Boren v. Worthen Nat. Bank of Arkansas

• Decision Date: 13 May 1996
• Docket Number: No. 95-930,95-930
• Citation: 921 S.W.2d 934,324 Ark. 416
• Parties: Stephanie M. BOREN and Kimberly J. Vanbibber, Appellants, v. WORTHEN NATIONAL BANK OF ARKANSAS and Worthen Banking Corporation, Appellees.
• Court: Arkansas Supreme Court

Page 934

921 S.W.2d 934

324 Ark. 416

Stephanie M. BOREN and Kimberly J. Vanbibber, Appellants, v. WORTHEN NATIONAL BANK OF ARKANSAS and Worthen Banking Corporation, Appellees.

No. 95-930.

Supreme Court of Arkansas.

May 13, 1996.

Sandy S. McMath, Little Rock, for appellants.

Michael E. Aud, Little Rock, for appellees.

ROAF, Justice.

This case presents the issue of a bank's liability for a criminal attack at an automated teller machine ("ATM"). Appellants Stephanie M. Boren and Kimberly J. Vanbibber were shot by a robber while Boren, accompanied by Vanbibber, was transacting business at an ATM owned and operated by appellees Worthen National Bank of Arkansas and Worthen Banking Corporation ("Worthen"). Boren and Vanbibber sued Worthen for negligence. They appeal from the trial court's award to the bank of summary judgment as a matter of law. We affirm.

On July 21, 1993, at approximately 9:00 p.m., Boren, a customer of Worthen, drove to an outdoor, drive-through type ATM at a Worthen branch on Baseline Road in Little Rock to make a cash withdrawal. Vanbibber was a passenger in her car. As they were leaving the bank's premises, two young men who had been hiding behind shrubs and foliage across the street from the ATM approached. One of the men began firing a pistol into the car, wounding both Boren and Vanbibber. At the direction of the gunman, one woman dropped her wallet and the other her purse out the car window and drove away.

Boren sued Worthen for negligence in (1) failing to install the ATM in a secure manner with proper protective devices against robbers; (2) installing the ATM adjacent to a heavily shrubbed area and housing project; (3) failing to remove or to get permission to remove foliage from the danger of robbery at night and during non-business hours; (4) failing to warn banking customers of the danger of robbery at night and during non-business hours; (5) failing to install adequate cameras to monitor the area; (6) failing to illuminate the area with proper lighting; (7) failing to provide security guards; and (8) operating an ATM in an area where the Bank knew or should have known its ATM customers were vulnerable. Other defendants were named, but were dismissed from the action.

Apparently, Vanbibber filed a similar suit, but that complaint is not part of the record for this appeal. On Worthen's motion, and by agreement of the parties, the Boren and Vanbibber lawsuits were consolidated by the trial court.

Worthen moved for summary judgment and contended that it owed no duty to protect its customers against criminal activity perpetrated by third parties. Worthen admitted during discovery that the Baseline ATM was the first such equipment purchased by the bank, and that it had experienced three incidents of theft, robbery, murder, or attempted murder involving its ATM units since January 1, 1986. One of the three incidents had occurred at the Baseline ATM on May 2, 1993--less than three months before the occurrence at issue; another incident occurred on November 6, 1993, after the robbery involving Boren.

It appears from the briefs that the trial court first denied the motion; no order of denial is abstracted or in the record. Worthen then filed a motion to reconsider the denial. Boren responded and attached two affidavits in opposition to the motion to reconsider. In the first affidavit, James Baker, who was president of a security firm and a former Dallas, Texas policeman, opined that the ATM unit in question was not properly installed or monitored to address danger to the bank's customers and concluded that the bank was negligent. In the second affidavit, Michael Nyberg, State Crime Prevention Coordinator for the Arkansas Crime Information center and Executive Director of the Arkansas Crime Prevention Association, gave his opinion that Baseline Road in Little Rock is the highest violent-crime commercial area in the city. He averred that the danger posed to bank customers was clearly foreseeable.

On reconsideration of the motion, the trial court granted summary judgment. In its letter opinion to counsel, the trial court stated:

Primarily I am most persuaded by the rationale in the cases set forth in Worthen's original brief and by the Bartley case set out in Worthen's supplemental brief. It seems that jurisdictions across the country share the same reluctance to reassign the duty of protecting our citizens from violent, non-foreseeable, third-party, criminal acts, from the government to the private sector. While the Bartley case is a landlord-tenant case, the reasoning of Professor Schoskinski, adopted by the court, is equally applicable in the ATM cases.

The language cited by Worthen in its original brief in Page, Cornpropst, and Goldberg, is persuasive. While Mr. McMath has suggested that Worthen had reason to foresee that crime might take place, the language of the brief in that regard is sensible. Crime is everywhere! One is subject to be a victim of violence at virtually every locale, public or private. While some areas are hit more often, there is still no standard to set in place by which the merchant can abide with confidence that the measures taken will ensure the safety of patrons. Certainly, the most capable of police forces in America have not been able to stop crime, or even slow it down, in "high crime" areas.

On appeal, Boren and Vanbibber contend that the trial court erred in two respects. They first assert that the trial court erred in granting the summary judgment in reliance on a landlord-tenant case which is not applicable to a business premises case where the business invitee, unlike a tenant, never assumes control of the premises. They further assert that the trial court erred in failing to hold Worthen subject to the standard rule of ordinary care, and that the bank failed to take reasonable steps to assure the safety of its patrons.

I. Record and Abstract

We first note certain deficiencies in the record and abstract. Because Vanbibber's complaint is not included in either the record or the abstract, we are unable to determine whether she was a customer of Worthen, and thus an invitee, or the basis for her cause of action. When essential pleadings are not before us, we affirm the trial court pursuant to Supreme Court Rule 4-2(a)(6). See In Re Estate of Brumley, 323 Ark. 431, 914 S.W.2d 735 (1996). We thus will not consider her appeal.

Moreover, although we reach the merits of Boren's appeal, the appellants' failure to abstract any portion of some eleven depositions taken in this lawsuit and referenced only by captions in appellants' abstract renders them unusable by this court in our analysis of her issues. Although the depositions are part of the record, we have said many times that there is only one record and seven justices. We will not require seven justices to scour one record for material that should have been abstracted. See, e.g., In Re Estate of Brumley, supra; Stroud Crop, Inc. v. Hagler, 317 Ark. 139, 875 S.W.2d 851 (1994).

II. Reliance on Landlord-Tenant Law

Boren first contends that the trial court erred by relying on a landlord-tenant case, Bartley v. Sweetser, 319 Ark. 117, 890 S.W.2d 250 (1994), which upheld the common-law principle that a landlord owes no duty of care to tenants for the criminal acts of other persons. While we agree with Boren that reliance solely on the Bartley v. Sweetser decision would be misplaced, the trial court stated further reasons for his decision to grant summary judgment, including the rationale employed in similar ATM cases from other jurisdictions cited by Worthen in its initial summary judgment brief. Moreover, the trial court acknowledged that Bartley v. Sweetser was a landlord-tenant case, but stated that it found the following reasoning employed in this case to be equally applicable in an ATM case:

[T]he notion that the act of a third person in committing anintentional tort or crime is a superseding cause of harm to another ...; the often times difficult problem of determining foreseeability of criminal acts; the vagueness of the standard which the landlord must meet; the economic consequences of the imposition of the duty; and the conflict with public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector.

Although we cannot say that the trial court relied primarily on Bartley v. Sweetser in reconsidering its early denial of summary judgment, Worthen certainly urged that the trial court do so. And, while some of the policy considerations articulated in Bartley v. Sweetser may also be applicable in determining the liability of a business owner for criminal acts committed on its premises by a third party, the analysis will not be. In Bartley v. Sweetser, we in essence recognized and adhered to our long-standing general rule that a landlord is under no legal obligation to a tenant for injuries sustained in common areas, absent a statute or agreement. We held that a landlord likewise had no duty to protect a tenant from criminal acts. This underlying general rule does not apply to injuries sustained by business invitees on business premises, and we agree that the Bartley v. Sweetser decision does not serve as precedent for this case.

III. Duty of Care

Boren next argues that the trial court further erred in failing to hold Worthen subject to the standard negligence rule of ordinary care. She asserts that had the proper standard been applied, there was sufficient evidence that Worthen (1) knew or should have known that the Baseline ATM was extremely dangerous in that it was "conducive to robbery" and (2) refused to adopt accepted industry standards which would have corrected the danger.

She contends that the two criminal attacks at Worthen ATMs between January 1, 1986 and July 21, 1993, including one at the same Baseline ATM three months prior to the attack on her, are evidence of extreme danger, along with the evidence that the...