Recent Court of Appeals Decision May Have Expanded Duty of Businesses to Protect Customers
The Indiana Court of Appeals recently decided that a well-known restaurant chain had a duty to prevent a patron from being injured in its restaurant by the criminal act of a third party. The Court of Appeals stated that the restaurant had a duty as a proprietor to take reasonable steps to provide for patron safety.”
This statement alone should not come as a surprise. Under Indiana law, it is well established that a landowner has the duty to “exercise reasonable care for the invitee’s protection while the invitee is on the premises.” This duty was understood to include dangerous conditions existing on the property. But, this duty was rarely extended to the actions of others, and rarer still, to criminal activity, as the actions of other patrons and people were not considered foreseeable. But this case signals an apparent shift in the analysis that proprietors have a duty “to take reasonable precautions to protect invitees from foreseeable criminal acts.”
When Will Criminal Activity Be Foreseeable
On one end of the spectrum there is Goodwin v. Yeakle’s Sports Bar and Grill, Inc., where the court determined that one patron shooting another was not foreseeable. The shooter overheard what he thought to be a derogatory comment about his wife, produced a pistol, and fired it without warning. The Court found there was no duty because bar owners do not “routinely contemplate that one bar patron might suddenly shoot another.” “To impose a blanket duty on proprietors to afford protection to their patrons would make proprietors insurers of their patrons’ safety which is contrary to the public policy of this state.”
On the other end of the spectrum appears to be Hamilton v. Steak ‘n Shake. The facts are similar in that one patron produced a gun and shot another at point blank range. But, before the shooting there was a half hour argument between the two groups of diners. The Court described the situation as “escalating tension” and “involved not only verbal threats and taunts, but also efforts to incite a physical confrontation.” Although the incident did not become physical until shortly before the shooting, the Court determined that because Steak ‘n Shake knew of the altercation as it progressed, the restaurant “had knowledge [that] clearly created some likelihood that one of [its] patrons could be harmed.”
The Steak ‘n Shake decision only states that there may be a duty to protect patrons. It is still to be determined whether that duty was met or whether the proprietor should bear responsibility for the outcome of the crime committed. However, most businesses would prefer to avoid a trial on whether there was a breach.
How Should this Impact Your Operations
While the calculus for what may or may not be foreseeable is slightly more involved than what it detailed here. Courts are showing more of a willingness to hold businesses accountable for criminal activity that occurs on their premises, even by third parties. The lesson is, as onerous and uncomfortable as it may be, that intervention in a prolonged dispute appears necessary to avoid liability for “failing to protect” a patron. No clear line exists to define when this intervention becomes necessary or what the appropriate response should be, but, suffice to say, the prepared proprietor should have a policy and procedure in place to diffuse an escalating situation or request help from the authorities.
If you need further explanation of issues regarding premises liability or more general advice to improve the position of your business, Rothberg Logan & Warsco LLP stands ready to assist.
A copy of the cited opinions can be found at:
https://www.in.gov/judiciary/opinions/pdf/10261601rdr.pdf (Goodwin v. Yeakle’s Sports Bar and Grill, Inc.)
https://www.in.gov/judiciary/opinions/pdf/03071803rra.pdf (Hamilton v. Steak ‘n Shake)
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