IF A CUSTOMER IS
HURT DURING A ROBBERY BECAUSE YOU STALLED
IN RESPONDING TO
THE ROBBER'S DEMANDS, ARE YOU LIABLE?
It is a
pleasant, quiet mid-week morning. There
are only a few customers in your coin laundry as you move about, emptying coin
boxes. Suddenly, a robber appears and
brandishes a gun. You watch with shock
and dismay as a pregnant customer is taken hostage with the robber holding his
gun to her back.
The robber, with
his gun pointed at the back of your customer, orders you to open the currency
changer, and tells you, borrowing a line from a movie popular a long time ago,
"SHOW ME THE MONEY!"
You attempt to stall the robber by telling him you need to get a special
key to open the changer. The robber
becomes agitated and tells you that he will shoot your customer if you do not
immediately open the currency changer.
The customer
then screams at you to open the changer and give the robber the money. You finally, reluctantly, comply with the
robber's demands.
The customer
later sues you, alleging that since you did not comply promptly with the
robber's demands, the delay caused her
emotional and physical injuries, hospital and medical expenses, loss of
wages and a loss of earning capacity.
Are you liable?
The Supreme
Court of California considered this question in an appeal involving a customer
who was assaulted at a Redondo Beach restaurant operated by Kentucky Fried
Chicken ("KFC"). The
plaintiff, a woman, alleged that she was a customer at the Redondo Beach outlet
when she was seized and held at gunpoint by an unidentified person who
threatened to seriously injure her if employees of KFC did not give the robber
the money in the cash register. She
alleged that an employee did not promptly comply with the robber's demands and
that such delay, and other actions, caused further injury to her and resulted
in additional threats of grave injury.
The Complaint
also alleged that KFC failed to provide proper security, failed to properly
train employees in how to respond to criminal activity to avoid endangering
customers. [On the subject of providing
security, the reader is referred to the author's April, 1996 New Era article.]
The decision
reports that the woman was the only customer in the KFC restaurant when she was
suddenly accosted by the robber, who put a gun to her back. The customer promptly complied with the
robber's demands and surrendered her cash and wallet. He then demanded that a clerk open the cash
register and give him all of the money.
The clerk did not promptly comply with the robber's demands. The clerk, instead, told the robber that she
would have to go to the back of the restaurant for a key. The decision further reports:
"The
robber then became extremely agitated, shoved his gun harder into the woman's
back, told the employee he would shoot the woman if the employee did not 'quit
playing games' and open the cash register immediately. The woman, who believed she was going to die
because of the employee's actions, then 'screamed' at the clerk to open the
drawer and give the money to the robber, at which point the clerk complied and
opened the cash register drawer. The
robber seized the money and fled."
The woman later
filed a negligence action in the Torrance branch of the Los Angeles County
Superior Court. KFC felt that the
employee had no duty to the customer and filed a motion for summary
judgment. The trial court denied KFC's
motion for summary judgment with the result that KFC filed a petition for writ
of mandate in the Court of Appeal, seeking to overturn the trial court's
order. The Court of Appeal, however,
denied KFC's petition, holding that a shopkeeper owes a duty to a patron to
comply with an armed robber's demand for money in order to avoid increasing the
risk of harm to patrons.
The Supreme
Court of California, however, reversed the judgment of the Court of Appeal,
holding that there is no duty to comply with a robber's unlawful demand, and
the simple refusal to obey such a demand does not breach any duty to third
persons present on the premises. The
Supreme Court concluded that recognition of such duty would be contrary to
public policy as it would encourage similar unlawful conduct.
If this
conclusion of the California Supreme Court appears questionable to you, you are
not alone. The seven justices of the
California Supreme Court were not of one mind on this question. The Supreme Court was divided 4 to 3 in its
decision. The Supreme Court noted that
the KFC employee did not actively resist or intentionally engage in provocative
conduct. The Supreme Court thus
concluded:
"Because
we are not faced with a situation in which active resistance to a robbery
resulted in injury to a third person, our holding is narrow. We hold only that there is no duty to comply
with a robber's unlawful demand for the surrender of property. Simple refusal to obey does not breach any
duty to third persons present on the premises."
In one of the
dissenting opinions of the justices, the alternative argument is made that the
issue is not whether there is a duty to comply with the robber's demand, but
rather, whether KFC's employee breached a standard of care to the customer by
unreasonably refusing to comply with the robber's demand for money. The dissent notes first that:
"the majority and I agree that the
restaurant had a duty to take reasonable steps to protect its patrons from
foreseeable assault by third parties on the premises. . . . Given this duty, the question of whether the
restaurant breached this duty and failed to use due care when its cashier
initially refused to comply with the robber's demands is a question for the
jury."
The dissent continues:
"As
the ultimate success of the robber in this case illustrates, however, it is
unlikely that in most cases a proprietor's refusal to cooperate will deny the
robber what he seeks. It also seems
unlikely that the majority's decision will embolden business proprietors or
their employees to refuse the demands of an armed robber at a greater rate than
they would if they were under a duty to use reasonable care, for they too are
in the robber's zone of danger."
How might you
respond to such a robber if you were in his "zone of danger?"
[This column is intended to provide general information only and
is not intended to provide specific legal advice; if you have a
specific question regarding the law, you should contact an
attorney of your choice. Suggestions for topics to be discussed
in this column are welcome.]
Reprinted from The Journal
Myles M. Mattenson © 2009
