Dwiggins v. Morgan Jewelers, 890084
| Decision Date | 30 April 1991 |
| Docket Number | No. 890084,890084 |
| Citation | 811 P.2d 182 |
| Parties | Sylvia DWIGGINS, Plaintiff and Appellant, v. MORGAN JEWELERS, Defendant and Appellee. |
| Court | Utah Supreme Court |
Ronald E. Dalby, Matthew J. Storey, Salt Lake City, for plaintiff and appellant.
John L. Black, Lewis B. Quigley, Salt Lake City, for defendant and appellee.
Plaintiff Sylvia Dwiggins appeals the trial court's grant of summary judgment in favor of defendant Morgan Jewelers. Dwiggins argues that the lower court erred in determining that Morgan Jewelers did not breach a duty of care or proximately cause Dwiggins' injuries as a matter of law. We affirm. The facts as alleged are insufficient to give rise to a duty on the part of Morgan Jewelers.
Dwiggins was shopping in the Morgan Jewelers store located in a strip mall at 2774 West 3500 South in West Valley City when it was robbed on December 10, 1986. During the course of the robbery, one of the robbers struck Dwiggins on the head with a crowbar.
This Morgan Jewelers store had previously been robbed in December of 1981. The store had no armed guard, an all-female staff at the time of the robbery, and a dummy camera that did not record or photograph. It also had two stationary and two or three mobile emergency buttons to notify the Peak Alarm Company, which would then notify the police.
According to rule 56 of the Utah Rules of Civil Procedure, a motion for summary judgment is appropriate only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Utah R.Civ.P. 56(c); see also Hamblin v. City of Clearfield, 795 P.2d 1133, 1135 (Utah 1990). In determining whether the lower court correctly found that there was no genuine issue of material fact, we view the facts and inferences to be drawn therefrom in the light most favorable to the losing party. Id.
Ordinarily, the question of negligence is a question of fact for the jury. Hunt v. Hurst, 785 P.2d 414, 415 (Utah 1990). Thus, summary judgment is appropriate in negligence cases only in the clearest instances. Id. at 415. Bare allegations of negligence unsupported by facts, however, are insufficient to withstand a motion for summary judgment. Id.
In Mitchell v. Pearson Enterprises, 697 P.2d 240 (Utah 1985), we held that an innkeeper owes its guests a duty of ordinary care to see that the premises assigned to them are reasonably safe for their use and occupancy. Id. at 243. We noted that the security required is "commensurate with the facts and circumstances that are or should be apparent to the ordinary prudent person." Id. The degree of care will "vary according to the particular circumstances and location of the hotel" and includes protecting guests from the criminal acts of third parties. Id. In Beach v. University of Utah, 726 P.2d 413, 415 & n. 2 (Utah 1986), we noted that the law imposes upon one party an affirmative duty to look after the safety of another only when certain special relationships exist between the parties. Although there is a "special relationship" between innkeepers and their guests, we think the reasoning of Mitchell is equally applicable to ordinary business owners.
This court has held in "slip and fall" cases that property owners are not insurers of the safety of those who come upon their premises, even though they are business invitees. Martin v. Safeway Stores Inc., 565 P.2d 1139, 1140 (Utah 1977); Long v. Smith Food King Store, 531 P.2d 360, 362 (Utah 1973). Owners of land must, however, exercise due care and prudence for the safety of business invitees. Long, 531 P.2d at 362. The Restatement (Second) of Torts § 344 (1965) recognizes that a business owner also has a duty to protect its customers from criminal acts by third parties. Section 344 states:
Business Premises Open to Public: Acts of Third Persons or Animals
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
(a) discover that such acts are being done or are likely...
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...In addition, courts using that formula have held that the prior acts must have happened relatively recently, Dwiggins v. Morgan Jewelers , 811 P.2d 182, 183 (Utah 1991) (one robbery five years earlier insufficient to make subsequent robbery foreseeable), and with some degree of frequency. S......
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