The people who attacked the customers are obviously subject to criminal prosecution. But I'm talking about tort responsibility, meaning civil liability for the personal injuries suffered by the customer.
Can a customer bring a lawsuit for money damages against the bar, restaurant or shopping mall for failing to provide adequate security? Before you say, 'Of course,' let's have a short lesson on the common law.
The common law is our judge-made law that has evolved over time and serves as precedent in tort cases. The common law changes as the needs of society change. That is its genius.
At common law, there is no duty at all to protect or rescue someone from the criminal conduct of a third party. Why? Because of a lack of control over the third person's conduct. Because the law is uncomfortable at creating liability for failing to act. Because of the right of self-preservation. And because it doesn't seem right to have to anticipate someone else's criminal conduct and protect against it.
In the common law of torts, for every legal rule, exceptions develop. One of the exceptions to the no-duty-to-protect rule involves some special relationships. If there is a special relationship between the parties involved, under certain circumstances there might be a duty to protect where otherwise there is not. Among those with special relationships are business proprietors and their customers. Let's check the latest word on this, from California, as usual.
Michael Delgado and his wife went to the Trax Bar and Grill in Turlock, Calif. At 6 feet 1 inches and 230 pounds, Michael was no girly man. During the 90 minutes or so he and his wife were at the bar, a stranger named Joseph kept staring at them, to the point that his wife approached one of the two security guards employed by the bar, expressing her concern that there would be a fight. The security guard agreed, and suggested the Delgados leave, but didn't escort them to their car. Nor was the other security guard at his post in the parking lot.
Joseph and a gang of buddies followed the Delgados into the parking lot, and then, joined by more buddies, jumped Michael and severely beat him.
Joseph was arrested and later convicted. Michael Delgado sued Trax Bar and Grill for negligence in failing to protect him from this harm.
The question the California Supreme Court wrestled with was whether this case falls under the "no duty to protect" rule or one of the special relationship exceptions that has developed over time.
When a state's highest court decides a new issue or revisits an old one, it looks first at what it has already decided on the subject. In the past, the California high court had held that a business owner would not have to provide security guards -- described as a financially burdensome responsibility -- unless there had been a prior similar incident on the premises and the premises were under the owner's control. So if you were the first customer assaulted, you were out of luck.
In 2001 and then again in 2004 the California high court held that, in the absence of a prior similar criminal act on its premises, a business proprietor also had no obligation to provide other security measures, such as security cameras, bright lighting and regular patrols of the premises.
The Ohio Supreme Court takes a "no duty without prior similar-incidents" and a "no duty if you don't control the premises" position, and has not revisited these issues in years.
Let's return to Trax Bar and Grill. There had been no similar attacks at Trax, and the bar voluntarily provided security guards. But in Trax, the issue was not about preventing future attacks. The issue was what was required during an imminent or ongoing attack.
The California Supreme Court held that, once an attack is imminent or ongoing, the special-relationship principle kicks in, which means there is a duty to do something. The proprietor has a "minimally burdensome" duty to take "such appropriate action as is reasonable under the circumstances" to protect its patrons. In the case of Trax Bar, this meant having the security guard try and talk Joseph into staying in the bar until the Delgados were gone and making sure there was a guard in the parking lot to help the customers safely to their cars. It's up to a jury to decide if the bar's actions were adequate under the circumstances.
To emphasize its "totality of the circumstances" approach, the California high court decided a companion case on the same day as Delgado. In Morris vs. De La Torre, the plaintiff was with a group of friends in the parking area of an all-night Mexican restaurant. Although the parking lot was shared by other businesses, it was so late that the restaurant was the only business open. That is significant because, at the time of the attack, the restaurant had sole control over the parking area. The plaintiff, who wanted nothing to eat, waited in the parking lot while his friends were inside. He was attacked and repeatedly stabbed by a gang member, who had run into the restaurant demanding and taking a knife. Three restaurant employees saw the entire incident from the window without doing anything to help.
The victim sued the restaurant for failing to take steps to protect him. The California Supreme Court held his suit should be permitted under the special-relationship principle, like that in Trax Bar, to take minimally burdensome measures to help a customer in danger from imminent or ongoing criminal conduct on the premises under its control. In this case, that meant calling 911, which the employees could have done without being put in any personal danger.
The court took pains to say that no one has to undertake such a duty if doing so would endanger his or her own life or that of other customers. Nor did it mean the employees had to rescue the plaintiff from danger. A premises owner can defend against a claim like the plaintiff's by arguing that the failure to act was based on a real fear of the employees for their own safety.
In this case, the court felt the evidence suggested otherwise. But as with Trax Bar, the court held it's up to a jury to decide if the restaurant must pay for the customer's injuries, based on all the circumstances presented.
Marianna Brown Bettman, a former Ohio appeals court judge, teaches at the University of Cincinnati College of Law.