When is an employer liable for failing to train workers on security measures?

Restaurant staff failed to warn customer of potential danger, alleges lawsuit

BY Bernise Carolino 15 Sep 2023

A recent case arose when a woman filed a lawsuit asserting negligence against Whataburger Restaurants LLC and alleging assault against a driver who twice rear-ended her vehicle while they were both lining up at a drive-thru lane.

The customer alleged that the following events occurred in May 2021 after she entered the drive-thru lane at a Whataburger restaurant in Rio Grande City, Texas. When another driver hit her vehicle twice, she asked a Whataburger employee to call security or police so that she could make a report.

The customer drove to the front of the restaurant as she waited for an officer to arrive. The employee at the drive-thru window told the other driver that the customer had requested a call to the police. The other driver also drove to the front of the restaurant. A confrontation and a physical altercation between the two drivers followed.

The customer asked for damages for pain, suffering, mental anguish, physical disability, medical expenses, and damage to property. She made claims for negligent security and premises liability against Whataburger. She alleged that Whataburger:

created a known dangerous condition
failed to keep the restaurant reasonably safe for customers during and before the incident
lacked security outside or inside the restaurant
failed to maintain the restaurant in a safe condition
failed to warn the customer of a potentially dangerous situation that could occur after its employee advised the other driver about the call to the police
failed to implement and/or maintain basic security measures
failed to properly hire, train, and supervise its employees, agents, representatives, workers, managers, and staff so that they knew basic security measures and could handle a potentially dangerous situation and could monitor cameras
failed to timely report perceived dangerous activity
failed to respond when someone requested or needed assistance
failed to impose adequate security policies and protocols

Whataburger filed a motion to dismiss the property damage claim based on the protections of the Texas Citizens Participation Act (TCPA). The customer’s lawsuit amounted to a legal action filed in response to Whataburger’s exercise of its rights to freedom of speech and petition, Whataburger argued.

Property damage claim against employer will proceed

The trial court denied the motion to dismiss under the TCPA by operation of law because it failed to rule upon the motion within 30 days from the start of the hearing. Whataburger challenged the denial via an appeal.

In the case of Whataburger Restaurants LLC v. Rosa Elia Fuentes, the Texas Court of Appeals for the Eighth District at El Paso affirmed the decision of the trial court. The customer successfully proved that her lawsuit for negligence was wholly exempt from TCPA coverage, the appellate court said.

Whataburger argued that the premises liability claim could be subdivided into two separate claims – the first seeking recovery of damages for bodily injuries and the second seeking only property damage – for the purposes of the TCPA’s provisions. The TCPA was inapplicable to the bodily injury claim but applicable to the property damage claim, Whataburger added.

The appellate court rejected Whataburger’s argument that it should isolate the customer’s property damage claim from the rest of the claim. The exemption from TCPA coverage wholly applied to the lawsuit, given that the property damage did not stand apart from the bodily injuries, the appellate court said.