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Leighton speaks to American Association for Justice on ATM Safety, Convenience Stores and High Risk Retail Premises starstarstarstarstar

Like Flies to Honey:
Crime Magnets and the Dangers of ATMs, Convenience Stores,
and Other High Risk Retail Premises

John Elliott Leighton
Leighton Law, P.A.
Miami and Orlando, Florida

American Association for Justice

Baltimore, Maryland (2014)

There are 425,000 automatic teller machines (ATMs) in use in the United States. There are 150,000 convenience stores in the country. These two types of properties have something in common: they are crime magnets. Their popularity belies their dangers. Both offer criminals “one stop shopping” for quick and easy cash in a robbery. Rarely are they densely populated or controlled by security. And they are usually available late into the night.

Each of these premise present their own issues with regard to reasonableness of security. Some jurisdictions have enacted legislation dealing with minimum security or lighting requirements for these types of businesses.

The Electronic Funds Transfer Association (EFTA) provides statistics that a criminal attack occurs once in every 2 to 3 million transactions, but this is not backed by hard data. Few localities keep separate statistics for ATM-related crimes, therefore accurate statistics are hard to come by. A review of actual data from individual jurisdictions suggests that the industry’s numbers understate the frequency and severity of criminal occurrences at and related to ATM usage.

ATMs are 24 hour convenience stores for cash. If convenience stores are crime magnets, ATMs are electromagnetic in their attraction by criminals. This is the classic Willie Sutton concept: a criminal in search of quick cash is logically more likely to be attracted to an ATM because there is basically only one purpose in an individual using the machine, and that is to remove cash. When you factor in that most users are alone, and often ARMs are not in the middle of high traffic areas, it provides the perfect petri dish for a criminal virus: Cash. Victims. Individuals. Easy exit. Sadly, many banks have not implemented the basic security precautions needed to deter crime and protect customers. That is because there is no profit in it for the banking industry. Security does not provide revenue.

Most banks have been aggressive in encouraging their customers to use ATMs for their banking needs. For one, it reduces overhead (fewer staff needed, 24 hour services offered). Perhaps just as important, ATM use has resulted in increased revenue through the use of fees. Fees banks and credit unions charge non-customers for using their ATMs have soared 20%, from an average $1.75 per transaction in 2007 to $2.10 in 2012, according to a study conducted by the U.S. GAO.

It is important to follow the money It has been estimated that in 1993, banks earned $2.55 billion in revenue from ATMs, saved $2.34 billion in wages for tellers and netted a profit of $2 billion (Deitch 1994; DeYoung 1995). As yet, there are no routinely collected national figures on the incidence of U.S. ATM robberies

Most ATM robberies involve a criminal victimizing the ATM user immediately after the
victim makes a withdrawal. But there are other variations: (1) the offender forces the victim to go to an ATM to withdraw cash; (2) the offender robs the victim of his or her ATM card, forces
the victim to reveal the PIN, and then uses the card; (3) the offender robs a victim standing at an ATM of other valuables (wallet, watch, jewelry); (4) the offender follows someone who has just withdrawn cash from an ATM and robs him or her away from the ATM.

Attorney Joseph Gleason in Lakeland, Florida has been actively reviewing crime data to determine the actual frequency of ATM crime. He has suggested that 4% of all murders involve an ATM withdrawal, as indicated by data from Jacksonville, Florida. That is a huge number.

It is recognized that ATM’s are fertile places for cash-related robberies to take place. Rob T. Guerette, a professor at Florida International University, who has researched ATM crimes and co-authored a study with Rutgers University Professor Ronald V. Clarke, describes the easy pickings at an ATM as somewhat akin to lions waiting at an African watering hole for the gazelles and zebras to come by.

Michael S. Scott wrote “Robbery at Automated Teller Machines,” a guide for the Justice
Department’s Office of Community Oriented Policing Services. Scott’s study revealed that most ATM robberies are committed by a lone offender against a lone victim and most occur between the hours of midnight and 4 a.m. The average loss is between $100 and $200. In about 15 percent of the cases, victims were injured, Scott said.

Statutes and Regulations:

As a result of ATM robberies, some locales, including Florida, California, Nevada, Washington,
Oregon, Georgia, Louisiana, Maryland, New York, Illinois and New Jersey, have imposed rules
governing the placement and security of ATMs.
DUTY:

Some states have relied on Section 344 of the Restatement (Second) of Torts in determining the duty owed by a bank or other business:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose for physical harm caused by accidental, negligent or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.14

Comment (f) to Section 344 provides further illumination on the duty of property owners:
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 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 sufficient number of servants to afford a reasonable protection.
The user of an ATM is generally considered an invitee. For someone to use an ATM, he or she must have an access card issued by the bank or related institution.

Although reported cases are limited, there have been some appellate decisions involving ATM crimes:

In New York, an owner of an automated teller machine (ATM) has a duty to take reasonable precautions to secure its premises if it knows or should have known that there is a likelihood of conduct on the part of third persons likely to endanger the safety of those using its facility. A genuine issue of material fact existed as to whether assault by a knife-wielding assailant on customer, who had used automated teller machine (ATM), was foreseeable and, if so, whether bank took reasonable precautions to secure the premises precluded summary judgment for bank in customer€™s negligence action. Lechmanski v. Marine Midland Bank, 259 A.D.2d 966, 703 N.Y.S.2d 612 (4th Dept. 1999).

The owner of automated teller machine (ATM) has duty to take reasonable precautions to secure its premises if it knows or should know that there is likelihood of conduct on part of third persons likely to endanger safety of those using its facility. A bank customer who was assaulted while attempting to use an ATM failed to show that bank had notice of prior criminal activity there to create duty on part of bank to protect customer from such conduct. In fact, no evidence of prior criminal activity at facility was presented, and mere assertions that facility was in “high crime” area, and that ATMs attract crime, were insufficient to establish duty. Williams v. Citibank, N.A., 677 N.Y.S.2d 318 (App. Div. 1st Dept. 1998). See also Coronel v. Chase Manhattan Bank, 19 A.D.3d 310, 798 N.Y.S.2d 41 (1st Dept. 2005)

In a shooting death following a robbery at a bank, it was a foreseeable risk falling within scope of bank’s duty to secure its premises and make them safe for the purposes intended, including duty to provide reasonable security in the form of surveillance cameras, minimum height shrubbery, adequate lighting, and adequate fencing at particular bank. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 738 So. 2d 172 (La. Ct. App. 3d Cir. 1999)
LEGISLATION/STATUTES

California has enacted legislation to establish a standard of care for customer safety applicable to operators of automated teller machines, including standards for location, installment and lighting of ATMs. (Deering’s Financial Code §§ 13000 et seq.). So too has Florida (Florida Statutes 655.962), requiring minimum lighting, convex mirrors, limited landscaping, etc. Violating of the statute, however, does not create negligence per se. Fla. Stat. §655.961.

Regulation P of the Bank Protection Act requires that all financial institutions in the Federal Reserve system consult with law enforcement officials regarding the installation of any banking facility to determine the likely incidence of crime, particularly crimes against persons. This would suggest that a bank which failed to do so might be inviting a claim for negligence.

In suing convenience stores it is important to be familiar with the convenience store statutes. Florida has enacted what may be the most comprehensive of these, the Convenience Business Security Act (§812.1701-812.1750). The act establishes minimum security standards for the operation of convenience businesses, in an attempt to protect convenience businesses from violent crimes. Under the Act, a “convenience business” means any place of business that is primarily engaged in the retail sale of groceries, or both groceries and gasoline, and that is open for business at any time between the hours of 11 p.m. and 5 a.m. Essentially, the Act is attempting to protect stores during the hours in which they are most at risk. The Act goes on to set mandates and guidelines to attempt to mitigate the risk and vulnerability of having a store open during those late-night hours. The Act addresses topics such as lighting, training of employees, security cameras, and more.

Other states have also enacted some laws, often in an attempt to protect employees. See, e.g., Maine Statutes Title 17 Sec. 3321-A provides for some minimum convenience store standards for stores operating 24 hours. See New Mexico Code 11.5.6.8.

ATM ISSUES

In dealing with ATM crimes, work backwards to determine how the ATM was placed at the location in question. The issues for examination should include:

1. Site selection
2. Lighting/illumination
3. Visibility/obstructions
4. CPTED (Crime prevention through environmental design)
5. Access/perimeter/vestibule
6. Landscaping
7. Traffic
8. Mirrors
9. Security and security assessments
10. Cameras
11. Site surveys
12. Lighting surveys

A change in the nature and crime conditions of the neighborhood or surrounding areas might give rise to changes and enhancement s in security. Under some circumstances it might require the relocation, removal or limited hours of operation of an ATM.

LIGHTING

Although there is no single adopted standard for illumination at an ATMs, many recommend a minimum of 100 footcandles at the ATM face with a minimum of 40 footcandles in the area surrounding and leading up to the ATM. There are resources for establishing an appropriate standard for lighting such as the Illuminating Engineering Society of North America (IES), which publishes industry guidelines, and the American National Standards Institute (ANSI).

The amount and spread and variance of lighting is one part of the illumination picture. Other issues related to adequacy of lighting at ATMs include: adjustment of lighting levels (relative to changing ambient light levels) and sensors for activation. Manual switches are subject to human failure as well as accidental deactivation. There needs to be a maintenance program for routine replacement of fixtures and bulbs before they fail.

Deficient or inadequate lighting is often one of the staple elements in an inadequate security case. For security purposes establishments should implement “protective” lighting, which emits a level of illumination that is the most likely to deter crime. The lighting guidelines vary depending on the type of establishment and location, thus it is important to follow the local common practices and rules.

Parking Lot Security, by Gary R. Cook,1 discusses the reasoning and importance of lighting, in that it provides a deterrent, and is used to increase the effectiveness of security guards and closed circuit television. This book also provides specific recommendations of illumination levels that should be used in parking lots.

The ASTM Standard Guide For Premises Security provides guidelines that should be followed by any establishment in order to maintain proper security. The article also references the IES Lighting Handbook, published by the Illuminating Engineering Society,2 which is the nationally recognized guide for lighting systems. The Illuminating Engineering Society of North America (IESNA) is the recognized technical authority on illumination. The IES publishes several helpful studies, guides, and articles including the following: Lighting for Parking Facilities, Photometric Measurements of Parking Areas, and Value of Public Roadway Lighting.

It is important to note that many counties and cities maintain codified minimum illumination levels. For example, many counties have lighting codes but they tend to differ from one another. These nuances in lighting guidelines and standards are important to note when investigating lighting inadequacies as they can sway a case.

For example, Miami-Dade County, Florida (Miami) has adopted and codified its provisions for parking lots illumination, which requires open parking lots of day care and educational occupancies to maintain a minimum of 1 foot-candle on the parking surface from dusk until dawn, whereas the requirement is only 0.5 foot-candle for factory, industrial and storage occupancies.3 While Miami-Dade County Code requires 1.0 foot-candle for residential occupancies, the Zoning Resolution of Fulton County, Georgia (Atlanta) requires only 0.5 foot-candle for the same category of occupancies.4
CONVENIENCE STORES

95% of all convenience store robbers are young males. Most engage in limited planning and these impulsive crimes are often influenced by a need to obtain drugs. Factors that contribute to vulnerability of convenience stores:

1. Operating hours: late evening/early morning hours are most at risk, with fewest people to intervene or deter.

2. Interior store layout: visibility for clerks and visibility to those outside the store. Robbers are deterred by brightly illuminated stores where the employees are clearly visible to the street.

3. Exterior store layout and environment: The lighting leading up to the store, including pumps if it is also a gas station, can affect the potential for crime. The size of the parking lot and how it aides or interferes with street visibility also plays a role. The natural surveillance that accompanies good visibility and walk-by traffic must be considered.

4. Type of store: This involves whether the convenience business is a large one with or without gas pumps, or a small almost €œkiosk€ or drive through store. Research indicates that stores with gas pumps are less likely to be robbed than those without pumps.

5. Location: Is the store placed in a manner to deter crime, or is it situated in an area which lends itself to it? Studies have shown that stores located in shopping centers or strip malls were less likely to be robbed than others. Likewise stores in areas where graffiti and lower income housing s prevalent are at higher risk.

6. Staffing: There is conflict over whether the presence of two or more clerks makes a difference in likelihood of robbery. A well known study published in 1986 conducted in Gainesville, Florida found that the presence of two clerks made a difference, but a 1997 study by the industry itself (National Association of Convenience Stores) found otherwise.

7. Cash control and signage: Studies have found that one of the most important aspects of a robbery of a convenience store is the amount of cash that can be obtained. When cash controls are in place with effective signage, some studies have suggested that as many as 80% of robberies are deterrable. The use of drop safes and signs that advise that clerks have access to no more than $50 can sometimes be effective.

8. Training: The training of clerks has been identified as perhaps the most important deterrent to both the crimes themselves as well as keeping a crime of robbery from escalating to violence.

BRINGING THE CASE

First you must develop the proof to establish foreseeability of criminal activity at the property or in the area of ATM or convenience store
Explore the actual and constructive knowledge of prior criminal activities on and around the subject as well as prior criminal incidents at other like and near businesses

Determine through an expert what the standard of care would be for a similar premises given the nature and extent of foreseeability (actual and constructive knowledge

” Did they perform security assessments or include law enforcement personnel in design and placement of ATM or security plan at the store?

” Did they implement a criminal incident reporting system and system to obtain incident reports from local law enforcement?

Given the foreseeability and any breach, was there proximate cause? That is, would the reasonable security measures have prevented or deterred the crime in question.

Select verdicts and settlements in ATM and convenience store cases:

ATMs:

A 24-year-old single female student died from a gunshot wound to the head after she was abducted by two assailants and subsequently raped while using the defendant bank’s automatic teller machine (ATM). The decedent was taken to the back of the bank and her body was set on fire with gasoline. The plaintiff contended that the defendant failed to provide adequate security. The decedent was survived by two sons and her parents. The settlement was structured with the parents of the decedent receiving one-third of the settlement and the remaining balance placed into a trust for the decedent’s sons.1
Settlement: $4,500,000

– Plaintiff was badly beaten and robbed shortly before 7:00 a.m. while using Defendant’s ATM located across from SeaTac Airport. Plaintiff contended she pulled her car into the parking lot, exited and approached the ATM, which was substantially obscured from passers-by. The assailant approached, accosted her and demanded money. He beat her for 11 minutes until a passerby scared him away. The police apprehended the assailant shortly afterward.2
Verdict: $20,000

– A 26-year-old female process server suffered emotional distress when she was shot at by two men when she returned to her car after using a walk-up ATM machine owned by the defendant bank. After leaving the machine, the plaintiff got into her vehicle and sounded the horn when she observed two men approaching. A shot was fired and the assailants ran from the scene with the plaintiff giving chase until she lost them. The plaintiff contended that the defendant failed to provide sufficient security and sufficient lighting at the ATM.3
Verdict: Verdict for Defendant

– Plaintiff went to Defendant National City’s branch bank late at night to use the walk-up automated teller machine. He observed a group of young people standing on the bank’s driveway. Plaintiff exited his vehicle and began to walk to the ATM. The youths asked plaintiff to help them. Plaintiff walked over to them and they began to strike him with a bottle, rupturing his eardrum and fracturing several ribs.

Plaintiff alleged that previous incidents of crime had occurred on the premises and in the vicinity of the bank and that defendant was negligent in failing to provide security and in failing to provide a drive-up ATM so customers would not have to leave their vehicles.

Defendant contended that plaintiff was aware of the group of youths loitering on the premises and that plaintiff assumed the risk of injury by exiting his vehicle late at night.4
Verdict: Verdict for Defendant

Stevens v. Southgate Mall, 2009 WL 5766579 (N.C. Super. 2009).

A 56 year-old legal secretary was taken at knifepoint from the parking lot at defendant Southgate Mall after shopping during her lunch hour. Her abductor forced her to drive to an adjoining county where he raped her. He also made her withdraw money from an ATM machine before taking her back to the mall parking lot. The man fled the scene on foot and was never captured.
Plaintiff alleged the mall did not have adequate security to protect its patrons. According to plaintiff, crime in the mall area rose after her attack. Plaintiff claimed she suffers from post-traumatic stress disorder and suffers from nightmares and anxiety. She was continuing her counseling at the time of settlement. She claimed $7,000 in medical expenses. The parties settled at mediation for $1,200,000.

Estate of Gordon v. Smith and Terry, et al., Case No. 2008-CA-0002852-O, 9th Judicial Circuit, Orange County, Florida (Fla. Circuit Court, Orange County, FL 3/25/2011, Judge John Kest).
On October 4, 2007, off duty police officer Al Gordon went to a bank ATM to withdraw some cash the evening before he was to go on duty. After withdrawing $100, he went to his car, where he was ambushed by two thieves. During the course of the robbery Officer Gordon drew his off duty weapon and was shot once in the chest, killing him. Gordon, 52, was survived by 3 adult children (two were under 25 at the time of the death, making them minors for purposes of Florida€™s Wrongful Death Act). He was earning $67,000 a year as an Orlando police officer.
Plaintiffs sued the bank and perpetrators for wrongful death, alleging inadequate lighting, security and design as well as violation of minimum standards for ATMS in Florida. The case was settled for a confidential amount as to the bank and went to trial against the criminals.
Verdict: $24,315,980.00
Marcella Paul v. TBVT, LLC, 2012 WL 6826015 (Ga.State.Ct. 2012)

Plaintiff arrived at defendant’s Stone Mountain nightclub around 1:30 a.m. on January 31, 2010, to meet some friends. She paid $10 to park in the nightclub’s secured parking lot and was told to park in the back lot because the front was full. Although there were 12 security guards and two off-duty police officers on site, none of them were monitoring the back lot. While getting out of her car, plaintiff was approached by a man who stuck a gun in her back and ordered her back into her car. He then instructed her to take him to an ATM and had her remove all funds from her bank account. After robbing her, the perpetrator ordered her to drive to an apartment complex. He told plaintiff he was going to kill her, forced her to perform oral sex on him and then raped her. After the attack, the perpetrator exited the car and ran into nearby woods. Plaintiff called the police several hours later.

Plaintiff alleged that defendant was aware of a serial rapist in the area, but failed to provide adequate security. Plaintiff argued that defendant had warned its female personnel not to walk to their cars alone until the rapist was apprehended and that other violent crimes had taken place in the same parking lot. Defendant denied liability and disputed damages. The case settled for $1,000,000 several days before the trial was to begin.
Gas Stations & Convenience Stores:

– Plaintiff Deborah Ann Kierce was a patron at defendant’s Parkway Mobile Gas Station. She allegedly entered the restroom at defendant’s gas station without a key during the evening hours. She reportedly attempted to lock the restroom door from the inside, but was unable to get the lock to engage. About that time, plaintiff claimed that two unidentified males entered the restroom and raped her. Following the attack, plaintiff claimed to have gone home and called a friend who convinced her to go to a local hospital. The emergency room report was inconclusive as to evidence of any trauma which would support plaintiff’s claim. Pursuant to state law, the hospital staff called the police to report plaintiff’s allegations. Plaintiff alleged that defendant failed to provide proper security of its premises and failed to provide a safe restroom in that the door’s lock was defective. Plaintiff asserted that she suffered from post-traumatic stress disorder as a result of the rape. Moreover, plaintiff argued that the night attendant at the gas station must have been asleep because he failed to respond to plaintiff’s cries for help. Plaintiff sought past medical expenses in excess of $5,500 and compensation for her pain and suffering.

Defendant contended that the gas station’s policy was to keep the restrooms locked at night. Although defendant conceded that the doors had been left unlocked on the night of the alleged rape, there was a functional lock on the inside of the restroom door which plaintiff could have used to protect herself against intruders. The defense disputed any claim that the lock was not in proper working order and asserted that, if there was a rape, it was due to plaintiff’s failing to lock the door when she entered the restroom. Reportedly, defendant presented testimony which concurred with defendant’s contention that the restroom locks were working on the night of the alleged rape. Defendant also presented evidence disputing plaintiff’s allegation that the night attendant had fallen asleep. That evidence consisted of computer records from the night of the rape which showed activity by the night attendant during the alleged time of the attack.1 Verdict for Defendant

– Plaintiff and two companions went to defendant gas station/convenience store at 2:30 a.m. on a Saturday to purchase cigarettes. Plaintiff was allegedly struck and his automobile stoned by an angry mob of young men from a particular ethnic group. The police were called and arrived within three minutes. When “everyone departed, plaintiff returned to purchase $1 of gas. Plaintiff did not seek medical attention until 36 hours thereafter. Plaintiff alleged that defendant gas station/convenience store was located in a high crime neighborhood and that defendant owner was negligent in failing to provide a security guard on the premises. Defendants contended that the gas station/convenience store was well lighted and that the dispute began off the premises. Defendant further contended that the cashier summoned police as soon as combative overtures began and that plaintiff subsequently advised medical personnel he had been in an auto accident.2 Verdict for Defendant

– The subject action arose out of a mugging which occurred on the premises of the defendant gas station. The 80-year-old female plaintiff was the victim of the mugging, which occurred while she attempted to purchase cigarettes at the defendant gas station. The plaintiff contended that the defendant failed to provide adequate security which would have prevented this allegedly foreseeable occurrence. The plaintiff was rendered permanently blind in both eyes as a result of the attack. One of her eyes was completely torn out by the assailant. The subject incident occurred at 5:00 a.m. while the plaintiff was in the process of buying cigarettes at the defendant gasoline station. The testimony indicated that the plaintiff was attacked from behind by an insane assailant. The plaintiff offered evidence that the attendant on duty was sleeping at the time and did nothing to interfere with or deter the assailant. The plaintiff’s security expert testified that the defendant’s gas station was located in a high crime area which required that extra security precautions be taken to protect it’s customers. The plaintiff’s expert asserted that at the very minimum, the attendant on duty should have been awake at all times. The plaintiff presented medical specials of $17,000.The defendant denied that it was under duty to deter the unprovoked acts of a madman. The defendant maintained that the attack was motivated solely by the assailant’s insane condition and that nothing could have prevented the assault. The defendant further denied that it’s employee was sleeping at the time of the subject incident.3 Verdict: $875,000

– Plaintiff was a regular customer at Defendant’s convenience store. At approximately 1:00 a.m., Plaintiff was at Defendant’s store purchasing cigars. Plaintiff had parked his large motor home in the County easement near Defendant’s parking lot, and upon returning to his vehicle, was assaulted by a group of teens. Plaintiff claimed that Defendant knew of numerous previous acts of violence occurring at or near the location of the subject incident which contained several bars and restaurants. From January 1996 to January 1999, there were two-hundred and ninety-five incident reports to the County Sheriff’s Office at the store’s location and almost two-thousand incident reports in the immediate two-block area. Defendant countered that most of the incidents were minor infractions such as loitering, noise, and public intoxication. Plaintiff alleged that Defendant breached its duty of reasonable care by failing to have adequate security personnel or other personnel to prevent or minimize altercations between customers. Defendant claimed that Plaintiff was engaged in mutual combat with another customer which provoked the assault.4
Verdict: Verdict for Defendant

– In this action, the plaintiffs, then a 19-year-old convenience store customer and his 17-year-old girlfriend, who was waiting in the co-plaintiff’s car, contended that the defendant negligently failed to call the police despite strong indications that a physical assault by three brothers, age 16, 18 and 21, who were threatening the male plaintiff while all were in the store, was imminent. The youths, who were asked to leave the store, were waiting for in the parking lot for the male plaintiff to exit the store. When the male plaintiff left the store and was in the parking lot, the three youths attacked him and struck him in the head with a baseball bat. The female plaintiff attempted to come to the co-plaintiff’s rescue and was also struck in the head with a baseball bat. The female plaintiff contended that she sustained a probable skull fracture, a subdural hematoma and a closed head injury that was superimposed on preexisting neurological deficits and developmental delays, heightening her prior difficulties with memory and concentration and causing a slight reduction in her IQ scores. This plaintiff contended that the injuries will permanently contribute significantly to a diminished earning capacity. The co-plaintiff contended that he sustained a concussion and will permanently suffer episodes of headaches and tinnitus that occur several times per week. This plaintiff made no income claims. The defendant store owner named the attackers as third-party defendants, contending that their conduct should be apportioned by the jury.

The evidence disclosed that when the male plaintiff first entered the store, the youths began to verbally harass him, making comments that his appearance was ‘goth’ in nature. The plaintiffs maintained that both the attackers and the male plaintiff were in the store for at least 15 minutes because the defendant store owner was in the course of preparing sandwiches for the attackers when the plaintiff entered. The plaintiff contended that the verbal harassment continued, and that when the defendant store owner told the others to leave the store, they told the plaintiff that they would be waiting for him in the parking lot. When the male plaintiff left the store, he was assaulted with the bat, and when the female plaintiff attempted to come to his rescue, she was struck in the head with the bat as well. The plaintiff’s security expert maintained that the threat of violence was imminent and that the defendant should have called the police. The plaintiff had elicited testimony from the defendant during discovery that the assailants were in the store for a considerable period before the male plaintiff entered and were not asked to leave until approximately 15 minutes had elapsed after the male plaintiff entered and that she ‘had a feeling’ that the plaintiff could be assaulted when he left. The plaintiff also elicited deposition testimony from the defendant that under her protocol as taught to her employees, she would not become involved in an altercation, but would call the police if violence appeared imminent. The plaintiff argued that based upon this evidence, it was clear that the defendant had acted negligently as a matter of law. The court concurred with respect to the issue of breach of duty and submitted the case to the jury on the issues of proximate cause and damages. The plaintiff presented an investigating police officer who related that the typical response time is two to three minutes and probably less at the time because the incident occurred shortly after midnight when there was a change of shifts with some overlapping. The plaintiff also established that the first 911 call was placed at 12:44 A.M. and that at 12:50 A.M., the EMTs arrived and began rendering assistance. The plaintiff argued that if the store owner called the police when she observed the escalating situation and asked the youths to leave after verbally harassing the male plaintiff for 15 minutes, it was very likely that they would have arrived in time to prevent the attacks.

The female plaintiff contended that she sustained a probable linear skull fracture which healed conservatively, as well as a closed head injury and suffered a very significant exacerbation of preexisting neurological deficits and developmental delays which had previously impacted to some degree on this plaintiff’s memory and concentration abilities. The plaintiff, who had difficulties with school work before the subject accident occurred, maintained that the subject injury occasioned a very significant exacerbation, and that her school work deteriorated further after this incident. This plaintiff’s neuropsychologist testified that the plaintiff’s IQ scores had diminished to some extent as a result of the subject attack. The plaintiff, who underwent very little treatment, contended that it was doubtful if additional therapy would help. The plaintiff maintained that because of the exacerbation, this plaintiff’s career options are much more limited, and the plaintiff made a claim for $300,000 to $400,000 in future income losses. The male plaintiff maintained that he sustained a closed head trauma and concussion and that he will permanently suffer episodes of tinnitus and headaches. The plaintiff related that the episodes occur several times per week and last from a short period to most of the day. This plaintiff was working as a dog groomer at the time of the incident and missed one month from work. This plaintiff subsequently entered a course of studies in mortuary sciences and made no future income claims. The court held that the defendant breached her duty as a matter of law and submitted the case on the issue of proximate cause and damages.5
Verdict: $702,500