Madden v. C & K Barbecue Carryout, Inc.

ROBERTSON, Judge,

concurring in result.

These cases come to this Court on dismissal and summary judgment. As a result, the only issue properly before the Court is a single, theoretical one: whether a duty arises “when the landowner knows or has 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 visitors....” (Maj op. at 62). To the extent that the Court decides that a duty exists in these cases on the bare record before us, I believe the Court errs. For the reasons which follow, I do no more than concur in the result reached by the Court.

*64 I.

Both those who praise and those who criticize the tort system acknowledge that it provides compensation to injured individuals.

Arising out of the various and ever-increasing clashes of the activities of persons living in a common society, carrying on business in competition with fellow members of that society, owning property which may in any of a thousand ways affect the persons or property of others —in short, doing all things that constitute modern living — there must of necessity be losses, or injuries of many kinds sustained as a result of the activities of others. The purpose of the law of torts is to adjust these losses, and to afford compensation for injuries sustained by one person as a result of the conduct of another.

Wright, Introduction to the Law of Torts, 8 Camb.LJ. 238 (1944) cited in Prosser and Keeton, Torts, 6 (1984).

Awards of compensation provide economic incentives both for injured persons to seek redress from those who may be at fault and for potential tortfeasors to regulate their activities to avoid injuring others. Thus, an important by-product of the system is its ability “to generate rules of liability that if followed will bring about, at least approximately, the efficient — cost-justified — level of accidents and safety.” Pos-ner, “A Theory of Negligence”, 1 J. Legal Stud. 29 , 33 (1972).

This argument is not original with Pos-ner. It finds earlier expression in the words of Learned Hand in United States v. Carroll Towing Co., 159 F.2d 169, 173 (2d Cir.1940). There Hand asserts:

[T]he owner’s duty ... to provide against resulting injuries is a function of three variables: (1) The probability that [the barge] will break away; (2) the gravity of the resulting injury, if she does; (3) the burden of adequate precautions. Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P; the injury, L; and the burden, B; liability depends upon whether B is less than L multiplied by P: i.e., whether B<PL.

For Hand, duty thus turns on whether the burden of taking precautions is less than the expected value of the harm; liability exists to the extent that a defendant fails to undertake cost-effective precautions. Stated another way, Hand’s formula seems to say that negligence exists when those who are in the most-efficient position to avoid accidents fail to do so.

This method of analysis (which is certainly more complex than is set out here) has been dubbed “law and economics”. To its credit, law and economics has been criticized both by those who argue that the tort system favors plaintiffs and those who believe it tilts toward defendants. While I harbor no illusions that law and economics is the holy grail of tort law 1 , it is nonetheless helpful in analyzing cases such as this one which present particularly troubling choices. It is helpful because it allows us to consider cases from a neutral perspective and ex ante, with a view toward determining appropriate rules of law which generate cost-effective behaviors within society. By focusing on these neutral considerations we are freed, to some extent, from the condemnation leveled by those who argue that we now compensate injury without regard to fault. In my credo, the tort system serves responsibly only when it requires a finding of fault as a necessary predicate to any award of compensation.

Considering the cases at bar ex ante, the potential burdens which might be placed on the proprietor if he were required to take steps to avoid foreseeable injury to his *65 invitees are obvious; 2 these include installation of fencing and lighting, and/or the posting of guards. 3 These are not insubstantial burdens to place on a person who or entity which seeks to maximize the profit of an enterprise; such a duty cannot be lightly imposed. Yet between the proprietor and his invitee, the former is in the best position to take measures to avoid the injury, provided that the likelihood of injury is reasonably foreseeable. The cost of the measures can be spread over the proprietor’s entire product and customer base.

One can argue that a potential customer who knows of crime problems in the area has the option of refusing to patronize the store. To overcome this resistance, however, the proprietor has invited, and perhaps through aggressive advertising, has enticed persons to ignore that fear of doing business with him. Once that customer decides to come to the store, aside from keeping a careful look out, he or she is not in a position to take further preventive measures.

It is not enough to say that the proprietor can bear the burden of prevention more readily than the invitee. Before we may properly impose that duty under the circumstances of these cases, we must determine that it is cost effective to do so. Whether the burden of prevention is cost effective is a function of the probability of harm; probability is thus essentially a question of foreseeability. We do not impose a duty on store owners to insure the safety of patrons generally. Instead, the imposition of that duty is both proper and cost effective only to the extent that the proprietor has both reasonable notice that his invitees face danger under similar circumstances and that the cost of prevention is less than the expected value of the harm.

I thus have no difficulty with the theoretical proposition advanced by the Court that under the proper factual circumstances a proprietor owes a duty to his invitees where the risk of harm is foreseeable and the risk of substantial injury great. This view is neither radical nor new; it follows long accepted, traditional concepts of tort law. “Duty ... is measured by the scope of the risk which negligent conduct fore-seeably entails.” James, Scope of Duty in Negligence Cases, 47 Northwestern L.Rev. 778, 781 (1953). “As a general proposition, a duty of care which is imposed by the law of negligence arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury.” Lowrey v. Horvath, 689 S.W.2d 625, 627 (Mo. banc 1985).

The Court goes too far, however, when it claims that a duty of care exists if the facts pled by Madden and alleged in the Decker affidavits are established at trial. In my view, whether the incidents of crime which occurred at these locations were of such a frequency and of such a similar nature as to make the matters which are the subject of these actions foreseeable — and thus establish a duty of care — is a question we leave for the trial judge after all the facts are fully developed.

Foreseeability is a function of the unique facts which obtain in each case. Whether the proprietor had notice of the crimes, the nature of the steps taken, if any, to avoid crime, the type of crimes committed, the number of crimes per customer visit, the *66 time of day any prior crimes occurred— these and many other relevant considerations — all assist in determining the foreseeability of the injuries sustained in a given case.

These cases are often emotionally charged and pit an individual against a large, deep pocket defendant. But foreseeability must never be measured after the fact; when an injury has occurred, whatever precautions were taken were (obviously) inadequate to prevent that injury. We properly leave to our learned trial bench the responsibility to determine, subject to appellate review, whether a duty exists and thus a submissible case made within the context of the entire set of facts developed at trial.

In sum, I agree with the Court that these cases do assert a set of facts sufficient to survive a motion to dismiss or a motion for summary judgment. Whether the facts alleged in the petitions in these cases make a submissible case after a full development of the facts is a matter for the trial court. But the Court’s language concluding that the duty exists if the facts pled are proved goes much farther than simply holding that these cases can survive motions for summary judgment and to dismiss. On the bare record before us, no such determination can be properly made.

. In his seminal article, Guido Calabresi acknowledged that his paper would "deal in theory — often unfortunately, in the most dismal of theories, economics.” He expressed the hope, however, that his words would be "intelligible to law teachers, if not to lawyers, and without the suicidal desire of the economist to make his theory so pervasive and detailed that it is rendered utterly useless to the lawyer who lives in the world of men, and even to the law teacher, wherever he lives.” Calebresi, “Some Thoughts on Risk Distribution and the Law of Torts,” 70 Yale Law Journal 499, 500 (1961).

. The Court’s opinion appears to adopt the Restatement (Second) of Torts, § 344 approach, which states that it may be a sufficient fulfillment of the duty imposed for an entity to do no more than warn its customers of potential danger.

. The adequacy of precautions is always a difficult question. After an injury has occurred, it is obvious to all that the precautions were inadequate to prevent that injury. I am not willing to say, however, that injury proves the inadequacy of steps taken to meet a duty of care imposed by the law. As one court has wisely noted:

In this day of an inordinate volume of criminal activity, there are a myriad of "security devices" available ..., including the hiring of armed guards. No one really knows why people commit crime, hence no one really knows what is "adequate” deterrence in any given situation. While bright lights may deter some, they will not deter all. Some persons cannot be deterred by anything short of impenetrable walls and armed guards.

7735 Hollywood Boulevard Venture v. Superior Court, 116 Ca.App.3d 901, 172 Cal.Rptr. 528, 530 (1981).