Harris v. Pizza Hut of Louisiana, Inc.

• Citation: 455 So.2d 1364
• Decision Date: 10 September 1984
• Docket Number: No. 84-C-0304,84-C-0304
• Parties: Henry HARRIS, et al. v. PIZZA HUT OF LOUISIANA, INC. and St. Paul Fire and Marine Insurance Company.
• Court: Supreme Court of Louisiana

Page 1364

455 So.2d 1364

Henry HARRIS, et al. v. PIZZA HUT OF LOUISIANA, INC. and St. Paul Fire and Marine Insurance Company.

No. 84-C-0304.

Supreme Court of Louisiana.

Sept. 10, 1984.

Mack E. Barham, Robert E. Arceneaux, Barham & Churchill, John S. Keller, Charles R. Jones, New Orleans, for plaintiffs-applicants.

Sylvia E. Taylor, Reserve, for plaintiffs.

Charles A. Boggs, Chester A. Fleming, III, Boggs, Loehn & Rodrigue, New Orleans, for defendant-respondent.

WATSON, Justice.

During an armed robbery of a Pizza Hut, one patron was killed and another injured by a shotgun blast. A jury concluded that the harm resulted from the negligence of the Pizza Hut's security officer and awarded substantial damages. The court of appeal reversed, finding that the security officer's actions were not a cause of plaintiffs' damages. Harris v. Pizza Hut of Louisiana, Inc., 445 So.2d 756 (La.App. 4 Cir.1984). A writ was granted. 447 So.2d 1066 (La., 1984). The novel question is whether the defendant restaurant is legally responsible for plaintiffs' damages by reason of the negligence of its security guard, when the physical injuries were inflicted by a shotgun fired by an armed robber.

FACTS

On the evening of March 17, 1979, Veletter Harris, ¹ a daughter, Zina Harris, two of her other children, and a friend were at the Port Street Pizza Hut on the corner of Claiborne Avenue. The restaurant, in a New Orleans high-crime neighborhood, is operated by Pizza Hut of Louisiana, Inc., and insured for liability by St. Paul Fire & Marine Insurance Company. At the time, it had five rows of tables with a salad bar in the front of the center row. The Harris party took seats at the next-to-the last table in that middle row. At the customers' entrance, located on the side of the building adjacent to a parking area, there was a partition which created a short hall and screened the door.

At approximately 9:10 P.M., an armed and uniformed security guard, Officer Maxie Walker of the New Orleans Police Department, arrived at the Pizza Hut where he was scheduled to work from 9:00 P.M. until 1:00 A.M. He had come directly from a Schwegmann's Supermarket where he had performed similar duties from 2:00 P.M. until 9:00 P.M. The practice of working as security officers was not unusual among New Orleans policemen. Walker was substituting at the Pizza Hut for Officer Ralph Himel but had worked there in the past. The Pizza Hut personnel had never specifically instructed him as to his duties.

Immediately upon arriving at the restaurant, Walker fixed himself a large salad, obtained a soft drink and took a seat at the first table in the second row adjacent to the salad bar. After completing his salad, he remained at that table finishing his soft drink and conversing with young Dwayne Thomas ² about the book which Walker had with him. The entrance was to Walker's left. Walker's view of the door and the view of his table by those entering was obscured by the partition located just inside the door and running parallel to the counter. ³

Despite the many witnesses in the crowded restaurant, the ensuing sequence of events is not entirely clear. About 10:00 P.M., a masked robber carrying a hand gun entered the main door without seeing Walker and went to the cash register at the serving counter. Walker was looking down adjusting his belt. The first robber "definitely wasn't looking my [Walker's] way when he walked in." ⁴ Thomas alerted Walker, who looked up and reached for his revolver, whereupon another robber walked past the end of the partition and pointed a sawed-off shotgun at Walker saying "don't move, pig". ⁵ Although Officer Walker had a hand on his weapon, the robber knew he had the "ups him." ⁶ Walker moved to his right, and Thomas dived to the floor behind Walker's chair. ⁷ The shotgun fired. Ronald Ailsworth, who is serving a life sentence at Angola for second degree murder said he fired the shotgun in response to a shot from Walker. Although there was some corroboration for Ailsworth's account, the witnesses closest to the scene, including Walker and Thomas, agreed that the shotgun fired first. ⁸ The blast wounded Walker in the shoulder, hit Zina Harris in the head, and killed Veletter Harris, the latter two being in the line of fire behind Walker. Walker fell to the floor, pulled his gun, killed one of the robbers and wounded another. A third armed robber escaped and was never apprehended. ⁹ According to Ailsworth, the robbers were not expecting a guard at the Pizza Hut; he had been told none would be present.

The expert testimony was that the primary purpose of a security guard is deterrence of crime by a visible presence. Plaintiffs' expert emphasized that essentially a security guard should not eat on duty; he should be visible to people outside by sitting on a stool near the door or being on a walking patrol. Defendants' expert said the highest degree of security would consist of an armed uniformed police officer in plain view. When pressed about which table a guard should take if he ate, the experts disagreed about whether Walker's position in the restaurant was an appropriate selection. According to plaintiffs' expert, Walker's position in the restaurant was very poor from a security aspect. Defendants' expert testified that Walker's seat was the best place for a security guard to sit and eat a salad. One expert said that a guard temporarily off duty for eating or toilet purposes should be in an obscure place because there is no deterrence during that period of "down time". All the experts agreed that an officer with a shotgun pointed at him should not move, his only option being to follow the instructions of the man with the shotgun. The police owe an obligation to innocent citizens and may not open fire if it creates a substantial risk of harm to innocent by-standers. When officer Walker moved, he acted contrary to the experts' opinions of what his trained reaction should have been. According to the testimony, the probability is that no one will get shot in a commercial robbery if there is no resistance. However, officer Walker testified that if a gunman caught him by surprise, he would still "try to pull my gun." ¹⁰ Ted Brister, an expert in the use of deadly force by police officers, stated that he had trained Maxie Walker at the New Orleans Police Academy. He agreed with other experts that if Walker had gone for his weapon, he would have invited the firing of the shotgun and escalated the violence. Prior robberies of the Pizza Hut had been "quiet" ones. ¹¹

In answers to interrogatories, Pizza Hut submitted the report of its district manager which stated that the store had been robbed or burglarized more than twenty times. It was robbed on November 11, 1978, and again on November 19, 1978, but was not robbed again until March 17, 1979, possibly because security officers were utilized beginning on November 24, 1978.

Mark Osborne testified that the records of the New Orleans Police Department indicated seven previous instances of criminal activity at the Pizza Hut from January, 1976, to the date of the fatal shooting. Most were armed robberies, which occurred between the hours of 9:00 and 10:00 P.M.

COURT PROCEEDINGS

Suits were filed by the survivors of Veletter Harris and also on behalf of Zina Harris. The pleadings, as amended, alleged some twenty claims of negligence on behalf of Pizza Hut and its employees, including the security guard, Maxie Walker. As tried and argued, the claims of negligence are essentially three, namely that: (1) the security guard was negligent in drawing his gun and firing it before the shotgun blast, (2) in moving and provoking the robber to fire the shotgun, and (3) in being seated inside the restaurant, being inattentive, visiting with other employees and perusing a book, rather than being at the door of the restaurant or outside the door of the restaurant in a position where he would have been seen by potential robbers and deterred the crime.

The jury was given interrogatories which asked whether Walker was negligent, whether his negligence was a cause-in-fact of the plaintiffs' damages and, if so, the amount of damages sustained.

The jury replied affirmatively to the first two questions. Zina Harris, the wounded daughter, was awarded $50,000 for her physical injuries. Six of the Harris children, including Zina, were awarded $50,000 each for the death of their mother. Two of the children were awarded $65,000 and one was given $80,000. As to Henry Harris, the estranged husband of Veletter Harris, the jury found no damages. Appropriate judgments were signed by the trial court, and the defendants appealed to the Court of Appeal, Fourth Circuit.

The court of appeal concluded that officer Walker did not fire first, that he did not move after being ordered not to do so by the robber with the shotgun, and that the robber fired without provocation. The court of appeal held:

"Because we do not find that the actions of Officer Walker, either prior to or during the robbery, can form the basis for a finding of liability for plaintiffs' harm, we must reverse the judgment of the trial court." 445 So.2d 756 at 762-763.

PERTINENT LAW FROM OTHER JURISDICTIONS

This court has not previously decided the questions presented. ¹² However, other jurisdictions have considered similar problems.

The issue of a business establishment's liability to a patron for criminal assault by a third party is discussed in Banks v. Hyatt Corporation, 722 F.2d 214 (5 Cir., 1984). Although Banks dealt with an innkeeper's liability, any business which invites the company of the public must take "reasonably necessary acts to guard against the predictable risk of assaults." 722 F.2d 214 at 227. Also see Walkoviak v. Hilton Hotels Corp., 580 S.W.2d 623 (Tex.App., 1979). A business proprietor owes a duty to those entering its premises to provide a reasonably safe place. Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982)...