Opinion
C.A. No. 97C-07-050.
Submitted: October 17, 2000.
Decided: December 28, 2000.
Upon Plaintiff's Motion for a New Trial. Denied.
Stephen A. Hampton, Grady Hampton, P.A., Dover, Delaware, Attorneys for the Plaintiff.
James P. Hall, Phillips, Goldman Spence, P.A., Wilmington, Delaware, Attorneys for the Defendant Delaware Food Corp. t/a Touchdown Lounge.
ORDER
Upon consideration of the Plaintiffs Motion for a New Trial pursuant to Superior Court Civil Rules 50(c)(2) and 59, the Court finds that:
1. On August 25, 1995, Andrew Peterson (Plaintiff) was assaulted by Michael R. Hudgins, a minor, and Michael James Whitby while at the Touchdown Lounge ("Defendant Lounge") in Dover. Peterson and Hudgins were involved in an initial confrontation in the pool room. Peterson then left the pool room to seek assistance. Shortly thereafter he re-entered the pool room area with his friend James Guzzie ("Guzzie") to go back to the table where his fiancee was seated. While on the way back to their table, Peterson and Guzzie were met by Hudgins and his friend Whitby. At this time, Whitby struck Peterson breaking his jaw. Plaintiff then filed a personal injury action against Hudgins, Whitby and Delaware Food Corporation t/a The Touchdown Lounge. A default judgement was obtained against Defendants Hudgins and Whitby prior to trial. On September 11, 2000, a jury trial was held in the Superior Court to determine Defendant Lounge's liability, apportion liability between the defendants and determine Peterson's damages.
2. At the close of Plaintiff's case, the Defendant Lounge brought a motion for Judgement as a Matter of Law pursuant to Superior Court Civil Rule 50(b). Defendant Lounge claimed that no duty was owed to the Plaintiff because the altercation between Peterson and the co-defendants was not foreseeable. The motion was denied at the end of the Plaintiff's case and renewed at the end of the Defendant's case at which time it was granted.
3. Judgement as a matter of law is appropriate where "during a jury trial a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue." The issue upon which the Court granted the motion for Judgement as a Matter of Law at trial was that the Defendant Lounge was not liable for Peterson's injuries. Plaintiff claims that a sufficient legal evidentiary basis existed to establish the Defendant Lounge's negligence; therefore, the case should have gone to the jury. Defendant Lounge essentially reiterates their arguments from trial and again draw the Court's attention to Brynes v. Keenan as being directly on-point and dispositive of the case presently before the Court.
Superior Court Civil Rule 50(a).
Brynes v. Keenan, Del. Super., C.A. No. 82C-MY-48, Poppiti, J. (May 19, 1987) (Mem. Op.).
4. Andrew Peterson was a business invitee or business visitor of the Touchdown Lounge. The duty owed by the Touchdown Lounge to Peterson as a business invitee is defined in the Restatement (Second) of Torts § 344 (1965) as follows:
Restatement (Second) of Torts § 332 (1965). (1) An invitee is either a public invitee or a business visitor. (3) A business visitor is a person who is invited to enter or remain on land for a purpose directly connected with business dealings with the possessor of the land.
See Diossi v. Maroney, Del. Sup., 548 A.2d 1361, 1366 (1988) (discussing business invitees/visitors).
§ 344. 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 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.
5. Plaintiff argues in this motion that judgement as a matter of law was inappropriate in this case because the issue of forseeability is a jury question. Specifically, Plaintiff claims that the testimony at trial established that a couple of earlier incidents occurred at the Lounge creating the forseeability and thus the duty to protect business invitees. The "Duty to Police Premises" in Comment f to Restatement (Second) § 344 states the following:
Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise reasonable 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, that there is a likelihood of conduct on the part of the 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.
6. A landowner's duty to business invitees is defined by his knowledge of the harmful activities of third parties that have occurred on his property. The question faced by this Court is the forseeability of the assault on Peterson. The Defendant Lounge's duty to third persons such as Peterson is a duty of reasonable care in light of the knowledge of the possessor of land, i.e. what was foreseeable. This line of reasoning was adopted by the Delaware Supreme Court in Jardel Co., Inc. v. Hughes. In Jardel, the Court recognized "that application of the principle of forseeability to claims based on nonfeasance — here not anticipating acts of third parties — may prove difficult." While recognizing the difficulty of applying the forseeability principle, the Court went on to say that "while a property owner is not an insurer of public safety . . . there is a residual obligation of reasonable care to protect business invitees from the acts of third persons." Plaintiff argues that based on Jardel "whether the conduct of a particular property owner meets the standard of reasonable care is, of course, a matter for jury determination." The approach used in Jardel has become the standard in Delaware in cases involving business invitee injuries caused by third parties.
Restatement (Second) of Torts § 344 cmt f (1965), quoted in Jardel Co., Inc. v. Hughes, Del. Sup., 523 A.2d 518, 524 (1987).
Jardel at 525.
Id.
Id.
Id.
See Furek v. Univ. of Delaware, Del. Supr., 594 A.2d 506, 520-23 (1990) (evaluating duty involved in university-student relationship for forseeability of physical harm in hazing incident at University of Delaware); Diossi at 1366 (finding property owners liable for injuries sustained by valet when struck by drunk minor at debutante party because harm was foreseeable); Kaster v. Big Kahuna of Wilmington, Inc., Del. Super., C.A. No. 97C-08-067, Toliver, J. (April 14, 1999), Order at 2 (noting that standard of care for property owners to business invitees is reasonable care and whether property owners' actions were reasonable is left to jury determination); Johnson v. Wesiminister Presbyterian Church, Del. Super., C.A. No. 92C-07-251, Toliver, J. (Aug. 25, 1993), Op. and Order at 4 (holding that 1 prior incident at church breakfast for homeless created the requisite forseeability for the church (landowners) to have a duty to protect third parties); Craig v. A.A.R. Realty Corp., Del. Super., 576 A.2d 688, 692 (1989) (discussing duty owed by non-possessory landowners under principle that landowners have duty to protect invitees from "foreseeable dangers on the premises").
7. Difficulty in determining forseeability is such that "each case must turn on its own facts." For example, in Jardel the evidence presented at trial was that during a two and a half year period there were 394 incidents reported; therefore, it was foreseeable that without proper policing an invitee might be harmed. Also, in the case of Craig v. A.A.R. Realty Corp., the Court recounted that "between January 1, 1978 to December 15, 1981 the following violent crimes against persons were committed at the mall: 1 Homicide, 3 Kidnappings (1 sexual assault related), 13 Robberies, 49 Assaults, 4 Indecent Exposures, 3 Possession of Weapon Offenses." In Furek v. Univ. of Delaware, a property owner (university-student) liability case, the court addressed the forseeability issue stating that "[i]n view of past hazing incidents involving physical harm to students, the occurrence of the unusual activities preceding fraternity hazing as witnessed by campus security (i.e. students marching with paddles) and the common knowledge on campus that hazing occurred, there was sufficient evidence for jury determination on the issue of whether the hazing which caused injury to Furek was foreseeable.
Diossi at 1367.
Jardel at 526.
Craig at 690. This Court recognizes that the primary focus in Craig was on the duty owed by non-possessory landowners/landlords and not the foreseeability of the incident that occurred; however, the evidence also showed the foreseeability of harm.
Furek at 522.
8. In all of these cases, the court determined that there was sufficient evidence for a jury to determine whether or not the property owner's actions were reasonable. Plaintiffs point to the case of Johnson v. Westminster Presbyterian Church in which the court found that "one other occasion" in which a physical confrontation occurred was enough to put the Defendant "on notice of the likelihood of participants engaging in dangerous behavior which could result in harm to other attendees." The court in Johnson denied the Defendant's motion for summary judgement finding that a jury should determine whether or not the church's actions were reasonable. This Court does not agree with the proposition that one prior incident is enough as a matter of law to create forseeability and therefore a jury issue as to the duty of reasonable care owed by landowners to business invitees. Instead, this Court finds that each case must be evaluated on its own facts and circumstances.
Johnson at 4.
Diossi at 1367.
9. In the case sub judice, the Court found at the close of all the evidence that there was not "legally sufficient evidence" for the jury to determine that the assault on Peterson was foreseeable thereby invoking Defendant Lounge's duty of reasonable care. Plaintiff, his wife and his friend testified that in visiting the Lounge 20-25 times they had seen two or three altercations between patrons which were broken up by other patrons. Ralph Figueroa, part owner of the Lounge, knew that these altercations had taken place prior to August 25, 1995 and that occasionally the police had been called to remove patrons. In light of the nature of the unexpected and unprovoked attack and a couple of minor, prior incidents, the Court does not find any legal basis for creating landowner duty in this case.
10. All accounts of the assault on Andrew Peterson were that it occurred suddenly and was unprovoked. The instantaneous nature of the attack is such that the Defendant Lounge could not have foreseen the attack. Plaintiff's fiancee, seated in the pool room where the incident occurred, was not aware a problem existed until after Peterson had been struck in the jaw. No testimony was presented that other people in the Defendant Lounge's pool room were aware of a problem until after the altercation occurred. All of the evidence showed that the assault was sudden and unprovoked. On the other hand, evidence was not presented as to what impact a security guard, more staff or other measures could have done to prevent the attack and protect Peterson in this circumstance. There was no evidence produced to show that similar incidents having the same characteristics as those which occurred in this isolated incident even took place. Thus no reasonable jury could find that the attack was foreseeable.
Given the facts and circumstances of this case the attack on Peterson was unforeseeable; thus, Defendant Lounge did not have a duty to prevent the assault or give a warning to Peterson. Therefore, Plaintiff's motion for a new trial is DENIED.
See Brynes at 3-4 (discussing unforeseeability of sudden and unprovoked attacks).