Shelkett ex rel. Shelkett v. Hardee's Food Systems, Inc.

1993 OK CIV APP 11, 848 P.2d 63, 64 O.B.A.J. 752, 1993 Okla. Civ. App. LEXIS 7
CourtCourt of Civil Appeals of Oklahoma
DecidedFebruary 2, 1993
DocketNos. 78505, 78937
StatusPublished
Cited by6 cases

This text of 1993 OK CIV APP 11 (Shelkett ex rel. Shelkett v. Hardee's Food Systems, Inc.) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shelkett ex rel. Shelkett v. Hardee's Food Systems, Inc., 1993 OK CIV APP 11, 848 P.2d 63, 64 O.B.A.J. 752, 1993 Okla. Civ. App. LEXIS 7 (Okla. Ct. App. 1993).

Opinion

MEMORANDUM OPINION

ADAMS, Presiding Judge:

This action arises from an incident in which Eugene B. Shelkett, III (Shelkett), a minor, was injured as the result of an unprovoked assault by two other minors while Shelkett was attempting to place an order at a Hardee’s Food Systems, Inc. (Hardee’s) restaurant. Shelkett appeals a trial court order granting summary adjudication in favor of Hardee's, arguing the evidence, viewed in a light most favorable to him, raises a jury question concerning whether Hardee’s owed him a duty as a business invitee to use ordinary care to protect him against intentional harmful acts by third persons. He also contends there is a substantial controversy as to material facts which warrants a trial on the issue of whether Hardee’s breached that duty.

In reviewing orders of summary adjudication, we examine the pleadings and evi-dentiary materials to determine what facts are material and whether the evidentiary materials introduced indicate a substantial controversy as to any material fact. Ross v. City of Shawnee, 683 P.2d 535 (Okla.1984). All inferences and conclusions drawn from the underlying facts contained in affidavits, admissions, depositions, pleadings and other evidentiary materials must be viewed in a light most favorable to the party opposing the motion. Weaver v. Pryor Jeffersonian, 569 P.2d 967 (Okla.1977). Summary adjudication is only appropriate when there is no substantial controversy as to any material fact and one of the parties is entitled to judgment as a matter of law. Flanders v. Crane Co., 693 P.2d 602 (Okla.1984). Our recitation of the facts and the analysis is guided by these principles.

FACTS

On Friday, October 22, 1988, Shelkett and two of his friends entered Hardee’s fast-food restaurant in Oklahoma City and immediately approached the front counter to place their orders. About three minutes later, John D. Lynch (Lynch), Todd Knight (Knight) and two other persons entered the restaurant acting “frisky” and “rambunctious.” They entered the line behind Shelk-ett and his friends.

Knight then made a racially-motivated derogatory remark about one of Shelkett’s friends, loud enough for the others to hear. Shelkett and the friend to whom the remark was directed turned around and responded. One of Hardee’s employees then told them to “take it outside.” Knight ordered Shelkett to turn around, and he did so. Less than a minute later and without warning, Knight struck Shelkett in the [65]*65back, and when Shelkett instinctively turned around, Lynch struck him in the face. Shelkett immediately went to the restaurant restroom to attend to his injuries. The police were summoned, but by the time they arrived, Knight and Lynch had left the premises.

Although there was some evidence that individuals who had consumed alcoholic beverages were allowed in the restaurant, there was no evidence that alcohol played a part in this incident. Nor does the record indicate Hardee’s should have been aware of the potential for this kind of assault because of previous occurrences.

Nevertheless, Shelkett sued Hardee’s, Lynch and Knight, claiming Hardee’s should have provided proper security and implemented policies to protect its customers. Hardee’s summary adjudication motion argued it had no duty to provide security or other protective measures because it had no notice or prior knowledge of prior criminal acts against its patrons.1 The trial court sustained Hardee’s motion, and Shelkett appealed.2

ANALYSIS

Shelkett contends the evidence presented in the trial court was sufficient to show Hardee’s owed a duty to protect him against unprovoked assaults by other patrons. He argues Hardee’s was negligent in not employing security or additional personnel at its place of business, although it knew the premises were often frequented by teenagers on Friday nights after football games and movies. Shelkett further argues an employee’s admonishment to “take it outside” was insufficient to deter Lynch and Knight, and the incident would not have occurred had Hardee’s taken reasonable precautions to protect its patrons.

Citing Shircliff v. Kroger Company, 593 P.2d 1101 (Okla.App.1979), and this Court’s reliance upon Restatement (Second) of Torts § 344,3 Shelkett argues Hardee’s could not stand idly by while he was being assaulted, but had an affirmative duty to take reasonable steps to prevent and stop the attack, which included an obligation to hire security personnel and implement company policies concerning the appropriate employee response to unlawful acts committed on its premises.

More particularly, Shelkett relies on Comment f of § 344, which states:

Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably [66]*66sufficient number of servants to afford a reasonable protection.

In Shircliff, this Court stated that a “possessor’s liability arises out of its knowledge and right to control [the premises].” 593 P.2d at 1106. In affirming the trial court’s order sustaining the possessor’s demurrer to plaintiff’s evidence, the Court noted that the only employee who allegedly saw plaintiff being assaulted, after she began arguing with another woman who sought to advance her place in line, was a construction worker standing on stilts who had insufficient time to intercede on plaintiff’s behalf.

Generally, courts in other jurisdictions which have adopted the Restatement’s “no-duty” rule, in the absence of actual or constructive notice, hold that a business premises possessor is not liable for the resulting harm occasioned by assaults on its patrons by third parties where there is no evidence to show that any of defendant’s employees either took any prior notice of the assailant or had any reason to do so before his harmful act against plaintiff. See, e.g., Uihlein v. Albertson’s, Inc., 282 Or. 631, 580 P.2d 1014 (1978); Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975); Castillo v. Sears, Roebuck & Co., 663 S.W.2d 60 (Tex.App.1983). The duty to protect one’s patrons from the criminal acts of unknown third persons arises only when such acts are generally foreseeable. See e.g., Stevens v. Jefferson, 436 So.2d 33 (Fla.1983); Pennington v. Church’s Fried Chicken, Inc., 393 So.2d 360 (La.App.1980); Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C.

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1993 OK CIV APP 11, 848 P.2d 63, 64 O.B.A.J. 752, 1993 Okla. Civ. App. LEXIS 7, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shelkett-ex-rel-shelkett-v-hardees-food-systems-inc-oklacivapp-1993.