Gould v. Taco Bell

• Decision Date: 18 July 1986
• Docket Number: No. 57946,57946
• Citation: 239 Kan. 564,722 P.2d 511
• Parties: Rosie Kathleen GOULD, Appellee, v. TACO BELL, Appellant.
• Court: Kansas Supreme Court

Page 511

722 P.2d 511

239 Kan. 564

Rosie Kathleen GOULD, Appellee, v. TACO BELL, Appellant.

No. 57946.

Supreme Court of Kansas.

July 18, 1986.

Syllabus by the Court

1. A proprietor of an inn, tavern, restaurant, or like business is liable for an assault upon a guest or patron by another guest or third party where the proprietor has reason to anticipate such an assault and fails to exercise reasonable care to forestall or prevent the same. Kimple v. Foster, 205 Kan. 415, 469 P.2d 281 (1970).

2. It is not required that notice to the proprietor of such an establishment be long and continued in order that he be subject to liability; it is enough that there be a sequence of conduct sufficient to enable him to act on behalf of his patron's safety. Kimple v. Foster, 205 Kan. 415, 469 P.2d 281 (1970).

3. The duty of a proprietor of a tavern or inn to protect his patrons from injury does not arise until the impending danger becomes apparent to him, or the circumstances are such that a careful and prudent person would be put on notice of the potential danger. Kimple v. Foster, 205 Kan. 415, 469 P.2d 281 (1970).

4. In an action by a patron against a restaurant for injuries resulting from the intentional acts of a third-party patron, the fault of the third-party patron cannot be compared with the negligence of the restaurant.

5. A corporation is not liable for punitive damages awarded for an employee's tortious acts within the scope of employment unless (a) a corporation or its managerial agent authorized the doing and manner of the act; (b) the employee was unfit and the corporation or its managerial agent was reckless in employing or retaining him; (c) the employee was employed in a managerial capacity and was acting within the scope of employment; or (d) the corporation or its managerial agent ratified or approved the act of the employee. Kline v. Multi-Media Cablevision, Inc., 233 Kan. 988, 666 P.2d 711 (1983).

6. A "wanton act" is defined as something more than ordinary negligence but less than a willful act. It must indicate a realization of the imminence of danger and a reckless disregard and indifference to the consequences. Wantonness is said to be the mental attitude of the wrongdoer rather than a particular act of negligence. It follows that acts of omission as well as acts of commission can be wanton since reckless disregard and indifference are characterized by failure to act when action is called for to prevent injury.

7. Punitive damages are permitted whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038 cert. denied 469 U.S. 965, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984).

8. Punitive damages are allowed not because of any special merit in the injured party's case, but are imposed to punish the wrongdoer for malicious, vindictive or willful and wanton invasion of the injured party's rights, the purpose being to restrain and deter others from the commission of like wrongs. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, 681 P.2d 1038 cert. denied ---, U.S. ----, 105 S.Ct. 365, 83 L.Ed.2d 301 (1984).

Bryan E. Nelson of Alder & Nelson, Overland Park, argued the cause and Ronald W. Nelson, of the same firm, was with him on briefs for appellants

Dana M. Harris, Overland Park, argued the cause and John D. Tongier, Shawnee, was with him on brief for appellee.

HERD, Justice:

This is an appeal from a jury verdict in a civil case finding appellant, Taco Bell, 51% at fault for injuries received by appellee, Rosie Gould. Gould was injured in a Taco Bell restaurant as a result of an assault by another patron. The altercation occurred as follows.

On the evening of July 13, 1983, Rosie Gould and her friend, Theresa Holmberg, attended a Kansas City Royals baseball game. They left the ballgame about 9:30 or 10:00 p.m. and on the way home, stopped at a local bar. After about half an hour, they left the bar and drove to a Taco Bell restaurant located at 10321 West 75th Street in Shawnee, Kansas. They arrived at the restaurant at approximately 11:30 p.m. There were six people in the restaurant, two at the counter and the rest seated in a booth. Later, all six sat together in the booth. After ordering their food, Gould and Holmberg sat down in a booth across from the group. Karen Brown was one of the individuals in that group.

Brown and her companions began engaging in loud, crude and vulgar conversation, designed to be overheard and to shock Gould and Holmberg. Neither Gould nor Holmberg made any comment to Brown or her companions during this conversation. At one point, a Taco Bell employee told the group to quiet down, but the conversation grew louder.

Eventually, the group got up to leave but prior to reaching the exit, Brown stopped and said, "Those two white bitches over there think they're hot shit." Gould was shocked and asked, "Are you talking to us?" When Brown responded, "Yes," Gould requested her to "please come over here and repeat yourself."

Brown responded by suddenly dashing to Gould's booth and striking her in the face with a clenched fist, knocking her sideways and bruising her face and nose. Gould, shocked, called Brown a "nigger." Brown then began hitting Gould with her fists with renewed effort. This beating continued for about thirty seconds until Holmberg intervened by moving between Gould and Brown. She told Brown, "We don't want any trouble." Gould and Holmberg began moving toward the door but Brown kept saying "Come on, hit me, bitch. Come on, I want to fight." Gould and Holmberg continued to insist they did not want to fight, but when they reached the door of the restaurant Brown began beating on Gould again. She struck Gould four or five times before they moved outside the restaurant.

During this second exchange, Mark Wills, the assistant manager at the restaurant, watched the altercation as he came out from behind the counter. Wills did not try to stop Brown because he did not want to get involved and for fear Brown would strike him for interfering. Nor did he call the police, since he didn't feel the situation warranted such action. However, Wills did tell Brown, "Why don't you just leave? You did this two weeks before in here."

Gould and Holmberg, attempting to escape further trouble, began moving toward their car in the parking lot. Mark Wills and another Taco Bell employee followed the group outside. While in the parking lot, Brown attacked Holmberg, shoving her against the brick wall of the restaurant and hitting and kicking her. Holmberg screamed for someone to call the police. The Taco Bell employees did not respond. Holmberg was finally able to break away and ran inside to the food counter and asked Wills (who had followed her back inside) if she could use the phone to call the police. Wills advised her the phone was not for public use. Holmberg threatened to jump over the counter and use the phone. Wills finally reluctantly called the police.

While Holmberg was inside, Brown again attacked Gould, striking her three or four times on the upper part of her body. When Holmberg returned to the parking lot, she informed Brown the police were on the way. This scared Brown and her companions and they got in their car and left.

Gould filed the present action against Taco Bell, alleging Taco Bell failed to provide security measures sufficient to protect Gould, a business invitee, from injuries inflicted by fellow invitees. She further alleged that Taco Bell, through its employees, could have prevented the conduct of Karen Brown, thereby preventing the injuries suffered by Gould.

The jury found Gould 49% at fault and Taco Bell 51% at fault. They awarded Gould $500 in actual damages and $10,000 in punitive damages. Taco Bell appeals the jury's findings.

Appellant first argues a premises owner cannot be held liable for injuries sustained in a sudden attack upon one patron by another.

The duty of care owed by a premises owner to an entrant upon the land is dependent upon the status of the person entering the premises. A restaurant patron is an "invitee." We defined that term and discussed the duty of care owed to an invitee in Gerchberg v. Loney, 223 Kan. 446, 449, 576 P.2d 593 (1978):

"An invitee is one who enters or remains on the premises of another at the express or implied invitation of the possessor of the premises for the benefit of the inviter, or for the mutual benefit and advantage of both inviter and invitee. The possessor of premises on which an invitee enters owes a higher degree of care, that of reasonable or ordinary care for the invitee's safety. This duty is active and positive. It includes a duty to protect and warn an invitee against any danger that may be reasonably anticipated."

Thus, Taco Bell owed Rosie Gould an affirmative duty to exercise reasonable or ordinary care for her safety. This duty included an obligation to warn her against any danger that might reasonably have been anticipated.

In Kimple v. Foster, 205 Kan. 415, 469 P.2d 281 (1970), we discussed the liability of a business owner for an intentional, harmful assault upon a patron by another patron and set forth the general rule as follows:

"A proprietor of an inn, tavern, restaurant or like business is liable for an assault upon a guest or patron by another guest or third party where the proprietor has reason to anticipate such an assault and fails to exercise reasonable care to forestall or prevent the same." Syl. p 2.

"The duty of a proprietor of a tavern or inn to protect his patrons from injury does not arise until the impending danger becomes apparent to him, or the circumstances are such that a careful and prudent person would be put on notice of the potential danger." Syl. p 3.

This rule is consistent with that set forth in Restatement (Second) of Torts § 344 (1963):

"A possessor of land who holds it open to the public for entry for his business purposes is...