Jones v. Tokhi , 193 Wis. 2d 514 ( 1995 )

WEDEMEYER, P.J.

(dissenting). I write separately because I cannot agree with the result in the majority opinion. Instead, I conclude that the judgment of the trial court should be affirmed on public policy grounds. Specifically, I conclude that the injury Jones suffered was too wholly out of proportion to the culpability of the negligent tort-feasor, and would place too great a burden on restaurateurs who serve crime-ridden neighborhoods. Coffey v. Milwaukee, 74 Wis. 2d 526, 541, 247 N.W.2d 132, 139 (1976).

The jury determined that the restaurant was negligent in failing to protect its patrons while on the premises. Case law in Wisconsin dictates that a proprietor of a restaurant has a duty to use ordinary care to protect members of the public, while on the premises, from harm caused to them by the accidental, negligent or intentional acts of third persons. Wis J I — CIVIL 8045; see also Weihert v. Piccione, 273 Wis. 448, 78 N.W.2d 757 (1956). Under the facts and circumstances in the instant case, however, imposing liability on the restaurant for the negligent acts committed contravenes public policy. The restaurant's liability is premised on the security guard's conduct, which involves two acts of omission: (1) failing to call the police; and (2) refusing to go outside the restaurant to determine if "something was going down."

The injury Jones suffered, however, is wholly out of proportion to either omission. Does it contravene public policy to impose liability on a restaurant because its security guard failed to telephone police under these circumstances? (The record does not indicate that Jones or his companions made a specific request to telephone the police.) I believe it does. There is no guarantee that police would even have responded to the call or arrived prior to Jones's attempt to wrest the gun from the gunman. Does it contravene public policy to impose liability on a restaurant because the security guard failed to go outside with Jones to see if something was going down? I believe it does. The record indicates that the attackers were not out in the open. They hid and remained hidden until they could surprise Jones and his companions.

Further, imposing liability because the security guard failed to telephone police and/or failed to go outside as requested, places an unreasonable burden on restaurants. Imposing liability under the facts in this case may lead to restaurants and other businesses refusing to locate in high crime areas. Imposing liability here also requires a restaurant to offer greater protection to patrons in its parking lot than our police force is able to offer.

Accordingly, liability should not be imposed on the restaurant on the grounds of public policy. I would affirm the judgment. As a result, I respectfully dissent.