be used in making a policy decision on duty:
the fairness of imposing liability; the economic impact on the defendant and on similarly situated
parties; the need for an incentive to prevent future harm; the nature of defendant's activity; the
potential for an unmanageable flow of litigation; the historical development of precedent; and the
direction in which society and its institutions are evolving. Posecai, 99-1222 at 4-5, 752 So.2d at
766. In Reynolds v. Bordelon, 14-2362, pp. 9-12 (La. 6/30/15), 172 So.3d 589, 597-99, this court
delineated similar policy considerations for determining whether a duty should be imposed:
deterrence of undesirable conduct; compensation of the victim; satisfaction of the community's sense
of justice; proper allocation of resources, including judicial resources; and deference owed to the
3

unfortunately led to his death. The question becomes: does the duty to implement
reasonable measures to protect patrons from foreseeable criminal acts on business
premises encompass the risk of harm to a patron who intentionally instigates and
engages in criminal behavior. Regardless of whether Mr. Wiley was a patron, there
is no ease of association between Abubaker’s duty to use reasonable measures to
protect its usual patrons from criminal acts and the risk that a patron will be harmed
because he instigated and engaged in violent behavior with a third person while he
happened to be on the business’s premises.
Finding plaintiff cannot prove the “scope of duty” element of the duty/risk
analysis, I agree with the holding of the majority opinion granting summary judgment
in favor of defendant.
legislature.
4

S
UPREME COURT OF LOUISIANA
No.
2023-CC-00955
C
ATHERINE EVANS, ET AL.
VS.
ABUBAKER, INC., ET AL.
O
n Supervisory Writ to the 10th Judicial District Court,
Parish of Natchitoches
G
enovese, J., dissents and assigns reasons.
I respectfully dissent from the majority opinion reversing the lower courts’
denial of Defendant’s motion for summary judgment. Specifically, I disagree with
the majority’s conclusion, given the procedural posture of this case, that Defendant
owed no duty to the decedent. This matter arises in the context of a motion for
summary judgment. In my view, in this fact- intensive case, genuine issues of
material fact remain which preclude a grant of summary judgment in favor of
Defendant. For these reasons, I find that the lower courts did not err in denying
Defendant’s motion for summary judgment. I would affirm the lower courts’ rulings
and remand.

SUPREME COURT OF LOUISIANA
No. 2023-CC-00955
CATHERINE EVANS, ET AL.
VS.
ABUBAKER, INC., ET AL.
On Supervisory Writ to the 10th Judicial District Court, Parish of Natchitoches
CRAIN, J. concurs and assigns reasons.
I agree with the decision to grant the defendant’s motion for summary
judgment but write separately to clarify my views on this negligence claim.
As I stated in my concurring opinion in Doe v. McKesson , 21 -0929 (La.
3/25/22), 339 So.3d 524, “it is important to separate the duty and scope of the duty
questions because each has considerations unique to itself.” The former asks
whether an entire category of defendants should be excluded from liability based on
policy-driven factors. The latter narrows the analysis to the facts of the case at hand.
“The line between these distinct elements is often blurred.” Id. Here, the majority
states:
[U]nder the particular facts and circumstances of this case , [the
defendant] had no duty to protect Mr. Wiley against the consequences
of his own intentionally criminal actions.
Since [the defendant] had no duty to this particular person under these
circumstances, an essential element (the duty element) of the plaintiff’s
negligence action was lacking . . . .
(Emphasis added). I believe these statements address themselves to scope of duty,
not duty.

2

I would frame the duty question as: “Does a store owner owe a duty to keep
its premises reasonably safe?” 1 Considering the relevant policy factors of
deterrence, economic considerations, justice in imposing liability, allocation of
judicial resources, and predictability, there is no reason to categorically refuse to
recognize a storeowner’s duty to keep a store’s premises safe. Thus, I find the duty
element is satisfied.
As explained in my previous concurrence in Doe, 339 So.3d at 544, the
inquiry then requires “a determination of whether that duty extends to cover the
injury in this case, which is the ‘scope of the duty’ element.” This is where the
specific facts must be scrutinized. “The extent of protection owed a particular
plaintiff depends on the particular facts and circumstances of the case and is
determined on a case -by-case basis to avoid making a defendant the insurer of all
persons against all harms.” Id. The majority blends the two elements by analyzing,
at the duty stage, the particular plaintiff (a person committing a battery rather than
an innocent bystander) and the particular facts (someone acting on his own behalf
on a personal matter rather than a store patron just in the wrong place at the wrong
time).
There are two relevant considerations at the scope of the duty stage:
foreseeability and ease of association. Thus, it is crucial to analyze whether the
defendant’s alleged actions (or inactions) with regard to security foreseeably resulted
in Mr. Wiley’s death and whether that injury is easily associated with the duty to
keep a store’s premises reasonably safe.

1 From this standpoint, I question the analysis performed in Posecai v. Wal-Mart Stores, Inc., 99-
1222 (La. 11/30/99), 752 20 So.2d 762. There, the court found business owners generally owe no
duty to protect others from the criminal acts of third parties but have a duty to put reasonable safety
measures in place to protect their patrons from foreseeable criminal acts. Extending a general duty
of reasonable safety to the specific facts of the case (patrons as opposed to others) improper ly
merged the separate duty-risk elements.

3

The plaintiff alleges the shooting of Mr. Wiley was foreseeable because of the
high-crime area, numerous reports of crime in the store’s parking lot, the late hours
the store was open, and the sale of alcohol. The defendant contends it could not
possibly have predicted a violent altercation would occur at all, much less on its
premises. The incident was unrelated to the store’s business purposes and was the
result of a n interpersonal conflict –a conflict the defendant could not foresee or
prevent. I agree.
The cases cited by the majority support this conclusion.2 The jurisprudence
precludes liability against a business for voluntary criminal actions when there is no
specific warning or threat that such criminal behavior will occur. Thus, the
foreseeability element is not met.
Further, the facts alleged do not sufficiently establish an ease of association
between a business’s duty to keep its property safe and the death of an individual as
a result of a violent altercation that is unrelated to the business. Thus, I find the
scope of the duty element is lacking.
Procedurally, I recognize this matter arises on a motion for summary
judgment, and the scope of the duty presents a mixed question of fact and law.
Parents of Minor Child v. Charlet, 13-2879, p. 6 (La. 4/4/14), 135 So.3d 1177, 1181.
As this court held in Farrell v. Circle K Stores, Inc. , 22-0849, p. 13 (La. 3/17/23),
359 So.3d 467, 478, summary judgment is not necessarily prohibited when the
element involves a mixed question of law and fact.3 In Farrell, a premises liability
case, we found summary judgment may be granted “upon a finding that reasonable
minds could only agree that the condition was not unreasonably dangerous;

2 See Albritton v. Woods, 34, 073, pp. 9 -10 (La. App. 2 Cir. 9/28/01), 795 So.2d 1239, 1244;
Seymour v. House of Blues , 20-0297, pp. 10 -11 (La. App. 4 Cir. 11/25/20), 309 So.3d 805, 813;
Broussard v. Gallo, 12-0239, p. 5 (La. App. 1 Cir. 11/2/12); Landry v. Bellanger, 02-1443, p. 16
(La. 5/20/03), 851 So.2d 9943, 955.

3 The Farrell case was analyzed at the breach stage of the duty-risk analysis, which, like scope of
duty, is a mixed question of law and fact.

4

therefore, the defendant did not breach the duty of reasonable care owed.” Similarly,
here, I find reasonable jurors could only agree that the fatal shooting of Mr. Wiley
was not foreseeable by the defendant in carrying out its duty to keep its premises
reasonably safe. Nor could reasonable jurors conclude there was an ease of
association between that duty and the harm suffered. Thus, the scope of the duty
element was not proven and summary judgment is appropriate.