Eley v. Pizza Hut of America, Inc., 92-803

Decision Date19 May 1993
Docket NumberNo. 92-803,92-803
Citation500 N.W.2d 61
PartiesWilliam ELEY and Ruby Eley, Appellees, v. PIZZA HUT OF AMERICA, INC., Appellant.
CourtIowa Supreme Court

Joseph R. Gunderson of Duncan, Jones, Riley & Finley, P.C., Des Moines, for appellant.

Marc A. Humphrey and James R. McCreight of Humphrey and Haas, P.C., Des Moines, for appellees.

Considered by McGIVERIN, C.J., and HARRIS, LARSON, CARTER, and NEUMAN, JJ.

LARSON, Justice.

Plaintiffs, William and Ruby Eley, live across the street from a Pizza Hut restaurant in Des Moines. On October 21, 1988, a large crowd congregated near the Pizza Hut, and a confrontation occurred between the Eleys' adult son Dennis and members of the crowd. During this confrontation, William Eley was struck on the back of the head by a rock thrown from the vicinity of the crowd.

According to the parties' statements of fact, no one could identify the thrower of the rock. Witnesses could not even state with any certainty the location from which the rock was thrown. There was speculation that it was thrown from Pizza Hut's parking lot, that it might have been from the street that separated the Pizza Hut from the Eley home, or that it might have been thrown from a vacant lot adjoining the Pizza Hut.

Eleys filed suit in the Polk County District Court against Pizza Hut, alleging William Eley's personal injuries and Ruby's loss of consortium. Pizza Hut removed the case to federal district court and then moved for summary judgment; Pizza Hut owed no duty of care to the Eleys, according to it.

The federal court, concluding that no Iowa case authority existed on the theories asserted by Eleys, certified the question of duty to this court. See Iowa Code § 684A.1 (1991). Because we conclude that the case is not appropriate for deciding the issue under chapter 684A, we respectfully decline to answer the questions presented.

The order certifying the questions stated:

1. Does the occupier of a business property to which the public is invited have a duty to exercise due care to prevent injury or harm to a person who is not and has not been on that property from the criminal activities of third persons on the business property which injures the person on the adjacent property?

2. Must the specific act that causes the injury originate on the business premises, or can liability be established without proof as to the third party's location when the rock was thrown, if there is evidence that the rock came from the general vicinity of the business premises and evidence that the crowd from which the rock was thrown had originally come to the area by reason of the fact that the business premises in question had become a hang out for the post-Friday night football game activities of the students?

3. Is there a duty on the part of the operator of a legitimate business to use due care to prevent harm to persons not patrons of that business from the criminal acts of person attracted to the vicinity by that business, if the operator knows or should know from experience that such persons are likely to become unruly and commit criminal acts that could injure persons in the vicinity but not on the business premises and that the criminal conduct could be eliminated by reasonable action on the operator's part?

4. Does the occupier of a business property have a duty to exercise due care to prevent injury or harm to persons who are within the zone of danger created by the criminal conduct of high school students if such persons have not been on the business property but the occupier knows or should have known:

(1) of the problems created by high school students congregating on and near the business premises after Friday night football games for several years,

and

(2) of the criminal propensities of the students including the use of alcohol and the tendency toward fights and violence,

and

(3) that the problems had been successfully eliminated in earlier years through the use of an on-premises security guard?

Pizza Hut, which had initially raised the issue of duty, was designated as the appellant for purposes of presenting the certified questions.

Pizza Hut filed its appellant's brief and an appendix that set out many additional facts to supplement those referred to in the court's order. Some of the facts were contradicted by Eleys' statement of facts, and none of the additional facts provided by Pizza Hut's appendix were adopted by Eleys.

As a result of the failure of the order to present a clear factual picture, we do not know who threw the rock, the location from which the rock was thrown, or the involvement of Pizza Hut, particularly with respect to providing beer on the night in question. In addition, we do not know what inferences may be made from Pizza Hut's cancellation of the prior security services or what the record might establish as to Pizza Hut's alleged status as an "attractive nuisance."

It is obvious that Eleys are attempting to recover for injuries caused to a victim off of the premises by an instrumentality not under the control of defendant Pizza Hut. This would, according to the parties, require a development of new case law in Iowa. This, obviously, is the reason that the question was presented to us.

In order to succeed, Eleys attempt to expand on our existing case law regarding analogous theories. See, e.g., Guzman v. Des Moines Hotel Partners, Ltd. Partnership, 489 N.W.2d 7 (Iowa 1992) (liability of premises occupier for injuries sustained on adjoining street); Barnhill v. Davis, 300 N.W.2d 104 (Iowa 1981) (liability of actor for emotional distress to person within zone of peril); Rosenau v. City of...

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    ...Supreme Court because “[u]nderlying the many difficult legal issues ... are a number of disputed factual issues.”); Eley v. Pizza Hut of Am., 500 N.W.2d 61 (Iowa 1993) (declining to answer a question certified by a U.S. district court “[b]ecause the stated facts are in conflict and could be......
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