Boyd v. Racine Currency Exchange, Inc.

• Decision Date: 30 November 1973
• Docket Number: No. 45557,45557
• Citation: 56 Ill.2d 95,306 N.E.2d 39
• Parties: Piney BOYD, Appellee, v. RACINE CURRENCY EXCHANGE, INC., et al., Appellants.
• Court: Illinois Supreme Court

Page 39

306 N.E.2d 39

56 Ill.2d 95

Piney BOYD, Appellee, v. RACINE CURRENCY EXCHANGE, INC., et al., Appellants.

No. 45557.

Supreme Court of Illinois.

Nov. 30, 1973.

Rehearing Denied Jan. 29, 1974.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (Joseph W. Griffin and D. Kendall Griffith, Chicago, of counsel), for appellants.

Marshall I. Teichner, Ltd., Chicago (Edwin A. Strugala, Chicago, of counsel), for appellee.

RYAN, Justice:

Plaintiff's complaint was dismissed on motion of the defendants by the circuit court of Cook County for failure to state a cause of action. The appellate court reversed and remanded the cause to the circuit court. (8 Ill.App.3d 140, 289 N.E.2d 218.) We granted leave to appeal.

This is a wrongful death action against Racine Currency Exchange and Blanche Murphy to recover damages for the death of plaintiff's decedent during an attempted armed robbery. The facts surrounding that event, as alleged in the complaint and admitted by defendants' motion, are: The plaintiff's husband, John Boyd, was present in the Racine Currency Exchange on April 27, 1970, for the purpose of transacting business. While he was there, an armed robber entered and placed a pistol to his head and told Blanche Murphy, the teller, to give him the money or open the door or he would kill Boyd. Blanche Murphy was at that time located behind a bulletproof glass window and partition. She did not comply with the demand but instead fell to the floor. The robber then shot Boyd in the head and killed him.

Plaintiff alleges several acts of negligence by the Racine Currency Exchange and Blanche Murphy. Count I alleges that the defendants owed Boyd, a business invitee, the duty to exercise reasonable care for his safety and that they breached this duty when they refused to accede to the robber's demands. Count I also alleges that defendants acted negligently in adopting a policy, knowledge of which was deliberately withheld from their customers, according to which their money was to be protected at all costs, including the safety and the lives of the customers.

In count II the plaintiff alleges that the Currency Exchange was negligent in failing to instruct its employees regarding the course of conduct which would be necessary under the circumstances of this case to prevent exposing customers to unreasonable risks of harm. Count II further alleges that the Currency Exchange was negligent in employing a person who was incompetent to fulfill the responsibilities of her position. Negligence is also alleged in the failure to furnish guidelines of how to act in case of armed robbery, and alternatively that it was negligent in failing to disclose to its customers its policy of preserving its monies at all costs.

It is fundamental that there can be no recovery in tort for negligence unless the defendant has breached a duty owed to the plaintiff. (Hamlin's Wizard Oil Co. v. United States Express Co., 265 Ill. 156, 106 N.E. 623.) The plaintiff contends that a business proprietor has a duty to his invitees to honor criminal demands when failure to do so would subject the invitees to an unreasonable risk. It is claimed that this duty arises from the relationship between a landowner and a business invitee.

It is the general rule in Illinois and other jurisdictions that a person has no duty to anticipate the criminal acts of third parties. (Prosser, Handbook of the Law of Torts (4th ed. 1971), sec. 33.) An exception to this rule exists, however, when criminal acts should reasonably have been foreseen. (Neering v. Illinois Central R.R. Co., 383 Ill. 366, 50 N.E.2d 497.) Neering, and many of the other cases cited by the parties, involved the question of whether facts existed which should have alerted the defendant to a risk of harm to his invitees by criminals. (See O'Brien v. Colonial Village, Inc., 119 Ill.App.2d 105, 255 N.E.2d 205; Stelloh v. Cottage 83, 52 Ill.App.2d 168, 201 N.E.2d 672; Altepeter v. Virgil State Bank, 345 Ill.App. 585, 104 N.E.2d 334; Nigido v. First National Bank, 264 Md. 702, 288 A.2d 127.) These cases are of little help here since our case presents a question of whether the defendant who is faced with an imminent criminal demand incurs liability by resisting, not whether he is negligent in failing to take precautions against a possible future crime.

Also of little assistance in Sinn v. Farmers Deposit Savings Bank, 300 Pa. 85, 150 A. 163. In that case recovery for the plaintiff, who was injured when a bank robber detonated dynamite within the bank, was upheld. The plaintiff alleged that had the bank warned him that a bank robbery was in progress, as they had the opportunity to do, he could have escaped unharmed. The plaintiff's intestate in our case, however, was obviously on notice that a robbery was in progress, and plaintiff does not predicate her claim on the absence of warning.

The Restatement of Torts does not consider the specific issue before us. The Restatement does set forth the principle that a person defending himself or his property may be liable for harm to third persons if his acts create an unreasonable risk of harm to such persons. (Restatement (Second) of Torts, secs. 75 and 83.) However, these sections refer to situations in which the harm is caused directly by a person resisting, not by the criminal such as where a shot fired at a criminal hits a third person.

We are aware of only two cases which have discussed issues similar to the one with which we are faced here--whether a person injured during the resistance to a crime is entitled to recover from the person who offered the resistance. In Genovay v. Fox, 50 N.J.Super. 538, 143 A.2d 229, rev'd on other grounds, 29 N.J. 436, 149 A.2d 212, a plaintiff who was shot and wounded during the robbery of a bowling alley bar claimed that the proprietor was liable because instead of complying with the criminal demand he stalled the robber and induced resistance by those patrons present. The plaintiff was shot when several patrons attempted to disarm the bandit. The...