NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
PIRTLE, Judge.
INTRODUCTION
Solomon Horton appeals from an order of the district court for Douglas County dismissing Horton's first amended complaint for damages in a negligence action against B & K Petroleum, Sarmed Ali, and Mohammed Ali, doing business as Infinite Oil Corporation, and finding that Horton's motion for default judgment and motion for summary judgment were moot.
BACKGROUND
On July 4, 2008, Horton finished his shift at the Douglas County Department of Corrections and stopped for a snack at Infinite Oil Convenience Store (Infinite Oil) located on North 30th Street in Omaha, Nebraska. Horton testified that prior to entering the store, he noticed two or three men standing outside of the store, but nothing looked odd or out of place. He entered the store around 12:30 a.m., picked up granola bars, and went to the counter. As he waited at the counter, a man "walked in, turned around and said, `No, don't shoot.'" Another man followed the first man and immediately began shooting. After Horton heard gunshots, he felt a burning in his right side and realized one of the bullets had hit him. Horton told the clerk to call the 911 emergency dispatch service, but she had trouble getting through at first. Moments later, police arrived because they were driving by and heard the shots. Horton testified that he feared for his life during and after the shooting and wondered whether he would survive.
At the hospital, the doctors determined that Horton was hit on his right side and that the bullet traveled through his ribs and right lung before becoming lodged in his chest. The bullet was not removed the night of the shooting because Horton felt he was already in too much pain. It was removed later in the month of July 2008. He was told the injuries to his ribs and lung would heal in time. Horton remained in the hospital for 4 days, and movement was very painful. Horton asserts the cost of his medical treatment was $41,868. He was prescribed Percocet for pain, he took it as directed for about 6 weeks, and he was not given his doctor's permission to return to work until September 20. However, Horton was terminated from his job on July 16 because he was still within his department's probationary period and was not eligible for sick leave. Horton said he was pain free by October 1, but he could not find work until January 2009. The job he started in January paid less than he was making at the Douglas County Department of Corrections. He started another job as a security guard the following summer. He estimates he incurred approximately $37,000 in lost wages as a result of the shooting.
Horton brought a negligence claim against B & K Petroleum, Sarmed Ali, and Mohammed Ali for damages caused by the shooting at Infinite Oil on July 4, 2008. B & K Petroleum is the owner/operator of Infinite Oil and is a Nebraska corporation owned by Sarmed Ali. Mohammed Ali is the president of B & K Petroleum.
Horton alleges that the defendants operated and/or controlled all security aspects of Infinite Oil and as owners/operators of the business, they owed a reasonable duty of care to lawful business visitors. Horton also alleges the defendants were negligent in their duty of reasonable care to maintain Infinite Oil's property in such a way as to keep the premises safe for lawful business visitors because the defendants did not employ security guards on July 4, 2008, and did not have metal detectors installed. Horton also alleges the defendants failed to take any measures to warn lawful business visitors of any danger in and around Infinite Oil.
At his deposition, Horton said he visited the gas station about three times per month and that he knew the gas station had security cameras and lights around the pumps, but he knew of no other security measures. Horton testified he did not believe Infinite Oil had sufficient security measures in place, including police officers, metal detectors, or multiple clerks.
The defendants' answers to interrogatories provided a description of the security measures taken to promote safety at Infinite Oil. The defendants assert the store had three security measures in place: lighting, security cameras and surveillance equipment, and security guards. The lighting was installed to ensure that the premises were well lit and that activity on the grounds was visible. The security cameras and surveillance equipment were installed to allow the defendants to remotely access live video feeds from Infinite Oil and to display surveillance footage to customers on monitors in the store. The defendants also employed off-duty police officers or sheriff's deputies as security guards at Infinite Oil to patrol every Friday and Saturday night to keep the premises and cashiers safe. The patrol was set up to visit three locations in Omaha for 4 hours, sometime between 8 p.m. and 2 a.m. depending on the night. The purpose was to provide security and address any crowd control or loitering issues. In addition, the schedule was set to have at least one officer at Infinite Oil for at least 2 hours of the patrol period. Infinite Oil also detailed measures to advise customers of potential dangers. The business posted notices advising that crimes could occur on the premises and that patrons were under surveillance and loitering was not permitted. Security monitors were also visible to patrons to demonstrate that the premises were under surveillance.
John Gruidel, an Omaha police officer who works in the northeast quadrant of Omaha, was on duty in the early morning hours of July 4, 2008. Gruidel testified that the northeast section of Omaha is a very high-crime area and that crimes are frequently committed at convenience stores because they are gathering places. He said crimes in this area tend to become more frequent when the weather is warm, schools are out of session, or during holidays. He said most convenience stores in that area of Omaha do not have security guards, but frequently stores have lights and camera systems installed for security. He said cameras have a deterrent effect on crime. He also said having an officer present is generally a deterrent to crime. However, even when there are officers present, people do not necessarily refrain from criminal behavior. He has been assaulted, almost run over by cars, and shot at. In addition, people assault each other or shoplift in front of him.
Jeremy Christensen is an Omaha police officer who also works in the northeast quadrant of Omaha and was on duty with Gruidel on the night of July 4, 2008. He testified that Infinite Oil has a bank teller window with a drawer that allows the business to remain open without allowing customers into the store. This window was not in use the night of July 4. Christensen indicated the incident on July 4 stemmed from gang rivalry between "two gangs that just didn't get along." He also testified that, generally speaking, police officer presence reduces the likelihood of a violent crime, but there have been instances where people committed crimes in an officer's presence. He added that there are individuals who do not seem to care that law enforcement is present. Christensen said some businesses in the area hire additional security, but most do not.
The defendants filed an answer to Horton's complaint and first set of interrogatories, but failed to respond to Horton's requests for production and requests for admission. The defendants also failed to appear for trial on December 3, 2010. At trial, Horton presented his evidence and made motions for default judgment and summary judgment. Following trial, the court filed its order on January 20, 2011. The court first determined that based on the evidence offered, the defendant B & K Petroleum was the owner of the premises and the only party defendant who could be liable to Horton for his injuries. Next, the court deemed Horton's requests for admissions admitted as B & K Petroleum failed to respond. The court then turned to the issue of negligence and determined that while the criminal activity proved by Horton may have been reasonably foreseeable, there was insufficient evidence that the negligence was the proximate cause of Horton's injuries. The court dismissed Horton's complaint and determined the motions for summary judgment and default judgment were moot.
ASSIGNMENT OF ERROR
Horton alleges the district court was clearly wrong in finding that he failed to prove that the defendants' negligence under the circumstances was the proximate cause of his injury.
STANDARD OF REVIEW
In a law action tried to the court without a jury, the findings of the trial court have the effect of a jury verdict, and will not be disturbed on appeal unless clearly wrong. Scudder v. Haug, 201 Neb. 107, 266 N.W.2d 232 (1978). See, also, Fuhrman v. State, 265 Neb. 176, 655 N.W.2d 866 (2003).
ANALYSIS
In order to prevail in a negligence action, there must be a legal duty on the part of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and damage proximately caused by the failure to discharge that duty. Deviney v. Union Pacific RR. Co., 280 Neb. 450, 786 N.W.2d 902 (2010). See, also, Wilke v. Woodhouse Ford, 278 Neb. 800, 774 N.W.2d 370 (2009).
Horton offered evidence of criminal activity in the general vicinity of the convenience store, within just a few months of the incident in question, ranging from homicides to deadly weapon assaults, armed robberies, and other violent criminal activity. Two Omaha police officers who regularly patrolled the vicinity of the store acknowledged that the store was in a high crime area, including the presence of street gangs, shootings, and the like. To make a risk of attack foreseeable, the circumstances to be considered must have a direct relationship to the harm incurred. A.W. v. Lancaster Cty. Sch. Dist. 001, 280 Neb. 205, 784 N.W.2d 907 (2010).
As stated in the trial court's order, this criminal activity may very well have made criminal acts reasonably foreseeable on B & K Petroleum's premises so as to create a duty to people who might patronize the store and to impose upon B & K Petroleum a duty of reasonable care to protect patrons by warning of a dangerous condition and/or to exercise reasonable care to keep the premises safe.
The court must then consider whether the conduct of the defendant breached the duty to exercise the care that would be exercised by a reasonable person under the circumstances. Id. Horton acknowledged at trial that he knew the gas station had security cameras and lights around the pumps. B & K Petroleum also asserted that the premises were well-lit and the security cameras and surveillance equipment were displayed for both employees and patrons. The evidence also shows that while there were no security guards on the premises on the night of the shooting, B & K Petroleum employed off-duty police officers or sheriff's deputies as security guards to patrol on Friday and Saturday nights. Unfortunately, the security procedures did not prevent the shooting from occurring; however, this fact alone does not necessarily mean that B & K Petroleum breached its duty of reasonable care under the circumstances.
Further, to recover for negligence, the trial court stated that a plaintiff must prove that the defendant's negligence was in fact the proximate cause of the plaintiff's injuries, and, even with the admissions, Horton failed to convince the court of this fact.
According to Nebraska case law, a defendant's negligence is not actionable unless it is a proximate cause of the plaintiff's injuries or is a cause that proximately contributed to them. Scott v. Khan, 18 Neb.App. 600, 790 N.W.2d 9 (2010). See, also, Hamilton v. Bares, 267 Neb. 816, 678 N.W.2d 74 (2004). A proximate cause is a cause that produces a result in a natural and continuous sequence and without which the result would not have occurred. Radiology Servs. v. Hall, 279 Neb. 553, 780 N.W.2d 17 (2010). A defendant's conduct is a proximate cause of an event if the event would not have occurred but for that conduct, but it is not a proximate cause if the event would have occurred without that conduct. Worth v. Kolbeck, 273 Neb. 163, 728 N.W.2d 282 (2007).
Assuming that B & K Petroleum had a legal duty to protect Horton from injury and B & K Petroleum breached or failed to discharge that duty, Horton would still need to prove that B & K Petroleum's negligence was the proximate cause of Horton's injuries. The trial court determined that even if the requests for admissions Horton sent to B & K Petroleum were deemed admitted, Horton had still failed to prove the proximate cause of Horton's injuries.
Horton asserts that B & K Petroleum should have had a security guard or officer on the premises on the night when the shooting occurred, yet Horton failed to prove that the presence of a guard would have prevented the confrontation leading to the shooting. Horton offered the testimony of Omaha police officers Gruidel and Christensen at trial, and both stated that while officer presence may have a deterrent effect on crime, both have been involved in situations where individuals engaged in or continued criminal behavior in the presence of police officers.
Horton also asserts that B & K Petroleum should have installed additional lighting or used the bank teller window to prevent patrons from entering the store at night. However, Horton failed to prove the relationship of these precautions to his ultimate injury. There is little to suggest that additional lights or asking patrons to wait outside of a locked store would have prevented Horton from being in the path of an errant shot from a man with a gun following another man.
Based upon the facts provided, we determine the trial judge was not clearly wrong in finding that Horton failed to prove that B & K's negligence was the proximate cause of his injury.
CONCLUSION
We find the trial court was not clearly wrong in dismissing Horton's first amended complaint and finding Horton's motion for default judgment and motion for summary judgment were moot.
AFFIRMED.
