Nivens v. 7-11 Hoagy's Corner

Decision Date09 August 1996
Docket NumberNo. 18128-2-II,18128-2-II
Citation920 P.2d 241,83 Wn.App. 33
CourtWashington Court of Appeals
PartiesKen NIVENS, Appellant/Cross-Respondent, v. 7-11 HOAGY'S CORNER, and Southland Corporation, Respondents/Cross-Appellants.

Samuel Heywood Pemberton, Tacoma, for Appellant.

John Clifford Moore, Bonneville Viert Morton & McGoldrick, Tacoma, for Respondents.

MORGAN, Judge.

Ken Nivens filed this personal injury action, alleging he was assaulted by loiterers in the parking lot of a 7-Eleven store. 1 The trial court entered a judgment of dismissal, which we affirm.

Between 9:30 and 10:00 p.m. on December 26, 1988, Nivens drove to the 7-Eleven store at 40th and Bridgeport Way for the purpose of making a purchase. About a dozen teenagers were in the parking lot, "talking in little crowds" and "just messing around, kidding with each other." 2 They had been there about an hour, and there was no security guard on the premises.

As Nivens parked and got out of his car, a male loiterer approached and asked him to buy beer. When Nivens refused, several loiterers began calling him names. He tried to walk to the store's entrance, but one or more of the loiterers grabbed him from behind. In the ensuing incident, he was hit in the head, neck, and shoulder, thrown to the ground, and kicked in the ribs, lower back, and head. 3

For about six years before the incident, teenagers had congregated in the store's parking lot. The number varied from 10 to 100, but groups of 15 to 25 were "[p]retty common." 4 4 Clerks "sometimes ... [had] trouble with [teenagers] inside the store," and with "noise, whatever, outside of the store." 5 At times, loitering teenagers would ask customers to buy beer for them, or they would bring their own beer and drink it in the parking lot. The store had posted a sign saying, "no soliciting, no loitering, no loud music." 6

Although loitering teens had occasionally fought among themselves, they had never, until the incident with Nivens, acted violently toward a customer of the store. A sheriff's deputy who had worked at the store as a part-time security guard states:

When I worked [at the store], I had to ask some loiterers to move on occasionally, but the store was very quiet. I never had a problem with violence at the store.[ 7

One of the clerks, Anderson, states: Over the year [I was] there ... I do not recollect any customer ever having a fight or a real altercation with any of the people in the parking lot, coming into the store. They used to have fights among themselves. But as far as bothering the clients coming into the store, we had very little of that.[ 8

The youth who initially asked Nivens to buy beer states:

Other than my altercation with Mr. Nivens, I am only aware of only one other fight on or near the premises of the 7-11/Hoagy's Corner at 40th & Bridgeport. That was approximately four months before the incident with Mr. Nivens when two high school kids arranged to meet at the store to fight after school. This fight occurred at approximately 3 p.m. after school. I do not believe that the store employees could have known of the existence of the fight because it occurred along the side of the building where there were no windows and it may have occurred in the bank parking lot next door. At no time when I was at the premises of the 7-11/Hoagy's in question did I ever see anyone assault, accost, or otherwise bother a customer, except to occasionally ask a customer to buy beer.[ 9

A consultant for the store states that the loiterers were not "gang-type kids.... They were just high school age kids hanging out." 10 She adds that the store has no record of complaints about loiterers from customers or nearby residents. 11

As Nivens points out, the store had adopted several pertinent policies prior to the date of the incident. If a clerk saw loiterers drinking in the parking lot, he or she was to ask those persons to dispose of the alcohol and leave immediately. If a clerk became aware of loiterers accosting customers, he or she was to tell the loiterers to leave and, if they failed to comply, to call the police. But, "[i]f the loiterers were not causing any problems or inconvenience to the store's customers, no action would be taken." 12

As Nivens further points out, the store also had at least two written manuals. One, on avoiding conflict, instructed clerks to tell loiterers to leave, and to call police in the event of noncompliance. Another, on preventing robberies, instructed clerks to observe the store's parking lot, but remain in the store at night.

At the time of the assault on Nivens, two clerks, Charlie Washington and Kathleen Anderson, were working inside the store. They had not asked the loitering teenagers to leave.

On June 28, 1990, Nivens sued the store for negligence. On May 15, 1992, the store moved for summary judgment. Nivens responded, in part, by filing a declaration in which a security professional named Roy Shaw opined that allowing teenagers to loiter over an extended period leads to assaults and fails to "meet the custom and practices expected of a retail store...." 13 Shaw further opined that "prudence as well as reasonable care[ ] would require that this situation be corrected by hiring adequate security personnel to patrol the area and break the habit and cycle of kids gathering on thepremises." 14 On June 15, 1992, the trial court denied the store's motion for summary judgment.

On February 28, 1994, just before trial, the store moved for an order excluding evidence that it had failed to hire, or should have hired, security guards. On March 4, 1994, the trial court granted the requested order. Immediately thereafter, Nivens declined to proceed to trial, asserting that his claim was "based solely on the failure of [the store] to hire security personnel to deal with the loitering ... before the time that this assault occurred...." 15 Ruling that "there is not an affirmative duty for a merchant business to supply security personnel in the situation we are talking about here," the trial court dismissed the complaint. 16 Nivens then filed this appeal.

In a negligence action like this one, the elements are duty, breach, causation and damages. 17 Only duty and breach are in issue here. Moreover, they are in issue only with respect to the store's conduct before the assault on Nivens began. Nivens does not contend that the store failed to exercise reasonable care after the assault had begun. 18

I. DUTY

Duty is a question of law. 19 Thus, it is to be answered generally, without reference to the facts or parties in a particular case. 20

Duty has three facets. (1) By whom is it owed? (2) To whom is it owed? (3) What is the standard of care? The first question defines an obligated class, while the second defines a protected class. 21

The first question is the one in issue here. It is undisputed that the protected class is comprised of all invitees, and that the standard of care is reasonable care.

The duty owed by an occupier of land to an invitee has at least two components. One relates to physical conditions on the premises. The other relates to human activities on the premises. 22

The first component is described in Restatement (Second) of Torts §§ 343-343A (1965). Entitled "Dangerous Conditions Known to or Discoverable by Possessor," § 343 provides:

A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger.

Entitled "Known or Obvious Dangers," § 343A elaborates on paragraph (b) of § 343. It provides:

(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.

(2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.

Sections 343-343A have been adopted by the Washington Supreme Court. 23

The second component, human activities on the premises, is described in Restatement (Second) of Torts §§ 341A and 344 (1965). Restatement § 341A deals with activities of the occupier, while Restatement § 344 deals with activities of third persons. Here, we are concerned only with the activities of third persons, so we consider only § 344. 24 Entitled "Business Premises Open to Public: Acts of Third Persons or Animals," § 344 provides:

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.

Section 344 has been applied by Division One and discussed by this division. 25

Sections 343-343A and 344 spring from different roots. Sections 343-343A originated in the English case of Indermaur v. Dames. 26 Section 344 originated not in Indermaur, but "in cases of carriers who failed to protect their passengers against the acts of third persons." 27 Sections 343-343A apply whenever the land is held open to an invitee, 28 while § 344...

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