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Nivens v. 7-11 Hoagy''s Corner

August 9, 1996

KEN NIVENS, APPELLANT/CROSS-RESPONDENT,
v.
7-11 HOAGY'S CORNER, AND SOUTHLAND CORPORATION, RESPONDENTS/CROSS-APPELLANTS.



Superior Court of Pierce County. Superior Court Docket No. 90-2-05812-9. Date Filed In Superior Court: March 4, 1994. Superior Court Judge Signing: Terry Sebring.

Petition for Review Granted February 6, 1997,

Written By: Morgan, J. Concurred IN By: Seinfeld, C.j., Conoley, Jpt

The opinion of the court was delivered by: Morgan

MORGAN, J. -- Ken Nivens filed this personal injury action, alleging he was assaulted by loiterers in the parking lot of a 7-Eleven store. *fn1 The trial court entered a judgment of dismissal, which we affirm.

Between 9:30 and 10:00 p.m. on December 26, 1988, Nivens drove to the 7-Eleven store at 40th and Bridgeport Way for the purpose of making a purchase. About a dozen teenagers were in the parking lot, "talking in little crowds" and "just messing around, kidding with each other." *fn2 They had been there about an hour, and there was no security guard on the premises.

As Nivens parked and got out of his car, a male loiterer approached and asked him to buy beer. When Nivens refused, several loiterers began calling him names. He tried to walk to the store's entrance, but one or more of the loiterers grabbed him from behind. In the ensuing incident, he was hit in the head, neck, and shoulder, thrown to the ground, and kicked in the ribs, lower back, and head. *fn3

For about six years before the incident, teenagers had congregated in the store's parking lot. The number varied from 10 to 100, but groups of 15 to 25 were "pretty common." *fn4 Clerks "sometimes . . . [had] trouble with [teenagers] inside the store," and with "noise, whatever, outside of the store." *fn5 At times, loitering teenagers would ask customers to buy beer for them, or they would bring their own beer and drink it in the parking lot. The store had posted a sign saying, "no soliciting, no loitering, no loud music." *fn6

Although loitering teens had occasionally fought among themselves, they had never, until the incident with Nivens, acted violently toward a customer of the store. A sheriff's deputy who had worked at the store as a part-time security guard states:

When I worked [at the store], I had to ask some loiterers to move on occasionally, but the store was very quiet. I never had a problem with violence at the store. *fn7

One of the clerks, Anderson, states:

Over the year [I was] there . . . I do not recollect any customer ever having a fight or a real altercation with any of the people in the parking lot, coming into the store. They used to have fights among themselves. But as far as bothering the clients coming into the store, we had very little of that. *fn8

The youth who initially asked Nivens to buy beer states:

Other than my altercation with Mr. Nivens, I am only aware of only one other fight on or near the premises of the 7-11/Hoagy's Corner at 40th & Bridgeport. That was approximately four months before the incident with Mr. Nivens when two high school kids arranged to meet at the store to fight after school. This fight occurred at approximately 3 p.m. after school. I do not believe that the store employees could have known of the existence of the fight because it occurred along the side of the building where there were no windows and it may have occurred in the bank parking lot next door. At no time when I was at the premises of the 7-11/Hoagy's in question did I ever see anyone assault, accost, or otherwise bother a customer, except to occasionally ask a customer to buy beer. *fn9

A consultant for the store states that the loiterers were not "gang-type kids. . . . They were just high school age kids hanging out." *fn10 She adds that the store has no record of complaints about loiterers from customers or nearby residents. *fn11

As Nivens points out, the store had adopted several pertinent policies prior to the date of the incident. If a clerk saw loiterers drinking in the parking lot, he or she was to ask those persons to dispose of the alcohol and leave immediately. If a clerk became aware of loiterers accosting customers, he or she was to tell the loiterers to leave and, if they failed to comply, to call the police. But, "if the loiterers were not causing any problems or inconvenience to the store's customers, no action would be taken." *fn12

As Nivens further points out, the store also had at least two written manuals. One, on avoiding conflict, instructed clerks to tell loiterers to leave, and to call police in the event of noncompliance. Another, on preventing robberies, instructed clerks to observe the store's parking lot, but remain in the store at night.

At the time of the assault on Nivens, two clerks, Charlie Washington and Kathleen Anderson, were working inside the store. They had not asked the loitering teenagers to leave.

On June 28, 1990, Nivens sued the store for negligence. On May 15, 1992, the store moved for summary judgment. Nivens responded, in part, by filing a declaration in which a security professional named Roy Shaw opined that allowing teenagers to loiter over an extended period leads to assaults and fails to "meet the custom and practices expected of a retail store . . . ." *fn13 Shaw further opined that "prudence as well as reasonable care[] would require that this situation be corrected by hiring adequate security personnel to patrol the area and break the habit and cycle of kids gathering on the premises." *fn14 On June 15, 1992, the trial court denied the store's motion for summary judgment.

On February 28, 1994, just before trial, the store moved for an order excluding evidence that it had failed to hire, or should have hired, security guards. On March 4, 1994, the trial court granted the requested order. Immediately thereafter, Nivens declined to proceed to trial, asserting that his claim was "based solely on the failure of [the store] to hire security personnel to deal with the loitering . . . before the time that this assault occurred . . . ." *fn15 Ruling that "there is not an affirmative duty for a merchant business to supply security personnel in the situation we are talking about here," the trial court dismissed the complaint. *fn16 Nivens then filed this appeal.

In a negligence action like this one, the elements are duty, breach, causation and damages. *fn17 Only duty and breach are in issue here. Moreover, they are in issue only with respect to the store's conduct before the assault on Nivens began. Nivens does not contend that the store failed to exercise reasonable care after the assault had begun. *fn18

I. DUTY

Duty is a question of law. *fn19 Thus, it is to be answered generally, without reference to the facts or ...


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