Kentucky Fried Chicken of California, Inc. v. Superior Court , 14 Cal. 4th 814 ( 1997 )

Opinion

BAXTER, J.

We are asked to decide whether a shopkeeper owes a duty to a patron to comply with an armed robber’s demand for money in order to avoid increasing the risk of harm to patrons. The Court of Appeal held that such a duty exists. Petitioner Kentucky Fried Chicken of California, Inc. (KFC), disagrees and argues that the decision of the Court of Appeal conflicts with that in Vandermost v. Alpha Beta Co. (1985) 164 Cal.App.3d 771 [210 Cal.Rptr. 613] (Vandermost).

We conclude that a shopkeeper does not have a duty to comply with the unlawful demand of an armed robber that property be surrendered. Although the circumstances of this case differ from those considered by the Vandermost court, the reasoning of Vandermost and the authorities on which it relied are persuasive. Recognition of a duty to comply with an unlawful demand would be contrary to public policy as it would encourage similar unlawful conduct.

We shall, therefore, reverse the judgment of the Court of Appeal.

I

Background

This mandamus proceeding arises out of the denial of KFC’s motion for summary judgment in a negligence action. Real party in interest Kathy Brown named KFC a defendant in a complaint seeking general and special damages for emotional distress, hospital and medical expenses, loss of wages, and loss of earning capacity. Brown alleged that she was a customer at a Redondo Beach restaurant operated by KFC when she was seized and held at gunpoint by an unidentified person who threatened to seriously injure Brown if employees of KFC did not give him the money in the cash register. The complaint alleged that an employee did not comply promptly with the robber’s demands and that her delay and other actions caused further injury to plaintiff and resulted in additional threats of grave injury to Brown.

The complaint also alleged that KFC failed to provide proper security, and failed to properly train its employees in how to respond to criminal activity to avoid endangering or further endangering its customers.

KFC answered the complaint, denying all allegations of the complaint. As affirmative defenses KFC claimed, inter alia, that the complaint failed to state a cause of action because it had no duty to plaintiff to comply with a robber’s unlawful demands. In the absence of the duty and breach of the duty elements, the complaint did not state a cause of action in negligence.

KFC then moved for summary judgment. (Code Civ. Proc., § 437c.)

It appears from documents offered in support of the motion for summary judgment that Brown was the only customer in the KFC restaurant when she was accosted by the robber, who put a gun to her back. She complied with his demands and surrendered her cash and her wallet to him. He then demanded that a clerk open the cash register and give him all of the money. The clerk did not do so. Instead, she said she would have to go to the back of the restaurant for a key. The robber then became extremely agitated, shoved his gun harder into Brown’s back, and told the employee he would shoot Brown if the employee did not “quit playing games” and open the cash register immediately. Brown, who believed she was going to die because of the employee’s actions, then “screamed” at the clerk to open the drawer and give the money to the robber, at which point the clerk complied and opened the cash register drawer. The robber seized the money and fled. The robber did not become agitated and angry until the cashier told him that she would have to get the keys to the register. KFC was unaware at that time of any prior similar crimes or any crimes at this store.

KFC argued that it was entitled to judgment as a matter of law since it owed no duty of care to Brown to protect her against violent criminal acts of unknown third parties while on its premises, and that even if a duty of care was owed, no duty was breached by a failure to provide adequate security or properly train its employees to respond to criminal activity.

In a petition for writ of mandate by which it sought to overturn the order denying the motion for summary judgment, KFC argued only that it did not have a duty to Brown, a customer, to comply with the demands of the robber in order to avoid injury to Brown. Therefore, that is the only issue the Court of Appeal was called upon to address and is the one we address here.

II

Court of Appeal Decision/Vandermost

As the Court of Appeal recognized, the existence of a duty is a question of law for the court. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 [25 Cal.Rptr.2d 137, 863 P.2d 207]; Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546 [25 Cal.Rptr.2d 97, 863 P.2d 167, 27 A.L.R.5th 899].) The Court of Appeal applied general principles applicable to the liability of a landowner or occupier for injury to persons on premises held open to the public. Under those general principles, when determining the existence and scope of the duty to protect business invitees from the criminal conduct of third parties, the court balances the foreseeability of the harm against the burden of the duty. If the burden is great, a high foreseeability of harm may be required, but a lesser degree of foreseeability may be required if “ ‘ “there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means.” ’ ” (6 Cal.4th at p. 679.)

The duty of a proprietor of a business establishment to business invitees generally includes a “duty to take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.” (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121 [52 Cal.Rptr. 561, 416 P.2d 793].)¹ We recognized in Taylor that a business proprietor is not an insurer of an invitee’s safety. There is a requirement, however, that reasonable care be taken for their safety, and liability exists for injuries resulting from a breach of that duty of reasonable care, (ibid.)

When the liability of a landowner to persons on his or her property is in issue, additional factors are considered in determining whether a duty should be imposed and, if so, the extent of that duty. “Some factors that courts consider in determining the existence and scope of a duty in a particular case are: ‘ [T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ ” (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 675, fn. 5, quoting Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496].)

Although these rules had not heretofore been applied to create a duty to cooperate with an armed robber, the Court of Appeal concluded that a duty existed in the circumstances of this case. The court reasoned: A robbery was in progress. The robber was holding a gun to the back of the patron, demanding that the cashier open the cash register and give him the money. It was reasonably foreseeable that if the cashier did not cooperate with the robber the hostage would be terrorized and potentially shot to death. That foreseeability was made clear in crime prevention pamphlets distributed by the Redondo Beach Police Department, which were among the evidence offered in opposition to the motion for summary judgment. The pamphlets advised readers that they should never refuse an armed robber’s demand for money, an admonition which implicitly recognized the likelihood of an increased risk of injury or death if the victim resisted the demand.

Applying the remaining factors this court identified in Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, the Court of Appeal concluded that there was a high degree of certainty that the plaintiff suffered injury, that the injury was closely connected with the defendant’s conduct, and that the burden on defendant of avoiding the injury by complying with the robber’s demand was “slight.”

KFC contends that this holding conflicts with that in Vandermost, supra, in which the Court of Appeal concluded that no duty to comply with a robber’s demands should be imposed because adverse consequences to the public would result. There, the plaintiff was with a group of friends seated in a restaurant. He heard a commotion near the cash register and a sound like a firecracker. He went to investigate and saw Moreno talking to the cashier. Moreno demanded that the cashier “ ‘give me the money or I am going to shoot someone,’ ” after which Moreno fired into the ceiling. (Vandermost, supra, 164 Cal.App.3d at p. 775.)

The cashier closed the cash drawer, causing it to lock, and fled to the kitchen after making eye contact with the plaintiff. Moreno attempted unsuccessfully to open the cash register. He appeared to be “ ‘pissed off, angry, confused.’ ” (Vandermost, supra, 164 Cal.App.3d at p. 775.) As plaintiff moved toward the exit, Moreno approached him and demanded that plaintiff give him all of plaintiff’s money. When plaintiff responded that he did not have any money, Moreno said “ ‘Oh yeah’ ” and shot plaintiff in the arm, after which he said “ ‘That will prove I’m not fucking around.’ ” (Ibid.)

The Vandermost court recognized the rule of Taylor v. Centennial Bowl, Inc., supra, 65 Cal.2d 114, that a landowner or occupier who conducts a business open to the public has a duty to protect visitors from wrongful acts of third persons if there is reasonable cause to anticipate that conduct and the probability of injury to the patron. It concluded, however, that while a jury could infer that it was reasonably foreseeable to the clerk that Moreno would shoot a patron, the connection between the clerk’s conduct and the plaintiff’s injury was “tenuous,” and that any moral blame under the circumstances was that of Moreno. (164 Cal.App.3d at p. 779.)

The Vandermost court also reasoned that the policy implications of imposing a duty to comply with a robber’s demands to avoid provoking the robber into injuring a patron militated against recognizing such a duty. The court adopted the view of the Illinois Supreme Court in Boyd v. Racine Currency Exchange, Inc. (1973) 56 Ill.2d 95 [306 N.E.2d 39].

In Boyd, a robber seized a patron of the defendant money exchange and threatened to shoot the patron unless the teller complied with a demand that the teller give money to the robber or allow him into the enclosed teller’s booth. The teller refused and the robber shot the hostage. The Illinois Supreme Court feared that if a duty to comply with such demands were to be imposed, it would benefit the criminal without offering assurance that compliance with the demand would reduce the risk to the hostage. “[T]he consequence of such a holding may well be to encourage the use of hostages for such purposes, thereby generally increasing the risk to invitees upon business premises. If a duty to comply exists, the occupier of the premises would have little choice in determining whether to comply with the criminal demand and surrender the money or to refuse the demand and be held liable in a civil action for damages brought by or on behalf of the hostage. The existence of this dilemma and knowledge of it by those who are disposed to commit such crimes will only grant to them additional leverage to enforce their criminal demands. The only persons who will clearly benefit from the imposition of such a duty are the criminals. In this particular case the result may appear to be harsh and unjust, but, for the protection of future business invitees, we cannot afford to extend to the criminal another weapon in his arsenal.” (Boyd v. Racine Currency Exchange, Inc., supra, 306 N.E.2d 39, 42.)

The Court of Appeal here disagreed with Vandermost that imposing a duty on a shopowner to comply with a robber’s demands would lead to increased hostage taking, declining to assume that street criminals are aware of developments in tort law and would therefore have reason to believe that taking a hostage would ensure compliance by the robbery victim. The court reasoned that, if robbers are aware of prevailing wisdom, that wisdom is that one should not resist the demands of an armed robber. Therefore the consequence to the community of recognizing a duty to comply would protect patrons from the increased risk of harm created by “misguided attempts to resist or overwhelm an armed robber.” The court concluded that the value of human life and safety outweighed the interest the retailer had in frustrating the robber’s efforts to take property.

III

Discussion

The rule which plaintiff asks us to refine and apply here was set out more than 30 years ago in the Restatement Second of Torts:

“(1) A common carrier is under a duty to its passengers to take reasonable action

“(a) to protect them against unreasonable risk of physical harm, . . .

“(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.” (Rest.2d Torts, § 314A, italics added (section 314A).)

Section 314A identifies “special relations” which give rise to a duty to protect another. Section 344 of the Restatement Second of Torts expands on that duty as it applies to business operators.

“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 the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure to 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.” (Rest.2d Torts, § 344 (section 344).)

Comment f to section 344 further explicates its intent: “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 that the acts of the third person are occurring, or are about to occur. 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.” (§ 344, com. f, pp. 225-226.)

Where a warning of danger is not adequate to protect a patron from intentional harmful acts of a third party, a landowner must “exercise reasonable care to use such means of protection as are available.” (§ 344, com. d, p. 225.) When criminal conduct is ongoing, that duty requires that the landowner or occupier take such appropriate action as is reasonable under the circumstances to protect patrons. (Taylor v. Centennial Bowl, Inc., supra, 65 Cal.2d 114, 124-125.)

The Restatement rule continues to be the generally accepted test of liability of a business owner for injuries on the business premises caused by third party criminal conduct. A land occupier “must act as a reasonable person to avoid harm from the negligence of contractors and concessionaires as to activities on the land, as well as that of other persons who have entered it, and even from intentional attacks on the part of such third persons. He is required to take action when he has reason to believe, from what he has observed or from past experience, that the conduct of the other will be dangerous to the invitee, but not if there is no reason to anticipate a problem.” (Prosser & Keeton, Torts (5th ed. 1984) Invitees, § 61, p. 428, fns. omitted.)

It is true as the dissent notes, that the standard of a “reasonable prudent person under the circumstances” is the general standard of care. It is also true, however, as Justice Kennard acknowledged in Ramirez v. Plough, Inc., supra, 6 Cal.4th 539, 547, but does not recognize here, that in particular situations a more specific standard may be established by judicial decision, statute or ordinance.

California has never recognized a duty to surrender property to an armed robber to protect others, and neither Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th 666, nor Rowland v. Christian, supra, 69 Cal.2d 108, in which we applied the general principles of negligence law to determine the duty of a landowner to prevent injury to persons present on the land, resolves the question presented here. Those cases did not consider whether a shopowner must comply with a robber’s unlawful demand for money in an effort to avoid threatened harm to third persons. The situation is not comparable to that of a shopkeeper who, on the basis of experience, has reason to know that potentially injurious unlawful conduct may occur in the future and for that reason has a duty to take action to deter or prevent that conduct. Neither the Restatement rules nor our past decisions create a duty to acquiesce in an unlawful demand for the surrender of property.

While this court has not expressly considered the duty of a landowner or occupier whose premises are open to the public when faced with an armed robber, no state has held that the law imposes a duty to comply with a robber’s demands. While some hold that a shopkeeper may actively resist the robbery attempt only if the resistance is reasonable in light of the threat to third persons, none hold that the duty to avoid harm to patrons or others on the premises is breached if the shopkeeper simply refuses to surrender property. Although there was no active resistance to the robber in this case, decisions in which the shopkeeper or employee did resist are instructive. None of those which hold that resistance may be unreasonable in some circumstances suggest that a shopkeeper who does not actively resist or intentionally engage in other provocative conduct has breached a duty to a patron, and the majority of courts which have considered the question hold that active resistance is permitted.

The Indiana appellate court concluded that resistance was in the public interest even in situations where it resulted in harm to third parties. “There is, and must continue to be, a great public interest in the prevention of crime and in the speedy apprehension of criminals. To that end the victim of a crime, as vicious as armed robbery, during the course of such criminal act, is excused, justified and to be held privileged from ordinary resistance which might otherwise cause actionable damage.” (Yingst v. Pratt (1966) 139 Ind.App. 695, 700 [220 N.E.2d 276, 279].)

In Schubowsky v. Hearn Food Store, Inc. (Fla.Dist.Ct.App. 1971) 247 So.2d 484: “The defendants’ employee was privileged and justified in defending his own life and the employers’ property when faced by the armed robbers. In resisting the robbers, the proprietor had justification over and above an ordinary elective act entailing risk to a third person. When an opportunity arose to get the ‘drop’ on the robbers, the proprietor was entitled to act upon it in resistance of the robbery. The fact that in the course of his resistance, which succeeded in averting the robbery, the customer who was present was shot by one of the robbers, does not operate to negative the justification of the proprietor to so act in such circumstances. A victim of a violent crime, such as armed robbery, is justified and privileged against liability for an injury which may result from his resistance which otherwise could cause actionable damage.”

The Arizona court held in Bennett v. Estate of Baker (1976) 27 Ariz. App. 596 [557 P.2d 195] that “no duty to accede to criminal demands should be imposed. . . . [Defendant bartender] was faced with two alternatives. He could either yield the right and privilege of protecting his property, or he could assert that same right and privilege by attempting to resist the crime being perpetrated upon him.” (557 P.2d at p. 198.)

In Helms v. Harris (Tex.Civ.App. 1955) 281 S.W.2d 770, a patron was shot when a storekeeper resisted an armed robbery. Liability was not imposed because, in the view of that court, the defendant’s actions were not the proximate cause of plaintiff’s injury and it was not foreseeable that his conduct would lead to the injury. The court recognized that liability might be found in other circumstances. “Acts of self-defense or in defense of one’s property have always been in accord with the public policy of Texas, and those persons having sufficient courage to so act legally enjoy the privilege. It is only when acts in self-defense or in defense of one’s property are committed under circumstances Where the actor should realize that such acts create an unreasonable risk of causing harm to innocent third parties that such third parties may subject the actor to liability.” (Id. at pp. 771-772.)

Other courts also balance the right of a store owner to take such action as is deemed appropriate to protect the owner and his property against the duty of the owner to prevent foreseeable injury to customers when resisting a robbery. In Genovay v. Fox (1958) 50 N.J. Super.Ct. 538 [143 A.2d 229] (revd. on other grounds (1959) 29 N.J. 436 [149 A.2d 212]), the court upheld a finding of liability, but did so where the defendant and others confronted and attempted to resist an armed robber. An armed gunman held both employees and patrons of a bowling alley at gunpoint, herding them into the area in which a safe was located, and ordered the owner to open the safe. While the hostages were being moved, two employees escaped. When the safe was opened, the owner removed some cash which he placed in a closet, and then told the robber that the remaining money was in a box that was bolted to the safe. The robber would have to take it out himself. When the robber hesitated, one hostage tackled him and was shot and killed. The plaintiff, another hostage, then wrestled with the gunman and was himself injured.

Plaintiff’s theory was that once the robbery was underway, the defendant had a duty to refrain from conduct that might have the effect of inducing or increasing the likelihood of resistance because such activity would create an unreasonable risk of serious injury or death. In assessing the reasonableness of the defendant’s conduct, the court considered both the risk of harm it posed to others and the utility of the conduct. It assumed that the defendant had increased the risk of serious injury to the patrons appreciably, and recognized that protection of property and frustration of crime could be offered as justification in terms of social utility. The emergency situation was also a factor, but that was tempered if the defendant’s activity was designed to entrap the robber. Weighing these factors, the court concluded; “[T]he seriousness of the risk of grave injury or death inherent in the confrontation of the group of men in defendant’s company by the armed robber was such that there cannot be said to have been any right on defendant’s part as a matter of law to take any measures he might choose to frustrate the gunman and secure his capture without regard to the effect of such actions on the safety of the others present. The social utility of such objectives was for the consideration of the jury in forming an over-all judgment as to whether what they concluded the defendant had done or caused to be done constituted reasonable conduct, in the light of all the circumstances, including the hazards to which defendant’s companions were exposed. The value of human life and of the interest of the individual in freedom from serious bodily injury weigh sufficiently heavily in the judicial scales to preclude a determination as a matter of law that they may be disregarded simply because the defendant’s activity serves to frustrate the successful accomplishment of a felonious act and to save his property from loss.” (Genovay v. Fox, supra, 143 A.2d 229, 239-240.)

The United States Court of Appeals for the Tenth Circuit, applying Kansas law (Kimple v. Foster (1970) 205 Kan. 415 [469 P.2d 281]), held in Kelly v. Kroger Company (10th Cir. 1973) 484 F.2d 1362, that a land occupier has a duty to protect customers from foreseeable harm during an armed robbery. There a robber took a patron hostage during the robbery of a grocery store. He seized the patron, whom he used as a shield, when police responded to a silent alarm triggered by store employees, entered, and shot at the robber. The robber forced the patron to accompany him as he attempted to escape with police in pursuit, and then shot the patron, killing her. The theory of the complaint was that the defendant was negligent in actions taken during the robbery which increased the risk of harm to patrons. The court concluded that in the situation that had developed, the manager of the store should not have taken action which increased the hazard and in fact caused the injury. The foreseeability of the injury was a decisive factor in the decision as the court emphasized that the defendant had issued a pamphlet advising employees what they should do in a holdup. The pamphlet said that nothing should be done that would excite or startle a robber, and that no verbal alarm should be given in the street because to do so would greatly increase the probability of injury.

The North Carolina Court of Appeals employed similar reasoning, citing Kelly v. Kroger Company, supra, 484 F.2d 1362, in Helms v. Church’s Fried Chicken, Inc. (1986) 81 N.C.App. 427 [344 S.E.2d 349, 351], where it affirmed “the general principle that a defendant owes a duty not to increase foreseeable risk of harm to another." There a fast-food store employee loudly told a departing customer to call the police because the establishment was being robbed. The robber thereupon assaulted the customer. The court held that if the employee’s action increased the hazard to patrons, and was negligent under the circumstances, liability could be imposed.

The Kentucky Court of Appeals considered and rejected a claim that employees of a shopkeeper protecting the owner’s property had a duty to patrons to comply with a robber’s demands in Adkins v. Ashland Supermarkets, Inc. (Ky.Ct.App. 1978) 569 S.W.2d 698. The complaint alleged that employees of a grocery store disobeyed orders of an armed robber. That action and “quarrelsome” statements provoked the robber until he discharged his pistol, killing the “store operator” and wounding the plaintiff and another. (Id. at p. 699.) The court held that the operator’s duty to keep the premises reasonably safe for invitees did not include a duty to comply with the robber’s demands to avoid increasing the risks of criminal conduct. The court held that store operators had the right to resist, verbally or physically, to save themselves and/or their property, and were not negligent in doing so. The court also indicated agreement with Bennett v. Estate of Baker, supra, 557 P.2d 195, in which the court reasoned, as did the Vandermost court, that compliance with the demands of a criminal does not offer sufficient assurance that the risk to an invitee will be substantially reduced. Therefore, only the criminal would benefit from imposition of a duty to comply. Finally, it concluded as did the Vandermost court “that to hold otherwise would abandon or so weaken the objective of social utility that the store owners and proprietors would be coerced into offering total acquiescence to armed robbers for fear of civil litigation which, in effect, furnishes a criminal with an additional coercive advantage.” (Adkins v. Ashland Supermarkets, Inc., supra, 569 S.W.2d at p. 700.)

The Illinois appellate court reached the same conclusion in Bence v. Crawford Sav. & Loan Ass’n (1980) 80 Ill.App.3d 491 [35 Ill.Dec. 902, 400 N.E.2d 39], following the reasoning of the Illinois Supreme Court in Boyd v. Racine Currency Exchange, Inc., supra, 306 N.E.2d 39, on which the Vandermost court also relied, and that of the New Jersey Supreme Court in Goldberg v. Housing Auth. of Newark (1962) 38 N.J. 578 [186 A.2d 291, 10 A.L.R.3d 595]. These courts concluded that foreseeability of the event alone was not determinative. The New Jersey court held that existence of a duty was “ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.” (186 A.2d at p. 293.) The Bence circumstances presented a variation on the duty to acquiesce questions we face here. There, robbers panicked and shot a bank customer when bank employees failed to activate a buzzer that would have allowed the robbers to exit an electronic door following a robbery. The court concluded that it would be unfair to impose liability for the criminal acts of the robbers because a buzzer-activated electronic door was in use. The defendant was not under a duty to deactivate the buzzer-controlled exit.

Plaintiff argues that when a patron is held hostage by an armed robber, a shopkeeper should have a duty to comply with the robber’s demands in order to prevent possible injury to the patron. This obligation, she argues, is imposed by Civil Code section 1714, subdivision (a): “Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person . . . .” Civil Code section 1714 states a civil law principle that is the foundation of our negligence law, whether developed under the statutory command or from the common law. (Rowland v. Christian, supra, 69 Cal.2d 108, 112.) It has never been construed as imposing a duty to comply with an unlawful demand that property be surrendered, however.

The Vandermost reasoning is urged by KFC and amicus curiae American International Group, Inc., who contend that there is never a duty to comply with the demands of a robber even when the robber is holding and threatening a hostage. They argue that there is no basis for an assumption that complying with a robber’s demands would guarantee the safety of a hostage. Robbers are unpredictable and often injure victims and others even though there has been no resistance. Imposition of a duty to comply would be contrary to the public interest as it would encourage hostage taking by robbers who become aware that such conduct assures compliance with their demands.

We agree with KFC that no duty to comply with a robber’s unlawful demands should be imposed on a shopkeeper on the theory that compliance may lessen the danger to other persons on the premises. Both article I, section 1 of the California Constitution² and Civil Code section 50³ recognize the right of any person to defend property with reasonable force. We are not faced here with a situation in which KFC’s employee engaged in active resistance to the robbery. Therefore, we need not decide if that right is qualified by the duty to avoid injury to third persons or if a duty exists to avoid physical resistance that might provoke a robber into carrying out a threat to harm third persons. It is enough to observe that recognizing a duty to comply with an unlawful demand to surrender property would be inconsistent with the public policy reflected in article I, section 1 of the California Constitution and Civil Code section 50. Because we are not faced with a situation in which active resistance to a robbery resulted in injury to a third person our holding is narrow. We hold only that there is no duty to comply with a robber’s unlawful demand for the surrender of property. Simple refusal to obey does not breach any duty to third persons present on the premises.

As Vandermost, supra, 164 Cal.App.3d 771 and Boyd v. Racine Currency Exchange, Inc., supra, 306 N.E.2d 39, held, the public interest would not be served by recognition of a duty to comply with a robber’s demands. Unlike the Court of Appeal, we are not satisfied that persons who commit armed robbery would not become aware of and be encouraged by the existence of such a duty. Moreover, we have no basis upon which to conclude that compliance actually prevents injury to robbery victims. The public as a whole is much better served if would-be robbers are deterred by knowledge that their victims have no legal duty to comply with the robber’s demands and are under no duty to surrender their property in order to protect third persons from possible injury.

IV

Conclusion

The judgment of the Court of Appeal is reversed.

George, C. J., Chin, J., and Brown, J., concurred.

1 In Taylor, the plaintiff had been assaulted and seriously injured by a person who had twice approached her inside a bowling alley and importuned her to allow him to go to her home for sexual relations. She had rebuffed him and had reported the offensive conduct to Bishop, a person employed by the business as a “bouncer.” When she later prepared to leave the building, Bishop warned her that the man she had rebuffed was there and told her she should not leave. She ignored the warning and was attacked and seriously injured in the parking lot of the business by that man.

This court rejected the argument of the business owner that any duty owed to the patron was fulfilled by the warning given to her, noting that Bishop was aware of the potential danger, but the warning was inadequate to apprise the victim of the specific danger posed by the person he described as a “goofball.” Moreover, even an adequate warning would not have enabled the victim to avoid the danger while still exercising her right to enter the parking lot to obtain her car, a right which a patron is entitled to receive. (Taylor v. Centennial Bowl, Inc., supra, 65 Cal.2d at p. 123.) The business operator breached the duty owed under the circumstances which included the fact that “. . . Bishop could have easily protected her from the danger he apparently anticipated by simply accompanying plaintiff to her car . . . .” (Id. at p. 124.)

2 California Constitution, article I, section 1: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” (Italics added.)

3 Civil Code section 50: “Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one’s family, or of a ward, servant, master, or guest.”

Penal Code section 197, subdivision 2 also recognizes a privilege to use reasonably necessary force in resisting crime in the defense of property against a person “who manifestly intends or endeavors, by violence ... to commit a felony.”