Boyd v. Racine Currency Exchange, Inc.

• Decision Date: 17 October 1972
• Docket Number: No. 55559,55559
• Parties: Piney BOYD, Individually, and as Administrator of the Estate of John Boyd, Deceased, Plaintiff-Appellant, v. RACINE CURRENCY EXCHANGE, INC., a corporation, and Blanche Murphy, Defendants-Appellees.
• Court: United States Appellate Court of Illinois

Page 218

289 N.E.2d 218

8 Ill.App.3d 140

Piney BOYD, Individually, and as Administrator of the Estate of John Boyd, Deceased, Plaintiff-Appellant, v. RACINE CURRENCY EXCHANGE, INC., a corporation, and Blanche Murphy, Defendants-Appellees.

No. 55559.

Appellate Court of Illinois, First District, Second Division.

Oct. 17, 1972.

Edwin A. Strugala, Marshall I. Teichner, Chicago, for plaintiff-appellant; Edwin A. Strugala, Chicago, of counsel.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago, for defendants-appellees; Joseph W. Griffin, D. Kendall Griffith, Jonathan J. Sammuels, Chicago, of counsel.

LEIGHTON, Justice.

This was a suit by plaintiff Piney Boyd against defendants Racine Currency Exchange, Inc. and Blanche Murphy to recover damages for the wrongful death of John Boyd, plaintiff's husband. On defendants' motion, the suit was dismissed by an order in which the trial court found that the complaint did not state a cause of action. The issue is whether the dismissal was error. Resolution of this issue depends on the legal sufficiency of the facts which plaintiff alleged in her three-count complaint.

I.

A. The facts alleged in Count I.

Racine Currency Exchange, Inc., is a corporation doing business under the laws of Illinois at 7349 South Racine, Chicago. Blanche Murphy is one of its servants, employees and agents. John Boyd, plaintiff's decedent, was a frequent and regular customer of Racine Currency Exchange. On April 27, 1970, Boyd went to the currency exchange to transact business for the fee or charge which defendants made for their services. Defendants, having invited him there to do business, owed John Boyd the duty to exercise reasonable care for his safety, under all circumstances, including knowledge by defendants that because of the nature of their business, they kept large sums of money on their premises. This money, at all times, was a lure, temptation and enticement to persons with criminal motive and who intended, by armed robbery, to seize and steal defendants' money, if necessary, by the use of force and violence.

On April 27, 1970, John Boyd entered defendants' place of business. As he did so, an armed robber placed a pistol against his right temple. Blanche Murphy, an employee of Racine Currency Exchange, was then behind a protective bullet-proof glass window and partition. The armed robber, holding the gun at Boyd's temple, told Blanche Murphy to open the door or he would kill Boyd; that he would shoot Boyd if she did not give him the money. Blanche Murphy refused and failed to open the door or give the money to the armed robber. Instead, she fell to the floor to protect herself and the money that belonged to her employer, defendant Racine Racine Currency Exchange. The armed robber then and there immediately shot John Boyd in the head and killed him.

By their conduct, defendants were guilty of the following wrongful acts or omissions: (a) willfully and wantonly, with conscious indifference to and reckless disregard for the consequences, although they knew or should have known of the unreasonable risk of grave harm to John Boyd, refused and failed to open the door of their enclosed partition or give money to the armed robber; (b) willfully and wantonly, with conscious indifference to and reckless disregard for the consequences, adopted a policy, knowledge of which they deliberately withheld from and refused to divulge to its customers, including John Boyd, that their money was to be preserved at all costs, including the safety and lives of their customers.

John Boyd was survived by plaintiff who is his widow, and by two minor daughters, his only heirs at law and next of kin, all of whom sustained pecuniary damage as a result of his death. Plaintiff prays judgment for compensatory damages from defendants, jointly and severally, in the sum of $250,000 and for punitive damages in the sum of $50,000, at defendants' costs.

B. The facts alleged in Count II.

On April 27, 1970, when John Boyd was in the Racine Currency Exchange, defendants were guilty of one or more of the following wrongful acts or omissions: (a) carelessly and negligently failed to instruct employees, including Blanche Murphy, regarding the conduct necessary and proper under the circumstances described in this complaint, to the end that the safety and lives of customers, including John Boyd, would not be exposed unnecessarily and unreasonably to grave risk of serious and substantial harm; (b) carelessly and negligently employed a person (defendant Blanche Murphy) who, neither by training, education, experience, nor by reason of her abilities, was competent to fulfill the responsibilities of such employment; (c) carelessly and negligently failed to furnish its employees with guidelines or rules of conduct, for circumstances described in the complaint, and thereupon (defendant Racine Currency Exchange) wholly abandoned its responsibilities and breached its duties of reasonable care to John Boyd; (d) and alternatively, carelessly and negligently failed to inform its customers, including John Boyd, of the policy adopted by defendants to preserve their money at all costs, even at the risk of sacrificing the safety and lives of their currency exchange customers. Plaintiff prays for judgment as compensatory damages against defendants, jointly and severally, in the sum of $250,000, at their costs.

C. The facts alleged in Count III.

As a direct and proximate result of the willful, wanton and negligent acts and omissions of defendants, as alleged in Counts I and II, plaintiff, individually and as the administrator of the estate of John Boyd, has expended time and monies in connection with John Boyd's terminal illness, his death, burial, administration of his estate and other matters related thereto. Plaintiff has incurred expenses for which she has become personally liable under the Family Expense Act, Ill.Rev.Stat.1969, ch. 68, par. 15 in connection with the administration of John Boyd's estate, his terminal illness, medical, hospital, funeral and burial expenses. Plaintiff prays judgment against defendants, jointly and severally, in the sum of $1,500, at their cost.

II.

In our judgment, plaintiff's complaint, particularly Count I, states a cause of action. Therefore, its dismissal was error. This conclusion finds support in the evolving principles of tort law.

It is said in the law of torts that a possessor of land who holds it open to the public for a business purpose is liable to those who while on the land are physically harmed by accidental, negligent, or intentionally harmful acts of third persons or animals, if the possessor fails to exercise reasonable care to discover that such accidental, negligent or intentional acts are being done or are likely to be done, or fails to give a warning adequate to enable members of the public to avoid the harm, or otherwise to protect them against it. Restatement, Second, Torts § 344; Annot. 10 A.L.R.3d 619, 633 (1966). This holding out of the land, the business invitation, creates a relation that imposes on the possessor a duty to protect the invitee. For example, to a bank, savings and loan assocation or currency exchange, a member of the public who accepts the invitation to do business is a customer, one to whom the institution owes the duty to use reasonable care for his protection. Sinn v. Farmers Deposit Savings Bank, 300 Pa. 85, 89, 150 A. 163 (1930); Restatement, Second, Torts § 314A. This duty can, under some circumstances, require protection of the invited person form a criminal attack by a third person. O'Brien v. Colonial Village, Inc., 119 Ill.App.2d 105, 255 N.E.2d 205; McFadden v. Bancroft Hotel Corp., 313 Mass. 56, 46 N.E.2d 573; compare Nigido v. First National Bank of Baltimore, 264 Md. 702, 288 A.2d 127 (1972); see Annot. 29 A.L.R.2d 907 (1952); Restatement, Second, Torts § 314A, Comment d; § 302B, Comment e, Illustration 4. A possessor of land, however, is not an insurer of the safety of those who accept his business invitation and come on the property. His liability, when that is incurred, is based on fault. Shelton v. City of Chicago, 42 Ill.2d 468, 475, 248 N.E.2d 121; Winn v. Holmes, 143 Cal.App.2d 501, 299 P.2d 994 (1956). It is said in general, that a possessor of land is not accountable for the criminal acts of third persons under any and all circumstances. Burgess v. Chicopee Savings Bank, 336 Mass. 331, 145 N.E.2d 688 (1957). But the rule of negligence that has application to this case is the one expressed in Heaven v. Pender, (1883) 11 Q.B. 503, 509:

* * * whenever one person is by circumstances placed in such a position with regard to another...