holding that it was well-established that a defendant store owner owed a duty of care to the plaintiff invitee and its duty would in some cases extend to protecting the invitee from harm caused by third partiesSummary of this case from Doe v. Ortho-Clinical Diagnostics, Inc.
Filed 17 August 1981
1. Negligence 55 — invitee injured by acts of criminal — sufficiency of complaint to state claim If an invitee alleges in a complaint that he was on the premises of a store owner during business hours for the purpose of transacting business thereon and that while he was on the premises injuries were sustained from the criminal acts of a third person, which acts were reasonably foreseeable by the store owner and which could have been prevented by the exercise of ordinary care, then the plaintiff has set forth a cause of action in negligence which, if proved, would entitle plaintiff to recover damages from the store owner.
2. Negligence 55 — invitee injured by criminal — sufficiency of complaint to state claim Plaintiff's complaint was sufficient to state a cause of action in negligence against defendant shopping mall owners where the complaint alleged that, at the time plaintiff was assaulted in defendants' parking lot, she was present on the premises during business hours for the purpose of shopping at defendants' mall; had defendants taken adequate precautions to provide for the safety of the customers, plaintiff would not have sustained the injuries complained of; defendants breached their duty adequately to patrol and provide security for the mall parking lot, and breach of this duty was the proximate cause of plaintiff's injuries; in the year preceding the assault upon plaintiff, at least twenty-nine incidents of crime were reported as having taken place in the mall parking lot; and these incidents were sufficient to charge defendants with the knowledge that the parking lot was unreasonably dangerous to the customers who used it.
3. Negligence 57.10 — assault in mall parking lot — summary judgment for owners improper In an action to recover for injuries sustained by plaintiff during an assault in the parking lot of defendants' shopping mall, the trial court erred in entering summary judgment for defendants where genuine issues of fact existed as to whether notice to defendants of thirty-one criminal incidents in the parking lot during the preceding year placed defendants on notice that the likelihood of criminal conduct existed in the parking lot and as to whether defendants, by providing only one guard to patrol the large parking area during the busy shopping period five days before Christmas, breached their duty to exercise reasonable care to maintain the shopping center premises in such a manner that they might be used safely by the customers invited thereon.
PLAINTIFF appeals as a matter of right from the decision of the Court of Appeals, 50 N.C. App. 516, 274 S.E.2d 265 (1981) (opinion by Judge Hill with Judge Arnold concurring and Judge Wells dissenting). The Court of Appeals affirmed summary judgment entered in favor of defendant by Hairston, J., at the 28 January 1980 Civil Session of Superior Court, DAVIE County.
Hutchins Tyndall by Richard D. Ramsey for plaintiff-appellant.
Womble, Carlyle, Sandridge Rice by Allan R. Gitter and James M. Stanley, Jr. for defendant-appellees.
Johnson, Gamble Shearon by Samuel H. Johnson amicus curiae for North Carolina Merchants Association.
Justice CARLTON dissenting.
Chief Justice BRANCH concurs in the dissenting opinion.
This case arose out of an assault on plaintiff, Irene B. Foster, in the parking lot of Hanes Mall Shopping Center in Winston-Salem, North Carolina. Defendants are the owners of Hanes Mall.
Plaintiff drove her car to Hanes Mall on 20 December 1976 and parked near the entrance of Belk's Department Store. She purchased several items at the shopping center and returned to her car at approximately 4:30 p.m. As she was placing her purchases in the car she was assaulted by two unidentified males who beat her, violently pushed her onto the seat of the car, and then threw her to the pavement, continuing to beat and kick her. The assailants robbed plaintiff of her purse and about $145.00. After the two males fled, plaintiff crawled across the parking lot to Belk's Department Store and reported the incident.
Plaintiff brought this action claiming that defendants were negligent in failing to provide adequate security for the protection of their patrons in the mall parking lot, and that this negligence was the proximate cause of plaintiff's injuries. Defendants' own evidence, presented with their motion for summary judgment, indicates that there were thirty-six criminal incidents reported at the mall during a period of one year prior to the assault on plaintiff. From the Court of Appeals' decision affirming summary judgment entered in favor of defendants, plaintiff appeals as a matter of right pursuant to G.S. 7A-30 (2).
Plaintiff presents two issues for our determination; first, whether plaintiff has a cause of action against defendants in negligence for their alleged failure to provide adequate security in the Hanes Mall parking lot, and second, if it is determined that plaintiff has stated a claim for relief, whether she has presented sufficient evidence in support of her claim to withstand defendants' motion for summary judgment. For the reasons stated below, we affirm that portion of the Court of Appeals' decision which held that plaintiff had stated a proper claim for relief, reverse that portion of the decision which found that plaintiff had failed to present sufficient evidence to withstand defendants' motion for summary judgment, and remand for a trial on the merits.
It is well established that an individual who enters the premises of a store as a customer during business hours holds the status of a business invitee for purposes of establishing the duty owed to the individual by the owner of the premises. Smithson v. W. T. Grant Co., 269 N.C. 575, 153 S.E.2d 68 (1967); Long v. National Food Stores, Inc., 262 N.C. 57, 136 S.E.2d 275 (1964). A parking lot provided by the owner for the use of his invitees is considered part of the premises of the store to which the duty owed by the owner extends. Game v. Charles Stores Company Inc., 268 N.C. 676, 151 S.E.2d 560 (1966). The general duty imposed upon the owner is not to insure the safety of his customers but to exercise ordinary care to maintain his premises in such a condition that they may be used safely by his invitees in the manner for which they were designed and intended. Husketh v. Convenient Systems, Inc., 295 N.C. 459, 245 S.E.2d 507 (1978)Wagner v. Delly-Land Delicatessen, Inc., 270 N.C. 62, 153 S.E.2d 804 (1967); Long v. National Food Stores, Inc., supra.
Ordinarily the store owner is not liable for injuries to his invitees which result from the intentional, criminal acts of third persons. It is usually held that such acts cannot be reasonably foreseen by the owner, and therefore constitute an independent intervening cause absolving the owner of liability. Williams v Mickens, 247 N.C. 262, 100 S.E.2d 511 (1957); Ross v. Atlantic Greyhound Corp., 223 N.C. 239, 25 S.E.2d 852 (1943); Ward v. Southern Railway, 206 N.C. 530. 174 S.E. 443 (1934). Nevertheless the Court recognized in these cases that where circumstances existed which gave the owner reason to know that there was a likelihood of conduct on the part of third persons which endangered the safety of his invitees, a duty to protect or warn the invitees could be imposed. In Aaser v. City of Charlotte, 265 N.C. 494, 499, 144 S.E.2d 610, 615 (1965), this Court discussed a landowner's general duty to protect his invitees from injury caused by the acts of third persons as follows:
"In the place of amusement or exhibition, just as in the store, when the dangerous condition or activity . . . arises from the act of third persons, whether themselves invitees or not, the owner is not liable for injury resulting unless he knew of its existence or it had existed long enough for him to have discovered it by the exercise of due diligence and to have removed or warned against it."
The Restatement (second) of Torts, Section 344, sets forth the duty owed by a store owner to protect his invitees from the acts of third persons as follows:
"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 further provides:
"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 a bout to occur. He may, however, know or have reason to know, from past experience that 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 the 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."
Thus, under both the Restatement (Second) of Torts and the prior decisions of this Court, foreseeability is the test in determining the extent of a landowner's duty to safeguard his business invitees from the criminal acts of third persons. See Tyndall v. United States, 295 F. Supp. 448 (E.D.N.C. 1969). If an invitee, such as the plaintiff in this case, alleges in a complaint that he or she was on the premises of a store owner, during business hours for the purpose of transacting business thereon, and that while he or she was on the premises injuries were sustained from the criminal acts of a third person, which acts were reasonably foreseeable by the store owner, and which could have been prevented by the exercise of ordinary care, then the plaintiff has set forth a cause of action in negligence which, if proved, would entitle that plaintiff to recover damages from the store owner.
This holding is supported by the decisions of other jurisdictions. Under facts nearly identical to those of the case before us the court in Morgan v. Bucks Association, 428 F. Supp. 546 (E.D. Pa. 1977), followed Section 344 of the Restatement (Second) of Torts and upheld a jury verdict in favor of plaintiff against the defendant shopping center owner where plaintiff presented sufficient evidence to submit to the jury the question of whether defendant knew or had reason to know that assaults on customers might occur in the shopping center parking lot. The court in O'Brien v. Colonial Village, Inc., 119 Ill. App.2d 105, 255 N.E.2d 205 (1970), likewise acknowledged that a cause of action in negligence could be established under facts similar to those of the case sub judice. In O'Brien the plaintiff's complaint was dismissed for failure to allege that defendants had knowledge of previous incidents or circumstances which would indicate their awareness of any danger of criminal activity occurring in the shopping mall parking lot. The court noted that had plaintiff amended her complaint to allege such awareness on the part of defendants, the court would have been compelled to deny defendants' motion to dismiss. Accord Kenny v. Southeastern Pennsylvania Transportation Authority, 581 F.2d 351 (3d Cir. 1978); Taylor v. Centennial Bowl, Inc., 65 Cal.2d 114, 416 P.2d 793, 52 Cal.Rptr. 561 (1966); Atamian v. Supermarkets General Corp., 146 N.J. Super. 149, 369 A.2d 38 (1976). But see Cornpropst v. Sloan, 236 Tenn. 188, 528 S.W.2d 188 (1975). We find the holdings of the courts in Morgan and O'Brien well reasoned and in compliance with the general established principles of tort liability for negligence.
Plaintiff in the present action alleged in her complaint that at the time she was assaulted in defendants' parking lot, she was present on the premises during business hours for the purpose of shopping at the mall owned by defendants. She further stated that had defendants taken adequate precautions to provide for the safety of their customers, she would not have sustained the injuries complained of. She thus contends that defendants breached their duty to adequately patrol and provide security for the mall parking lot, and that the breach of this duty was the proximate cause of her injuries. In support of her claim that defendants had a duty to provide security measures to protect their customers in the parking lot, plaintiff contends that in the year preceding the assault upon her, at least twenty-nine incidents of crime were reported as having taken place in the mall parking lot. These incidents, she maintains, were sufficient to charge defendants with the knowledge that the parking lot was unreasonably dangerous to the customers who used it. We find these allegations sufficient to state a cause of action against defendants in negligence.
In addition, we hold that plaintiff presented sufficient evidence in support of her claims to withstand defendants' motion for summary judgment. Summary judgment is properly granted only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law." G.S. 1A-1 Rule 56 (c); Caldwell v. Deese, 288 N.C. 375, 218 S.E.2d 379 (1975). The party moving for summary judgment has the burden of establishing the absence of any triable issue of fact. The purpose of Rule 56 is not to allow the court to decide an issue of fact, but to determine whether a genuine issue of fact exists and thereby eliminate the necessity of a formal trial where only questions of law are involved and a fatal weakness in the claim or defense of a party is exposed. Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200, 271 S.E.2d 54 (1980); Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E.2d 419 (1979).
Defendants claim that plaintiff failed to present sufficient proof to withstand their motion for summary judgment on the issues of (1) the foreseeability of criminal acts in the mall parking lot which would create a duty in defendants to provide adequate protection for its customers and (2) assuming such a duty exists that defendants breached this duty by failing to provide adequate security measures.
In support of her claim that defendants were aware that a likelihood of criminal conduct existed in the mall parking lot, plaintiff submitted an interrogatory listing thirty-one incidents of criminal activity reported on defendants' premises during the period from 1 January 1976 to 19 December 1976, the day before the assault upon her. Defendants acknowledged that these incidents had been reported and that they were aware of them. Although only four or five of the reported crimes were characterized as "assaults," we believe the evidence of repeated incidents of criminal activity could be sufficient for the jury to determine that defendants knew or had reason to know of the existence of a likelihood of injury to its customers from the criminal acts of third persons. It is axiomatic that to establish the element of foreseeability, the plaintiff need not prove that the defendant foresaw the injury in the exact form in which it occurred. The plaintiff need only show that in the exercise of reasonable care the defendant should have foreseen that some injury would result from his act or omission or that consequences of a generally injurious nature might have been expected. Williams v. Carolina Power Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979); McNair v. Boyette, 282 N.C. 230, 192 S.E.2d 457 (1972), Johnson v. Lamb 273 N.C. 701, 161 S.E.2d 131 (1968). We cannot hold as a matter of law that the thirty-one criminal incidents reported as occurring on the shopping mall premises within the year preceding the assault on plaintiff were insufficient to charge defendants with knowledge that such injuries were likely to occur. The issue of foreseeability should therefore be determined by the jury, and the Court of Appeals erred in affirming the trial court's order granting summary judgment in favor of defendants.
We likewise find that plaintiff presented adequate evidence of defendants' breach of their duty owed to her to withstand defendants' summary judgment motion. The manager of Hanes Mall, who had the responsibility to provide security for the shopping center, testified upon deposition that only one guard had been employed to patrol the parking lot on the date that plaintiff was assaulted. He further stated that he had represented to the public that the mall had augmented its security measures for the Christmas season, but that he had taken no steps to increase the number of guards patrolling the parking lot area. We believe that a jury could reasonably find that by providing only one guard to patrol the large parking area during the busy shopping period five days before Christmas, defendants breached their duty to exercise reasonable care to maintain the shopping center premises in such a manner that they might be used safely by the customers invited thereon. Since a triable issue of fact exists, summary judgment in favor of defendants was improperly granted.
Accordingly, we affirm that portion of the Court of Appeals' opinion which found that plaintiff had stated a proper claim for relief, reverse that portion of the decision which held that plaintiff had failed to present sufficient evidence in support of her claim to withstand defendants' motion for summary judgment, and remand to the Court of Appeals for further remand to the Superior Court of Davie County for a trial on the merits.
Affirmed in part, reversed in part, and remanded.