Taco Bell, Inc. v. Lannon, 85SC209
| Decision Date | 05 October 1987 |
| Docket Number | No. 85SC209,85SC209 |
| Citation | 744 P.2d 43 |
| Parties | TACO BELL, INC., Petitioner, v. John P. LANNON, Respondent. |
| Court | Colorado Supreme Court |
Fortune & Lawritson, P.C., Mason, Reuler & Peek, P.C., Lowell Fortune, Denver, for petitioner.
Fogel, Keating and Wagner, P.C., William L. Keating, David R. Struthers, Denver, for respondent.
Robert Palmer, Ronald A. Sarasin, Washington, D.C., for amicus curiae Nat. Restaurant Ass'n.
This is a negligence case arising from an incident in which the plaintiff, John P. Lannon, was injured by a shot fired by a robber when Lannon tried to leave the premises of the defendant, Taco Bell, Inc. (Taco Bell), during the course of a robbery. In Lannon v. Taco Bell, Inc., 708 P.2d 1370 (Colo.App.1985), the Colorado Court of Appeals reversed a judgment in favor of Lannon and against Taco Bell based on the trial court's failure to instruct the jury on comparative negligence. The court of appeals then addressed the issue of duty because of the likelihood that it will arise again on retrial. The appellate court held that Taco Bell had a legal duty to take reasonable measures to protect its patrons from the consequences of criminal acts on the part of unknown third persons in this case, and further held that the issue of whether it breached that duty by failing to employ one or more armed security guards was properly submitted to the jury. We granted certiorari but limited our review to the issue of duty. We agree with the holdings of the court of appeals with respect to that issue and therefore affirm the judgment of that court.
At approximately 10:30 p.m. on January 28, 1979, the plaintiff, John P. Lannon, entered a Taco Bell restaurant located on East Colfax Avenue in Denver. When the plaintiff approached the service counter, he noticed that the employees were off to one side of the counter and that a man was crouched behind the counter holding a handgun and going through a floor safe. The plaintiff deduced that a robbery was in progress. He then retreated toward the door, whereupon he encountered another robber apparently acting as a lookout for the robber behind the counter. The plaintiff brushed past the second robber and ran out the door into the Taco Bell parking lot. At that point, the robber behind the counter went toward the door and shot at the plaintiff, hitting him on the ring finger of his left hand. The plaintiff ran to a nearby laundromat and called the police. Police officers arrived within minutes but the robbers had already fled.
The plaintiff filed suit against Taco Bell in Denver District Court, alleging that Taco Bell had a duty to take adequate measures to protect him from the foreseeable criminal acts of third persons and that Taco Bell was negligent in failing to take such measures. The plaintiff also alleged that Taco Bell's negligence was the proximate cause of his injury. In its answer to the plaintiff's complaint, Taco Bell set forth two defenses with respect to the issue of liability: (1) that the plaintiff had failed to state a claim upon which relief could be granted; and (2) that the plaintiff's own sole or contributory negligence was the proximate cause of his injuries. Taco Bell later filed a motion to dismiss the plaintiff's claim, alleging that the plaintiff had failed to state a claim upon which relief could be granted because Taco Bell owed no legal duty to the plaintiff to protect him from the consequences of criminal acts on the part of third persons. The trial court denied Taco Bell's motion to dismiss, and the case proceeded to trial.
At trial, the plaintiff established, in addition to the facts previously set forth, that ten armed robberies had taken place at this same Taco Bell restaurant in the three years prior to the robbery giving rise to this case. One of these armed robberies had occurred only two nights before the robbery during which the plaintiff was injured. Furthermore, Detective William Martin of the Denver Police Department testified, on behalf of the plaintiff, that it was his opinion that this particular Taco Bell restaurant is located in a "high crime area." Detective Martin and two other Denver police officers called by the plaintiff also testified concerning security measures, including the use of security guards, that could be taken by this kind of restaurant to reduce the possibility of armed robberies. A management employee of a fast food restaurant also located on East Colfax Avenue testified on behalf of the plaintiff concerning that restaurant's practices with respect to hiring armed security guards.
Taco Bell moved for a directed verdict at the close of the plaintiff's case. Taco Bell based its motion on arguments that it had no duty, as a matter of law, to protect its customers from the consequences of criminal acts on the part of unknown third persons and that even if such a duty did exist, any failure on its part to employ armed security guards could not have been the proximate cause of the plaintiff's injuries. The trial court denied the motion.
Taco Bell called Richard Parson, an employee of the Taco Bell restaurant that had been robbed, as its sole witness. Parson testified concerning the robbery itself and the security measures that the restaurant took to discourage such robberies. At the conclusion of Parson's testimony, Taco Bell made a motion for a directed verdict which incorporated the arguments it had made on the earlier directed verdict motion. The plaintiff also moved for a directed verdict in his favor on the issue of Taco Bell's liability. The trial court denied both motions.
The trial court instructed the jury on negligence, including an instruction that the owner of premises has a duty to operate his business in a reasonably safe manner in view of the foreseeability, if any, of injury to others. The court specifically instructed the jury that the criminal act of a third party that causes injuries to the plaintiff does not relieve the defendant of liability if the act of the third party is reasonably and generally foreseeable. No specific instruction was given relating to the use of armed guards.
The jury returned a verdict in the plaintiff's favor, awarding him $40,000 in damages. Taco Bell appealed to the court of appeals, asserting, among other grounds for reversal, that the trial court had erred by denying its motion to dismiss made prior to trial and its motions for directed verdict, and by failing to submit to the jury instructions that had been tendered by the defendant on the issue of the plaintiff's alleged comparative negligence. 1
The court of appeals first focused on the issue of whether the trial court had erred by refusing to submit the defendant's tendered instructions on comparative negligence to the jury. Because it believed that reasonable minds could differ as to whether the plaintiff had breached his duty to avoid a potentially injurious situation, the court of appeals reversed the trial court and held that on retrial the jury should be instructed on the doctrines of comparative negligence and sudden emergency. 2 Lannon v. Taco Bell, Inc., 708 P.2d 1370, 1372-73 (Colo.App.1985).
The court of appeals then chose to decide issues that it believed might be presented again on retrial. As relevant to the issues before us on certiorari review, the court first held that the evidence established a duty on the part of the defendant to take "reasonable measures to prevent or deter reasonably foreseeable acts, and to alleviate known dangerous conditions"--specifically, the risks associated with armed robberies. Id. at 1373. Second, the court held that it was for the jury to decide whether the defendant had breached its duty by failing to employ armed, uniformed security guards. Id. Additionally, the court rejected the defendant's argument that proximate cause was not established because the criminal acts of the robbers were not foreseeable. The court held that this view of foreseeability was too restrictive and that the evidence that the restaurant was located in a high crime area and that previous armed robberies had occurred on the premises and at other nearby establishments was sufficient to present a jury question as to foreseeability. Id. at 1373-74. 3 Judge Smith dissented on the issue of duty, stating that he "would hold that Taco Bell had no duty, as a matter of law, to hire armed guards to protect its customers from the consequences of acts of armed robbers who may invade its premises." Id. at 1376. 4
Both parties petitioned this court for a writ of certiorari. We denied the plaintiff's petition but, based on the defendant's petition, we granted certiorari on the issue of "[w]hether a fast food restaurant in a 'high crime area' has a legal duty to take security measures, possibly including the use of armed guards, to protect its patrons from the consequences of criminal acts on the part of unknown third persons." We turn now to the resolution of that issue.
"The question of whether a defendant owes a plaintiff a duty to act to avoid injury is a question of law to be determined by the court." Smith v. City & County of Denver, 726 P.2d 1125, 1127 (Colo.1986). Accord Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313, 317 (Colo.1980); Restatement (Second) of Torts § 328B (1965). "The court determines, as a matter of law, the existence and scope of the duty--that is, whether the plaintiff's interest that has been infringed by the conduct of the defendant is entitled to legal protection." Metropolitan, 621 P.2d at 317. In determining whether the law imposes a duty on a particular defendant, many factors are to be considered. These factors may include, for example, "the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of the [defendant's] conduct, the magnitude of the burden of guarding against injury or harm, and the consequences of placing the burden...
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