Henley v. Pizitz Realty Co.

• Decision Date: 27 July 1984
• Citation: 456 So.2d 272
• Parties: Lisa Diane HENLEY v. PIZITZ REALTY COMPANY, a Corporation. 83-362.
• Court: Alabama Supreme Court

Page 272

456 So.2d 272

49 A.L.R.4th 1247

Lisa Diane HENLEY v. PIZITZ REALTY COMPANY, a Corporation.

83-362.

Supreme Court of Alabama.

July 27, 1984.

Hilliard R. Reddick, Jr. of Hardin & Hollis, Birmingham, for appellant.

Michael K. Wright of Norman, Fitzpatrick & Wood, Birmingham, for appellee.

BEATTY, JUSTICE.

Appeal by plaintiff from a summary judgment for defendant. We affirm.

The basic legal question presented is whether or not a private corporation owes a duty to protect its invitees from a criminal attack.

Plaintiff, Diane Henley, parked her automobile in a parking deck owned and operated by Pizitz Realty Company (Pizitz) as a business enterprise. Upon entering the deck, she was presented with a ticket which recited:

"This Contract Limits Our Liability. Please Read It. This Parking Deck rents space only. No bailment is created; and the Parking Deck is not responsible for loss or damage to car or contents due to fire, theft, vandalism, collision, or any other cause whatsoever. Please hold your children's hands. Do not leave children or pets in parked cars."

On the day of the episode giving rise to this action, the plaintiff returned to the parking deck after work, at approximately 5:40 p.m. She rode an elevator to a point near the parking level, then walked down a lighted way to her car. At that point, she was accosted at gunpoint by a man who forced her into her car. He required her to drive to the exit and pay the attendant, and then he forced her to drive to an apartment, where she was raped. She reported the incident to the police, whose investigation led to the arrest and conviction of the assailant.

At the time in question, the parking deck was equipped with a number of closed circuit television cameras monitored in the attendant's booth. A guard was also employed who made regular patrols of the deck.

Through interrogatories later propounded by plaintiff to defendant, it was disclosed that during the ten-year period between January 1, 1970, and December 31, 1979 (which is beyond the date of this incident, i.e., December 6, 1979), the following crimes, of which defendant had notice, occurred in this parking deck: one battery upon an owner of a car; six breakings and enterings of cars; two robberies; one rape (this occurrence); six thefts; and one theft in which the thief was shot by a customer.

Plaintiff brought this action against Pizitz, alleging negligence and wantonness in maintaining its security system in the parking deck, and for breach of an agreement between Pizitz and plaintiff to provide and maintain a security system, resulting in plaintiff's abduction, battery, and rape. Pizitz moved for summary judgment, supported by the pleadings, defendant's answers to plaintiff's interrogatories, and the depositions of plaintiff, Peggy Ervin, Daniel Brown, and O.O. Young. Following a hearing, this motion was granted. Plaintiff appealed.

In support of her argument that the trial court erred in granting summary judgment for defendant, plaintiff espouses two positions. In one, plaintiff argues that a business proprietor has a legal duty to protect patrons from criminal acts when the proprietor knows or, in the exercise of reasonable care, should know that criminal acts are likely to occur. Under this principle, plaintiff maintains, the facts adduced show that Pizitz should have known of the likelihood of criminal activity and thus had a duty to protect plaintiff. In that connection, plaintiff urges that this Court adopt § 344 of the Restatement (Second) of Torts (1965):

"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 to be done, or

"(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

"....

"(f) Duty to police premises. 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 a reasonable protection."

In the other position, plaintiff maintains that the language of the parking ticket, together with the presence of the television cameras, constituted a contractual duty, voluntarily assumed by Pizitz, to provide security against criminal attack by third persons.

This Court considered this same problem in Latham v. Aronov Realty Company, 435 So.2d 209 (Ala.1983). That decision explored the pertinent Alabama cases as well as decisions from other jurisdictions. See, e.g., Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala.1976) (owner of vehicle who left keys in ignition not liable for injury caused by operation of vehicle by thief); City of Mobile v. Largay, 346 So.2d 393 (Ala.1977) (perpetration of rape not reasonably forseeable consequence of City's failure to maintain its building). See also Berdeaux v. City National Bank of Birmingham, 424 So.2d 594 (Ala.1982) (financial institution providing office for paying and receiving money owed no special duty to protect customers from third persons committing robbery); and Annot., 10 A.L.R.3d 619. Perusal of our cases, and those of many other jurisdictions concerned with the problem, discloses an emphasis upon the absence of proximate cause, a conception not without difficulty in its application even on a case-by-case basis. See, Jones, J., dissenting in Largay, supra.

In Parham v. Taylor, 402 So.2d 884 (Ala.1981), a clerk in a food and beverage store was shot by a robber. The clerk brought an action for damages against her employer, claiming that he had failed to provide a safe place to work "in that she was not adequately protected from the criminal acts of third persons." In affirming summary judgment for the employer, this Court aligned itself with the reasoning expressed in a similar Kentucky decision, Thoni Oil Magic Benzol Gas Stations, Inc., v. Johnson, 488 S.W.2d 355, 357 (Ky.1972):

"In the ordinary situation we indulge the assumption that people will obey the law rather than violate it. Thus, absent unusual circumstances, an employer need not anticipate injury to an employee through the criminal acts of third persons. In the ordinary situation an employer has no duty to provide police protection for employees....

"In spite of police protection afforded by the state it is a fact of life that citizens are sometimes assaulted, beaten, robbed, raped or murdered at home, at work or on the streets. This is a problem which confronts all citizens equally and for which there is often no civil remedy.

"With our opinion in Johnson v. Thoni Oil Magic Benzol Gas Stations, Inc., [467 S.W.2d 772 (Ky.1971) ], we have joined the ranks of those jurisdictions which hold that in certain unusual circumstances an employer may have a civil liability to his employees for the criminal acts of third persons. We feel however that employers should not be saddled with such liability except in the most extraordinary and highly unusual circumstances.

"When conditions of employment are such that they invite attack upon employees by creating highly unusual and unreasonable exposure to danger without the employment of reasonable protective measures there is justification for imposing liability upon the employer when injury results.

"There is perhaps some exposure to the criminal acts of third persons in any employment but we recognize that the degree of exposure varies considerably from one type of employment to another. Thus the bookkeeper, the industrial worker, or the clerk in a mercantile establishment is probably less likely to be murdered on the job than is the policeman, the night watchman, the teller in a branch bank or the attendant at an all-night service station.

"But even so, the employer of the night watchman, the bank...