Edward BOYKIN, Jr., Petitioner, v. State of ALABAMA. | US Law | LII / Legal Information Institute
Although opponents of the traditional approach are correct that store owners are likely in a better position to know how an object fell or how long it was on the ground, the fact remains that more often than not neither party will be able to present such proof with any certainty. The adoption of this approach will invariably lead to more lawsuits and force store owners and their insurers to settle meritless claims to avoid the heightened risk of an adverse jury verdict due to the shifted burden of proof.
Luckily, this approach or a form thereof is only followed by four jurisdictions. Notably, the state legislatures of Louisiana and Florida enacted legislation overruling court decisions which adopted this approach. Nowhere is the proverbial tug-of-war of policy considerations better demonstrated than in Florida. Until , Florida followed the traditional approach, requiring proof of actual or constructive notice of the dangerous condition. Then, in Owens v. Publix Supermarkets, Inc. However, section Section Thus, with section The issue has now become whether this statute applies retroactively.
In Publix Supermarkets, Inc. Santos , [43] the plaintiff brought suit for injuries sustained when he slipped and fell at a particular Publix supermarket. The plaintiff sought discovery of all slip-and-falls at the particular store where he fell within the previous three years, and discovered that no prior incidents had occurred at that store. The different approaches to slip-and-fall cases will have a significant, and potentially determinative, impact on whether liability is imposed in certain situations.
While the traditional approach remains the most common, there is a definite trend among the states towards a more liberal interpretation of premises liability in these cases. Thus, it is essential to know what rules are followed by the jurisdiction s in which you or your clients operate, and to ensure proper implementation of procedures and policies depending on these approaches. Historically, the courts have hesitated to burden an owner of property with an affirmative duty to protect a resident or patron from the criminal activity of a third person.
THE LAW OF PREMISES LIABILITY – AN OVERVIEW
However, when a certain special relationship exists between the owner or occupier of a business and its guest, the courts have generally carved out exceptions to this no-duty rule. The Restatement of Torts, underscores this willingness of the courts to find liability when such special relationships exist, stating:. A comment to the Restatement section makes clear that the existence of the duty depends, to a great extent, on the foreseeability of criminal conduct by third persons.
Duty to police premises. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
The comment emphasizes two distinct situations in which a special duty may arise. The first occurs when the owner knows or has reason to know that a third party is harming or is about to harm a guest. At this point, the owner may be able to protect the guest by warning him or her, alerting police authorities, or employing available security measures.
In the latter scenario, the owner may be liable for failing to adopt security measures which might have prevented the third person from inflicting harm upon the guests. The distinction between these situations is critical, since the duty to foresee a general risk of criminal activity and to take necessary steps to safeguard guests from it may require substantial expenditures on the part of the owner or occupier.
Whichever approach is recognized by a jurisdiction under a given set of facts, however, the issue which must ultimately be addressed is that of foreseeability. Obviously, regardless of jurisdiction, liability for premises owners is still predicated upon fault. Under the latter, more restrictive, approach, which generally requires actual knowledge of imminent danger, evidence of prior assaults will be inadmissible.
In these jurisdictions, knowledge of prior purse snatching, for example, may not render the risk of forcible rape foreseeable. In those jurisdiction adopting a still more expansive view of foreseeability, a jury question may arise when evidence is introduced showing that the owner had reason to foresee criminal assault when burglaries or unarmed robberies are common in the surrounding area. Few jurisdictions continue to recognize the no duty rule. The rationale of the no duty approach is perhaps best illustrated by the New Jersey Superior Court in a somewhat dated decision, Goldberg v.
Housing Authority. The Georgia Court of Appeals likewise affirmed the granting of a summary judgment against a claimant who was injured in a bar fight. The Michigan high court also adopted a relatively conservative position, affirming summary judgment against a plaintiff who was injured when fellow concert goers began pulling up and throwing pieces of sod. Courts following the no duty rule will also consider whether a special relationship exists. In Taboada v. Daly Seven, Inc. The court held that although Virginia follows the no duty rule, an exception to this rule applies where a special relationship exists.
Despite reported decisions following less stringent approaches to foreseeability, the trend among most jurisdictions is to adopt the totality of the circumstances rule. California Supreme Court in Isaacs v. Huntington Memorial Hospital. The rule has the effect of discouraging landowners from taking adequate measures to protect premises which they know are dangerous.
This result contravenes the policy of preventing future harm. Moreover, under the rule, the first victim always loses, while subsequent victims are permitted recovery. Surely a landowner should not get one free assault before he can be held liable for criminal acts which occur on his property. Interestingly, although initially adopting the trend toward liberality in finding owner liability in cases involving third-party criminal acts, the California Supreme Court has recently refined its approach to these cases.
The Kansas Supreme Court recently joined the trend toward liberality in Seibert v. Vic Regnier Builders.
The Tennessee Supreme Court has likewise adopted a liberal approach, rejecting the no duty rule it had previously adopted. Other jurisdictions have also recently adopted or reaffirmed their adherence to the totality of circumstances approach.
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See Taco Bell. Lannon , [89] holding that an owner owes a non-delegable duty to use reasonable care to protect invitees from foreseeable misconduct, including intentional criminal conduct ; Reitz v. May Co. Las Vegas Hilton Corp. Another evolving issue in the area of premises liability is the liability of an owner for injuries to guests which occur off-premises. The gravamen of claims alleging such an injury is that the owner should have implemented security measures beyond his premises to protect the invitee from criminal assault.
In Ember v.
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After holding that the proprietor knew that his patrons customarily utilized the adjacent lot for parking, the court reasoned:. A duty of reasonable care may be extended beyond the business premises when it is reasonable for invitees to believe that the invitor control premises adjacent to his own or where the invitor knows his invitees customarily use such adjacent premises in connection with the invitation.
Other jurisdictions have also dealt with the issue of foreseeability with respect to off-premises criminal assaults. See Lewis v. Razzberries, Inc. Woodbridge , Inc.
Sharac Restaurant Inc. Superior Court , [] genuine issue of material fact existed as to whether store exercised actual or constructive control over vacant lot adjoining store where third parties attacked customer. Finally, an issue which has generated concern among both the defense and plaintiff bars, is whether the trial court will allow apportionment of fault to an intentional tortfeasor in the premises liability setting. In other words, is the owner entitled to inclusion of the assailant on the jury verdict form?
California appears to have resolved the issue in favor of allowing possible allocation of fault to the assailant. In Weidenfeller v. The plaintiff sued the bar and the bar owner alleging negligent security.
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The plaintiff argued that the comparative fault principles do not apply when a party acts intentionally. In rejecting those arguments, the Weidenfeller court stated that it would be absurd to interpret the comparative fault statute as benefiting a negligent tortfeasor only when there are equally culpable defendants, but eliminating the benefit when the other tortfeasor acted intentionally. Similar reasoning was adopted by the New Jersey court in Blazovic v.
The Blazovic court reasoned that the adoption of the New Jersey Comparative Negligence Act reflected a legislative decision to ameliorate the harsh results of the doctrine of contributory negligence. In Barth v. Coleman , [] the Supreme Court of New Mexico likewise held that imposing full liability to a premises owner is inconsistent with holding tortfeasors responsible only for their percentage of fault. The Court reasoned that the liability of the premises owner must be reduced by the percentage of fault attributable to the tortfeasor.
Thus, Weidenfeller , Blazovic and Barth each rely upon many of the same policy considerations. At least three jurisdictions have apparently refused to permit apportionment of fault to the assailant. Specialized Transp. Services, Inc. The Michigan Supreme Court also refused to equate intentional acts with negligence when allocating fault. In Gibbard v. Again, petitioner made no effort to withdraw his plea. On his appeal to the Alabama Supreme Court, petitioner did not claim that his guilty plea was made involuntarily or without full knowledge of the consequences.
DICKERSON v. STATE
In fact, petitioner raised no questions at all concerning the plea. Against this background, the Court holds that the Due Process Clause of the Fourteenth Amendment requires the outright reversal of petitioner's conviction. This result is wholly unprecedented. There are past holdings of this Court to the effect that a federal habeas corpus petitioner who makes sufficiently credible allegations that his state guilty plea was involuntary is entitled to a hearing as to the truth of those allegations. See, e. Johnston, U. Machibroda v.
These holdings suggest that if equally convincing allegations were made in a petition for certiorari on direct review, the petitioner might in some circumstances be entitled to have a judgment of affirmance vacated and the case remanded for a state hearing on voluntariness.