Latham v. Aronov Realty Co.

• Decision Date: 08 July 1983
• Citation: 435 So.2d 209
• Parties: Woodrow Wilson LATHAM v. ARONOV REALTY COMPANY, et al.; National Security of Alabama, Inc. 82-86.
• Court: Alabama Supreme Court

Page 209

435 So.2d 209

Woodrow Wilson LATHAM v. ARONOV REALTY COMPANY, et al.; National Security of Alabama, Inc.

82-86.

Supreme Court of Alabama.

July 8, 1983.

C. Delaine Mountain and Herbert M. Newell, III, Tuscaloosa, for appellant.

Wilbur J. Hust, Jr. of Zeanah, Donald & Hust, Tuscaloosa, for appellees Aronov Realty Co., et al.

John T. Kirk of Kirk & Manasco, Montgomery, for appellee National Security of Alabama, Inc.

MADDOX, Justice.

Plaintiff/appellant was criminally assaulted in the parking lot of a shopping mall by third parties. He sued the owners of the mall, the rental agent and the security service hired to guard the mall. The trial judge granted a motion for a directed verdict as to all defendants except those who assaulted the plaintiff/appellant. The sole issue for this Court's consideration is whether the other defendants had a duty to protect the plaintiff from the criminal assault by third parties.

Plaintiff/appellant, Woodrow Wilson Latham, worked at Giovanni's, a restaurant at University Mall in Tuscaloosa. After working until around 1:00 a.m. on the morning of July 22, 1981, he left the restaurant with three friends and they went to their cars parked in the lot adjacent to the mall. Once outside, Latham and his friends engaged in an exchange of words with two of the defendants, Horace Hallman and Lonnie Stone. The exchange led to a fight, during which, the evidence showed, Stone struck Latham with a tire tool. Latham sued Hallman and Stone, but also named as defendants, the owners of University Mall; Aronov Realty Co., the agent of University Mall; and National Security, a security agency which had contracted to provide protection at the mall.

Latham alleged that (1) the owners and Aronov Realty, as rental agent, were negligent in failing to maintain proper security on the mall premises; (2) that the negligence was willful and wanton, because the defendants had knowledge of the danger to him; (3) that Aronov, National Security, and the owners breached their contract with Giovanni's, Latham's employer, to provide security; and (4) that National Security negligently provided security for the mall.

At the close of the plaintiff's case, the owners and Aronov Realty, Inc. each filed motion for a directed verdict. The trial court granted both motions. Latham appeals, claiming the court erred in granting these two motions.

The jury ultimately returned a verdict in favor of Latham for $35,000 against Stone and Hallman. The judgment based on that verdict is not a subject of this appeal.

I

The issue we address can be stated thusly: What duty does a storekeeper owe to invitees lawfully on the premises? In Alabama, the law clearly imposes a duty upon storekeepers to exercise reasonable care in providing and maintaining reasonably safe premises for the use of their invitees. Winn-Dixie Store No. 1501 v. Brown, 394 So.2d 49 (Ala.Civ.App.1981); Quillen v. Quillen, 388 So.2d 985 (Ala.1980). Latham, as an employee of a tenant, was an invitee, because the law states that an employee of a tenant is considered an invitee of the landowner. See Coggin v. Starke Bros. Realty Co., Inc., 391 So.2d 111, 112 (Ala.1980); Mudd v. Gray, 200 Ala. 92, 75 So. 468 (1917).

Latham urges this Court to adopt the rule of law that the landlord's duty to protect invitees on its premises includes a duty to protect against a criminal assault by a third party.

What is the Alabama rule of law relating to liability of a landlord for the unlawful acts of third parties?

In Great Atlantic & Pacific Tea Co. v. Keltner, 29 Ala.App. 5, 8, 191 So. 633, cert. denied, 238 Ala. 462, 191 So. 640 (1939), plaintiff's wife was an invitee in defendant's store when she was struck by a rock thrown by a boy who had been forcibly removed by the storekeeper. The Court stated the rule of law, as follows:

"The true rule applicable to this case and the facts as hereinabove stated is: To make one answerable to an invitee for failing to furnish protection to the invitee upon his premises from the unlawful conduct of an outsider--third person--such an one so sought to be held, must have seen, or known, or circumstances at the time must be such as to make it reasonably appear that preventive effort was necessary to protect its invitee. Not only this, but the owner of the premises must have the present ability to furnish protection, or realizing the danger, and lacking the ability to furnish protection, if such invitee was unaware of his impending peril, he should warn the invitee of the danger, so that the latter might take steps to avoid injury."

In a subsequent decision, this Court has pointed to "foreseeability" as the key:

"Negligence alone does not afford a cause of action. Liability will be imposed only when negligence is the proximate cause of injury; injury must be a natural and probable consequence of the negligent act or omission which an ordinarily prudent person ought reasonably to foresee would result in injury. If, between the alleged negligent act or omission and the injury, there occurs an independent, intervening, unforeseeable event, the causal connection between the alleged negligence and the injury is broken. Mobile City Lines, Inc. v. Proctor, 272 Ala. 217, 130 So.2d 388 (1961) ....

"The key here is foreseeability. This court has held many times that a person, who by some act or omission sets in motion a series of events, is not responsible for consequences of intervention of another agency, unless at the time of his original act or omission, the act of the intervening agency could reasonably be foreseen. If so, the causal chain is not broken. If the injury results from an independent intervening, efficient cause, not reasonably foreseeable, the original negligent act or omission is not the proximate cause of injury...."

Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala.1976).

In City of Mobile v. Largay, 346 So.2d 393 (Ala.1977), this Court determined that there was no liability because the criminal act by a third party was not reasonably foreseeable. See also, Berdeaux v. City National Bank of Birmingham, 424 So.2d 594 (Ala.1982).

Latham contends that this Court should adopt as a rule of law the provisions of the Restatement (Second) of Torts § 344 (1965), specifically subsection (f) thereof:

"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 other jurisdictions there has been a divergence of opinion on the proper rule to apply when the criminal act of a third person injures an invitee. See Annotation: Comment Note--Private Person's Duty and Liability for Failure to Protect Another Against Criminal Attack by Third Persons, 10 A.L.R.3d 619 (1966).

Latham cites to us several cases from other jurisdictions which he says should be followed in his case. Winn-Dixie Stores, Inc. v. Johnstoneaux, 395 So.2d 599 (Fla.Dist.Ct.App.1981); Medina v. 187th St. Apartments Ltd., 405 So.2d 485 (Fla.Dist.Ct.App.1981); Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114, 52 Cal.Rptr. 561, 416 P.2d 793 (1966); Morgan v. Bucks Associates, 428 F.Supp. 546 (E.D.Pa.1977); Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982).

The appellees take each case cited by Latham and argue, as follows:

"In Winn Dixie Stores, Inc. v. Johnstoneaux, 395 So.2d 599 (Fla.App.1981). The plaintiff was robbed as she entered a store from a common area parking lot. This store was located in a 'high crime' area of north Miami and the Court held that there was a question of fact on the liability of the defendant;

" 'Because of the extensive evidence concerning the immediate past history of many similar occurrences in the immediate vicinity, and thus their future foreseeability, we reject Winn Dixie's contention that it was entitled to a directed verdict in its favor below.'

"In Medina v. 187th Street Apartments Ltd., 405 So.2d 485 (Fla.App.1981), the plaintiff was assaulted in a parking lot of an apartment complex. A directed verdict was reversed because the evidence showed the following:

" 'At trial, the apartment complex manager indicated that he had actual knowledge that persons had been mugged in the complex. A police officer testified that ... he would classify the apartment as a high crime area.

"The basis of the duty recognized in Florida lies in the fact that the plaintiff has to allege and prove that the landowner had actual or constructive...