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Jenkins v. Cec Entertainment Inc.

United States District Court, D. South Carolina, Charleston Division

September 30, 2019

DEVANTE JENKINS and KAISHA CORDES, Plaintiffs,
v.
CEC ENTERTAINMENT INC., d/b/a Chuck E Cheese’s Entertainment, Inc., a/k/a Chuck E Cheese’s, John and Jane Does, Unknown Employees and Agents, Defendants.

          OPINION AND ORDER

          Bruce Howe Hendricks United States District Judge

         This matter is before the Court on Defendants CEC Entertainment, Inc., John and Jane Does, and Unknown Employees and Agents’ (collectively, “Defendants”) motions for summary judgment. (ECF No. 19). For the reasons set forth in this Order, the motions for summary judgment are granted.

         BACKGROUND

         Plaintiffs Devante Jenkins and Kyeshia Coardes[1] (collectively, “Plaintiffs”) were attending their child’s birthday party at one of Defendants’ Chuck E. Cheese restaurants in Charleston, South Carolina, when a gunman shot and injured Plaintiff Jenkins. Plaintiffs assert that Defendants are liable under multiple theories of negligence for failing to prevent the shooting. Plaintiffs further assert dram shop liability, and Plaintiff Coardes claims loss of consortium. (ECF No. 1-1).

         On November 7, 2017, Defendants removed the action to this Court pursuant to 28 U.S.C. § 1441, asserting jurisdiction under 28 U.S.C. § 1332.[2] Defendants filed an answer the same day. (ECF No. 4). The case was thereafter reassigned to the undersigned on April 11, 2018. (ECF No. 9). Defendants subsequently filed two motions for summary judgment. In their first motion, Defendants ask the Court to enter judgment in their favor on the negligence claims on the basis that Plaintiffs can produce no evidence that the gunman’s actions were foreseeable or preventable. (ECF No. 19). Defendants also ask that the Court enter judgment in their favor on the loss of consortium claim on the basis that Plaintiffs were not married. Id. Plaintiffs filed a response, (ECF No. 41), to which Defendants filed a reply, (ECF No. 45). Defendants filed a second motion for summary judgment on the dram shop liability claim. (ECF No. 48). Plaintiffs did not file a response to that motion. Because the Court exercises jurisdiction under 28 U.S.C. § 1332, it applies South Carolina law to the issues presented below. Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938) (holding federal courts in diversity cases apply the law of the forum state).

         LEGAL STANDARD

         The Court shall grant summary judgment “if the movant shows that 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). The movant bears the initial burden of demonstrating that summary judgment is appropriate; if the movant carries its burden, then the burden shifts to the non-movant to set forth specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). If a movant asserts that a fact cannot be disputed, it must support that assertion either by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials”; or by “showing . . . that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1).

         Accordingly, to prevail on a motion for summary judgment, the movant must demonstrate that: (1) there is no genuine issue as to any material fact; and (2) that he is entitled to judgment as a matter of law. As to the first of these determinations, a fact is deemed “material” if proof of its existence or non-existence would affect disposition of the case under applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is “genuine” if the evidence offered is such that a reasonable jury might return a verdict for the non-movant. Id. at 257. In determining whether a genuine issue has been raised, the court must construe all inferences and ambiguities against the movant and in favor of the non-moving party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962).

         DISCUSSION

         The Parties do not dispute the following material facts. Plaintiffs were visiting the Chuck E. Cheese restaurant as Defendants’ business invitees on October 11, 2014. In their presence at the restaurant, another business invitee, Thailando King, “began acting threateningly and aggressively toward other patrons.” (ECF No. 1-1 at ¶ 6). Mr. King was a member of a party of young men who were arguing with another group of men. As the argument became heated, certain Chuck E. Cheese employees asked various individuals involved in the argument to leave the restaurant. Mr. King was one of the men asked to leave. Plaintiff Jenkins heard a member of the group say, “I’m going to get my [gun], ” as the individual left the restaurant. (ECF No. 45-1 at 76:3-25). Plaintiff Coardes also heard someone say, “go get my burner.” (ECF No. 41-1 at 25:8- 17). Plaintiff Jenkins attempted at that point to gather his family to leave the restaurant. (ECF No. 45-1 at 76:23-25). Plaintiff Jenkins explained during his deposition that while he tried to persuade his mother that their family needed to leave, he did not tell her or anyone else that he had heard one of the men reference bringing a gun into the restaurant:

I didn’t thought they was really going to go get it, so I just – I really kept it to myself. I just tell my mama we got to leave. My moma said, why. I said, we got to leave. I didn’t want nobody to start panicking or nothing. . . . I didn’t really figure they going to get no gun inside a place where a bunch of children at.

(Id. at 83:19-84:3). Plaintiff Jenkins did not call 911 and did not tell any of the Chuck E. Cheese employees what he had overheard. (ECF No. 45-1 at 95:15-23). Quantasha Brown, the restaurant’s general manager who had been working that night, testified that no one informed her or any of her employees that one of the evicted patrons stated he was going to get his gun. (ECF No. 45-2 at 60:14-19; 82:1-7; 111:2-13).

         As he was attempting to gather his family to leave, Plaintiff Jenkins saw one member of the evicted group walk back into the restaurant; Plaintiff Jenkins also watched the manager turn away another member of the group. (ECF No. 45-1 at 84:9-19). Plaintiff Jenkins testified that while the manager was preventing one individual from re-entering, another member of the group, later identified as Mr. King, “jumped across the wall waving with the gun.” (Id. at 84:9-21). Plaintiff Jenkins testified that Mr. King pointed the gun at him and shot him in the leg. (Id. at 86:2-5). The Charleston County Police Department determined through its investigation that Mr. King gained entry by leaping over a wall that funnels all guests to a “kid check” station, which is located in front of the general entrance to the restaurant. (ECF No. 19-2). See (ECF No. 41-4 (“The defendant is observed by witnesses and video surveillance re-entering the business and hopping a partition to avoid detection by staff members”).

         Ms. Brown testified that when she initially approached the men who were arguing she did not perceive that the situation had “become threatening, ” and did not perceive a threat even after one of the groups had left. (ECF No. 45-2 at 59:3-24). She further testified that she did not think Mr. King had a gun when he returned to the restaurant; rather, she saw him raise his fists and thought “he was going to fight.” (Id. at 71:16-22). She called 911 at that point, but Mr. King was already inside the restaurant and Ms. Brown did not believe the situation required her to lock the front door. (Id. at 71:16-72-2). Ms. Brown testified that she was trained to lock the front door only for power outages and in the event of an active shooter. (Id. at 68:6-12). She testified that she defines “active shooter” to mean “someone that is – that has shot a gun.” (Id. at ...


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