Moye v. A.G. Gaston Motels, Inc.

• Decision Date: 19 September 1986
• Parties: Daniel MOYE, as Administrator of the Estate of Cheryl Denise Moye, Deceased v. A.G. GASTON MOTELS, INC., and Otis Smith. 85-191.
• Court: Alabama Supreme Court

Page 1368

499 So.2d 1368

Daniel MOYE, as Administrator of the Estate of Cheryl Denise Moye, Deceased v. A.G. GASTON MOTELS, INC., and Otis Smith.

85-191.

Supreme Court of Alabama.

Sept. 19, 1986.

Rehearing Denied Nov. 21, 1986.

William W. Smith and Douglass Culp, of Hogan, Smith, Alspaugh, Samples & Pratt, Birmingham, for appellant.

Charles D. Stewart and Ann M. Watson, of Spain, Gillon, Riley, Tate & Etheredge, Birmingham, for appellee A.G. Gaston Motels, Inc.

W.J. McDaniel and Marda W. Sydnor, of McDaniel, Hall, Parsons, Conerly & Lusk, Birmingham, for appellee Otis Smith.

HOUSTON, Justice.

This is a suit seeking to recover damages for tort liability for the criminal acts of a third party. The trial court granted summary judgment in favor of the defendants, A.G. Gaston Motels, Inc. (hereinafter "Gaston"), and Otis Smith, the owner of a security service, and the plaintiff, Daniel Moye, administrator of the estate of Cheryl Denise Moye, deceased, appealed. We affirm.

On December 25, 1981, Gaston, in conjunction with radio station WENN, sponsored a teen dance at the Gaston motel premises. The dance was open to young people up to age 19 and proof of age was required by means of identification at the door. The dance was to last from 9:00 P.M. to 1:00 A.M. Four security guards under the employ of Smith were assigned to the dance pursuant to an agreement with Gaston. In addition to the security guards, WENN personnel were present to assist at the dance, including taking up money at the door and checking identification. Each young person who entered the dance was searched for alcohol, drugs, and weapons, none of which were allowed in the motel. No pass outs were permitted; thus, any person leaving and wishing to return could do so only by submitting to another search and again paying the full cost of admission.

During the course of the dance, the facility was checked periodically, as was the parking lot and the area in front of the motel, to insure that it was clear of people who were not coming in to the dance. No alcoholic beverages were served at the dance, and there were no reports of anyone at the dance drinking alcohol. One man was put out of the dance at midnight for some undisclosed disturbance. There were no other altercations or other disturbances during the dance. There had not been a single criminal incident at any prior teen dances at the Gaston motel. (There had been at least eight prior dances.) The dance ended at approximately 1:00 A.M. After the last song was played, the lights were turned on at the motel, the security guards cleared the lounge, in which the dance was held, and locked the door to the lounge. The last two security guards to leave walked Marie Pickett, a WENN radio employee, who had collected the money at the door, over to the motel office, where one of the security guards was assigned until 8:00 A.M. on the morning of December 26. Joe Murphy, a WENN employee, and his wife went to the radio station, which was located across the street from the motel. There were about 15 young people outside as the lounge entrance was locked, all of whom appeared to one of the security guards to be headed to the convenience store next to the motel or waiting for their rides home. The area was well lighted by street lights and the light from the "Motel-Restaurant" sign. Among those outside at that time were Cheryl and Daniel Moye, who were standing on the sidewalk or grass next to the sidewalk waiting for their ride home.

A group of young men, who had been at the dance and left, drove by the front of the motel, stopped, got out of their car and started mingling with the people in front of the motel. In the group was Darron Burpo. He exhibited a revolver. Tara Foster ran to the office of the motel to alert the security guard. She knocked on the door and motioned with her index finger for the security guard to "come here." She did not scream, shout, cry, talk loudly, wave her arms, or otherwise indicate any distress or alarm, nor did she say anything except "come here." She noticed that the group had driven away, so she walked back to the curb where she had been standing and resumed talking with her friends. The young men in the car drove to the front of the convenience store, where Burpo got out of the car and slapped Terrance Oliver, who was standing in the parking lot of the convenience store. Burpo was taken back to the car by his friends, and the group drove east on 5th Avenue North away from the motel. Oliver threw a soft drink bottle and hit the car as it left. Burpo leaned out of the car window and fired a shot from the revolver. The shot struck Ms. Moye, who was still standing with her brother Daniel in front of the motel, some 20 yards away. Ms. Moye died as a result of this gunshot wound. Burpo was tried and found guilty of negligent homicide.

This Court has not yet decided a case whose facts have commanded us to impose liability on a business for injuries to its invitees as a result of the criminal conduct of a third person. Petrella v. Peddler's Motor Inn Best Western, 488 So.2d 497 (Ala.1986); Simpson v. Wolf Ridge Corp., 486 So.2d 418 (Ala.1986); Law v. Omelette Shop, Inc., 481 So.2d 370 (Ala.1985); Ortell v. Spencer Companies, 477 So.2d 299 (Ala.1985); Henley v. Pizitz Realty Co., 456 So.2d 272 (Ala.1984); Stripling v. Armbrester, 451 So.2d 789 (Ala.1984); Latham v. Aronov Realty Co., 435 So.2d 209 (Ala.1983); Berdeaux v. City National Bank of Birmingham, 424 So.2d 594 (Ala.1982); Parham v. Taylor, 402 So.2d 884 (Ala.1981); City of Mobile v. Largay, 346 So.2d 393 (Ala.1977).

This Court has consistently and vigorously affirmed summary judgments in favor of the defendant premises owner/employer on the issue of whether the defendant was negligent in failing to protect its invitee/employee from such crimes. Law v. Omelette Shop, Inc., supra; Ortell v. Spencer Companies, supra; Henley v. Pizitz Realty Co., supra; Stripling v. Armbrester, supra; Berdeaux v. City National Bank of Birmingham, supra.

In CIE Service Corp. v. Smith, 460 So.2d 1244, 1247 (Ala.1984), this Court explained: "[I]t is difficult to impose liability on one person for an intentional criminal act committed by a third person."

The basis for this difficulty is the usual absence of two essential elements of proof in a negligence/wantonness action: (1) duty and (2) proximate cause. However, whether the case is decided on lack of initial legal duty or on the basis that the criminal act was an independent intervening cause which prevented any action or inaction on the part of the premises owner/employer from being the proximate cause of plaintiff's injury, the key to either is foreseeability.

It is the general rule in Alabama that absent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third person. Ortell v. Spencer Companies, supra, at 299; Henley v. Pizitz Realty Co., supra, at 276-77; Berdeaux v. City National Bank, supra, at 595; Parham v. Taylor, supra, at 886. Absent a duty to protect its invitee/employee from the criminal acts, a premises owner/employer cannot be held liable for injuries and damage resulting from those criminal acts.

In the recent decision of Law v. Omelette Shop, Inc., supra, plaintiff was assaulted while standing in front of the defendant's restaurant, after having eaten there. (In the case now before this Court, Ms. Moye was shot while standing in front of the Gaston motel after having attended a dance there.) Law sued Omelette Shop for negligence and wantonness in failing to protect her against this criminal assault, and summary judgment was granted against her. On appeal, this court affirmed, finding that under the facts Omelette Shop had no duty to protect her against the criminal acts.

In Henley v. Pizitz Realty Co., supra, plaintiff sued the owner of a parking deck where she was attacked, alleging negligence and wantonness on the part of the defendant in maintaining its security system. The trial court granted summary judgment in favor of defendant premises owner, finding that the premises owner had no duty to protect against the criminal acts. On appeal, plaintiff urged this Court to adopt the standard espoused by the Restatement (Second) of Torts § 344, (1965) which imposes on the premises owner a generalized duty to discover, warn against, and protect against the criminal acts of a third party. This Court affirmed the summary judgment, refusing to adopt the Restatement principle of initial legal liability. Instead, this court espoused the rule imposing no initial legal duty upon the defendant premises owner to protect against the criminal acts of a third party.

There is a singular exception to this general rule, which arises where the "particular criminal conduct was foreseeable." Henley v. Pizitz Realty Co., supra, at 276. Stated differently, "[t]his Court has recognized that a duty may be imposed on a store owner to take reasonable precautions to protect invitees from criminal attack in the exceptional case where the store owner possessed actual or constructive knowledge that criminal activity which could endanger an invitee was a probability." Ortell v. Spencer Companies, supra, at 299.

This Court has recognized that it is indeed difficult to impose such a duty, not yet having been presented the case whose facts command a finding of such a duty.

A second reason we have generally refused to impose liability on premises owners for the criminal acts of third parties is the usual absence of "proximate cause"; it is the independent, intervening criminal act that is generally the proximate cause of plaintiff's injuries and not any action or inaction on the part of the premises owner. In Latham v. Aronov Realty Co., supra, at 211, this Court quoted Vines v. Plantation Motor Lodge, 336 So.2d 1338, 1339 (Ala.1976):

"Negligence alone does not afford a cause of action. Liability will be imposed only when negligence is the...