Judge Robert R. Thomas on Negligence
From Judgepedia
- Justice Thomas concurred in the majority opinion, written by Justice Rita B. Garman, over the vigorous and lenghty dissent of Justice McMorrow, in which Justice Charles E. Freeman joined concluded that, where a driver errantly drover her vehicle over the sidewalk and into a Burger King restaraunt, causing the death of a patron sitting in the restaruant, Burger King owed a legal duty to that patron to protect him. In doing so, the Court abandoned the opposite precedent, which had been established in Illinois in Stutz v. Kamm (1990) (Court refused to impose premises liability where a driver had driven through a wall and into a waiting room because the injury was unforeseeable); and Simmons v. Aldi-Brenner Co. (1987) (storekeeper and owners had no duty to protect customers against injury caused by driving automobile through storefront)
ISSUES:
The issue before the court was whether Burger King had a duty to design its stand-alone restaurant in such a way to protect its in-house dining customers from being struck by a car that came through the building's wall.
According to the defendants, they owed no duty to the decedent to protect him against the possibility of an out-of-control car penetrating the restaurant and injuring him. They characterize the incident at issue as “highly extraordinary” and “tragically bizarre” and, therefore, not reasonably foreseeable. Plaintiff disputed defendants' contention that they owed no duty of care to the decedent, arguing that because the decedent was defendants' business invitee, defendants owed the decedent a duty to ensure that the premises of their restaurant were reasonably safe for the decedent's use.
HOLDING:
The Court held that a restaurant is “undoubtedly of such a nature” that it places the defendants in a special relationship with their customers, as it is “an establishment open to the public for business purposes” — a relationship out of which arises a duty which includes protecting invitees from out-of-control cars. As to the issue of foreseeability, the majority held that plaintiff’s allegation that the Burger King was located in an area with a “high traffic count” was sufficient to support the “foreseeability” of the danger of a fatal airborne automotive incursion into the restaurant.
MAJORITY REASONING:
- (1) "[T]he extensive costs to businesses and to the public that defendants claim will arise by not creating an exemption from the applicable duty of care are speculative at best. Defendants argue that businesses will incur an immense financial burden if required to protect their invitees from out-of-control automobiles and that the protective measures businesses take will make buildings everywhere less aesthetically pleasing. These arguments are based on mistaken assumptions about the nature of a duty of care. Recognizing that the duty of reasonable care that businesses owe to their invitees applies to cases where invitees are injured by out-of-control automobiles is not the same as concluding the duty has been breached because a business failed to take a certain level of precaution."
- (2) "[T]o the extent defendants suggest we could create a rule of law narrower than the exemption discussed above to absolve them of liability, they are actually requesting that we determine, as a matter of law, that they did not breach their duty of care. It is inadvisable for courts to conflate the concepts of duty and breach in this manner. Courts could, after all, 'state an infinite number of duties if they spoke in highly particular terms,' and while particularized statements of duty may be comprehensible, 'they use the term duty to state conclusions about the facts of particular cases, not as a general standard."
- (3) "[T]he issue in this case is not whether defendants had a duty to install protective poles, or a duty to prevent a car from entering the restaurant, or some such other fact-specific formulation. Because of the special relationship between defendants and the decedent, they owed the decedent a duty of reasonable care. The issue is whether, in light of the particular circumstances of this case, defendants breached that duty. That question cannot be answered at this stage of the proceedings."
- (4) determining whether a duty should be imposed involves considerations of public policy.
- (5) Based on the allegations in plaintiff's complaint, the duty of care that a business invitor owes to invitees to protect them against the unreasonable risk of physical harm is clearly applicable to this case.
- (6) the duty of care that arises from the business invitor-invitee relationship encompasses the type of risk- i.e., the negligent act of a third person***909 **1060 -that led to the decedent's injuries.
- (7) the no-duty rule defendants would have this court adopt lacks a sound basis in policy. As one treatise states, “Rules declaring that no duty exists can easily be made *442 too broad or too narrow. Because they are rules of law, not decisions about particular cases, they cover all cases in the category to which they are addressed. They are expressions of ‘global’ policy rather than evaluations of specific facts of the case. Consequently, no-duty rules should be invoked only when all cases they cover fall substantially within the policy that frees the defendant of liability.” 1 D. Dobbs, Torts § 227, at 579 (2001). Here, none of the considerations defendants rely on compel us to hold that, as a matter of law, landholders who open their land to the public for business purposes have no duty to protect invitees against out-of-control drivers. We see no merit in such an exemption.
DISSENT REASONING (JUSTICES FREEMAN and MCMORROW, authored by JUSTICE MCMORROW):
- (1) While the majority states that it is relying on the rationale of Hills for its duty analysis, the majority opinion departs significantly from that decision. …Hills holds that a special relationship, by itself, is not enough to establish an affirmative duty to protect. Other considerations must be taken into account as well. The majority here, however, holds the opposite. According to the majority, a special relationship, standing alone, is sufficient to establish the affirmative duty to protect a business invitee from the tortuous misconduct of a third person. Hills also expressly holds, in conformace with long-standing case law, that a court must examine the traditional duty factors before it may impose an affirmative duty to protect on a defendant. In this case, the majority considers the factors, but only after concluding that an affirmative duty exists and only as part of a new, “exemption” analysis. This is a substantial departure from Hills. [emphasis in original, citations omitted]
- (2) "As the court stated in Simmons v. Aldi-Brenner Co. (1987), ‘anything is foreseeable ...’ but the likelihood of this scenario is so minor that to guard against it in the manner suggested would require fortifying every building within striking distance of any crazed or incredibly inept driver, and the result would be to require foregoing [ sic] any hope of aesthetically pleasing or business-enticing buildings. Obviously these two factors are less important than the safety of invitees, but the Court is required to do a balancing test and in doing so, I find that the duty stated by the plaintiffs is too high in this instance.”
- (3) "The existence of a special relationship does not, by itself, impose a duty upon the possessor of land to protect lawful entrants from the criminal attacks of third parties. Before a duty to protect will be imposed it must also be shown that the criminal attack was reasonably foreseeable. In addition, whether a duty to protect exists will depend upon a ‘consideration of the likelihood of injury, the magnitude of the burden to guard against it, and the consequences of placing that burden upon the defendant.'"
- (4) A special relationship, by itself, is not enough to establish an affirmative duty to protect. Other considerations must be taken into account as well. The majority here, however, holds the opposite. According to the majority, a special relationship, standing alone, is sufficient to establish the affirmative duty to protect a business invitee from the tortious misconduct of a third person.
- (5) A court must examine the traditional duty factors before it may impose an affirmative duty to protect on a defendant. In this case, the majority considers the factors, but only after concluding that an affirmative duty exists and only as part of a new, “exemption” analysis.
- (6) The doctrine of “stare decisis is not an inexorable command.” It does require, however, that the court offer appropriate justification for the reversal of previous decisions. The majority in this case fails to explain why it is overruling the framework set out in Hills for analyzing affirmative duties to protect. In my view, this is error.
- (7) The majority opinion is at odds with the clear weight of authority with respect to legal foreseeability. Moreover, because of the nature of the duty being imposed in this case, the majority's resolution of the foreseeability issue raises significant public policy concerns.
- (8) As noted by the majority, negligent design and construction are not part of its duty analysis. That is, in its duty analysis, the majority does not conclude that defendants' premises were inherently dangerous or that defendants' own conduct created a risk of harm to the decedent through negligently designing or constructing the restaurant.
- (9) "[I]t was the driver, Pamela Fritz, whose conduct created a risk of harm to the decedent. The alleged duty owed by defendants in this case was to protect the decedent against the risk of harm created by Fritz's driving. Thus, as framed by the majority, this is not a case concerning ordinary duty and negligence. It is, instead, a “pure” affirmative-duty case, so called because when such a duty is imposed, the defendant is compelled to take affirmative action-in this case, to protect the decedent from a third person's misconduct."
- (10) "By its nature, the affirmative duty to protect implicates important policy concerns because it requires a defendant to take unusual action, i.e., to police the conduct of other people. * * * There is a “distinction between placing limits on conduct and requiring affirmative conduct. This distinction in turn relies on the liberal tradition of individual freedom and autonomy. Liberalism is wary of laws that regulate conduct that does not infringe on the freedom of others”. For this reason, courts have traditionally moved cautiously in this area * * *."
- (11) There is no general duty to anticipate and guard against the negligence of others because the imposition of such a duty would place an intolerable burden on society.
- (12) The majority in this case does not acknowledge the traditional, narrow view of legal foreseeability that this court has employed when asked to impose a duty upon a landowner to guard against the misconduct of others. Indeed, while most courts have exercised caution in this area of the law, allowing foreseeability of third-party misconduct to remain a question of fact for the jury only under specific tests or circumstances, the majority in this case goes in the opposite direction. The majority does not adopt a case-by-case approach and hold only that, in this particular case, plaintiff has alleged sufficient facts regarding foreseeability to survive dismissal.
- (13) Of course, if it is categorically foreseeable that negligently driven automobiles will place business invitees at risk of harm, then it is categorically unreasonable for landowners to fail to take action to protect invitees from that risk. In this way, the majority is holding all landowners with property abutting roads or parking lots to be the insurers of their business invitees' safety. This broad holding is unwarranted and, in my view, erroneous.
- (14) defendants argue that “protecting every storefront business and every store adjoining a parking lot with the necessary barriers to stop any vehicle from being driven into the building would be a gargantuan task.” Further, according to defendants, “one could never be certain whether the protection would be sufficient to stop every vehicle,” including trucks and SUVs, from crashing through the building. Thus, defendants maintain that the burden imposed in this case is unreasonable.
