Nivens v. 7-11 Hoagy's Corner

• Decision Date: 01 October 1997
• Docket Number: No. 64512-4,64512-4
• Citation: 943 P.2d 286,133 Wn.2d 192
• Court: Washington Supreme Court
• Parties: Ken NIVENS, Appellant, v. 7-11 HOAGY'S CORNER; and Southland Corporation, Respondent.

Page 192

133 Wn.2d 192

943 P.2d 286

Ken NIVENS, Appellant, v. 7-11 HOAGY'S CORNER; and Southland Corporation, Respondent.

No. 64512-4.

Supreme Court of Washington,

En Banc.

Argued May 21, 1997.

Decided Sept. 11, 1997.

As Amended Oct. 1, 1997.

Samuel H. Pemberton, Jr., Tacoma, for Petitioner

Bonneville, Viert, Morton & McGoldrick by John C. Moore, Tacoma, for Respondent.

TALMADGE, Justice.

We must decide if a business owes a duty to its invitees to protect them from criminal acts by third persons on the business premises. Because a business has a special relationship with them, it has a duty to take reasonable steps to protect invitees from imminent criminal harm or reasonably foreseeable criminal conduct by third persons.

Appellant Nivens also asks us to decide if a business owes a distinct duty to invitees to retain security personnel to prevent criminal acts by third parties. Because we believe such a duty would impermissibly shift responsibility from government to private businesses to protect against criminal behavior, we hold a business does not have a separate duty to retain security personnel for the business premises to prevent criminal activity. Insofar as Nivens here specifically confined his case to the duty to provide on-premises security personnel, we affirm the summary judgment in favor of the respondents.

ISSUES

1. Does a business owe invitees a duty to prevent criminal activity by third persons on the premises that results in harm to invitees?

2. Does a business owe invitees a duty to provide on-premises security personnel to prevent criminal activity?

FACTS

On December 26, 1988, at about 10:00 p.m., Ken Nivens was assaulted by a young man who was part of a group of Nivens allegedly parked his car and, as he approached the store entrance, was asked by one of the youths to buy him beer. When Nivens refused, some of the youths called him names and he was grabbed from behind. Nivens was hit in the head, neck, and shoulders, and kicked in the ribs, back, and head.

approximately a dozen young people who had been lingering [943 P.2d 288] in the parking lot of a 7-11/Hoagy's Corner Store (Hoagy's) at 40th and Bridgeport Way in Tacoma. On the evening of the assault, the store clerks took no action to disperse the crowd of youths who gathered in the parking lot.

Nivens asserts that for at least six years before the assault, between 10 and sometimes as many as 100 young people would gather in the parking lot of the Hoagy's store. Robert Figueroa, the person who assaulted Nivens, said the youths would occasionally solicit Hoagy's customers to buy beer for them. They would then drink the beer in the Hoagy's parking lot. A store clerk testified the youths would fight among themselves in the Hoagy's parking lot, but she said they rarely bothered customers coming into the store. A deputy sheriff said in a declaration that loitering of the type involved in this case often includes consumption of alcohol and drugs, leading to fights and assaults. He also said the most common problem resulting from such loitering is fights or assaults.

Hoagy's asserts the store was far more peaceful. The declaration of longtime store patron John Shadduck did not describe any acts of violence. Figueroa stated individuals had to be well behaved or they would be asked to leave. The store posted a sign stating: "no soliciting, no loitering, no loud music." Clerk's Papers at 14, 35, 50. Store clerk Kathleen Anderson stated the majority of teens and young adults who came to the store did not cause trouble and were well behaved. In the year she worked at the store, she never observed any fight or altercation between a customer and the people in the parking lot and no customer complaints had been received. Deputy Barnhill did not know of any instance of violence at the store other than the one in which Nivens was involved. Nivens In addition to signs on the premises, Hoagy's had an explicit policy requiring clerks to ask persons drinking on the premises to dispose of any alcohol or leave. Clerks were to watch for loiterers and to tell them to leave. If they did not leave, clerks were to call the police. These policies were also articulated in two written employee manuals.

did not present any evidence of other violent incidents at Hoagy's.

Nivens filed a complaint on June 28, 1990, alleging Hoagy's was negligent in failing to provide adequate security on its premises, and claiming substantial injuries, including disability and disfigurement, as the result of the assault on him.

On May 15, 1992, Hoagy's filed a motion for summary judgment, asking for dismissal of all Nivens's claims. Hoagy's argued that in the absence of evidence of prior violence toward customers of the store, the attack on Nivens was unforeseeable. The trial court denied this initial motion on June 15, 1992 because the foreseeability of the attack on Nivens was an issue of fact.

On February 28, 1994, just before trial, Hoagy's moved for an order excluding expected testimony it should have hired security guards and failed to do so. The trial court granted the motion on March 4, 1994. Immediately thereafter, Nivens told the court he did not wish to proceed to trial because granting the motion in limine amounted to summary judgment for Hoagy's. The trial court actually attempted to persuade Nivens that just because the courts have not imposed an obligation to hire security guards does not mean Hoagy's did not breach some other duty to Nivens, stating: "I mean, obviously there are a number of other ways to deal with situations." Report of Proceedings at 39. Counsel for Nivens nevertheless indicated he would rather appeal the trial court's ruling than waste three or four days in trial. He then made an offer of proof in which And the plaintiff having advised the court that the plaintiff's sole theory of recovery is that the defendant should have utilized security guards on the premises in question at certain times in order to stop or control the loitering that was occurring on the premises before and including the evening during which the plaintiff was allegedly assaulted on the defendant's premises;

                he stated, "Plaintiff's claim is based solely on the failure of Defendant to hire security personnel to deal with the loitering that was going on in their parking lot premises before the time that this assault occurred in order to correct that problem before the night of this assault."   Supplemental Report of Proceedings at 4. After listening to Nivens's [943 P.2d 289] offer of proof, the trial court entered an order on summary judgment in favor of Hoagy's, dismissing all claims, at Nivens's invitation and with Nivens's consent
                

And the plaintiff electing not to proceed to trial upon any other theory of recovery at this time; now, therefore, it is hereby

ORDERED that judgment is GRANTED in favor of Defendant Southland Corporation d/b/a 7-Eleven Hoagy's Corner, dismissing the plaintiff's claims against the defendant with prejudice.

Clerk's Papers at 271-73. The Court of Appeals affirmed the trial court, Nivens v. 7-11 Hoagy's Corner, 83 Wash.App. 33, 53, 920 P.2d 241 (1996), stating there was "a dearth of evidence to support a finding that a reasonable person would have foreseen violence of the general type that occurred here, and neither the evidence nor inferences therefrom is sufficient to bring the store within the obligated class." We granted review.

ANALYSIS

In reviewing a grant of summary judgment, an appellate court engages in the same inquiry as the trial court. Degel v. Majestic Mobile Manor, Inc., 129 Wash.2d 43, 48, 914 P.2d 728 (1996). A summary judgment is appropriate As in any negligence case, the plaintiff must prove duty, breach, causation, and damages. Hansen v. Friend, 118 Wash.2d 476, 479, 824 P.2d 483 (1992). The central issue in this case is whether, as a matter of law, Hoagy's had a duty to Nivens. Degel, 129 Wash.2d at 48, 914 P.2d 728.

"if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). The facts and all reasonable inferences therefrom must be considered in the light most favorable to the nonmoving party. Degel, 129 Wash.2d at 48, 914 P.2d 728. We review questions of law de novo. Barr v. Day, 124 Wash.2d 318, 324, 879 P.2d 912 (1994).

A. The Duty to Protect Business Invitees From the Criminal Acts of Third Persons

Washington courts have attempted to address the duty owed by business owners to their invitees to protect them from harm on the business premises. In the case of physical danger on the business premises, Washington courts have held a business owner owes a duty to invitees to protect them from dangerous conditions on the premises. See, e.g., Degel, 129 Wash.2d at 49, 914 P.2d 728 (the landowner owes to invitees an affirmative duty to use ordinary care to keep the premises in a reasonably safe condition); Tincani v. Inland Empire Zoological Soc'y, 124 Wash.2d 121, 139, 875 P.2d 621 (1994) ("In limited circumstances, RESTATEMENT (SECOND) OF TORTS § 343A creates a duty to protect invitees even from known or obvious dangers. This occurs when a possessor 'should anticipate the harm despite such knowledge or obviousness.' "). ¹

While our law of premises liability for physical hazards

is well developed, Washington[943 P.2d 290] law on the liability of business owners for hazards created by the conduct of people, particularly criminal conduct, is less well established. Although a number of our cases address the duty owed by a business to an invitee with respect to criminal behavior by third persons in particularized, special circumstances, we have never said a general duty exists running from all businesses to all invitees.

B. The Duty at Common Law

At common law, there was no duty to protect people in...