Circle K Corp. v. Rosenthal

• Court: Arizona Court of Appeals
• Writing for the Court: RICHMOND; HOWARD, C. J., and HATHAWAY; RICHMOND
• Citation: Circle K Corp. v. Rosenthal, 574 P.2d 856, 118 Ariz. 63 (Ariz. App. 1977)
• Decision Date: 07 December 1977
• Docket Number: CA-CIV,No. 2,2
• Parties: CIRCLE K CORPORATION, a corporation, Appellant and Cross Appellee, v. Morris ROSENTHAL, Appellee and Cross Appellant. 2432.

Page 856

574 P.2d 856

118 Ariz. 63

CIRCLE K CORPORATION, a corporation, Appellant and Cross Appellee, v. Morris ROSENTHAL, Appellee and Cross Appellant.

No. 2 CA-CIV 2432.

Court of Appeals of Arizona, Division 2.

Dec. 7, 1977.

Rehearing Denied Jan. 12, 1978.

Review Denied Feb. 7, 1978.

Stompoly & Even, P. C. by John G. Stompoly, John Patrick Lyons, Tucson, for appellant and cross appellee.

Miller, Pitt & Feldman, P. C. by Janice A. Wezelman, John L. Tully, Tucson, for appellee and cross appellant.

OPINION

RICHMOND, Judge.

Morris Rosenthal, a clerk working in the Circle K store at Grant Road and Campbell Avenue in Tucson, was shot by an armed robber a few minutes after midnight on July 1, 1974. He commenced an action for his injuries against his employer, alleging that Circle K negligently failed to provide him a reasonably safe place to work. In its answer Circle K raised the defense that Rosenthal's sole remedy lay under the Workmen's Compensation Act, and that issue was severed for trial, which resulted in a judgment in favor of Rosenthal. A second trial on Rosenthal's amended complaint, alleging both negligence and breach of an oral contract, also resulted in a judgment in his favor.

Circle K has appealed on the alternative grounds that the trial court lacked jurisdiction over the subject matter, and that the evidence did not support a judgment against it based either on negligence or breach of contract. Rosenthal by cross-appeal challenges the adequacy of the judgment in his favor, and seeks attorney's fees on appeal under A.R.S. § 12-341.01. ¹ The judgment is affirmed in all respects.

At the trial of the jurisdictional issue, the court made findings of fact and conclusions of law to the effect that Rosenthal was entitled to reject benefits under the Workmen's Compensation Act and maintain a common law action against his employer because Circle K had not complied with A.R.S. § 23-906, as amended, ² by having failed prior to and at the time of the robbery to post and keep posted the notice required by § 23-906(D), and to have available the rejection notices required by § 23-906(B).

We are not at liberty to disregard the trial court's findings unless clearly erroneous. 16 A.R.S., Rules of Civil Procedure, Rule 52(a). Circle K argues that there is no evidence to support the finding that the statutory notice was not posted at the time of the robbery, because the testimony of Rosenthal and a fellow employee that they did not recall having seen the notice was negative, and therefore insufficient under Jeune v. Del E. Webb Const. Co., 76 Ariz. 418, 265 P.2d 1076 (1954). The argument ignores the testimony of Albert M. Schaeffer, a lawyer and friend of Rosenthal who visited him in the hospital on the morning of the day that he was injured and then went directly to the store, primarily to try to locate Rosenthal's eyeglasses. While there he spent 15 to 20 minutes looking at every notice on a bulletin board in the back room, where a witness for Circle K testified he had seen the workmen's compensation notice in April and July, 1974. Schaeffer testified that he did not see the type of notice required by the statute.

Circle K objected to Schaeffer's testimony, and argues on appeal that there is no relevancy to the fact that the notice was not posted after Rosenthal's injury, but the rule is well established that evidence of the existence of a particular fact before or after an act in question may be shown to indicate the existence of that same condition at the time of the accident. City of Phoenix v. Boggs, 1 Ariz.App. 370, 403 P.2d 305 (1965). Where the likelihood of a change is inherent in the fact situation, the testimony concerning the situation which is presumed to continue must be fairly close to the event, and the more volatile the situation the nearer to the event must the observation be in order to have probative value. Montgomery Ward & Co. v. Wright, 70 Ariz. 319, 220 P.2d 225 (1950). The admission of evidence is a matter largely within the discretion of the trial court and its ruling will not be disturbed except where there is shown an abuse of discretion. Throop v. F. E. Young and Company, 94 Ariz. 146, 382 P.2d 560 (1963). We are unable to agree that Schaeffer's observation the same day as the robbery was so remote in time as to render the admission of his testimony an abuse of the trial court's discretion.

Schaeffer was asked specifically why he looked at the notices on the board:

"It immediately became apparent to me, when I talked with Mrs. Rosenthal at the hospital, that this injury occurred under circumstances which would give rise either to a workmen's compensation claim, or a common law claim. And, from previous legal matters that I'd handled, it just came as a kind of a natural reaction that I was looking for any possible way to exclude the case from the workmen's compensation benefits."

The foregoing answer distinguishes his testimony from the negative evidence rule of the Jeune case, where "(n)ot one witness stated that in any instance he had any occasion to be looking or did look to see if a notice was posted nor any fact to give his negative testimony an adequate foundation upon which to base an inference that such a notice was not conspicuously posted." 76 Ariz. at 424, 265 P.2d at 1079.

Circle K also contends it was error to reject offered proof that the appropriate notice was posted conspicuously at another store where Rosenthal had worked eight hours in April, and still another where he had worked five hours in June. It argues that this evidence would have established its compliance with the mandate of § 23-906(D) to post the notice upon its "premises" so that it is "available for inspection" by all workmen. The argument ignores the obvious legislative intent that the information contained in the notice be made readily available to employees on a continuing basis. The fact that Rosenthal might have been exposed to the notice at some location other than his regular place of work was immaterial, and the evidence was properly excluded. In view of our holding regarding the notice, we need not consider the more dubious finding of fact as to availability of the rejection notices. ³

At the second trial, the court found that Circle K failed to follow reasonable available security practices that more probably than not would have averted Rosenthal's injury, and that it was foreseeable that such failure would increase the risk of injury to Circle K employees. The court also found that at the time his employment commenced, Rosenthal was promised by the Circle K agent who hired him that he would not have to work alone at night; that there was consideration for the promise; that Rosenthal would not have taken the job without it, and that more probably than not the robbery and his injury would not have occurred if he had not been required to work alone on the night in question. The court concluded that Rosenthal was entitled to recover damages either on the basis of Circle K's negligence in failing to provide a reasonably safe place for him to work or for its breach of the promise that he would not be required to work alone at night.

Circle K concedes that an employer in Arizona has a duty to provide his employees with a reasonably safe place to work, Bond v. Cartwright Little League, Inc., 112 Ariz. 9, 536 P.2d 697 (1975), but urges adoption of the rule that liability for injury caused by the intervening criminal acts of third persons should not attach unless it is clearly shown that the employer in some manner greatly and unreasonably increased the risk of exposure to such acts without taking reasonable precautions for the safety of the employee. Thoni Oil Magic Benzol Gas Stations, Inc. v. Johnson, 488 S.W.2d 355 (Ky.1972). Other courts follow the rule that an employer may be liable for mere failure to act to protect his employees from reasonably foreseeable criminal conduct. Lillie v. Thompson, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73 (1947); Bartlett v. Hantover, 9 Wash.App. 614, 513 P.2d 844 (1973), reversed on other grounds, 84 Wash.2d 426, 526 P.2d 1217 (1974); see Restatement, Second, Torts § 302B, Comment (e)(B). In the absence of prior decisions to the contrary, Arizona has consistently followed the Restatement. MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958).

The findings and conclusions related to negligence were based on evidence of numerous previous robberies at Circle K stores in the Tucson area, the testimony of an expert witness regarding security practices and devices available to Circle K at the time but not being used at the store in question, and the expert's opinion that the security system in effect at the time of the robbery was not sufficient to provide reasonable safety for Circle K employees.

The findings and conclusions as to breach of contract are supported by Rosenthal's testimony and the opinion of a psychiatrist that Rosenthal probably would not have been injured if another employee had been in the store, because it appeared from the facts that the robber shot Rosenthal in order to eliminate him as the only potential witness to the crime.

We need not decide whether opinion evidence on the adequacy of the security system was appropriate, because the court could have inferred from the other evidence that the robbery was foreseeable under the circumstances and Rosenthal's injury could have been prevented with reasonable care by additional security measures or the presence of another employee. The trial court's...