Lannon v. Taco Bell, Inc.

• Court: Colorado Court of Appeals
• Writing for the Court: PIERCE; TURSI; SMITH; SMITH
• Citation: Lannon v. Taco Bell, Inc., 708 P.2d 1370 (Colo. App. 1985)
• Decision Date: 21 March 1985
• Docket Number: 82CA0102
• Parties: John P. LANNON, Plaintiff-Appellee, v. TACO BELL, INC., Defendant-Appellant. . I

Page 1370

708 P.2d 1370

John P. LANNON, Plaintiff-Appellee, v. TACO BELL, INC., Defendant-Appellant.

No. 82CA0102.

Colorado Court of Appeals Div. I.

March 21, 1985.

Rehearings Denied May 2, 1985.

Certiorari Granted (Taco Bell) Nov. 4, 1985.

Certiorari Denied (Lannon) Nov. 4, 1985.

Fogel, Keating & Wagner, P.C., William L. Keating, Denver, for plaintiff-appellee.

Fortune & Lawritson, P.C., Jon L. Lawritson, Denver, for defendant-appellant.

PIERCE, Judge.

In this negligence action, defendant, Taco Bell, Inc., appeals a judgment entered on the jury verdict in favor of plaintiff, John P. Lannon. We reverse and remand with directions.

The facts are essentially undisputed. As Lannon, a cabdriver, approached the counter of one of defendant's restaurants, he saw a man with a gun behind the counter removing money from a floor safe. Lannon backed away bumping into a person who turned out to be a second robber. He ran to the parking lot. The man with the gun fired at him through a window, and the bullet injured Lannon.

I

The focal issue of this appeal is whether the trial court should have submitted an instruction on comparative negligence. We agree with Taco Bell that the issue of Lannon's negligence should have been submitted to the jury.

A party has a duty to refrain from acts or omissions to act which may contribute to the totality of acts which cause injury to him. Fay v. Kroblin Refrigerated Xpress, Inc., 644 P.2d 68 (Colo.App.1981); Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 248 N.Y. 339 (Andrews, J. dissenting 1928); Restatement (Second) of Torts § 466 (1965). Here, Lannon had previously received training regarding actions to be taken during robberies. He had been told to cooperate, make no sudden moves, and refrain from arguing with perpetrators. Despite this warning, when he perceived a robbery in progress, he turned and ran. In so doing, Lannon apparently startled the robber who fired at him, striking him in the hand.

Perhaps he acted rashly in drawing the robber's attention to himself and gave the impression that he was going for the police. Perhaps he should have quietly walked away instead of running. In any event, the situation is not one in which reasonable minds can draw but one inference as to whether he breached his duty to avoid a situation that could cause him injury. Hence, the issue of Lannon's negligence should have been presented to the jury for its consideration. See Transamerica Insurance Co. v. Pueblo Gas & Fuel Co., 33 Colo.App. 92, 519 P.2d 1201 (1973).

On retrial, an instruction on comparative negligence should be given in addition to appropriate instructions on Lannon's theories of defense to the negligence allegations, including the doctrine of sudden emergency. See Davis v. Cline, 177 Colo. 204, 493 P.2d 362 (1972); Tracy v. Graf, 37 Colo.App. 323, 550 P.2d 886 (1976).

II

Because our disposition requires a retrial, we address certain issues which may reoccur.

A. Legal Duty

Taco Bell contends that the issue of whether it breached a duty to this plaintiff by failing to employ an armed guard should not have been submitted to the jury. We disagree.

Before liability can be found in a negligence action, the existence of a duty of care must be determined. This is a question of law. Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo.1981). Whether the law should impose a duty requires consideration of the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the actor's conduct, the magnitude of the burden of guarding against the injury or harm, and the consequences of placing the burden upon the actor. Iverson v. Solsbery, 641 P.2d 314 (Colo.App.1982).

Business proprietors do have a duty to exercise reasonable care for the protection of persons on the premises, and that duty includes taking reasonable measures to prevent or deter reasonably foreseeable acts, and to alleviate known dangerous conditions. Where injury can be foreseen, there is a duty to act so as to avoid it. Kerby v. Flamingo Club, 35 Colo.App. 127, 532 P.2d 975 (1974); see Safeway Stores, Inc. v. Smith, 658 P.2d 255 (Colo.1983).

Whether the defendant owed a duty to the class in which the plaintiff found himself is a question of law for the court based on the foreseeable appreciable risk of harm. Whether the defendant has in fact breached that duty is a question for the jury. Metropolitan Gas Repair Service, Inc. v. Kulik, supra; see also City of Longmont v. Swearingen, 81 Colo. 246, 254 P. 1000 (1927).

It is implicit in this case that the trial court concluded that the evidence presented regarding the effectiveness of armed guards in other establishments in the area, the history of frequent robberies at this particular establishment and throughout the general area, and the great risk of serious injury to those present during a robbery, established a duty on the part of Taco Bell to use reasonable means to alleviate a known dangerous condition. See City of Longmont v. Swearingen, supra.

Hence, the factual issue here is whether Taco Bell breached its duty to Lannon because of its failure to take reasonable steps to prevent foreseeable armed robberies on its premises and that issue was an appropriate one for jury determination. It is for the jury to decide whether a reasonably prudent defendant, under the same or similar circumstances, would have taken available precautions. If Taco Bell should have, then the duty was breached. See Ferguson v. Gardner, 191 Colo. 527, 554 P.2d 293 (1976); Kerby v. Flamingo Club, supra. The trial court was thus correct in refusing to enter a directed verdict in favor of Taco Bell.

B. Causation

Taco Bell maintains that even if it breached a legal duty, the criminal acts of the robbers were not foreseeable, and therefore, the chain of causation leading from its negligence to Lannon's injury was broken. The facts do not bear out this contention. The restaurant in question is located in a high crime area, and had been robbed frequently, as had other similar establishments in the area. Considerable evidence was presented as to the proper standard of care under these circumstances, and as to the precautions taken by other restaurants in the area because of this persistent problem.

Taco Bell would have us place an undue limitation on causation as an element in situations involving an intervening act. As the court stated in Ekberg v. Greene, 196 Colo. 494, 588 P.2d 375 (1978):

"Where the circumstances make it likely that defendant's negligence will result in injuries to others and where this negligence is a substantial factor in causing the injuries sustained, the requirement of proximate causation is satisfied. An intervening act of a third party does not absolve the defendant from responsibility if that act is reasonably and generally foreseeable. Here the jury undoubtedly determined from the disputed evidence that the intervening act was reasonably foreseeable."

Thus, construing the evidence in the light most favorable to the verdict, we conclude it was sufficient to create a jury question as to the foreseeability of the criminal activity which occurred and of the potential for harm to a patron. See Kiefer Concrete, Inc. v. Hoffman, 193 Colo. 15, 562 P.2d 745 (1977).

III

Taco Bell also contends that the trial court erred in admitting into evidence police offense reports concerning other robberies at the restaurant in question, and that police reports are not covered by the business records exception to the hearsay rule set forth in CRE 803(6). We disagree.

The question of whether police offense reports fall under the business records hearsay exception has not been specifically addressed in this state. However, the drafters of Fed.R.Evid. 803(6), which is identical to CRE 803(6), contemplated including police reports within the business records exception when the other requirements of the rule are met. See Fed.R.Evid. 803(6) (Notes of Advisory Committee); People v. Stribel, 199 Colo. 377, 609 P.2d 113 (1980). Thus, we hold that such offense reports are admissible in civil cases. Rosario v. Amalgamated Ladies' Garment Cutters' Union, 605 F.2d 1228 (2d Cir.1979).

The circumstances here satisfy the requirements of CRE 803(6). The offense reports were kept in the regular course of police department business, and were made shortly after the robberies from information transmitted by Taco Bell's employees who were present at the robberies. Therefore, we hold that the police offense reports were properly admitted under CRE 803(6).

Furthermore, the offense reports do not indicate a lack of trustworthiness and the reports represent "factual findings" pursuant to an authorized police investigation. Cf. Tincombe v. Colorado Construction & Supply Corp., 681 P.2d 533 (Colo.App.1984). Therefore, admission of the reports was proper.

IV

Taco Bell also contends that even if the admission of the police reports was proper, the court, upon Taco Bell's request, should have given an instruction in the form of CJI-Civ.2d 11:9 (1980), explaining to the jury the purpose for which the offense reports were being admitted into evidence, and instructing the jury to consider them for no...