Zang v. Leonard

• Decision Date: 01 June 1982
• Citation: 643 S.W.2d 657
• Parties: Allen ZANG, Plaintiff-Appellee, v. Eddie LEONARD, Jack C. Spence, and Helen P. Spence, Individually and as Partners d/b/a Spence Properties, Spence Manor Motor Hotel, Spence Motels, Inc., and Motel Systems, Inc., Defendants- Appellants.
• Court: Tennessee Court of Appeals

Page 657

643 S.W.2d 657

Allen ZANG, Plaintiff-Appellee, v. Eddie LEONARD, Jack C. Spence, and Helen P. Spence,

Individually and as Partners d/b/a Spence

Properties, Spence Manor Motor Hotel,

Spence Motels, Inc., and Motel

Systems, Inc.,

Defendants-

Appellants.

Court of Appeals of Tennessee,

Middle Section at Nashville.

June 1, 1982.

Permission to Appeal

Denied by Supreme Court

Oct. 4, 1982.

Robert L. Jackson and John Reynolds, Jackson, Tanner & Reynolds, Nashville, for plaintiff-appellee.

Gary Kazin and Lawrence Levine, Levine & Rosenblum, Nashville, for defendants-appellants.

ABRIDGED OPINION

TODD, Presiding Judge, Middle Section.

(With the concurrence of participating judges, the original

opinion on file with the Clerk has been abridged

for publication)

The defendants, Jack C. Spence and Helen Spence, Individually and partners d/b/a Spence Properties and Spence Manor Motor Hotel, Spence Motels, Inc. and Motel Systems, Inc., have appealed from a judgment against them and in favor of the plaintiff, Allen Zang for $40,000 damages resulting from an incident in which a robber shot plaintiff on the premises of Spence Manor Motor Hotel.

The defendant, Eddie Leonard, was dismissed by the Trial Court and is not a party to this appeal.

For some time prior to his injury, plaintiff had been a resident of Spence Manor, parking his automobile in the lot provided for guests. On May 30, 1977, plaintiff arrived at the motel, parked his auto in the motel lot, and was unloading his baggage when he was approached by a robber who shot him, robbed him, and absconded with his auto.

The theory of plaintiff's suit is that the motel was negligent in failing to make adequate provision for his safety in the parking lot and/or to respond to his needs after his injury.

The first issue presented by appellants is as follows:

1. Did the trial court err in failing to direct a verdict for the defendants and for its charges to the jury on the basis of Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975)?

Appellants state that the foregoing issue "can be broken down" to a series of "sub-issues", all of which relate to instructions which the Trial Judge gave or refused to give to the jury. None of the subordinate issues mentions a directed verdict. To avoid confusion, certain "sub-issues" will be discussed rather than Issue 1, quoted first above.

Sub-issue A complains of an instruction given to the jury as follows:

10. "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 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."

Sub-issues B and C complaint of the refusal of defendants' special requests for instructions as follows:

In order for you to render a verdict against the Defendants in this case, for the shooting of Allen Zang, you must find that the Defendants knew in advance of the actions of James Hinkle, and not some other person, which gave the Defendants notice of the imminent probability of danger to the Plaintiff, Allen Zang.

....

There is no duty upon the Defendants whose mode of operation of their premises does not provide a climate for crime, to guard against the criminal acts of a third party such as James Hinkle, unless they know or have reason to know that acts are occurring or about to occur on the premises that impose imminent probability of harm to a guest, whereupon a duty of reasonable care to protect against such acts arises.

Appellants cite Cornpropst v. Sloan, Tenn. 1975, 528 S.W.2d 188, wherein the Supreme Court stated:

The question on this appeal is whether the complaint states a cause of action against merchants who are members of a shopping center association, for personal injuries to an invitee resulting from a sudden criminal assault by a third party, on a shopping center parking lot.

In our opinion the appropriate rule applicable to this case is as follows: There is no duty upon the owners or operators of a shopping center, individually or collectively, or upon merchants and shopkeepers generally, whose mode of operation of their premises does not attract or provide a climate for crime, to guard against the criminal acts of a third party, unless they know or have reason to know that acts are occurring or about to occur on the premises that pose imminent probability of harm to an invitee; whereupon a duty of reasonable care to protect against such acts arises. Id. at 197, 198.

It was not intended that the holding in Cornpropst should be controlling in all cases of assault by strangers upon an invitee of the defendant. In this respect, the Cornpropst opinion states:

We are not called upon, in this case, to draft a rule applicable to all of the many types of business and entertainment and service establishments or of every premises liability, or special relationship situation wherein a duty of protection of invitees might be asserted, and we do not propose to do so. Id. at 198.

In Cornpropst, defendants owned or controlled or were associated in the ownership and control of a "wide open" parking area to which the general public was invited for the purpose of patronizing various business establishments in the area. In the present case, none of these elements were present. The parking lot was maintained only for the guests of the motel. No others were invited or expected to enter. Therefore, the duty of defendants in this case is not the same as the duty described in Cornpropst, and the Trial Judge committed no error in refusing to charge the language of Cornpropst.

Appellants insist that the portion of the charge in Sub-issue A was erroneous. In response, appellees point out that it is in the exact language of Sec. 344 of Restatement of Torts (second). Whatever the source of this portion of the charge, it is erroneous. The challenged language is too broad to conform to the present state of the law in Tennessee. Its wording permits an interpretation which would make a possessor of land an insurer of invitees against injury from the acts of third persons or animals. That is, the wording is susceptible to the interpretation that injuries from the acts of third persons (unaided by negligence of possessors) and injuries resulting from negligence of possessors impose liability upon possessors. In order to correctly state the law the charge should make it clear that possessors are liable for misconduct of third persons only when negligence of the possessor is a proximate cause of the injury.

The measure of the liability of the possessor of land to invitees is due care under all the circumstances including the nature and use of the land, the nature of the invitation, the nature of the relationship with the invitee, the opportunity of the possessor and the invitee to know and avoid existing or probable dangers, and any and all other factors which would challenge the attention of the possessor and/or invitee to the probability of danger to the invitee and produce the precautions which a reasonably prudent person would instigate under the same or similar circumstances.

In the present case, it is shown that the motel was advertised as an unusual establishment which offered better than ordinary facilities to its patrons, that the location of the motel was such as to be convenient to law violators, and that other patrons had been previously assaulted on the premises. These circumstances, and all others shown by the evidence, were the proper basis for a finding of fact by the jury as to what, if any, protective measures would have been employed by a reasonably prudent motel operator under the same circumstances. The jury should have been so instructed.

The jury should have been further instructed that, after finding as a fact the measures which should have been taken, the jury next should determine whether the actions of the responsible defendants conform to the actions of a reasonably prudent motel operator, as found by the jury; that if the jury should find that the conduct of a defendant or defendants did so conform, the jury should find the such defendant or defendants not guilty of negligence; but that if the jury should find that the conduct of a defendant or defendants did not conform to such care of a prudent motel operator as found by the jury, the jury should find such defendant or defendants to be negligent.

Sub-issue E complains of the refusal of the Trial Judge to charge the jury as follows:

I further charge you that if the owner is to be held liable for certain criminal acts of third persons, there must be a showing that the owner was on notice in some manner of the imminent probability of the act.

This requested instruction is a quotation from Corbitt v. Ringley, Tenn.App.1973, 496 S.W.2d 914; however, the quotation is misleading, for it omits other explanatory portions of the opinion, such as the following:

This does not mean that the owner will automatically escape liability in every case of a sudden assault on a patron by a third party. 496 S.W.2d at 917.

Moreover, the cited case involved a situation where there had been no previous similar criminal act on the premises.

Sub-issue F complains of the refusal of the Trial Judge to charge at the request of defendants as follows:

I further charge you that the law does not place the duty upon an owner of anticipating the criminal acts of another unless the criminal act is the natural and spontaneous result of the act or failure to act of the owner.

This request-for instruction was based upon Brodie v. Miller, 24 Tenn.App. 316, 143 S.W.2d 1042 (1940). In that case a tavern employee ejected an unruly patron...