Phillips v. EQUITABLE LIFE ASSUR., ETC.

413 So. 2d 696
CourtLouisiana Court of Appeal
DecidedApril 15, 1982
Docket12439
StatusPublished
Cited by20 cases

This text of 413 So. 2d 696 (Phillips v. EQUITABLE LIFE ASSUR., ETC.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phillips v. EQUITABLE LIFE ASSUR., ETC., 413 So. 2d 696 (La. Ct. App. 1982).

Opinion

413 So.2d 696 (1982)

Morris B. PHILLIPS, et al.
v.
EQUITABLE LIFE ASSURANCE COMPANY OF THE UNITED STATES, et al.

No. 12439.

Court of Appeal of Louisiana, Fourth Circuit.

April 15, 1982.
Rehearing Denied May 19, 1982.

*697 Milton E. Brener, Garon, Brener & McNeely, New Orleans, for plaintiffs-appellants.

Robert E. Peyton, Christovich & Kearney, New Orleans, for defendant-appellee.

Wilton E. Bland, III, Hebert & Abbott, New Orleans, for third party defendants-appellants.

Before GULOTTA, BYRNES and WILLIAMS, JJ.

WILLIAMS, Judge.

Plaintiffs-appellants have appealed from a decision of the trial court finding Equitable Life Assurance Society of the United States ["Equitable"] not negligent in the death of Mrs. Shirley F. Phillips. Defendant-appellant Equitable has appealed the trial judge's decision requiring it to indemnify Winn-Dixie of Louisiana, Inc. ["Winn-Dixie"] for the amount Winn-Dixie paid in settlement to the plaintiffs.

FACTS

On April 2, 1979, Mrs. Shirley F. Phillips was shot during an armed robbery attempt in the parking lot of the Winn-Dixie Food Store in the Carrollton Shopping Center in New Orleans. She died during surgery several hours later at Touro Infirmary.

Mrs. Phillips's assailant was Yule Smith. The day before the shooting he had robbed another woman in a parking lot. One-half hour after shooting Mrs. Phillips, he robbed a woman at another grocery store at gunpoint and stole her car. The next day he committed an armed robbery on the employees of a bakery store and exchanged gunfire with the police officers pursuing him after the robbery. Smith was wounded and apprehended. He was tried for the first degree murder of Mrs. Phillips and was found guilty and sentenced to life imprisonment.

Morris B. Phillips, husband of Mrs. Phillips, and Sydnee and Morris H. Phillips, children of Mrs. Phillips, filed suit against Equitable, the owner of the shopping center, and Winn-Dixie alleging that their negligence in failing to provide adequate security in the parking lot was the proximate cause of Mrs. Phillips's death.

Before trial, Winn-Dixie and the plaintiffs entered into a settlement agreement. Trial was held on October 12, 1980, and a twelve-person jury, in response to interrogatories, found neither Equitable nor Winn-Dixie negligent.

I. NEGLIGENCE

The plaintiffs have argued that Equitable, as owner of the shopping center, owed a duty to protect its patrons from crimes such as the one involved in the instant case. The plaintiffs assert that the verdict reached by the jury is manifestly erroneous and should be overturned.

At trial, extensive testimony was adduced as to the number and types of crimes occurring within the shopping center or in the area immediately adjacent to it. The plaintiffs argued that the crimes occurring in the area were of sufficient number to place Equitable on notice that a similar crime might occur in the area and to take precautions against it. The plaintiffs specifically have argued that Equitable breached its duty to Mrs. Phillips by failing to provide: (1) adequate warnings of the possible danger, i.e. criminal activity, in the area; (2) sufficient lighting; and (3) adequate security.

In Louisiana, there are few guidelines to be found in decisions involving similar facts. Nevertheless, the trial court instructed the jury that the defendant should be held to the following standard:

"An owner or occupier of land who used his property as the location for a business establishment which the public is invited to patronize owes his customers and prospective customers the duty of exercising ordinary care to maintain the premises in a reasonably safe condition. This responsibility for seeing to the safety of the premises includes an obligation to protect patrons from criminal attacks by third parties if such criminal acts under the circumstances prevailing are reasonably foreseeable."

Tr. at 554. The jury, after considering this charge and the evidence adduced at trial, *698 found that the defendant was not negligent.

It is well established that a store owner is under a duty to take reasonable care for the safety of its patrons, but is not the insurer of the patrons' safety. Roberts v. Tiny Tim Thrifty Check, 367 So.2d 64 (La.App. 4th Cir. 1979). The proprietor of a public place has a duty to protect its patrons from injuries caused by third parties when it is within his power to do so. E.g. Cooper v. Ruffino, 172 So.2d 717 (La.App. 4th Cir. 1965). This duty is not inconsistent with the standards set forth by other jurisdictions. See, e.g. Winn-Dixie v. Johnstoneaux, 395 So.2d 599 (Fla.Dist.Ct.App.3d Cir. 1981).

In Roberts v. Tiny Tim Thrifty Check, supra, the parents of a teenager, a patron who was killed during an armed robbery at a convenience store, sued the storeowner claiming that the storeowner's negligence resulted in their son's death. The court considered the following facts in finding that the defendant had not breached its duty to the decedent: (1) the defendant had hired an armed guard who travelled between the particular store in which the killing occurred and another store ten blocks away; (2) the defendant had requested the police to regularly patrol his stores, which was done; and (3) there was no evidence that there was a high possibility that the store would be robbed or that the store frequently had been robbed in the past.

In the instant case, Equitable undertook to provide security in the parking lot (Tr. at 173-92) and had signs posted in the parking lot and stores to that effect.

A. Security

Harold M. Wheelahan, Jr. was manager of the Carrollton Shopping Center for Equitable at the time of the murder. He was in charge of security for the shopping center. He testified at trial that he first hired a security guard in 1977 after consulting with most of the merchants in the area. He hired Dale Bonura, a member of the New Orleans Police Department who was responsible for hiring off-duty police officers as the security guards. The guard initially patrolled only from 5:00 p. m. until 9:00 p. m., Monday through Saturday, but the program later expanded from 10:00 a. m. until 9:00 p. m. Wheelahan testified that the change occurred after a consultation with Bonura.

When questioned about specific crimes that had been committed in the shopping center area, Wheelahan was unaware that they had been committed and admitted that there was no system for reporting all of the crimes in the shopping center.

Wheelahan testified that he had thought of hiring more than one guard but after consulting with other merchants, determined that one was sufficient. Wheelahan testified that if business were down he would consider expanding the security measures.

In the instant case, thirty-two police reports on crimes that had been committed in the immediate area were introduced into evidence. Of these crimes, twelve were burglaries of stores in the shopping center, nine were armed robberies; five were simple robberies; two were batteries; and an attempted murder, two simple batteries and a theft that arose from one incident at the Winn-Dixie. These crimes had been committed within the twelve months preceding the death of Mrs. Phillips. The shopping center in which these crimes took place is approximately seventeen and one-half acres located on both sides of a four lane street and drainage canal. There were thirty-seven stores in the shopping center in April, 1979.

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