Denny's Lawsuit Award - $46.4M


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Gregaw
February 23, 2011, 01:09 PM
http://www.seattlepi.com/sound/435052_sound115529629.html

Story summary: Guy gets thrown out of Denny's in the late night hours for fighting. Apparently fights aren't uncommon at this (or other) Denny's at this time of night. Guy goes to his car, grabs a gun, walks back in, and unloads. Denny's corporatation is sued. Patron rendered a quadriplegic is awarded most of 46 million.

More on the incident and background:
Plantiff's side:
http://www.pnwlocalnews.com/south_king/ken/news/112983894.html

Denny's side:
http://www.pnwlocalnews.com/south_king/ken/news/112983834.html

I'm guessing the line at which a company is held liable for this type of incident would vary greatly from jury to jury. They indicated in one of the above articles that if Denny's had hired security or even had a "strong, well-trained manager/authority figure manager was on duty" that this incident wouldn't have happened.

What precauctions is a business obligated to take? How many incidents constitute a pattern that requires you to hire security? I'm just curious what insights someone who has owned / managed a business might have, or what you have done for yours?

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Cosmoline
February 23, 2011, 01:22 PM
There are no answers to those questions. The supposed duty to secure patrons against third party criminals is nothing more than a way to line the pockets of the plaintiffs' bar. It was cooked up by left wing jurists as a means of redistributing wealth--to lawyers. Even with airport-level security, there is no way to keep someone from coming in and shooting people. It is absolutely impossible. People need to take responsibility for their own protection. And if some criminal comes in and shoots you, that's the criminal's fault not the fault of the business that happens to own the building. The place that serves you dinner is responsible to keep the dinner from killing you. It does not control the actions of criminals, let alone murdering loons. It cannot control them.

The only real protection against this kind of nonsense is to not do business in the first place. Certainly not in places with jury pools as stupid as this.

Owen Sparks
February 23, 2011, 02:36 PM
I used to work the door at a bar and had to throw a drunk out for the same exact reason, trying to start a fight with one of regular customers who was minding his own business. As I escorted this "gentleman" out the door he said "I'll come back with a shotgun!" This left me with quite a quandary.

He just threatened me and everyone else with deadly force and was attempting to leave, possibly to retrieve a shotgun. Was he really going to come back with a shotgun? Probably not but then again he might. What should I do?

If this had been the old West I could have cut his throat then and there and put an end to it, but not now days. If went back in and call the police he would have plenty of time to get away and possibly come back later and make good on his threat. If I did a hospital job on the guy to disable him he would have sued me or at least have a real reason to come back and shoot me when he recovered and I did not want to spend the next six months looking over my shoulder. What to do?

I said “You just threatened me with deadly force in front of several witnesses, I am now going to get the .45 from behind the bar and if I see you come back in that door you are dead.” Then I punched him in the solar plexus hard enough to knock the wind out of him temporarily so that I could have enough time to fetch my pistol before he could make to his shotgun and come back. I never saw him.

USAF_Vet
February 23, 2011, 05:59 PM
Owen, I do believe you commited an assault on that individual. I believe that most people who threaten violence are all talk, but ever the boy scout, I'd still be prepared. The verbal exchange and retrieving the pistol would have probably been enough in your scenario. the punch to the solar plexus to someone who was no longer acting violent was probably more than was necessary to end the situation.

Honestly, to the OP, Denny's should not have been held liable in any way. But that is my opinion based on a few Criminal Justice courses and plain old common sense.

kingpin008
February 23, 2011, 06:47 PM
USAF - I agree. The punch was unnecessary, and is a great example of escalation of force when none was needed.

As far as holding businesses responsible for the safety of their customers, I'm still not sure where I fall in the matter. On one hand, some places (schools, for example) make it all too easy for psychopaths to come in and rack up a bodycount. However, there is something to be said for not having to rely on someone else's actions to keep you safe from harm.

Frank Ettin
February 23, 2011, 07:35 PM
...As far as holding businesses responsible for the safety of their customers, I'm still not sure where I fall in the matter....In any case, I suspect that Denny's will appeal. We'll have to wait and see where the court of appeals falls in the matter.

Gregaw
February 24, 2011, 08:47 AM
It sounds as if there won't be an appeal.
"There reportedly won't be an appeal from Denny's - part of the agreement reached" - from the fist article.

Sky
February 24, 2011, 09:34 AM
Owen The punch may not have been right and the rules set forth by this society may not always have an element of common sense but I totally understand your actions. When a threat like he made was issued in the not to distant past he would have been lucky to leave walking with his life. We have become so politically correct and afraid of some authority cracking our head over some inane action that we have given up our man hood to someone else. If he would have come back with a shot gun and opened up and killed like a Luby's style massacre we would be having a different discussion now and probably you would not be involved? hahahah Yes there are laws and there are actions to fit a situation; imagine if he would have said that to an off duty Cop. Hopefully the laws and the actions meet sometimes! +1 for Cosmoline I am actually glad I am so old now unless someone wants to put me out of my misery I stay under the radar...I hope!

mikerault
February 24, 2011, 11:28 AM
The hard 2nd amendment part of says "If Denny's had a "No Guns" sign then yes, they are liable and should pay, however, if they did not then the folks who weren't able to defend themselves got what they sewed".

I believe we all have the duty to defend ourselves as long as we have the means. Do all restaurants have to hire armed guards now? If Denny's didn't prevent the people from protecting themselves and the people chose not to, it is not Denny's fault.

Now, Denny's should have called police to the scene when the fight occurred and had the folks involved sorted out. If they didn't do that, then they are also libel. If they called the police but the police didn't arrive in time, they did all they could be expected to.

Jolly Rogers
February 24, 2011, 12:34 PM
Owen, I do believe you commited an assault on that individual.
The threat to get the shotgun was an assault also.
Joe

Frank Ettin
February 24, 2011, 12:40 PM
It sounds as if there won't be an appeal.
"There reportedly won't be an appeal from Denny's - part of the agreement reached" - from the fist article. Missed that. Denny's apparently agreed to a maximum amount they would have to pay, even if the verdict exceeded that, in exchange for its forgoing an appeal.

But there's another thing I missed. Apparently Denny's had substantial notice of increased risks late at night. From the Laura Pierce (5 Jan 2011) article (http://www.pnwlocalnews.com/south_king/ken/news/112983894.html):

“Denny’s has a problem with its bar rush,” .... “They knew they had a problem – they tracked it...."
“We’ve interviewed many employees who didn’t want to work there during the late-night bar rush, because of the risk of injury,..."
"...Employees at the Kent restaurant, his suit claims, had indicated to management their unease with the roughness of the bar rush. 'They had asked for off-duty police during the bar rush, but nothing was done,'..."
"...The lawsuit also claims that Denny’s has a 92-page printout of more than 3,000 workplace violence incidents at its eateries, from January 2004 to January 2007, including 63 incidents at its restaurants in Washington, and six at the Kent Denny’s...."

That sort of actual knowledge of a particular potentially hazardous condition is highly significant in a tort claim and an essential basis for liability. Without that evidence, it's highly unlikely that Denny's would have had any liability.

Owen Sparks
February 24, 2011, 12:54 PM
Quote:
Originally Posted by USAF_Vet
Owen, I do believe you commited an assault on that individual.

I really did not as far as the law is concerned because there were no witnesses and I did not hit him hard enough to do any damage or leave any evidence, just enough to stun him for a few seconds. After that it was his word against mine. Without a witness or physical evidence it did not happen. I have had to use this technique several times to settle down a rowdy drunk and avoid having to hurt them. Anyone who played sports had had the wind knocked out of them before and knows that you get over it quickly.

Now, that being said I had a tiger by the tail and did not dare let this individual go after making a threat like that. For all I know he could have a shotgun ten feet away in the nearest car and there was no way I was going to let him make the next move. I was responsible for the personal safety of everyone in that bar and had to act. Because of my training I was able to disable him temporarily without causing perminant injury.

cassandrasdaddy
February 24, 2011, 01:07 PM
“Denny’s has a problem with its bar rush,” Perey said in a phone interview Tuesday. “They knew they had a problem – they tracked it. They had the numbers, but they didn’t do anything about it.

“We’ve interviewed many employees who didn’t want to work there during the late-night bar rush, because of the risk of injury, or was it going to escalate into something bad,” Perey said, noting the term “bar rush” refers to the 1-5 a.m. time period when the bars empty out and partiers are looking for somewhere else to go.


the fact that dennys knew and even tracked the problem sank their ship.

Cosmoline
February 24, 2011, 01:13 PM
That sort of actual knowledge of a particular potentially hazardous condition is highly significant in a tort claim and an essential basis for liability.

Criminal activity is the sole responsibility of the CRIMINALS. Once you start down the road of blaming the nearest pocket book, you take a step nearer to the nanny state. Otherwise no business could operate in a high-crime area since they will have "actual knowledge" of the "potentially hazardous condition." And indeed that's precisely what we find in many low-income areas. No business, no jobs, not even a grocery store. So well done plaintiff bar. Well done.

MagnumDweeb
February 24, 2011, 01:15 PM
In Owen's defense I kind of have an idea what he was dealing with. You are commonly dealing with the scum of the earth. Drunk, violent, worthless trash that have no future and nothing to lose even if it means getting unwelcomed affection from their bunkmate for th rest of their lives behind bars. I worked for a short time as a bus boy in-between high school and college, I had been varsity wrestler and had done well on the weight lifting team(too heavy to make my strength count for anythign), I was always being asked to jump in with the bouncers when trouble went down and I never did it, wasn't my pay grade wasn't my problem, if things went real bad (knife or gun got pulled) I'd go out to my truck and get my shotgun if I could. Lines of violent drunken trash came in every week looking to start trouble, especially with a 200 pound 5'9" broad chested and big biceped kid. Sometimes you have to put a beating on these trash to drive home reality. I'm glad I never had to really go back to that line of work. Talking to a bodybuilder one time at a gym years back we got to talking about guns and he basically said he hated having to ask people to leave because he was stuck there without a gun and the other guy could go and get one and come and kill him.

Now Dennys, I can tell you those places are location based when it comes to crime, the trouble is those crime ridden areas is where they do the most business. I picked a friend up one night after she was done at work and we went to Dennys, the whole time we were there it was uncomfortable. It was in a poor area and every G-boy you could imagine rolled in at 3:30 am. Some tried to talk to us because they recognized my friend, she was a dancer and leave it at that. After that if she was hungry for Dennys we did it on my side of town where there wasn't so many poor people so to speak. Not so much section 6 housing. Dennys ought to just face the facts they can't do busines so much in poor areas, its a pursuit with diminishing returns it seems, unless that 46 million is just a drop in the bucket in comparison to the business they do.

USAF_Vet
February 24, 2011, 01:27 PM
The threat to get the shotgun was an assault also.

True, but two wrongs don't make a right. (three lefts do however :) )

I really did not as far as the law is concerned because there were no witnesses and I did not hit him hard enough to do any damage or leave any evidence, just enough to stun him for a few seconds. After that it was his word against mine.

Be that as it may, injury or no, putting your hands upon another in a violent manner is assault. No gray area there. You could have flicked his nose, and in the eyes of the law, it's assault if it is unwanted, intentional contact.


Without a witness or physical evidence it did not happen.

Gotta disagree with you there. Just because it can't be proven in a court of law doesn't mean the assault never happened.

I have had to use this technique several times to settle down a rowdy drunk and avoid having to hurt them. Anyone who played sports had had the wind knocked out of them before and knows that you get over it quickly.

I'm not overly worried about you punching a drunk, I've done worse in the line of duty. My only concern is escalation of force above and beyond what is neccessary.


Now, that being said I had a tiger by the tail and did not dare let this individual go after making a threat like that. For all I know he could have a shotgun ten feet away in the nearest car and there was no way I was going to let him make the next move. I was responsible for the personal safety of everyone in that bar and had to act. Because of my training I was able to disable him temporarily without causing perminant injury.


Not letting him go would mean a physical restraint until police arrived. From what I'm reading, you tossed him out of the bar, he verbally threatened you, you verbally and physically retaliated, and he left. Temporarily disabling the man, then allowing him to leave under his own power ultimately accomplished nothing, other than give you the chance to arm yourself. He could have had a shotgun 10 feet away, or 10 miles away. The fact that he didn't come back is only partially relevant here. I'm not downing you for what you did, I would have simply done it differently. Punching the man may have provoked him to further violence. In your case, it didn't, and that is a good thing. It may have just as easily turned out differently.

In any case, I know I'm taking this thread off topic.

Back on topic, did Denny's settle out of court, or was there a judgement against them? Typically, a settlement is not a plea of liability, although the general public typically views it as such.

Frank Ettin
February 24, 2011, 01:42 PM
...Criminal activity is the sole responsibility of the CRIMINALS. Once you start down the road of blaming the nearest pocket book, you take a step nearer to the nanny state. Otherwise no business could operate in a high-crime area since they will have "actual knowledge" of the "potentially hazardous condition."...Not just risk in general. Note that I wrote, "...actual knowledge of a particular potentially hazardous condition..."(emphasis added).


Owen, I do believe you commited an assault on that individual.
I really did not as far as the law is concerned because there were no witnesses and I did not hit him hard enough to do any damage or leave any evidence, just enough to stun him for a few seconds. After that it was his word against mine. Without a witness or physical evidence it did not happen....What absolute garbage.

[1] It wasn't assault. It was battery.

[2] It was battery whether or not there were witnesses.

[3] It was battery whether or not there was damage.

[4] And it did happen; you've admitted it.

[5] So Owen Sparks, you've admitted committing the crime of battery.

Cosmoline
February 24, 2011, 01:48 PM
"...actual knowledge of a particular potentially hazardous condition..."(emphasis added).

A loose floorboard is a hazardous condition. Exposed wiring is a hazardous condition. Criminal misconduct is not a "hazardous condition." It's criminal misconduct. And it is the responsibility of the criminal, not of the insurance company of the business the criminal happens to be in. This is nothing but the search for a pocket book. That's all it ever was. To support this suit is to support mass torts against gun manufacturers. Because they certainly have "specific knowledge" of the "hazardous condition" their firearms may be involved in.

Frank Ettin
February 24, 2011, 02:05 PM
A loose floorboard is a hazardous condition. Exposed wiring is a hazardous condition. Criminal misconduct is not a "hazardous condition." It's criminal misconduct. And it is the responsibility of the criminal, not of the insurance company of the business the criminal happens to be in.....But again, the particular hazardous condition in this case wasn't simply criminal conduct in general. It was Denny's specifically attracting rough and unruly customers during the early morning hours after the bars had closed, as evidenced by reported fights and violent incidents in Denny's locations during those hours.

That was apparently the basis for the jury verdict against Denny's and the award of damages. Whether or not it was actually sufficient as a matter of law to establish liability we won't know because Denny's waived its appeal. Now the legal question won't more fully be examined by a court of appeal.

Cosmoline
February 24, 2011, 02:13 PM
No, that's not a "hazardous condition." It's criminal assault. Saying it's "particular" gets you nowhere. All criminal activity is specific. All crimes are particular. What you're really talking about is an excuse to blame the nearest entity with money. That's all any of this ever was. Thus, it is not possible to take steps to avoid this risk as a business. It's not a wire that can be repaired. It's not a floorboard that can be replaced. Short of shutting down and leaving the neighborhood, there is no solution. That's what the OP was asking, and that's the hard truth of it. If you aren't judgment proof you shouldn't do business in the area at all. Any security measure you take is just going to open you up to more claims. It will prove you knew of the "hazardous condition." If you throw the scum out, the scum will sue you for it. If your staff gets tough with the nogoodnicks, your staff risks being arrested for assault. There is no safe harbor. There is no protection. The common sense of the common law has been warped into a kind of legitimized extortion. I've seen it, and fought hard against it, for my whole career. My side, supported by at least some legislatures and courts, has done a lot to hold back the floodtide. But the claims keep coming, each more absurd than the last.

Frank Ettin
February 24, 2011, 02:31 PM
No, that's not a "hazardous condition." It's criminal assault. All criminal activity is specific. All crimes are specific. What you're really talking about is an excuse to blame the nearest entity with money. That's all any of this ever was. Believe what you want, but I can tell you that based on my over 30 years practicing law that the facts alleged, if supported by evidence at trial, would get the plaintiff an instruction to the jury by the judge to the effect that the jury could find that Denny's had knowledge of a particular hazardous condition.

Whether you think that result is right or just or proper is really beside the point. The corporate knowledge of Denny's as alleged would be a sufficient basis upon which to argue to the jury that Denny's did have knowledge of a particular hazardous condition, that therefore the injury suffered here was foreseeable, that Denny's had a duty to business invitees to take reasonable steps to prevent such injuries, that Denny's failed to do so, and that therefore it is liable for the damages suffered.

The jury obviously found that. Without an appeal there is no way to test the legal sufficiency of the the plaintiffs theory.

However, the fact that Denny's apparently agreed to a maximum payment amount in exchange for waiving its appeal strongly suggests that Denny's was very concerned that it knowledge and tracking of past violent, late night incidents would be very damaging to its case.

...It's not a wire that can be repaired. It's not a floorboard that can be replaced. Short of shutting down and leaving the neighborhood, there is no solution. That's what the OP was asking, and that's the hard truth of it. If you aren't judgment proof you shouldn't do business in the area at all. Any security measure you take is just going to open you up to more claims. It will prove you knew of the "hazardous condition." If you throw the scum out, the scum will sue you for it. If your staff gets tough with the nogoodnicks, your staff risks being arrested for assault.... I understand that' your view of things. And I can't say that I completely disagree with what you think social policy ought to be.

But that's not what the law is.

Frank Ettin
February 24, 2011, 02:57 PM
...did Denny's settle out of court, or was there a judgement against them?...No, Denny's did not settle out of court. A jury delivered a verdict against Denny's, and a judgment was awarded the plaintiffs against Denny's.

What Denny's apparently did is something that is sometimes done in high exposure tort cases. Denny's and the plaintiffs agreed that if the verdict came in against Denny's, Denny's would pay a maximum of $ XXXXXXX, even if the judgment was greater. And the plaintiffs agreed to accept that amount in exchange for Denny's waiver of its right to appeal the judgment. That way (1) Denny's limits its exposure to a certain amount; and (2) the plaintiffs avoid the risk and delay of an appeal.

Owen Sparks
February 24, 2011, 03:02 PM
Not letting him go would mean a physical restraint until police arrived.

It is not that easy to restrain another grown man who does not want to be restrained, not with out hurting him while he is trying to bite and gouge. Yes I can do it but it requires getting on the ground and putting him in some sort of wrestling hold which means I am not able to control what is happening in the bar. Trying to hold someone down is extremely dangerous in public because people usually have buddies present and I had no idea if he did or not. Most real fights involve other people and I do not want to get kicked in the head while I am restraining with some drunk.

The last thing you want in the bar business is to attract the attention of the police. First of all it labels the bar as a trouble spot and blue lights out front pretty much guarantees that evening will be a financial loss. It scares off customers as the word spreads very rapidly in a small town that the cops were at X bar and everyone avoids it for the rest of the evening. Our policy was to never call the police unless we had to. Those days are long gone now because when a fight breaks out every do gooder with a cell phone calls the police and I’m sure that happened at Denny’s.

From what I'm reading, you tossed him out of the bar, he verbally threatened you, you verbally and physically retaliated, and he left. Temporarily disabling the man, then allowing him to leave under his own power ultimately accomplished nothing, other than give you the chance to arm yourself.

And that was my only objective at that point, to arm myself.

He could have had a shotgun 10 feet away, or 10 miles away. The fact that he didn't come back is only partially relevant here. I'm not downing you for what you did, I would have simply done it differently. Punching the man may have provoked him to further violence.

And having him arrested and taken to jail would not? He got over that punch in 30 seconds but having him arrested jail and fined is a sure way to incur future retaliation. I gave the guy an out and he took it. Again I don’t like having to look over my shoulder.

Now, to drift this back on topic, what could Denny’s have done to prevent this? The cooks, buss boys and waitresses are not trained wrestlers and even if they were, they would not get involved in a brawl for what they are getting paid. Besides, people have been conditioned all their lives that the worst thing that you can possibly do is to “Take the law into your own hands.” It is little wonder that most people stand idly by when they see a crime. Compound this with the very realist possibility of getting sued and ending up with people like USAF Vet sitting on the jury.

USAF_Vet
February 24, 2011, 03:24 PM
Owen, I've worked with some pretty nasty people, up to and including murderers. However, that was in a controlled environment (detention facility). Your experiences are obviously greatly different than mine, and I'm not faulting you for what you did. We'll just agree to disagree and leave it at that.

Denny's apparently was well aware of the potential violence they allowed in after hours. Thats like smoking next to an open powder keg, catastrophe waiting to happen. They could have done many things, such as not be open 24 hours in that particular location. Not completely unheard of, wouldn't cost them too much in the long run and would have avoided this situation. That would probably been the most reasonable course of action, but reason and profits rarely see eye to eye. It isn't likely the owner or general manager stopped by often at 2am to see how riotous the place got, or simply didn't care as long as profits were made.
It would be interesting to see how many employees had filed complaints about the situation.

Girodin
February 24, 2011, 03:47 PM
Owen, I do believe you commited an assault on that individual. I believe that most people who threaten violence are all talk, but ever the boy scout, I'd still be prepared. The verbal exchange and retrieving the pistol would have probably been enough in your scenario. the punch to the solar plexus to someone who was no longer acting violent was probably more than was necessary to end the situation.

Bouncers commit battery all the time. When the viticm is some drunk A hole and witnesses are your buddies it makes it much easier to get away with. Not unlike the situation with cops.

Gregaw
February 24, 2011, 04:34 PM
Fiddletown - Thanks for your input, your comments are very informative. So if their past instances of violence were enough to make the shooting, as you said, 'foreseeable',
therefore the injury suffered here was foreseeable
what would have been reasonable steps that could have kept them from this liability?

I find it hard to believe the statement from the Plantiff that a "strong, well-trained manager/authority figure manager" would have stopped this shooting or removed Denny's liability. How much is enough? Would a few past fist fights neccessitate armed gaurds??? It seems to me that no reasonalbe security measure would seem like enough after an incident like this. Is the point just to at least "look" like you are trying before hand?

Thanks again! - Greg

K-Rod
February 24, 2011, 05:07 PM
Not only was what Owens did an "Assault/Battery" act in the eyes of the law, if convictted he would also lose his right to a firearm for LIFE because of the "Luth-a-whatever-stupid" act!! (Someone could help me with the real name please) I really don't think losing my gun rights for life because of a drunk A-hole is worth it but to NOT do something could cause me to lose my LIFE or danger the life of others.

This is one reason why this "Act" needs to be changed. Sometimes GOOD people are put in a situation that can't be helped & because of this, their rights are removed for LIFE.

cassandrasdaddy
February 24, 2011, 05:24 PM
were i denny's i'd have settled were i on the jury they woulda been in deep kimchee

Ben86
February 24, 2011, 05:27 PM
It is sad when a place of business is liable for the unrelated action of a third party. The only one liable should be the creep that did the shooting. There is no guarantee of personal safety when entering a Denny's against all threats from within or outside the restaurant. These sort of rulings serve to hurt the welfare of businesses.

Frank Ettin
February 24, 2011, 08:54 PM
Fiddletown - Thanks for your input, your comments are very informative. So if their past instances of violence were enough to make the shooting, as you said, 'foreseeable',

therefore the injury suffered here was foreseeable
what would have been reasonable steps that could have kept them from this liability?

I find it hard to believe the statement from the Plantiff that a "strong, well-trained manager/authority figure manager" would have stopped this shooting or removed Denny's liability. How much is enough? Would a few past fist fights neccessitate armed gaurds??? It seems to me that no reasonalbe security measure would seem like enough after an incident like this. Is the point just to at least "look" like you are trying before hand?...There's no sort of "magic" response. Once a foreseeable risk is identified, the duty arises to do what a reasonable and prudent person would do to ameliorate the risk. In a negligence case like this whether the defendant acted as a reasonable and prudent person in like circumstances becomes a question for the jury.

We lack some information about how Denny's defended itself here. Did it do anything in response to the data it had? Did it consider the data and conclude that nothing needed to be done? Did they claim to have taken reasonable action, or did they simply assert that they had no duty? We don't know.

Cosmoline
February 24, 2011, 09:04 PM
what would have been reasonable steps that could have kept them from this liability?

An EXCELLENT question, sir. Let's see what the response is:

There's no sort of "magic" response. Once a foreseeable risk is identified, the duty arises to do what a reasonable and prudent person would do to ameliorate the risk. In a negligence case like this whether the defendant acted as a reasonable and prudent person in like circumstances becomes a question for the jury.

Nobody is asking for a magic response. But what you've offered isn't a response at all. It's legalistic gibbering of no use to a business owner. Any step he takes to be reasonably prudent can and will be used against him to show the foreseeability of the risk. That's not your fault, of course. The basis for the tort's expansion is a load of bravo sierra. The fact that many courts have gone along with this nonsense and permitted suits against business operators for third party criminal acts just underlies how corrupt they have become. And how far many judges have drifted from the reality of actually running a business for profit. If it's a loose board you can nail it down. But how can you keep people from committing crimes on your premises? How can you stop someone from drawing a firearm and spraying rounds around? You cannot, and encouraging businesses to be safer is not and has never been the point of this legal doctrine. The point is to funnel money from the nearest pocket to the plaintiff. PERIOD. Actual criminals are almost always judgment proof. So the only way a business can truly avoid that liability is to shut its doors. Which is precisely what many have done in tort hells around the country.

SharpsDressedMan
February 24, 2011, 09:25 PM
Owen, anyone that criticizes your actions is probably an armchair quarterback, and doesn't really get out much. When you deal with dangerous people, you quite often have to react, and improvise. If it "worked", and there were no repercussions, then it HAD to be the right thing to do. The world is not a finite place, so there is more than one "right" way to do things. People sometimes ask, "What would Jesus do?" I sometimes ask, "What would Genghis Khan do?"

Frank Ettin
February 24, 2011, 09:34 PM
There's no sort of "magic" response. Once a foreseeable risk is identified, the duty arises to do what a reasonable and prudent person would do to ameliorate the risk. In a negligence case like this whether the defendant acted as a reasonable and prudent person in like circumstances becomes a question for the jury.
Nobody is asking for a magic response. But what you've offered isn't a response at all. It's legalistic gibbering of no use to a business owner. Any step he takes to be reasonably prudent can and will be used against him to show the foreseeability of the risk. That's not your fault, of course. The basis for the tort's expansion is a load of bravo sierra. The fact that many courts have gone along with this nonsense and permitted suits against business operators for third party criminal acts just underlies how corrupt they have become.... Nonetheless, it is what it is. You obviously don't like the way the law is, but that won't change it. I may not like it much, and that won't change it either.

So you can gnash your teeth, rend your garments and bellow all you want. The law is as I've described. If you don't care to try to understand what is and why the Denny's case turned out as it did, that's fine.

To those who don't like the result for the reasons outlined by Cosmoline, write your legislators. Legislation can change this sort of thing. For example, legislation was able to shut down a bunch of bogus lawsuits against gun manufacturers.

But before anyone is likely to be able to meaningfully work toward change, he needs to understand how things actually are now.

... Any step he takes to be reasonably prudent can and will be used against him to show the foreseeability of the risk....Nonsense. In the Denny's case, foreseeability was easily established even without, apparently, Denny's taking any sort of corrective action. And in general, foreseeability will be established whether or not the defendant does anything to address the problem. So he needs to recognize it and deal with it.

Cosmoline
February 25, 2011, 02:05 AM
So he needs to recognize it and deal with it.

How, exactly? That was the OP's question. Telling someone they should take reasonable steps to prevent foreseeable hazards isn't specific enough to be meaningful.

Frank Ettin
February 25, 2011, 02:40 AM
So he needs to recognize it and deal with it.
How, exactly? That was the OP's question. Telling someone they should take reasonable steps to prevent foreseeable hazards isn't specific enough to be meaningful. If I were advising a client, as I have when I worked for a living, I would and could come up with a far more detailed answer. I'd research applicable case law; review with my client available options, consider the efficacy of the various options, explore with my client how in the event of litigation my client's story could be effectively told, and how various options might play to a jury.

But I'm not going to write a treatise for this board on the law of a business' tort liability to business invitees. And I'm not going to spend the hours necessary to research Washington State cases and what sort of reasonable options Denny's might have had. And even if I were willing to do all that, no one here would really be all that interested.

Bottom line is that the legal standard is to act as reasonable and prudent person in like circumstances. There is no simple, canned answer to the question. That's the way it is in really life. There is no safe harbor. If someone thinks there needs to be, he should write his legislators.

And to deal with these sorts of problems, prudent businesses carry insurance. Large businesses may self insure part of the risk, but most would still carry some coverage, either with a high self insured retention or with a high deductible.

Is the current state of affairs the wisest public policy? Good question, and maybe it's not. But various tort reform schemes have been kicking around for years, and I've been on various business association committees working on the issue. But nothing has changed appreciably in business' favor in the over 30 years I've practiced law.

So for now if you're in business, you need to deal with things, with the help of qualified legal counsel, as they are.

Ben86
February 25, 2011, 08:37 AM
So for now if you're in business, you need to deal with things, with the help of qualified legal counsel, as they are.

Attorneys certainly do have a way of assuring that we all need attorneys.

USAF_Vet
February 25, 2011, 09:34 AM
Owen, anyone that criticizes your actions is probably an armchair quarterback, and doesn't really get out much.

And anyone who criticizes anyone for criticizing someone else isn't an 'armchair quarterback'? Really. Doesn't get out much? How is the air up there on your high horse? Might be a bit low on the O2, making you a bit delusional.

I'm not saying what Owen did was wrong, only that it was illegal. Illegal and wrong are often at odds with each other. I simply pointed out what, in the eyes of the law, was a crime. I didn't say he would be facing a jury of his peers. Can't be proven does not equal didn't happen.


When you deal with dangerous people, you quite often have to react, and improvise. If it "worked", and there were no repercussions, then it HAD to be the right thing to do.

Again, what is right, and what is legal are often at odds with each other. I dealt with a riot in a detention facility outnumbered by thieves, rapists, drug peddlers and killers. I employed some 'outside of the regulations' tactics to help put that situation down. Was it legal? No, I could have lost my job over it, and faced a lawsuit. Was it the right thing to do? Yep. Otherwise the outcome could have been a lot worse. People who choose these types of employment are often granted a bit of latitude because they are viewed as keepers of the peace, despite not being sworn law enforcement. What is right is held in the eye of the beholder. What is legal is not.

The world is not a finite place, so there is more than one "right" way to do things. People sometimes ask, "What would Jesus do?" I sometimes ask, "What would Genghis Khan do?"


I would agree, but when talking about morals and ethics and concepts of right and wrong, those are gray areas. Legal vs. illegal is pretty finite in comparison. Was Owen 'right' in how he dealt with that individual? That is something only answered by opinion. Was his action 'legal' is another story. I was arguing the 'legal' merits of his anecdote, not the 'moral' ones.

Frank Ettin
February 25, 2011, 12:39 PM
...Attorneys certainly do have a way of assuring that we all need attorneys. ....Welcome to real life in the 21st Century. You want to fix that, have at it.

Cosmoline
February 25, 2011, 12:59 PM
There is no simple, canned answer to the question.

There is an answer the extent tort law stays sane. For example, if someone asks me how they can exercise due care as the driver of a motor vehicle, I can tell them precisely how to do this. Likewise, if a land owner asks me how well he has to keep common areas of a rental property maintained, I can tell him to check for trip hazards, make sure electrical is up to code, and so on. It's only when the law is twisted to fill pockets, as it has been in the case of third party criminal activity on premises, that the answers become useless and vague. Why? Because there really is no answer. There is no way a business can prevent third party crimes. The very notion is absurd, as the common law recognized until the plaintiff lawyers "modernized" it. I'm not going to tell people there *is* some answer out there that's simply too complex to give. There is no answer, apart from "pay up."

Look at the criticism of the board member who *DID* do something about the problem. Preemptively trying to quash the nogoodnicks is not something a business owner really has the authority to do. He's not a peace officer. But we live in a world where duty stretches as far as pocket books, regardless of whether the defendant had anything to do with the tort or even whether he could have done anything.

Frank Ettin
February 25, 2011, 01:13 PM
There is an answer the extent tort law stays sane....What do you mean by "stays sane"? This isn't new. Businesses have been held liable for a lack of security for a long time.

NMGonzo
February 25, 2011, 01:14 PM
Next time call the cops.

Ben86
February 25, 2011, 02:04 PM
Welcome to real life in the 21st Century. You want to fix that, have at it.

Sadly I believe it is too complicated to ever fix, it has become a part of our culture now.

SharpsDressedMan
February 25, 2011, 02:13 PM
What would Genghis Khan do...............if you P/O the Khan, you may find out.....:evil: Sometimes "old world" solutions still have merit......................

Cosmoline
February 25, 2011, 07:10 PM
Businesses have been held liable for a lack of security for a long time.

Not over the span of the common law. This is a development that took hold after WWII and was embraced by the expansive Second Restatement of Torts. It was a progression of cases starting with "crowded theater" push-shove situations and ultimately moving to find liability for everything from parking lot rapes to murders. The real reason for this expansion was that "progressive" jurists felt that tort law should be expanded to maximize recovery. Third party criminals are almost always judgment proof, but land owners by definition have assets and often insurance. So you find the nearest pocket and expand the notion of "hazard" to include third party criminal activities. Bit by bit, from pushing in a crowded theater to drunks in fights to rapes and finally to outright murders. And we end up with the profound lunacy of judgments against land owners for wrongful death when they pulled no trigger, hired no gunman, and didn't even have anything to do with the murder.

Frank Ettin
February 25, 2011, 07:55 PM
Businesses have been held liable for a lack of security for a long time. Not over the span of the common law. This is a development that took hold after WWII and was embraced by the expansive Second Restatement of Torts. It was a progression of cases starting with "crowded theater" push-shove situations and ultimately moving to find liability for everything from parking lot rapes to murders. The real reason for this expansion was that "progressive" jurists felt that tort law should be expanded to maximize recovery. ...Yes, and so what?

[1] WWII ended over 65 years ago (three generations). By now this is hardly revolutionary legal doctrine. Indeed, it's "mainstream" as evidenced in part by it's recognition in Restatement of Torts 2d.

[2] While the foundation of our legal system is indeed the Common Law, we long ago departed from the purity of the Common Law as chronicled by Blackstone.

[3] Even the Common Law itself evolved. For example, Rylands v. Fletcher and Hadley v. Baxendale coming in the mid-19th Century expanded the Common Law beyond what Blackstone envisioned.

Yes, things were different under the Common Law of the 18th and 19th Centuries. But that horse is now so far out of the barn that he's at least two time zones removed.

Owen Sparks
February 25, 2011, 09:49 PM
Liability is no longer based on right or wrong but on who can pay the biggest judgment. If the same exact thing had happened at Bubba's lounge and Bubba had no liability insurance no one but the shooter would have been faulted but Denny's, being a national chain is a big juicy target. Trial lawyers are the financial backbone of the Democratic Party and have been rewarded with a target rich environment in which to ply their trade. The lawyers will probably get to keep a third to half of whatever loot they extort from Denny’s. Had an employee of Denny’s made any effort to physically stop the fight they would have been sued anyway.

razorback2003
February 25, 2011, 10:13 PM
A lot of Denny's restaurants are almost public nuisances late at night/early morning. If Denny's didn't take precautions against the problems of being open late at night, such as having adequate security (off duty police hired, armed guard), I could see them getting sued for something like this.

This is the way America works in the legal environment. The legal environment goes after deep pockets. Denny's is a deep pocket and if it didn't have off duty cops at known problem locations and someone was hurt/killed, they are in deep crap civil wise.

cassandrasdaddy
February 26, 2011, 09:56 AM
maintaining an attractive public nuisance describes our local dennys

Sky
February 26, 2011, 10:20 AM
Cosmoline +1 good arguments on both sides of the isle Gentlemen! There is much frustration over court decisions and inane cases that should never be brought before the court in the first place. Yes the law is the law and I personally believe since there is some law against almost everything all the law makers are doing is making more and more criminals out of good people. As has been said follow the money; not what is right or morally correct.

rocky branch
February 26, 2011, 10:35 AM
Seen many a bouncer in my time cross the line.
Not an easy position, but some get away with questionable stuff.
One 300 pounder here, drug a 100 lb runt outside and killed him.
He is serving 35 years at this time.

Sebastian the Ibis
February 26, 2011, 03:21 PM
They indicated in one of the above articles that if Denny's had hired security or even had a "strong, well-trained manager/authority figure manager was on duty" that this incident wouldn't have happened.

It's always a what-if. Even if they had hired an armed former Navy Seal drill instructor type, who shot the SOB with a double tap between the eyes, as soon as he saw him return with a gun, the same Plaintiff's attorney would sue Denny's for killing his poor innocent client who was returning apologize and pay for his dinner, but didn't feel safe returning without a gun. If the Navy Seal drill instructor waited until the guy started shooting, they would be in the same pickle.

In short there is really nothing you can do as a business owner in most cases. However, in Florida, the property owner may be able to turn around and sue the attorneys in these situations. For the attorneys out there, see Abu-Ghazaleh v. Chaul, (Fla. 3d DCA 2009) available here: http://www.3dca.flcourts.org/opinions/3D07-3130.pdf. Also the Tobacco Companies are serving offers of judgment on all Plaintiffs in the Engle cases and pounding the bejesus out of unsuccessful ones for atttorneys fees - This is not a cost effective strategy for most small business owners who get sued once in a while, but it works well for large cases like this since the Plaintiff knows their options are: 1. drop the lawsuit, 2. win or 3. lose the case, your bank accounts, non-homesteaded property, and everything in your house that is not nailed down.

Cosmoline
February 27, 2011, 03:41 PM
In Alaska we have a loser-pays system that penalizes dice-rollers. Even in a routine MVA the Rule 68 fees can mount upwards of $50,000. So if you gamble wrong you pay big. That, along with various 1997 tort reform measures, has scared off most of the big sharks. Other states have fooled around with similar loser-pays systems, but the concept is so alien to most court systems that they try to limit application as much as possible. There is a deeply ingrained belief that justice requires big awards for plaintiffs. Indeed, that the entire civil justice system should be geared towards payments of money to the complainers. Sorry, "plaintiffs".

Frank Ettin
February 27, 2011, 04:01 PM
In Alaska we have a loser-pays system that penalizes dice-rollers...A loser-pays system is, IMO, one of the best ways to promote some rationality in our tort litigation system. It can help to cut down on frivolous lawsuits and to encourage prompt and reasonable settlement of meritorious claims.

I think it makes a lot of sense. I'd like to see it implemented in every State.

...the concept is so alien to most court systems...But it's pretty much always been that way in Great Britain.

TexasBill
February 27, 2011, 05:36 PM
Denny's big problem was documentation of prior incidents combined with corporate reticence to place an armed person in their restaurants. Whether it's an off-duty cop or a security guard, Denny's would be responsible for their actions because Denny's hired them for the express purpose of having an armed presence on the premises. If the officer returned fire and accidentally hit another patron, Denny's would be sued and would most likely lose.

Plus, having an armed officer on hand would likely drive off those patrons who weren't coming out of the bars but just wanted to have a meal. This results in lost revenue.

Basically, the only option Denny's has is to close during post-bar hours. That would mean a loss of millions in revenue.

So Denny's choices are: Do nothing and be liable for doing nothing; do something and be liable if that something doesn't work out perfectly; scare family business away or close.

This is really a case of "heads, they win; tails, we lose."

And anyone who thinks this is purely a modern phenomenon is dead wrong: Business owners have always been responsible in one way or another for what takes place on their premises. The history of business liability insurance goes back centuries. I will agree that the extent of liability has exploded over the last half-century and has reached some rather ridiculous extremes but it's worth noting that neither party, Republican or Democratic, has done much to curb such lawsuits. Then again, neither have a number of large companies, who have opted to settle because it was cheaper to settle than to fight, even though they likely would have prevailed. You show somebody a fertile field, you're guaranteed they're going to plow it.

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