Written by Rachel Stewart
Edited by Brian Cafritz
When dealing with a restaurant or retailer’s obligations to protect invitees from fights or other violent acts, the phrase “danger zone” is more than a catchy phrase from the “Top Gun” soundtrack. New rulings have broadened the “danger zone” or “zone of imminent harm” that a business must recognize to avoid potential liability from criminal conduct.
Under Maryland law, restaurants and retailers may be liable for a patron’s personal injuries caused by the criminal acts of a third party when the business is deemed to possess certain knowledge and a presumed ability to foresee the harm to their patrons. There are three recognized theories of negligence in which the courts will impose a duty on restaurants and retailers to protect customers from criminal activities:
- When the property owner has knowledge of prior similar incidents and has failed to eliminate conditions that contributed to the criminal activity, such as providing security personnel, lighting, locks and similar instrumentalities;
- When the property owner has knowledge of prior conduct of the criminal actor thereby making the criminal activity foreseeable; or
- When property owner has knowledge of events occurring on the premises prior to and leading up to the criminal action, which make imminent harm foreseeable.
Recent rulings have looked at the third theory – whether or not imminent harm is foreseeable. The majority of Maryland’s case law dealing with the foreseeability of imminent harm test focuses on the property owner’s knowledge of events then occurring on their premises. The takeaway from these cases is that if a restaurant or retailer has reason to foresee imminent harm, the business must contact the police immediately. Indeed, while there are only a handful of opinions dealing with this third theory of liability (all of which were issued by Maryland’s intermediate appellate court); the fact that the property owner stood idly by or delayed contacting the police was their downfall in almost all of them.
In January 2014, the Court of Special Appeals issued an unreported opinion reversing the trial court’s decision to throw out a multi-million dollar verdict from a Prince George’s County jury against a pizza restaurant after three customers were shot and killed in the restaurant on a Super Bowl Sunday. The opinion both summarizes the law on the issue and provides a warning to restaurant and retailers to take action when unsavory events begin to unfold.
In Sneed v. Uno Restaurant Holdings Corporation, et al., three patrons of Uno Restaurant were killed by another customer while watching the Super Bowl. Over the course of the night, the parties had bickered and escalated their argument from comments about the game to more personal and heated exchanges. Ultimately, the disagreement became violent, and three patrons were shot and killed. In examining the trial court’s decision to overturn the jury verdict, the court stated that based on the property owner’s knowledge of occurring events leading up to the criminal action, they had two issues to decide: 1) whether the restaurant should have known that imminent harm was foreseeable, and 2) whether the restaurant could have acted to prevent or mitigate the harm. The restaurant argued that the only event leading up to the shooting was a verbal altercation, which the courts in Maryland have already decided is not sufficient to presage physical violence. However, the court found that the incident involved more than just trash talking during a football game. The court stated that the argument became more than just a verbal altercation when threats of physical harm and violence were introduced. The threats reached an apex when one patron told the other he was “not going to make it out of here.” Because of the ongoing and escalating threats of violence, the court ruled that whether or not the restaurant should have known that imminent harm was foreseeable became a question for the jury.
But how could the restaurant know that three of its customer’s would be killed that night? Prior to the threatening comment, the events had only consisted of escalating trash talk during a football game. At worst, a physical altercation could be expected, not murder. The court stated that whether the particular type of harm was foreseeable is not an issue for the courts to decide; all that is needed is if the event “fell within a general field of danger which should have been anticipated.” In sum, based on the threat, the patrons fell within a sort of zone of danger from which the restaurant had a duty to protect them. In other words, the result of the criminal conduct (whether murder or a broken nose) is not relevant. The question is whether the assault/fight was foreseeable.
In addressing the second issue, the restaurant’s ability to prevent the killings, the court noted that 10 minutes elapsed between the threat and the killings, and that this was sufficient time for the restaurant to take some action. In fact, once the police were called after the shooting, it took them only 90 seconds to arrive, thereby allowing the court to presume that had the police been called following the threat, the shooting could have been prevented. This analysis has been a consistent theme in these cases. Courts in Maryland have found that as little as a four to five minute delay in calling the police is sufficient to impose liability for another’s criminal activity and have repeatedly looked at the police response time in arriving after they have been called to make this post hac determination of preventability.
Finally, it should be noted that in its proximate cause analysis, the Sneed court also pointed out the restaurant employees’ failure to follow their own procedures regarding conflict between customers. While in Virginia evidence of a restaurant or retailer’s internal policies is not admissible to prove breach of a standard of care, in Maryland, evidence of a defendant’s breach of its own policy is evidence of negligence (but not negligence, per se).
While it is difficult to imagine criminal activity in your business or that your employees, while trying to serve your customers, will literally interpret a threat to mean someone may be killed or physically injured, it is important for you to follow your own procedures regarding conflict in your business and to call the police. What has become clear, however, is that Maryland courts are now more inclined to put the question of foreseeability and proximate cause into the hands of a jury.
It is important to note that the interpretation of imminent harm and what level of evidence is sufficient to form a jury issue can change greatly by crossing state borders. Maryland’s handling of this scenario is drifting to a more plaintiff friendly approach, when compared to the rulings in Virginia and other surrounding jurisdictions. If you have questions about this expanding area of law, and how a particular state in the Mid-Atlantic region would apply your facts, attorneys on KPM’s Retail and Restaurant team are available to discuss any questions you may have and how we can help you better protect your restaurant or business’s brand.