Lannon v. Taco Bell, Inc., No. 82CA0102

• Docket Nº: No. 82CA0102
• Citation: 708 P.2d 1370
• Case Date: March 21, 1985
• Court: Court of Appeals of Colorado

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.

Page 1372

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

Page 1373

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...