GPM, part of Arko Corp., is contesting a $5.5 million settlement that it was ordered to pay to the family of Pam Smotherman, an employee who was shot and killed during an armed robbery at a San Antonio, Texas, E-Z Mart convenience store in July 2020, according to court filings.
The robbery and murder took place around 3 a.m. while Smotherman was working an overnight shift alone, according to documents filed June 6 in the U.S. District Court for the Northern District of Texas, Dallas Division. GPM initially granted the family a death benefit of $100,000 under its Texas Occupational Injury Benefit Plan. Additionally, GPM provided more than $9,000 in funeral reimbursement.
- GPM Investments is No. 6 on CSP’s 2024 Top 202 ranking of U.S. c-store chains by store count.
Smotherman’s family, however, sued the convenience-store retailer for negligence, wrongful death and survival because it enforced poor safety procedures and ignored requests from the corporate entity to close at an earlier time because of safety concerns, the lawsuit said.
On May 8, the arbitrator issued a final award of $4.45 million in favor of the Smotherman family and against GPM, saying that with pre- and post-judgment interest, GPM is fully liable to the Smotherman family for more than $5.5 million, the court documents said.
GPM claims that there are two grounds to vacate the final settlement: evident partiality and that the arbitrator exceeded his authority.
GPM said that the arbitrator is biased because of its connection with the Occupational Safety and Health Administration (OSHA). The family called this “absurd” and said that GPM has not provided any specific facts or evidence that the arbitrator’s was partial to the Smotherman family, court documents show.
The Smotherman family also claims that GPM never filed its motion to vacate in federal court, as required by the arbitration agreement it drafted, and improperly filed in the wrong state court, the filings said. GPM’s wrongful state action has since been properly removed by the Smotherman family to federal court in the Western District, San Antonio Division.
According to the Smothermans’ motion, “GPM’s ‘strategic’ move—blunder—is one of bad faith and is designed to force the Smotherman family to incur more costs and delay,” and GPM has no right to contradict the settlement under the Federal Arbitration Act.
GPM told CSP that it has no comment on the pending litigation.
Could More Security Have Prevented This?
After lingering outside the store where Smotherman was working alone, the armed robber entered and demanded that she provide cash and lottery tickets, according to the filings. Smotherman was able to trigger a silent alarm that alerted the local police, who responded to the scene within five minutes.
She complied with the robber’s demands but was held at gunpoint for more than one minute and 23 seconds before being shot and killed, the court documents said. The murderer has not been found.
Following Smotherman’s death, documents show that OSHA found that there were drink machines and store fixtures blocking the windows of E-Z Mart, preventing visibility; inadequate exterior lights; no documented inspections of the store related to security; no physical barriers with pass-through windows for cashiers; inadequate security training for employees; failure to have proper signs on the entrance doors stating that there was limited cash in the registers; and no height markers on entrance doors for height identification of suspects.
Assistant Manager Scott Fronberg testified that for the entire 10 years he worked at the store, the lighting had well-known issues. He said the store is “down in a hole. The road was up higher than the store, and it was very dark down there… it was isolated.”
Yet, the OSHA report from the same day as the robbery also stated that the store was in a “low-crime area,” at 81% lower than the average in Texas and 80% lower than the national average. It found “no known history of violence toward employees or robberies at this location,” and the store’s interior where the incident occurred was “very well lit.”
Still, the corporate office had previously instructed the store to close earlier for security reasons, court documents show.
Smotherman was applying at other stores because she no longer wanted to work at night there, according to the lawsuit. Her mother, Virginia Smotherman, “pleaded with her to stop working at night or find another job” because there was an “increase in crime the area.”
In its final award statement, the arbitrator said the following:
“[The] robbery was a foreseeable event for a sophisticated business that operates retail stores of this nature. In fact, [GPM's] expert testified that robbery is an inherent threat for gas station/convenience stores due to three factors: cash on hand, alcohol availability and late-night hours.”
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