Erichsen v. No-Frills Supermarkets of Omaha, Inc.

• Decision Date: 01 July 1994
• Docket Number: NO-FRILLS,No. S-92-1119,-FRILLS,S-92-1119
• Citation: 518 N.W.2d 116,246 Neb. 238
• Parties: , 31 A.L.R.5th 856 Janis L. ERICHSEN, Appellant, v.SUPERMARKETS OF OMAHA, INC., a Nebraska Corporation, and Harold Cooperman, An Individual, Appellees.
• Court: Nebraska Supreme Court

Page 116

518 N.W.2d 116

246 Neb. 238, 31 A.L.R.5th 856

Janis L. ERICHSEN, Appellant, v. NO-FRILLS SUPERMARKETS OF OMAHA, INC., a Nebraska Corporation, and Harold Cooperman, An Individual, Appellees.

No. S-92-1119.

Supreme Court of Nebraska.

July 1, 1994.

Syllabus by the Court

1. Demurrer: Pleadings: Appeal and Error. When reviewing an order sustaining a demurrer, an appellate court accepts the truth of facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but it does not accept as true the conclusions of the pleader.

2. Negligence. For actionable negligence to exist, there must be a legal duty on the part of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and damage proximately resulting from such undischarged duty.

3. Negligence. "Duty" is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff, and in negligence cases, the duty is always the same--to conform to the legal standard of reasonable conduct in the light of the apparent risk.

4. Negligence: Words and Phrases. A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.

5. Invitor-Invitee: Negligence. An allegation of many occasions of similar criminal activity in one fairly contiguous area in a limited timespan may make further such acts reasonably foreseeable so as to create a duty to a business invitee.

Robert C. Guinan, of Guinan & Scott, and Kirk L. Meisinger, of Meisinger & Spindler, Omaha, for appellant.

John R. Douglas, of Cassem, Tierney, Adams, Gotch & Douglas, Omaha, for appellees.

HASTINGS, C.J., and BOSLAUGH, WHITE, CAPORALE, FAHRNBRUCH, LANPHIER, and WRIGHT, JJ.

LANPHIER, Justice.

This appeal arises out of a personal injury action. Janis L. Erichsen, appellant, a customer of appellee No-Frills Supermarkets of Omaha, Inc. (No-Frills), sustained injuries as a result of being dragged by a car during an attempted purse-snatching in No-Frills' parking lot. Appellee Harold Cooperman owns the shopping center. Appellant sought recovery from appellees for negligently failing to warn her of prior criminal activity which occurred on "at least ten occasions" in or about the parking lot or for failing to protect her from criminal activities which were allegedly foreseeable because of such prior criminal activity. The district court sustained appellees' demurrers, finding that neither appellee owed a duty to appellant.

STATEMENT OF FACTS

In her third amended petition, appellant alleged that on July 28, 1991, at 6 a.m., she went shopping at No-Frills located in Cooperman's shopping center, known as Harold's Square Shopping Center, at 8005 Blondo Street in Omaha and parked her vehicle in No-Frills' parking lot area. While returning to her vehicle, she was assaulted, beaten, and robbed of her purse by at least one assailant. In the course of the assault and robbery, appellant, who was outside the assailant's vehicle, became entangled in the safety belt or seat of the vehicle. As a result, appellant was dragged on the pavement for approximately 1.6 miles and severely injured.

Appellant claimed that on at least 10 occasions within a 16-month period prior to the assault on appellant, similar crimes, including theft, purse-snatching, and robbery, had been committed in the No-Frills parking lot or in surrounding premises and parking lot. Appellant further alleged that appellees knew or should have known that under the foregoing circumstances, their practice of maintaining fewer employees to assist customers to their vehicles increased the risk of criminal activity against appellees' customers. Appellant claimed that appellees had a duty to foresee the type of criminal activity of which appellant was a victim and to take steps to guard her against the harm or at least warn her of the risk. Appellees demurred, stating that the facts pled were insufficient to state a cause of action. The district court sustained the demurrer.

Appellant's sole assignment of error asserts that the district court erred in sustaining the demurrer of appellees on the grounds that appellees did not owe appellant a duty of due care.

STANDARD OF REVIEW

When reviewing an order sustaining a demurrer, an appellate court accepts the truth of facts which are well pled, together with the proper and reasonable inferences of law and fact which may be drawn therefrom, but it does not accept as true the conclusions of the pleader. Durand v. Western Surety Co., 245 Neb. 649, 514 N.W.2d 840 (1994).

NEGLIGENCE

For actionable negligence to exist, there must be a legal duty on the part of the defendant to protect the plaintiff from injury, a failure to discharge that duty, and damage proximately resulting from such undischarged duty. Schmidt v. Omaha Pub. Power Dist., 245 Neb. 776, 515 N.W.2d 756 (1994). "Duty" is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff, and in negligence cases, the duty is always the same--to conform to the legal standard of reasonable conduct in the light of the apparent risk. Id. A duty, in negligence cases, may be defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another. Id. Foreseeability is a factor in establishing a defendant's duty. Id.

RESTATEMENT (SECOND) OF TORTS

We have adopted the rule regarding landlord liability to business invitees, as set forth in Restatement (Second) of Torts § 344 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 to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

(1965). See, C.S. v. Sophir, 220 Neb. 51, 368 N.W.2d 444 (1985); Harvey v. Van Aelstyn, 211 Neb. 607, 319 N.W.2d 725 (1982); Hughes v. Coniglio, 147 Neb. 829, 25 N.W.2d 405 (1946). The Restatement, supra, at 223-24 provides:

Comment f. to § 344 makes it clear that the owner of the property is not an insurer of the land or the visitor's safety while on it. However, liability will be found under certain circumstances:

Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford reasonable protection.

(Emphasis supplied.) Id. at 225-26.

NEBRASKA PREMISES LIABILITY

We have interpreted the Restatement and have held that a landlord is under a duty to exercise reasonable care to protect his patrons. Such care may require giving a warning or providing greater protection where there is a likelihood that third persons will endanger the safety of the visitors. C.S. v. Sophir, supra.

We have applied these principles in several cases. In Harvey v. Van Aelstyn, supra, we held that no liability attached to the owner of a bar where the appellant, a patron, was assaulted by a third party while in the bar. The assailant had not been present in the bar, but had entered the bar suddenly, went straight for the appellant, and struck him. The assailant had been violent in the establishment on one prior occasion a year or more prior to the incident at issue. We stated that the possessor of the premises was not bound to anticipate the unforeseeable independent acts of third persons, nor did she have a duty to take precautionary measures to protect against such acts, because those acts could not be reasonably anticipated.

In Harvey, we cited several cases in reaching this conclusion. One case, Hughes v. Coniglio, 147 Neb. 829, 25 N.W.2d 405 (1946), denied recovery against a restaurant owner where a patron suffered injuries from an assault by another patron. This court noted that there was no history of any fights in the establishment and that the assault occurred suddenly and unexpectedly where no precautionary measures would have prevented the assault.

In C.S. v. Sophir, supra, the plaintiff, a tenant in the defendant landlord's apartment complex, was sexually assaulted. There had been one prior assault in the complex. We held that it would be unfair to impose liability upon a landlord based on a single prior assault at the complex. This court noted that other jurisdictions that had imposed liability upon a landlord under similar circumstances had done so only where there was a "history of criminal activity at the leased premises sufficient to create in the landlord constructive notice of the foreseeability that such activity would recur in the future." 220 Neb. at 53-54, 368 N.W.2d at 447.

The most recent case involving landlord liability for the acts of third persons is K.S.R. v. Novak & Sons, Inc., 225 Neb. 498, 406 N.W.2d 636 (1987). In K.S.R., the appellant was sexually assaulted in the apartment complex owned by the appellee. The assailant had been...