Thoni Oil Magic Benzol Gas Stations, Inc. v. Johnson

• Decision Date: 01 December 1972
• Citation: 488 S.W.2d 355
• Parties: THONI OIL MAGIC BENZOL GAS STATIONS, INC., Appellant, v. Della Mae JOHNSON, Administratrix of the Estate of David Lee Johnson, Deceased, Appellee. Della Mae JOHNSON, Administratrix of the Estate of David Lee Johnson, Deceased, Cross-Appellant, v. THONI OIL MAGIC BENZOL GAS STATIONS, INC., Cross-Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 355

488 S.W.2d 355

THONI OIL MAGIC BENZOL GAS STATIONS, INC., Appellant, v. Della Mae JOHNSON, Administratrix of the Estate of David Lee

Johnson, Deceased, Appellee.

Della Mae JOHNSON, Administratrix of the Estate of David Lee

Johnson, Deceased, Cross-Appellant, v. THONI OIL MAGIC BENZOL GAS STATIONS, INC., Cross-Appellee.

Court of Appeals of Kentucky.

Dec. 1, 1972.

Clarance Bartlett, Bartlett, McCarroll & Nunley, Owensboro, for appellant and cross-appellee.

John D. Miller, Miller & Taylor, Richard D. Gilliam, Jr., Owensboro, for appellee and cross-appellant.

VANCE, Commissioner.

Thoni Oil Magic Benzol Gas Stations, Incorporated, appeals from a judgment against it in favor of appellee, Della Mae Johnson, Administratrix of the estate of David Johnson, in the amount of $6,000.00 for the unlawful death of appellee's decedent during the course of a robbery at appellant's gasoline service station. The decedent, David Johnson, was employed as a night attendant at the station. The appellee has cross-appealed upon the ground of inadequacy of damages.

On January 18, 1969, David Johnson was found shot to death on a county road outside the city limits of Owensboro shortly after 1:00 A.M. He was last seen alive at work at the station around midnight and his dead body was located approximately three miles from the station.

He was shot in the head. A pistol in his pocket had been snapped twice but had failed to fire. Approximately one-hundred dollars of the station's receipts was missing.

The station was located near the outskirts of but within the city limits of Owensboro on a principal thoroughfare which was patrolled hourly by city police. The street was not heavily traveled late at night and the closest all-night establishment was approximately three-fourths of a mile away.

The service station was not brightly lighted, had no telephone or cash register and did not employ a fellow attendant. It had been robbed on previous occasions.

On this appeal appellant contends (1) it was entitled to a directed verdict because no negligence was shown on the part of appellant and (2) assuming negligence, it was not shown to the the proximate cause of decedent's death.

This is the second appeal in this case. The first appeal resulted when the complaint was dismissed for failure to state a claim. We reversed and remanded for trial. Johnson v. Thoni Oil Magic Benzol Gas Stations, Inc., Ky., 467 S.W.2d 772 (1971).

In the original action appellee alleged in substance that appellant was negligent in failing to provide her decedent with a safe place to work, failing to train him in a safe method of conducting the business and in failing to provide sufficient aid and help for his safety and protection.

The complaint was dismissed for failure to state a claim with leave to amend. An amended complaint was filed which alleged specific areas of negligence including the failure to furnish adequate lighting, failure to furnish a telephone and cash register at the station, failure to instruct the decedent in means of protection and failure to furnish a firearm or fellow attendant.

The complaint as amended was also dismissed on the ground that it failed to state a claim.

On the issue of negligence of appellant, we are confronted at the outset by appellee's contention that the evidence abundantly established the specific allegations of negligence set forth in the amended complaint. Appellee claims it is the law of this case that the amended complaint states a claim, and having proved the allegations of the amended complaint, the judgment in her favor should not be disburbed.

The appellee is mistaken in her assessment of the law of the case. The opinion in Johnson v. Thoni Oil Magic Benzol Gas Stations, Inc., supra, simply stands for the proposition that in some circumstances an employer may be liable in damages to the estate of a murdered employee. It held that the original complaint, without amendment, sufficiently stated a claim in the sense that it gave fair notice of the basis of the claim. The claim of course must be established and there was no holding that proof of the specific acts alleged in the amendment would be sufficient to establish the claim.

The substance of the claim is that the failure of appellant to provide a safe place to work subjected the decedent to unreasonable exposure to criminal acts of third persons.

In the ordinary situation we indulge the assumption that people will obey the law rather than violate it. Thus, absent unusual circumstances, an employer need not anticipate injury to an employee through the criminal acts of third persons. In the ordinary situation an employer has no duty to provide police protection for employees. Kelly v. Shelby R. Co., Ky., 22 S.W. 445 (1893); Lewis' Adm'r v. Taylor Coal Co., 112 Ky. 845, 66 S.W. 1044 (1902); Louisville Railway Co. v. Logan, 306 Ky. 35, 206 S.W.2d 80 (1947); see annotation, Employer's...