Murder Spurs Allsup's Suit
By Scott Sandlin
Copyright © 2008 Albuquerque Journal; Journal Staff Writer
Abduction. Rape. Murder.
Such violent incidents have been in all-too-ready supply over the past 30 years at Allsup's stores, an attorney told jurors as a trial began this week in a wrongful death lawsuit against the New Mexico-based convenience store chain.
The victim, a 26-year-old divorced mother of three who had just started taking college classes, was stabbed to death her second day of work in 2002 while working a night shift alone at a Hobbs store. She didn't know her killer.
Elizabeth Ann Garcia's family claims Allsup's owners essentially sacrificed employees, deliberately choosing profits over worker safety when they consistently failed to provide adequate security measures despite promises to do so.
Allsup's says Garcia was a tragic victim of a meth-crazed criminal who dragged her to a field and stabbed her 57 times. There is no flawless safety scheme in a world when drug-fueled criminals are willing to assault armed police officers, they say. And Allsup's points to the $3 million a year it spends on security as evidence of its good intent.
The trial, before Santa Fe District Judge Raymond Z. Ortiz, is playing out in a legal landscape dramatically different for workers and employers than it was in 2001, when the New Mexico Supreme Court issued a seminal decision, Delgado v. Phelps Dodge. The opinion by Justice Gene Franchini in Delgado created an exception to the previous long-standing rule that workers injured or killed on the job could look only to the New Mexico Workers' Compensation Act for relief.
The decision matters because the stakes can be enormous.
Under the workers' compensation law, an injured worker or his family can collect only a fraction of what is potentially available if a jury makes a big damage award- perhaps tens of thousands versus millions of dollars.
But the opinion was written to target only the most egregious examples of employer callousness. Junior Delgado, the smelter worker whose case led to the new rule, died of third-degree burns from molten slag poured onto him after he was ordered into a furnace to adjust a malfunctioning ladle.
Garcia's family has been paid workers' benefits, according to an Allsup's statement. The family contends it is entitled to more because Allsup's has "steadfastly refused to spend money to make its clerks safe from crime."
In the post-Delgado world, workers may sue in district court if they can show that the injury could be expected from the employer's act or omission, that the employer's act or omission was done without regard to the consequences, and if the employer's willfulness caused the injury.
Writing for a unanimous court, Franchini rejected the defense claim that the decision would "wreak havoc with the New Mexico workers' compensation system." The court expressed serious doubt that employers were injuring workers so frequently that the workers' comp system would collapse.
"The greater the impact this opinion has on the workers' compensation system," the opinion said, "the more profound will have been its need."
The precise boundaries of the decision are still at issue, as pretrial motions argued in Garcia make clear.
A 'History of Violence'?
By the time Randi McGinn, the family's attorney, and Y. Kevin Williams, the Atlanta lawyer defending Allsup's, gave their opening statements, Judge Ortiz had ruled on motions dealing with parameters of evidence. McGinn's firm, Ortiz ruled, would be allowed to present data gathered about hundreds of violent crime incidents that took place at the nearly 300 Allsup's stores in New Mexico and Texas.
A 93-page summary of incidents at Allsup's stores prepared by Garcia's team, titled "Allsup's History of Violence," was overseen by the plaintiffs' expert, a psychologist who has studied the behavior of offenders who prey on convenience stores. Icons with crescent moons signal nighttime robberies and underscore McGinn's theme in his opening statement: Something as simple as adding a second store clerk on the night shift, she said, could have prevented the murder of Liz Garcia.
In earlier incidents, victims had been promised as much, as the first witnesses testified.
Night shift promises
Don Burdine described the effect on his family of his older sister's abduction, rape and murder while she was working at an Allsup's store in Clovis in 1975. In the wake of her murder, and while running interference for his devastated mother, Burdine said he recalled a corporate representative from Allsup's promising that no females would have to work the night shift ever again.
Burdine said he initially didn't blame Allsup's. But, over his years in law enforcement, "when I come to see these situations arise, I have to think they could have done more."
Eva Pellesier said she got a promise from Allsup's, too.
Speaking in a voice left raspy by her injuries, Pellesier described having her throat slit ear to ear and being left for dead by three men who robbed an Allsup's store in Hobbs. The single mother had started working the night shift three weeks earlier while studying to be a police officer. She survived, to the surprise of those tending her, and extracted a promise from her district manager. Pellesier said the manager told her women would no longer have to work alone on the night shift.
That was in 1986.
Allsup's has never acknowledged either of those statements, or that they were ever made, according to court documents.
Angela Willard, whose ex-husband was stabbed to death in an Allsup's in 1998, said she got a promise, too. Company executive Mark Allsup, she said, put his arm around her after the death and asked what he could do for her. She told him to install cameras in the stores.
"He said, 'I'll do it tomorrow,' " Willard testified.
Stories like those, though tragic, do not show that Allsup's willfully and intentionally caused the store to be unsafe and thus led to the murder, Williams said in his opening statement. Some of the measures the plaintiffs say are proven deterrents, including cameras and bright lights, didn't stop Garcia's killer, Paul Wayne Lovett, from going on to commit a second murder, of department store clerk Patty Simon in 2003, Williams said.
Lovett was convicted of two first-degree murder charges and of raping Simon and was sentenced in 2007 to two consecutive life sentences.
Some people in society are not deterred by ordinary measures, Williams said, and Garcia's killer was one of them.
In court documents, they say clerk and store safety and security "are and always have been high, corporate-wide priorities for Allsup's" and that the chain has continuously monitored itself and the industry for ways to improve.
McGinn intends to show otherwise. The defense may talk about "random, senseless violence," she told the jury, but Elizabeth Garcia's death was not a mere accident.
"They are going to ask, 'How could we possibly have predicted this?' That might have worked with the first one in 1971," McGinn said.
"They changed nothing," she said of Allsup's. "In fact, it was business as usual."