Duty of Business Owners

April 16, 2010

By: David Jaffe

High, Non-Delegable Duty of Care of a Business Owner to a Business Invitees

I. A. High Duty of Care to Business Invitees

The law in Connecticut is well settled as to the high duty of care owed by a business owner when an individual enters into their business establishment as an invitee, and was recently set forth in a comprehensive fashion in Monk v Temple George, Associates, LLC 273 Conn 108,869 A.2d 179;2005. See also Connecticut Law of Torts, Wright & Fitzgerald, (3d ed. & Supp.), § 49.

"Invitees fall into certain general categories. A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public … A business invitee is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealing with the possessor of land. See General Statutes § 52-557a. Corcoran v. Jacovino, 161 Conn. 462, 465-66 (1971). Kurti v. Becker, 54 Conn. App. 335, 338 (1999)." Id.

1. foreseeability

Typically, for the plaintiff to recover for the breach of a duty owed to him as a business invitee, he has to be put through "a two-prong analysis that includes: (1) a determination of foreseeability; and (2) a public policy analysis," Jaworski v Kiernan, 241 Conn. 399, 406-407, 696 A.2d. 332
The threshold inquiry has always been "whether the specific harm alleged by the plaintiff was foreseeable to the defendant...By that is not meant that one charged with negligence must be found actually to have foreseen the probability of harm or that the particular injury which resulted was foreseeable, but the test is, would the ordinary (person) in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" Gomes v. Commercial Union Ins. Co., 258 Conn. 603,615,783 A.2d 462(2001). The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised."In other words would the ordinary person in the defendant's position, knowing what he knew or should have known, anticipate the harm of the general nature of that suffered was likely to result." Jaworski v Kiernan 241 Conn. 399, 405.
The Court in Monk v. Temple George Associates, LLC in attempting to make a determination on the issue of foreseeability looked at the nature of the activities and the area surrounding the defendant's business establishment, the time of day when the defendant was conducting its business, the reputation of the neighborhood, the amount of crime perpetrated within a two block radius and whether there were crimes of a similar nature committed in the area. The Court used a totality of the circumstances approach in Monk in analyzing the situation finding that the defendant conducted its business in the evening in an area where serious crimes had occurred in the vicinity and that the defendant knew or should have known that such serious crimes had occurred. With these basic facts, the Court in Monk found that it was "quite foreseeable that...an attack on a patron of the premise could occur, whether spontaneously or as precipitated by an argument at one of the neighboring clubs. It is also probable that the presence of a parking attendant would have decreased the likelihood that such an attack would occur." Monk, at page 115.
Thus, in our circumstances, the defendant's operated their business in the evening. Their business was located in an area of Hartford that is very isolated in evening hours when the Hartford office crowd has gone home for the night. The business is located in an area where the police foot patrols are few if not almost non-existent. The business is located in an area where, according to the report of Plaintiff's expert, Neil Sullivan, a retired Hartford Police Officer with extensive knowledge of the area in question, there were 468 police calls for service in the roughly two block area around the defendant's business location in the two years just previous to this incident. In fact, there was a robbery at the defendant's location just 4 months prior to the incident involved here, a mugging/robbery on October 29, 2005, a robbery on April 18, 2006 and a larceny on January 6, 2006. In the area just around the corner from the defendant's location, a night club with a notorious reputation had a history of violent behavior including several stabbing incidents.
The defendant knew or should have known of the existence of these criminal activities in the immediate vicinity of their establishment and yet, they provided no security personnel to protect the safety of their business invitees, nor did they even have a security camera to function as a deterrent. This in spite of the crime in the area and of the fact that the defendant encouraged their patrons to congregate outside their front door by providing a receptacle for their patrons to smoke in that area.
The fact that the attack was intentional does not mitigate the defendant's foreseeability. The Court in Stewart v Federated Dept. Stores, Inc.234 Conn. 597, 609,662 A.2d 753(1995) affirmed a judgment against a parking garage owner on whose premises a woman was murdered and expressly disavowed any intention to elevate the burden of proof in premises liability cases involving intentional conduct beyond foreseeability, holding that the murder was foreseeable because of the criminal activity in the garage's vicinity. Plaintiff's expert relied on just this reasoning in his report and thus it was within the defendant's ability to foresee the type of crime or act committed against the person of the plaintiff.

2. Public Policy

The Court will not impose a duty of care on the defendant if to do so would violate prong two, inconsistency with public policy. In considering whether public policy "suggests the imposition of a duty, we consider the following four factors: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participant; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions." Monk v Temple George ,Associates, LLC at 118.
In looking at our particular situation, the totality of the facts and circumstances would lead one to the inescapable conclusion that a duty of care does exist from defendant to plaintiff. The duty owed by the defendant to a business invitee is the duty to exercise reasonable care to keep the premises reasonably safe for the reasonably to be anticipated uses which he would make of them.Facey v Merkle 146 Conn. 129,133,148A.2d 261(1959). Thus, in our circumstance, the plaintiff expected to be able to enjoy a dinner with his friends on the defendant's premises without being attacked or shot. The defendant owed the plaintiff a duty of reasonable care which is not the same as an absolute prevention of crime on the premises. There is, however, a duty of reasonable care by taking some precautions to act as a deterrent. This duty was not met.
The second factor, to encourage participation in the activity, in this case supporting eating establishments in the inner city of Hartford, also supports the public policy requiring the imposition of a duty of care. The desire to support vibrant downtown's in our largest cities requires that the public be have a feeling of safety when on the premises. The fact that the imposition of a duty of care might increase the cost of the defendant doing business and thus might hamper the fulfillment of the public policy goal was not an argument accepted by the Court. In Monk, at page 119 the Court stated "the benefits of reasonable security probably would outweigh the burden of a marginal increase in ...costs for most customers, and more people would be likely to drive into the city if (it) were safer.
The third factor, to discourage an increase in litigation, does not weigh in favor of negating the duty of care in our matter. The Court in Monk, at 120 stated "The purpose of doing so (imposing a duty) in the present case is, however, to protect customers by encouraging businesses to take reasonable care to decrease the likelihood of crime occurring on their premises. If, in fact, imposing a duty of care has that result, litigation is unlikely to increase; it may even decrease. On the other hand, even if imposing a duty has no significant effect on the incidence of crime, litigation still may not increase, at least not substantially." Thus the courts have ruled that the imposition of a duty of caring actually furthers public policy goals in a matter such as ours.
The fourth factor was not found particularly useful by the Court in Monk at pages 120,121 because jurisdictions impose different standards with respect to the issues of foreseeability.
The Court in Monk at 121 went on to state "We conclude that a totality of circumstances, although more expansive than the other...approaches, is most consistent with the public policy goals of our legal system, as well as the general tenor of our jurisprudence. The fact therefore that there is no evidence of a prior similar incident on the defendant's premises, although significant is not dispositive. As indicated previously in this opinion, the plaintiff has provided ample evidence about crimes in the immediate vicinity to suggest that such a criminal attack....was foreseeable. Even if we were to adopt a balancing test, the burden on the defendants of maintaining adequate lighting and ensuring that the attendant collecting money remains at the lot for the duration of the time that surrounding venues are open is outweighed by the foreseeability of a criminal attack on the premises in the absence of these measures, considering the area. As there is no compelling reason grounded in public policy to shield the defendants from their duty, we conclude that the defendants owed the plaintiff a reasonable duty of care."
Thus as in Monk, there is no reason based on the four prong public policy test to relieve the defendant of his duty to provide the plaintiff a reasonable duty of care and in fact many public policy arguments to support the imposition of just such a duty, the defendant had the duty to supply the plaintiff Morello a reasonable duty of care on December 23, 2006.

II Causation

The Connecticut Courts have defined proximate cause "as an actual cause that is a substantial factor in the resulting harm....The inquiry fundamental to all proximate cause questions...(is) whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." Label Systems Corp. v Aghamohammadi, 270 Conn, 291,321,852 A.2d 703(2004). Additionally, the Court has stated that " a negligent defendant, whose conduct creates or increase the risk of a particular harm and is a substantial factor in causing that harm, is not relieved from liability by the intervention of another person, except where the harm is intentionally caused by the third person and is not within the scope of risk created by the defendant's conduct." Craig v Driscoll, 262 Conn. 312,332, 813 A.2d 1003(2003). The State of Connecticut in 1999 further clarified this issue by not allowing an apportionment between those pursued under a theory of negligent conduct and those responsible based on intentional acts in Connecticut General Statute 52-572(o). In doing so, this demonstrates the desire of the State that defendant's should not be relieved of their liability under the duty of reasonable care by third party intervenors.
Thus the Court has ruled that the foreseeability of the attack on the plaintiff as well as the extent to which defendant's negligence was a substantial factor in causing the plaintiff's injuries are both factored in determining the liability of the defendant
In Monk, the Court found that Sullivan's report on crime statistics from New Haven and the area surrounding the premises suggested that the defendant had at least a constructive knowledge of the potential for crime in the vicinity of their property. They also found that Sullivan's conclusion that a parking attendant would have provided a deterrent to the criminal activity was no more speculative than the Court's ruling in Stewart v Federated Dept Stores, Inc.supra 234 Conn. 600 where the Court found that a garage's lack of supervision was a substantial factor in the plaintiff's death.
In our present matter, there is ample evidence of serious crime in the vicinity of the defendant's business that gave them knowledge or at the least, should have given them knowledge of the need to provide increased security for the protection of their business invitees. Defendant failed to provide security outside their door, even late at night when the area was largely deserted. They further provided no video security system as a deterrent to those contemplating criminal activity, The lack of the provision of reasonable care for the safety of the persons of their business invitees is made more egregious by the fact that they did provide valet parking services, thus providing greater protection for the vehicles of their invitees than for the customers themselves.

III. In the Present Case

1) The plaintiff was a business invitee of the defendant and as such was entitled to a reasonable duty of care.

2) The defendant knew or should have known that his business was in an area in which there was a serious crime problem as demonstrated by the report of Neil Sullivan, an expert, showing 468 police crime calls in the two block vicinity in the two years preceding the assault on the plaintiff, some of which involved serious criminal conduct at the defendant's premises.

3) The defendant, knowing of the crime in the area, allowed and encouraged their business invitees to congregate in front of the business by providing them an ashtray to smoke in that location.

4) The defendant failed to take any reasonable precautions as suggested by plaintiff's expert such as the use of uniformed security officers, closed circuit television surveillance or even a greater liaison with the Hartford Police Department in an effort to protect their business invitees or to provide a deterrent to criminal conduct even with their actual or constructive knowledge of the circumstances concerning crime in their immediate vicinity.

5) The defendant, by its failure to provide a reasonable duty of care to the plaintiff, created or increased the risk of harm befalling the plaintiff and was a substantial factor in causing said harm.

6) The defendant is not relieved of his responsibility because of intervening intentional tortfeasor by virtue of case law and Connecticut General Statute 52-572(o).

7) The defendant meets the two prong test of foreseeability and public policy and should not be relieved of his duty of reasonable care.