Schultz v. Elm Beverage Shoppe

• Decision Date: 30 December 1988
• Docket Number: No. 88-313,88-313
• Citation: 533 N.E.2d 349,40 Ohio St.3d 326
• Parties: SCHULTZ, Appellee, v. ELM BEVERAGE SHOPPE, Appellant.
• Court: Ohio Supreme Court

Page 326

40 Ohio St.3d 326

533 N.E.2d 349

SCHULTZ, Appellee, v. ELM BEVERAGE SHOPPE, Appellant.

No. 88-313.

Supreme Court of Ohio.

Submitted Oct. 26, 1988.

Decided Dec. 30, 1988. ^*

Syllabus by the Court

1. A store owner, store operator or his agent is not liable in tort for death or serious bodily harm resulting from an armed robbery of the premises, provided that the acts of such owner, operator, or agent are reasonable considering the urgency of the situation.

2. An act which is privileged for the purpose of protecting the actor from a harmful or offensive contact or other invasion of his interests of personality subjects the actor to liability to a third person for any harm unintentionally done to him only if the actor realizes or should realize that his act creates an unreasonable risk of causing such harm. (1 Restatement of the Law 2d, Torts [1965] 128, Section 75, approved and followed.)

On September 11, 1984, two men entered the Elm Beverage Shoppe in Youngstown, Ohio, and proceeded to rob the business at gunpoint. The only other person in the store at the time was the clerk, David Wildes. ¹

David E. Schultz, a regular customer, entered the store during the course of the robbery. Noticing Wildes' disheveled appearance and the presence of another man behind the counter, Schultz stopped just inside the door. Upon seeing Schultz, Wildes shouted either, "Run, run, call the cops," or "Call the cops, call the cops." Schultz turned and tried to run out the door. As he reached the door frame one of the robbers shot him in the left leg and left arm, causing him to fall to the pavement. The robbers also shot Wildes, killing him, and then shot Schultz again as they fled the store. At his deposition, Schultz testified that he knew a robbery was taking place soon after entering the store, and that he had not needed Wildes' advice to leave the store.

Schultz, appellee herein, filed a personal injury suit in the court of common pleas. Of the causes of action listed in appellee's complaint, only the fourth claim for relief is at issue in this appeal. In that claim appellee contended that the Elm Beverage Shoppe, appellant, should be held vicariously liable for the alleged negligence of Wildes during the robbery. The trial court granted summary judgment in favor of appellant on this issue.

The court of appeals reversed, finding that summary judgment was inappropriate, and remanded the cause for further proceedings.

The cause is now before this court pursuant to the allowance of a motion to certify the record.

Manchester, Bennett, Powers & Ullman Co., L.P.A., and Thomas J. Travers, Jr., Youngstown, for appellee.

Pfau, Pfau & Pfau and William E. Pfau, Jr., Youngstown, for appellant.

LOCHER, Justice.

We are confronted in this appeal by a question which we have not heretofore addressed, i.e., whether a store owner, store operator or his agent may be held liable in tort for injuries sustained by a customer during a robbery of the premises. Because we find that the conduct of the store clerk, David Wildes, was reasonable in light of the urgency of the situation, we reverse the court of appeals and hold that summary judgment was properly entered in favor of appellant in the case sub judice.

A person "who otherwise would be liable for a tort is not liable if he acts in pursuance of and within the limits of a privilege * * *." 4 Restatement of the Law 2d, Torts (1979) 355, Section 890. The term "privilege" denotes the existence of circumstances that justify, or excuse, conduct that would ordinarily subject the actor to liability. See 1 Restatement of the Law 2d, Torts (1965) 17, Section 10(1), and, generally, Prosser & Keeton on Torts (5 Ed.1984) 108-110, Section 16. Conduct that would otherwise be actionable is held to be privileged as a matter of law where, under the circumstances, it furthers an interest of social importance. See Prosser & Keeton, supra, at 109.

There has been, and continues to be, a great public interest in the prevention of crime. To that end, the law recognizes that conduct undertaken for the purpose of preventing a felony is privileged under certain circumstances. As noted by one commentator:

"[A] private person may, if a felony has been actually committed, arrest a person on reasonable suspicion for the commission of the felony, and in case of the felon's escaping may prevent his escape even by killing if the felony was one of violence; and he may also interfere with such violence as is necessary to prevent the commission of the felony." (Footnote omitted.) Beale, Justification for Injury (1928), 41 Harv.L.Rev. 553, 557.

The privilege is expressed as follows in 1 Restatement of the Law 2d, Torts, supra, at 257-258, Section 143:

"(1) * * * [A] private person is privileged to use force against or to impose confinement upon another which is not intended or likely to cause death or serious bodily harm for the purpose of preventing any felony which the actor reasonably believes the other is committing or is about to commit if the actor reasonably believes that the commission or consummation of the felony cannot otherwise be prevented.

"(2) The use of force or the imposition of a confinement intended or likely to cause death or serious bodily harm is privileged if the actor reasonably believes that the commission or consummation of the felony cannot otherwise be prevented and the felony for the prevention of which the actor is intervening is of a type threatening death or serious bodily harm or involving the breaking and entry of a dwelling place."

Comment b to Section 143 expressly includes robbery among the felonies which may be prevented by means likely to result in death or serious bodily harm. This privilege has been applied to protect stores from liability where customers have been injured as a result of actions taken by store owners, store operators or their agents against armed robbers. See, e.g., Yingst v. Pratt (1966), 139 Ind.App. 695, 220 N.E.2d 276; Schubowsky v. Hearn Food Store, Inc. (Fla.App.1971), 247 So.2d 484.

Nevertheless, the privilege is subject to a...