Taco Bell, Inc. v. Lannon

This is a negligence case arising from an incident in which the plaintiff, John P. Lan-non, 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 Lan-non 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.

I.

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 *44door, 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 plaintiffs 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 *45by 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 allevi-

ate 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 peti*46tion, 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.

II.

A.

“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 upon the [defendant].” Smith, 726 P.2d at 1127. Accord, e.g., Iverson v. Solsbery, 641 P.2d 314, 316 (Colo.App.1982). Other considerations may also be relevant, depending on the circumstances of each particular case. See W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser and Keeton on the Law of Torts §§ 31, 53 (5th ed. 1984) (cited herein as “W. Keeton”). No one factor is controlling, and the question of whether a duty should be imposed in a particular case is essentially one of fairness under contemporary standards— whether reasonable persons would recognize a duty and agree that it exists. See W. Keeton, § 53, at 359.

On a few occasions, this court has considered the duty that owners or occupiers of land owe to those who enter on their premises. In Safeway Stores, Inc. v. Smith, 658 P.2d 255 (Colo.1983), a case in which the plaintiff had slipped and fallen in the defendant’s grocery store, we held that “[a] store operator has a duty to his customers to use ordinary care to keep the floors used by them in a reasonably safe condition.” Id. at 256. More generally, we also stated that a “proprietor is guilty of negligence only if he fails to use reasonable care under the circumstances to discover the foreseeable dangerous condition and to correct it or to warn customers of its existence.” Id. at 258.

In Mile High Fence Co. v. Radovich, 175 Colo. 537, 489 P.2d 308 (1971), a case in which the plaintiff had stepped in a pos-thole located on the defendant’s property, we held that foreseeability, rather than the status of the plaintiff as a trespasser, licensee, or invitee, is the primary factor in determining whether an owner or occupier of land owes a duty to persons who enter on the premises. Id. at 547-48, 489 P.2d at 314. “[I]t is the foreseeability of harm from the failure by the possessor to carry on his activities with reasonable care for the safety of the entrants which determines liability.” Id. at 547, 489 P.2d at 314 (emphasis in original). “[T]he occupant, in the management of his property, should act as a reasonable man in view of the probability or foreseeability of injury to others.” Id. at 548, 489 P.2d at 314. See also Kerby v. Flamingo Club, Inc., 35 Colo.App. 127, 532 P.2d 975 (1974).

Together, Safeway and Mile High Fence stand for the proposition that owners or occupiers of land have a duty to exercise reasonable and ordinary care to make their premises safe for those who may enter upon them. However, this court has never decided whether this duty encompasses taking reasonable measures to protect business patrons from injuries caused by the criminal acts of unknown third persons.

Other courts that have considered this issue have almost uniformly held that while owners or occupiers of land held open for business purposes are not insurers of their customers’ safety, a duty arises on the part *47of the owner or occupier to take reasonable measures to protect customers from injuries caused by the criminal acts of unknown third persons when such acts are generally foreseeable. E.g., Cohen v. Southland Corp., 157 Cal.App.3d 130, 203 Cal.Rptr. 572, 575 (1984); Antrum v. Church’s Fried Chicken, Inc., 40 Conn. Supp. 343, 499 A.2d 807, 808-10 (1985); Jardel Co., Inc. v. Hughes, 523 A.2d 518, 525 (Del.1987); Stevens v. Jefferson, 436 So.2d 33, 34-35 (Fla.1983); Taylor v. Hooker, 101 Ill.App.3d 639, 57 Ill.Dec. 112, 428 N.E.2d 662, 664 (1981); Martinko v. H-N-W Associates, 393 N.W.2d 320, 321-22 (Iowa 1986); Nappier v. Kincade, 666 S.W.2d 858, 860-62 (Mo.Ct.App.1984); Early v. N.L.V. Casino Corp., 100 Nev. 200, 678 P.2d 683, 684-85 (1984); Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141, 1143 (1982);5 Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 407 N.E.2d 451, 457-58 (1980); Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 281 S.E.2d 36, 38-39 (1981); Daily v. K-Mart Corp., 9 Ohio Misc.2d 1, 458 N.E.2d 471, 475 (1981); Uihlein v. Albertson’s, Inc., 282 Or. 631, 580 P.2d 1014, 1018 (1978). Murphy v. Penn Fruit Co., 274 Pa.Super. 427, 418 A.2d 480, 482-83 (1980). But see Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975) (shopkeeper has no duty to take measures to protect invitees from consequences of criminal acts by third persons unless shopkeeper knows or has reason to know that such acts are occurring or are about to occur and that such acts pose imminent probability of harm to invitee); Castillo v. Sears, Roebuck & Co., 663 S.W.2d 60 (Tex.Ct.App.1983) (same).

The Restatement (Second) of Torts § 344 (1965) also recognizes that an owner or occupier of property has a duty to protect customers from injury caused by criminal conduct in such circumstances. Section 344 provides:

Business Premises Open to Public: Acts of Third Persons or Animals

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 are 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.

Comment f to section 344 makes clear that the existence of this duty depends, to a great extent, on the foreseeability of criminal conduct by third persons.

Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, *48that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

(Emphasis added.) We agree with the statement of the law contained in section 344 and comment f. Accord, e.g., Cohen, 203 Cal.Rptr. at 576; Jardel Co., 523 A.2d at 524-25; Martinko, 393 N.W.2d at 321-22; Butler, 445 A.2d at 1145-46; Nallan, 407 N.E.2d at 457-58; Foster, 281 S.E.2d at 38-39; Uihlein, 580 P.2d at 1018.

Turning to the facts of the present case, we conclude that the evidence of ten armed robberies at this particular Taco Bell restaurant in the three years prior to the incident at issue in this case sufficiently established that harm to customers as the result of criminal acts by third persons was foreseeable by Taco Bell. Cf. Butler, 445 A.2d at 1142-44 (evidence of seven muggings in past year at store sufficient to establish foreseeability); Foster, 281 S.E.2d at 39 (allegations of twenty-nine criminal incidents in mall parking lot in year prior to assault sufficient to state duty element of a cause of action; type of incidents not specified); Daily, 458 N.E.2d at 472-76 (allegations of forty-nine incidents of serious crime at store sufficient to present issue of breach of duty to jury).

Taco Bell argues, however, that the plaintiffs injury was not foreseeable since armed robberies of the type involved in this case occur randomly and without notice of the specific time and the specific manner in which they will take place. We reject this argument. The concept of foreseeability is simply not so limited. To establish that an incident is foreseeable, it is not necessary that an owner or occupier of land held open for business purposes be able to ascertain precisely when or how an incident will occur. Rather, foreseeability “includes whatever is likely enough in the setting of modem life that a reasonably thoughtful person would take account of it in guiding practical conduct.” 3 F. Harper, F. James, & 0. Gray, The Law of Torts § 18.2, at 658-59 (2d ed. 1986) (cited herein as “3 F. Harper”). The fact that ten armed robberies had occurred at the Taco Bell restaurant in a period of three years would certainly put a reasonable person on notice that such robberies would be likely to occur in the future and that the consequences of those robberies should be considered in determining how the restaurant should be run. Cf. Ekberg v. Greene, 196 Colo. 494, 588 P.2d 375 (1978) (evidence of past vandalism of gas station restroom sufficient for jury to find that vandalism of restroom in future was foreseeable); Kerby v. Flamingo Club, Inc., 35 Colo.App. 127, 532 P.2d 975 (1975) (previous fights and disturbances on premises established that such incidents were foreseeable); Cohen v. Southland Corp., 157 Cal.App.3d 130, 203 Cal.Rptr. 572, 576-77 (1984) (evidence of one prior armed robbery at 7-Eleven store together with evidence of more than one robbery per store per annum at other 7-Elevens in area sufficient to make foreseeability a triable issue of fact); Nappier v. Kincade, 666 S.W.2d 858, 862 (Mo.Ct.App.1984) (prior criminal acts on premises will be sufficient to put owner on notice of possible harm to customers; not necessary that owner be aware of exact type of criminal acts that might take place on the premises).

Taco Bell also argues that the plaintiff’s injury was not foreseeable because none of the previous armed robberies at the restaurant had resulted in injury to any customer. This argument cannot withstand scrutiny. Simply because something has not yet happened does not mean that its happening is not foreseeable. Instead, foreseeability is based on common sense perceptions of the risks created by various conditions and circumstances. See Restatement (Second) of Torts § 289 (1965). We have little difficulty in concluding that armed robberies *49present a significant risk of injury to persons unfortunate enough to be present when one occurs. Therefore, the plaintiffs injury was foreseeable despite the absence of injuries from the previous armed robberies that had occurred at this particular Taco Bell restaurant. Cf. Ekberg, 196 Colo, at 495-97, 588 P.2d at 376-77 (jury could reasonably conclude that previous vandalisms of gas station restroom together with other conditions in restroom rendered injury to members of the public foreseeable); Cohen, 203 Cal.Rptr, at 577 & n. 2 (injury to customer during armed robbery foreseeable despite absence of injury in only prior armed robbery at store); Jardel Co., 523 A.2d at 525 (“[T]he repetition of criminal activity, regardless of its mix, may be sufficient to place the property owners on notice that personal injury, not merely property loss, will result.”).

We are satisfied that the risk of injury to the plaintiff was foreseeable in the present case. However, as noted earlier, foreseeability alone does not establish the existence of a duty.6 There are other considerations that we believe are relevant in helping to determine whether a duty arose in this case.

Armed robberies present a substantial degree of risk to the public. No evidence was presented in this case concerning the frequency of injuries to patrons resulting from armed robberies on business premises. However, we are persuaded that whatever the likelihood of armed robberies at this restaurant and of injuries resulting from those armed robberies may be, the gravity of the possible harm to patrons from such robberies is substantial. “As the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less to generate a duty of precaution.” W. Keeton, § 31, at 171. Accord 3 F. Harper, § 16.2, at 471.

We also do not believe that imposition of a duty to take reasonable measures to protect patrons from the consequences of criminal acts on the part of unknown third persons would place an onerous burden on either Taco Bell or the community. To be sure, such measures would result in some economic burden on Taco Bell and a predictable corresponding increase to customers in the cost of Taco Bell’s food products. For the most part, however, we believe that these potential measures — which, according to the evidence in this case, might include making sure the restaurant is well illuminated, installing highly visible video cameras, keeping small amounts of cash in the registers, posting signs notifying potential robbers of the small amount of cash kept on the premises, training employees in methods for dealing with in-progress robberies, and locking non-public entrances during nighttime hours — are relatively inexpensive.7 Accord Cohen, 203 Cal.Rptr. at 579.

Furthermore, we believe that it is equitable that the cost of taking reasonable measures to protect patrons from criminal activity be borne by the owner, operator, and, indirectly, the customers of the restaurant. As stated by the California Court of Appeals in Cohen:

It is also not unfair that patrons pay a few cents more for items they purchase from such a store and gain the assurance of reasonable protection against criminal activity by shopping there, rather than allow the emotional and physical burden of a criminal attack to fall on the store patron who inadvertently finds himself or herself in the middle of a robbery *50invited by the store’s failure to employ minimal crime deterrence measures.

Cohen, 703 Cal.Rptr. at 579. Accord, e.g., Antrum, 499 A.2d at 810; Butler, 445 A.2d at 1145. See generally, 3 F. Harper, § 16.9, at 475-80 (where cost of precautions is relatively low, social utility of not taking precautions is usually outweighed by the risk involved).

Taking all of these factors into consideration, we conclude that the court of appeals was correct in holding that Taco Bell had a legal duty, under the circumstances of this case, to take reasonable measures to protect its customers from the consequences of criminal acts on the part of unknown third persons.8

We turn now to the question of whether the court of appeals was correct in deciding that the issue of whether Taco Bell breached its duty by failing to provide one or more armed security guards was properly left to the jury to decide.

B.

While the question of whether a particular defendant owed a legal duty to a particular plaintiff is a question of law, and therefore a question for the court to decide, Smith, 726 P.2d at 1127; Metropolitan, 621 P.2d at 317, the question of whether the defendant breached that duty by its actions or by its failure to act is a question of fact, and therefore a question to be decided by the jury. City of Aurora v. Loveless, 639 P.2d 1061, 1063 (Colo.1981); Metropolitan, 621 P.2d at 318-19; W. Keeton, § 37, at 237-38; 3 F. Harper, § 18.8, at 743; Restatement (Second) of Torts § 328C (1965); James, Functions of Judge and Jury In Negligence Cases, 58 Yale L.J. 667 (1949) (cited herein as “James”). Only when the evidence is so clear that reasonable minds could not differ as to whether the defendant failed to exercise reasonable care and thereby breached its duty to the plaintiff may the court take that question from the jury and direct a verdict. Ferguson v. Gardner, 191 Colo. 527, 530, 554 P.2d 293, 296 (1976); W. Kee-ton, § 37, at 237-38; 3 F. Harper, § 18.8, at 744; Restatement (Second) of Torts § 328C comment b (1965); James, 58 Yale L.J. at 676-79.

With these principles in mind, we agree with the court of appeals that it was proper to submit to the jury the issue of whether Taco Bell breached its duty by failing to provide armed security guards. The record clearly shows that the plaintiff relied solely on Taco Bell’s failure to provide one or more armed security guards to establish that Taco Bell breached its duty to the plaintiff. Although the plaintiff’s witnesses testified as to several precautions, including the use of armed security guards, that a fast food restaurant could take to deter robberies, the only evidence that Taco Bell had failed to take these precautions was that there was no armed security guard at the restaurant on the night of the robbery. Three Denver police officers experienced in investigating crimes and in providing security for fast food restaurants testified that other fast food restaurants in “high crime areas” frequently employed armed security guards. Two testified that, in their opinion, the robbery in this case would not have occurred if an armed security guard had been on the premises. Also, a management employee of another fast-food restaurant in Denver testified that the restaurant at which she worked, and at least one other fast food restaurant operated by the same company, had employed armed security guards for several years because of concerns about vandalism and robberies. Taco Bell offered no evidence concerning the effectiveness of armed guards in deterring and handling robberies *51or the cost to the restaurant of hiring armed guards.

Based on this record it cannot be said that reasonable persons could reach but one conclusion with respect to whether Taco Bell breached its duty by failing to provide one or more armed security guards. It follows that the issue was properly submitted to the jury. E.g., Cohen, 203 Cal.Rptr. at 579-80; Jardel Co., 523 A.2d at 525-26; Butler, 445 A.2d at 1146; Foster, 281 S.E.2d at 40.

III.

In summary, we conclude that Taco Bell had a legal duty in this case to take reasonable measures to protect its patrons from the consequences of criminal acts on the part of unknown third persons. We further conclude that it was for the jury to decide whether Taco Bell breached its duty by failing to provide one or more armed security guards.9

The judgment of the court of appeals is affirmed.