Duty of Due Care

The case ofKuehn vs. Pub Zone.As the manager of a convenience store (Biz 24/7) for the retail division ofBigBizLLC, you have encountered thissituation.

Issue:Answerwhether you andBigBiz(the deep pocket) had a duty to protect Hank against violence of the boys. If so, did Hank assume the risk of injury or do anything to contribute to his injuries.

Decision:Can youprotect Hank from the boys' violence? Your answer is? He was/was not negligent, assumed/did not assume the risk.

Reasoning: Why you reached that decision. Begin with a set of guidelines concerning a business owner's duty. Whether a defendant has such a duty depends on the foreseeability and severity of the harm and whether the business person could have prevented it. Is a business owner an insurer of its patrons' safety? Not every assault on the business's premises results in the defendant's liability. When does the duty of care extend off the premises, if at all? Your decision should be consistent with earlier rulings (precedent), in this case Hot Coffee and Pub Zone are precedents, plus any other case on the point of off-premises liability you find in your research.

Describe the key facts from this case that you will use to decide whether you andBigBizhad a duty to Hank. Did you know the boys were dangerous? On what facts do you base your knowledge or lack of it? Were the acts of vandalism and rowdiness enough to foresee this kind of violence? The attack started on the adjacent lot; what facts would cause you to be liable for that? What is the significance of your not opening the door sooner? Did you have a duty to intervene? What more could you have done? Is Hank liable for his injuries? Why or why not?

THE SITUATION:

Your store is open 24 hours a day, seven days a week, staffed in three 8-hour shifts with full- and part-time workers. The neighborhood has declined over the fifteen years since the store was built. Closed circuit TV surveillance covers the interior of the store and the front door, including the portion of the parking lot immediately in front of the store. A substantial amount of the store's sales occur between 11:00 p.m. and 3:00 a.m. Your parking lot accommodates only 8 cars and customers often park in an adjacent yard, even when your lot is not full, and walk across your parking lot to the store. Teenage males frequently congregate in the vacant next-door property, where they are known to drink alcohol and smoke marijuana. As a result, they are rowdy and fights often break out. Three times of which you are aware they vandalized cars parked on that lot. On two occasions when you have worked the 11:00 p.m. to 7:00 a.m. shift, you have called Metro Police to the scene because they were verbally harassing your customers. In each case the boys dispersed without further incident.

At about 2:00 one morning when you are on the job, one of your regular customers, Hank Sherwood, a 50-something warehouse package handler, stops to buy cigarettes and a six pack of his favorite beer on his way home. Hank has parked in the adjacent lot, which he usually does, and walks across your lot to the store. After he makes his purchase, he walks over to where his car is parked. Four boys have congregated around his car, one of them leaning against the driver's side door and another sitting on the hood.

Hank is tired and annoyed. He tells them to move so he can get into his car and leave. He reaches around the boy leaning on the door to grab the handle, brushing lightly against the sleeve of the boy's jacket. Instead of clearing the way, they surround him and begin pushing him around, knocking him to the ground. Hank grabs the legs of one of the boys and pulls him to the ground. The other boys begin kicking and punching Hank. Hank manages to get up and stagger across the other lot and your parking lot to seek safety in the store. The boys follow him and continue to beat him with their fists, but stop at the door. They see you are on the phone and correctly assume you are calling the police. They run off, but you are able to identify them. You did not open the door and let Hank into the store until the boys were gone.

EMTs and uniformed officers arrive and take Hank to a hospital Emergency Department where he is treated for a broken arm, three broken ribs and a concussion. He has internal bleeding as well and is admitted to the hospital, where he remains for six days. He will be unable to work for three months and incurs substantial medical expenses.

The police track down and arrest the four boys and charge them with multiple counts of aggravated battery.

To your surprise, Hank hires a lawyer and sues BigBiz and you personally, claiming you had a duty to protect him from the boys and asking for five million dollars in compensatory damages for his injuries. He also claims that because you delayed opening the door, you permitted additional beating that aggravated his injuries. Your defense attorney answers that you had no duty because the assault occurred off your premises, and it was not foreseeable that the boys would attack him, as they had committed no prior physical assaults. Your answer also alleges that Hank either assumed the risk of injury by parking in the lot where the boys had gathered or was to blame for his injuries. Your store is located in a state that applies the standard of comparative negligence. Remember, only the boys have criminal liability. You are concerned with your and your company's civil liability for negligence and exposure to a substantial amount of compensatory damages.