Posted by Eugene Volokh:
Another Remarkable Torts Case:
http://volokh.com/archives/archive_2009_08_09-2009_08_15.shtml#1250205811
It's from the 1970s, but it continues to be cited, so I thought I'd
pass it along:
[D]ecedent was a customer in defendant�s store in Kansas City,
Kansas, when a holdup took place. The robbers entered the front of
the store with guns, took money from the checkout stands, and then
ordered the store manager to open the safe in his office. The
opening of the safe caused an alarm to sound at the Kansas City
police department, but not at the store.
Several police officers responded immediately to their alarm, and
when they entered the front door, the robber ran to the rear part
of the store. The police fired a shot at one of the robbers at this
time in the store. The decedent was in the rear of the store, and a
robber seized her as a hostage or a shield. As the robber left the
store at the front, he forced her with him up the street a block or
so as he attempted to escape. The police followed and the robber
then shot and killed the decedent. The police then shot at the
robber as he ran some distance, and captured him.
The attempted robbery took place about 1:30 in the afternoon.
During the course of the robbery, the store employees did not sound
any other alarm nor attempt to direct or assist the police. This
store had been robbed about a month before. Some fourteen robberies
of grocery stores in the northeastern part of the city, where the
store here concerned is located, had taken place in the prior
eighteen-month period. An armed guard had been stationed in this
store from time to time.
The complaint is based on the theory that the defendant was
negligent in store procedure it had adopted to be followed during
the course of such a robbery. The negligence alleged is thus the
action taken once the holdup was in progress. The allegations are
directed particularly to the silent alarm attached to the store
safe....
The trial court, in granting summary judgment for the defendant,
held in effect that no negligence was stated in the allegations,
and even had there been it could not have been the proximate cause
of the injury because the consequences could not reasonably have
been foreseen....
The standard of care owed to business invitees [under Kansas law]
is ... one of �due care to keep the premises reasonably safe� for
their use, but the proprietor is not an insurer of their safety....
The defendant had issued a pamphlet to its employees telling them
what to do in the event of a holdup. The particular emphasis in the
pamphlet was to do nothing to excite or startle the robbers. It
stated in part that many robberies are by young persons who might
start shooting if something unexpected should happen. The employees
were warned particularly not to give any verbal alarm in the street
because this would greatly increase the probability of injury. Thus
the plaintiff asserts that the triggering of the silent alarm was
not in accordance with the instructions given employees, was not a
prudent act, and did not show an exercise of due care for the
safety of the customers....
[Under Kansas law, it] is perhaps an aspect of �foreseeability,�
not so much that a particular incident may occur, but once one is
in progress, when the danger to the customer is evident. Thus under
this standard if there is an opportunity to comprehend the danger,
negligence can then become a jury question.... The same theory is
advanced by the plaintiff in his complaint, that is, that the
danger to customers and employees of the store during the course of
the robbery was apparent, and that the wrong action was taken --
action which served to increase the hazard and which in fact caused
the injury. Under this theory of the case, the granting of summary
judgment was error.
Note that this is not a case claiming that it was negligent not to
hire a security guard, or that the security guard was negligent in
reacting too aggressively to the robbers, or even that a store
employee was negligent in refusing to hand over the money to the
robbers (a highly problematic theory, in my view, but I set it aside
here). The theory of liability is simply that it was negligent to
trigger a silent alarm that called the police.
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