Duty to Provide Security: General and Specific Threat of Third Party Criminal Conduct
The Tennessee Court of Appeals has penned a new decision addressing the duty of a bar to protect its patrons from the foreseeable criminal acts of third parties. The case name is Nicole Goeser, et al., v. Live Holdings Corporation, et al., (No. M2012-01241-COA-R3-CV; September 4, 2013). This appeal came out of Judge Hamilton Gayden’s court in Nashville after granting summary judgment to the defendants.
The facts are simple according to the opinion. Ben and Nicole Goeser started a karaoke business in Nashville. Hank Wise was a big fan of Nicole and, over time, developed an unhealthy crush. At some point, he asked an “inappropriate” question about the status of Nicole’s marriage, which got him deleted from Nicole’s Myspace page. At a subsequent event, Ben confronted Hank and asked him to kindly stay away from his wife. Hank attended two additional events without issue. Then, on a fateful Thursday night in 2009, Hank found Ben and Nicole at Johnny’s Bar and Grill located on the corner of Nolensville Road and Old Hickory Boulevard in Nashville. Nicole told the manager of Johnny’s Bar and Grill that Hank was making her “uncomfortable” and she wanted him to leave. When Hank was asked to leave, he stood up, unzipped his jacket, and shot Ben in the head several times. Ben died instantly.
As is often the case, this criminal act turned into a civil lawsuit against the owners of the bar under a theory that the premise owner had a duty to protect Ben from the foreseeable criminal act of Hank. Prior to trial, Judge Gayden dismissed the case on the grounds that the plaintiffs failed to demonstrate that the incident was foreseeable. The plaintiffs appealed arguing that the bar breached its duty by failing to have a trained security guard working on the night of the murder or to give their employees adequate training to protect their guests. The Court of Appeal affirmed Judge Gayden’s summary dismissal of the case. In doing so, the court summarized several important cases in Tennessee and made an important distinction between cases involving “general threats” and “specific threats” of criminal acts that could, in turn, give rise to a duty to protect patrons from the criminal acts of third parties.
The court categorized McClung v. Delta Square Ltd. as a “general threat” case. In McClung, a woman was abducted at gunpoint by a stranger in the parking lot of a Memphis shopping mall, and later raped and murdered. There was no evidence the mall owners knew the incident was about to occur. Still, the court in McClung found that there could be a duty owed if there was a general threat posed to patrons based on a variety of factors. The court adopted a “balancing approach” which seeks to balance the degree of foreseeability of harm to the plaintiff against the burden that would be imposed on the defendant if it were required to engage in an alternative course of conduct that could have prevented the harm. Here, the court articulated the following standard:
As a practical matter, the requisite degree of foreseeability essential to establish a duty to protect against criminal acts will almost always require that prior instances of crime have occurred on or in the immediate vicinity of defendant’s premises. Courts must consider the location, nature, and extent of previous criminal activities and their similarity, proximity, or other relationship to the crime giving rise to the cause of action. To hold otherwise would impose an undue burden upon merchants.
Id. at 902.
Following its discussion of McClung, the court of appeals then turned to cases involving “specific threats” of criminal conduct. Here, the court states “[f]oreseeability may also arise from more specific knowledge, such as when an identifiable individual acts in such a way as to suggest criminal intentions or proclivities.” Here, the court cited the well-known case of Giggers v. Memphis Housing Authority, which involved a public housing tenant shooting and killing another tenant. The Giggers court found that that when an injury is not foreseeable, a criminal act by a third party constitutes “a superseding, intervening cause of harm, relieving the [defendant] of liability.” Id. at 367. However, because the shooter in Giggers had previously stabbed another tenant in his building, the court in Giggers found that the danger was foreseeable and that the defendant housing authority had a duty to take reasonable measures to protect its tenants from him. The court also cited Staples v. CBL & Associates, Inc. as an additional example of a case involving a specific threat.
Turning to the facts of the case, the court of appeals found that there was no evidence Johnny’s Bar and Grill was located in a high-crime area. The proof showed there had only been two prior fights at the bar before the incident in question. So, the “general threat” theory did not trigger a duty to provide more security. The court also found that there was no evidence Hank posed a “specific threat” that would have required Johnny’s Bar and Grill to act differently. There was no knowledge Hank was a criminal or prone to violence. None of Hank’s conduct leading up to the incident gave warning that he might act in a violent way. Even though Nicole asked an employee to have Hank removed, the court did not see this fact alone as sufficient to trigger a duty to protect other patrons from Hank.
I like this decision for a number of reasons. First, I appreciated the court making the distinction between “general threats” and “specific threats” that may give rise to a duty to act. Not every bar or restaurant is required to or needs to have security. This is a point often lost in this area of the law. In Tennessee, businesses are not to be regarded as the insurers of their patrons’ safety. So, unless you can point to prior criminal acts, the “general threat” theory should fail as a matter of law. Second, just because you ask a patron to leave the premises does not mean the business is on notice of a “specific threat” of a criminal action. This presupposes that individuals will act in violent and criminal ways when asked to leave the premise for whatever reason. Frankly, this is just not the case in most settings and holding otherwise would put too great a burden on business owners to hire and train additional staff to protect against random acts of violence.