Written by Christopher Bergin, Esq.
Edited by Brian A. Cafritz, Esq.
Restaurants that choose to keep its doors open until the early morning hours often face the risk of dealing with unruly, intoxicated patrons. At best, these unruly patrons might become a nuisance for other guests. At worst, they can engage in physical altercations, damaging other property or injuring other patrons. Thus, the question arises, is the restaurant owner liable for injuries caused by its patrons?
Fortunately, in Virginia, restaurant owners generally do not have a duty to warn or protect their customers from the criminal acts of others. Indeed, on November 7, 2016, the District Court for the Eastern District of Virginia, recently reinforced this rule in Wyatt v. 90 Grados Rest., Sports Bar & Club LLC.
In Wyatt, the plaintiff was shot by another patron in the early morning of January 20, 2014 at 90 Grados Restaurant, Sports Bar & Club LLC, (“90 Grados”) in Manassas, Virginia. At the time of the shooting, 90 Grados had been hosting a party featuring live entertainment from a well known local band. By law, 90 Grados was prohibited from selling or permitting alcohol to be consumed on the premises from 2:00 AM to 6:00 AM. Thus, shortly before 2:00 AM, 90 Grados’s security team began traveling through the establishment, requesting patrons to discard their beverages. One patron, Jeremiah Pullen, “became belligerent” when he was told to throw out his drink. As such, security forcibly escorted Pullen out of the restaurant and into an adjacent parking lot. According to the Plaintiff’s complaint, this adjacent parking lot was dimly lit and had no security of its own. Shortly thereafter, Mr. Pullen pulled out a gun and fired multiple gunshots. He shot four people, including the Plaintiff, who was standing in the vestibule of 90 Grados. The Plaintiff suffered permanent injuries from the attack and filed suit against 90 Grados under a theory of premise liability.
Key to Plaintiff’s case was the argument that the band was “known to have a following that often includes persons that engage in criminal behavior and attract a rowdy crowd to their performance.” Plaintiff argued that given the band’s reputation, a duty of care attached to the restaurant. The District Court disagreed and granted 90 Grados’ Motion to Dismiss the Plaintiff’s Complaint and held that the Plaintiff failed to allege sufficient facts to show that 90 Grados had a legal duty to protect her from third-party criminal acts of its patrons.
In its decision Court reiterated the general law in Virginia that a business owner owes a duty to warn and/or protect invitees from non-obvious and foreseeable dangers. However, a business owner only has a duty to warn or protect its patrons from the criminal acts of others “where the defendant knows that criminal assaults against the persons are occurring, or are about to occur on the premises, based upon notice of a specific danger just prior to the assault.“
The Court held that, in this case, 90 Grados did not have knowledge of any specific danger prior to Pullen’s shooting. Indeed, the removal of an unruly patron from a bar, without more, is a common occurrence which “cannot be said to put the bar owner on notice of anything.” Thus the fact that Pullen was acting belligerent shortly before the shooting occurred was not sufficient, as a matter of law, to put 90 Grados on notice of an imminent threat. see also Hunt v. Kroger Ltd, 2006 U.S. Dist. LEXIS 44439 at *3 (W.D. Va. 2006) (“Intoxicated persons such as [a third-party criminal] can be harassing but verbal annoyance or harassment would not lead a reasonable person to conclude that such a person is an imminent threat to their physical well-being).
The Plaintiff alternatively argued that, even if 90 Grados was not aware of any specific threat that evening, it was still operating as a “nightclub” serving alcohol, which “established an atmosphere of potential harm amongst patrons.” In support of her position, the Plaintiff sited the Virginia Supreme Court’s decision in Wright v. Webb, which stated:
“We hold that a business invitor, 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. 527, 533, 362 S.E.2d 919, 922 (1987). The District Court summarily rejected the plaintiff’s argument. It explained that, an “assault fostering businesses are those in which the business enterprise itself is particularly solicitous of, encouraging of, or benefitting from assaultive behavior.” This definition, the Court explained, simply does not include ordinary bars, nightclubs, restaurants, and concert venues. 90 Grados did not avail itself of liability for the criminal acts of its patrons simply by operating as a bar and night club.
The Court’s holding in Wyatt, reinforces the rule in Virginia that a business owner does not have a duty to protect its customers from the criminal acts of a third party, unless it has real notice of an actual, specific, and imminent danger. Moreover, Wyatt reaffirms that a business owner cannot suddenly transform into “assault-fostering business” by hosting live entertainment and serving alcohol into the wee hours of the morning.