Callen v. Cale Yarborough Enterprises, 2155
| Decision Date | 09 February 1994 |
| Docket Number | No. 2155,2155 |
| Citation | 314 S.C. 204,442 S.E.2d 216 |
| Court | South Carolina Court of Appeals |
| Parties | Gregory CALLEN, Appellant, v. CALE YARBOROUGH ENTERPRISES, d/b/a Hardee's, Respondent. . Heard |
E.J. Mercer, of Miles and Weeks, Sumter, for appellant.
Elbert S. Dorn, of Turner, Padget, Graham and Laney, Columbia, for respondent.
Callen was injured in a fight with several other patrons in the drive-through service lane of a Hardee's restaurant in Sumter. He sued Hardee's alleging negligence. Finding no duty, the trial judge granted summary judgment for Hardee's. Callen appeals. We affirm.
Gregory Callen drove to Hardee's with a friend shortly after midnight. As they sat in their car at the drive-through service lane waiting to place their order, they got into an argument with the occupants of the car in front of them. The occupants of the front car approached Callen's car. Callen and his passenger got out. A man from the front car picked up a piece of lumber, came up behind Callen, and struck him across the face with the board. The assailants fled.
Callen admits the incident and fight happened very suddenly, without any warning:
Q. Did everything kind of happen real fast?
A. It happened fast.
Q. Was any horn-blowing or any loud noise going on that you can recall?
A. Not that I can recall off hand.
Q. Do you feel like that you had any kind of warning that you were going to get hit in the head or anything?
A. No, I never had no warning whatsoever.
Callen further describes the incident as follows:
[T]hey were saying words and remarks back to us and we said something back to them, they got out of the car, started toward us, I got out the car, Ollie McCoy [Callen's passenger] got out the car, and, you know, we walked out the way and then it was over just that quick.
After learning of the fight, employees of Hardee's called the police and reported the incident. The parking lot and driveway in question were well-lighted at the time of the attack. Furthermore, Sumter police officers frequent the location.
Under South Carolina law, a merchant or restaurant owner is not charged with the duty of protecting its customer against criminal acts of third parties when it did not know or have reason to know that such acts were occurring or about to occur. Munn v. Hardee's Food Systems, Inc., 274 S.C. 529, 266 S.E.2d 414 (1980). In Munn, a fight broke out at a Hardee's restaurant between the plaintiff and another individual. The plaintiff was killed as a result of the fight. On the evening in question, there had been a previous incident involving a group of people which resulted in derogatory comments of a racial nature. The Court ruled there was no reason for Hardee's to expect a violent fight would break out and, therefore, Hardee's was...
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