Summary
holding that a bar has a special relationship with its patrons to protect them from the violent acts of fellow patrons where the bar employees allowed the violent employee to reenter the bar though they were aware of his violent behavior
Summary of this case from Penn-America Insurance v. MappOpinion
49250 Record No. 930642
April 15, 1994
Present: All the Justices
Under a limited exception to the general rule that an owner of premises is ordinarily under no duty to protect an invitee from a third party's criminal act committed while the invitee is on the premises and based on the allegations of the plaintiff the defendants had a duty to exercise reasonable care in protecting the plaintiff from an assault that was about to occur and the trial court erred in dismissing the action.
Torts — Negligence — Threatened Assault — Invitee on Premises — Third Party Assault — Duty of Care
The plaintiff invitee filed an action seeking compensatory and punitive damages as a result of personal injuries he sustained when assaulted by a third party while on the premises of the defendants' restaurant/tavern. While on the premises, the two men argued. Employees of the tavern escorted the other man outside, where he continued to make threats against the plaintiff. He then reentered the tavern and violently attacked and injured the plaintiff. The trial court sustained the defendants' demurrers and dismissed the action. The plaintiff appeals.
1. In Virginia, the general rule is that an owner or occupier of land ordinarily is under no duty to protect an invitee from a third person's criminal act committed while the invitee is upon the premises.
2. A narrow exception to the general rule applies where an owner knows that criminal assaults against persons are occurring, or are about to occur, on the premises which indicate an imminent probability of harm to an invitee.
3. Under a limited exception to the general rule, and based upon the plaintiff's allegations, the defendants had a duty to exercise reasonable care to control the behavior of the other customer to prevent him from causing physical harm to the plaintiff.
4. This duty arose by reason of the defendants' knowledge that an assault, which indicated an imminent probability of harm to the plaintiff, was about to occur on the premises.
Appeal from a judgment of the Circuit Court of Chesterfield County. Hon. William R. Shelton, judge presiding. Reversed and remanded.
William R. Keown (Traylor Morris, on brief), for appellant.
W. Joseph Owen (Cowan Owen, on brief), for appellees.
In Virginia, we adhere to the rule that the owner or occupier of land ordinarily is under no duty to protect an invitee from a third person's criminal act committed while the invitee is upon the premises. Wright v. Webb, 234 Va. 527, 530, 362 S.E.2d 919, 920 (1987); Klingbeil Management Group Co. v. Vito, 233 Va. 445, 447, 357 S.E.2d 200, 201 (1987); Gulf Reston, Inc. v. Rogers, 215 Va. 155, 157, 207 S.E.2d 841, 844 (1974).
In Wright, we fashioned a narrow exception to the general rule. There, in a case where an invitee was assaulted in a dinner theatre parking lot at night, we held that an owner or occupier of premises, "whose method of business does not attract or provide a climate for assaultive crimes, does not have a duty to take measures to protect an invitee against criminal assault unless he knows that criminal assaults against persons are occurring, or are about to occur, on the premises which indicate an imminent probability of harm to an invitee." 234 Va. at 533, 362 S.E.2d at 922.
The sole issue in this appeal is whether the trial court erred by ruling that the allegations of plaintiff's motion for judgment fail to state a cause of action under the foregoing exception.
Appellant Karl Gupton filed this action against appellees Donald T. Quicke and Kimberly E. Quicke, individually and trading as The Coppermine Cafe, seeking compensatory and punitive damages as the result of personal injuries the plaintiff allegedly sustained when assaulted by one David Lively in November 1990 in the cafe in Petersburg. We awarded the plaintiff this appeal from a February 1993 order dismissing the action after the trial court sustained defendants' demurrer.
We shall examine the allegations of the motion for judgment according to the settled principle that a demurrer admits the truth of all material facts properly pleaded. The plaintiff alleges that the defendants owned and operated The Coppermine Cafe, a "restaurant/tavern," and that plaintiff was a business invitee there on the day in question for the purpose of purchasing food and drink.
While on the cafe premises, according to the allegations, "plaintiff was confronted" by Lively, "and an argument ensued" between the two "with open, verbal threats being made by Lively against the plaintiff's person." The plaintiff further alleges that the "argument and threats . . . were made known to Coppermine employees" who escorted Lively outside the premises, "where again threats were made by Lively against the plaintiff's person in the presence of Coppermine employees."
"While outside the premises," the allegations continue, "Lively made it known to Coppermine employees that he (Lively) intended to assault plaintiff and again repeated this threat in the presence of Coppermine employees." The plaintiff further alleges: "Despite Lively's threats Coppermine employees allowed Lively to reenter the Coppermine premises where the plaintiff remained, a fact known to Coppermine's employees." Concluding, plaintiff alleges that, upon reentry into the cafe, Lively "violently" attacked the plaintiff without warning or provocation, causing the plaintiff to sustain personal injuries and other damages.
On appeal, the plaintiff argues that the trial court erred in sustaining the demurrer because the allegations of the motion for judgment sufficiently state a claim under the Wright exception. We agree.
The facts set forth in the motion for judgment present a situation where Lively threatened the plaintiff during an argument inside the cafe. Upon learning of the argument and threats, defendants' employees escorted Lively outside the cafe where he again threatened the plaintiff in the presence of the employees. While still outside the cafe, Lively indicated to the employees that he intended to assault the plaintiff. Armed with this knowledge and aware the plaintiff was inside, the employees permitted Lively to reenter the cafe. Upon reentry, Lively attacked the plaintiff.
[3-4] According to the limited exception to the general rule, and based upon the plaintiff's allegations, the defendants had a duty to exercise reasonable care to control Lively's conduct to prevent him from causing physical harm to the plaintiff. This duty arose by reason of the defendants' knowledge that an assault, which indicated an "imminent probability of harm" to the plaintiff, was "about to occur" in the cafe. Wright, 233 Va. at 533, 362 S.E.2d at 922.
Consequently, the order dismissing the action will be reversed and the case will be remanded to the trial court for further proceedings.
Reversed and remanded.