This opinion piece was contributed by Wade Bowden, a shareholder in the Litigation Practice Group at the West Palm Beach, Fla., office of Greenberg Traurig, and Jay A. Yagoda, an associate in the Appellate Practice Group at the firm’s Miami office. This article does not necessarily reflect the opinions of the editors or management of Nation’s Restaurant News.
What happens to the owner of a delivery business if an assault on an employee results in injuries to a customer?
The prospects are encouraging for business owners based on a recent decision by a Florida Appellate court in the matter of Miller v. Papa John’s. The Fourth District Court of Appeals in November affirmed the Palm Beach County Circuit Court’s refusal to hold a delivery business liable for injuries suffered by a customer when criminals attempted to rob the business’s deliveryman. Plaintiff Robert Miller claimed that just after delivering pizza to his home in a high-crime area in Lake Worth, Fla., a Papa John’s Pizza deliveryman was confronted by armed assailants. The deliveryman reacted to the attempted armed robbery by running away from the assailants and back into Mr. Miller’s home. The assailants followed him back to the home, firing numerous gunshots in the deliveryman’s direction and shooting the customer in the process.
While Miller recovered from his life-threatening injury, he sued Papa John’s, arguing that it was the restaurant chain’s fault he was shot. Miller claimed Papa John’s delivery vehicles were an attraction to criminals, who would follow them with the intent of robbing the deliveryman when stopped. Miller said Papa John’s knew of this phenomenon and the company therefore had a duty to train its drivers to deal with such situations in a manner that would not harm its customers.
Miller claimed that Papa John’s, in essence, “brought the danger to his door,” instead of training its deliveryman on how to deal with the situation without involving the customer. In this case, that would have meant standing in front of violent armed assailants with no other avenue of escape. Miller insisted that Papa John’s, having “created the danger,” had a duty to resolve it without its deliveryman using his home for shelter. He sued Papa John’s and its deliveryman both for their alleged negligence in handling the situation, and also for Papa John’s alleged inadequate training of its driver.
In defending the action, Papa John’s invoked Florida’s well-settled law that parties cannot be civilly liable for injuries a plaintiff sustains through third-party criminal conduct. Papa John’s challenged the viability of the customer’s suit on the grounds that the company had no legal duty to control the assailants’ criminal acts.
Papa John’s further argued that an exception to the rule, imposing liability based on third-party misconduct where a “special relationship” exists between the defendant and plaintiff, such as between a business owner and his or her patron, was inapplicable in this situation. The company argued that did not apply because Papa John’s had no ability to control the individuals who allegedly shot the customer, and the company did not own the property where the attempted robbery took place.
The Palm Beach County Circuit Court sided with Papa John’s in 2012, finding no liability for the criminal acts of third parties and dismissing the customer’s negligence suit. But Miller appealed, arguing that the trial court reached the wrong result because the deliveryman’s reaction to the attempted armed robbery brought the danger to his doorstep, thereby creating a “zone of risk,” and Papa John’s had a duty to lessen that risk.
Papa John’s viewed the customer’s position as an effort to expand tort law, with the sole goal of exposing delivery businesses and their agents to off-premises liability regarding criminal acts of third parties over whom they have no control. This expansion, according to Papa John’s, was unprecedented as the company and its deliveryman did not create or control the risk – the armed robbers did.
In an affirmance with no written opinion, the Fourth District Court of Appeal in November upheld the trial court’s dismissal. If the court had allowed Miller to proceed on the theory that it was the Papa John’s deliveryman’s duty to “face the fire” and possibly be killed rather than seek shelter in the customer’s home, the chilling effect on delivery businesses in Florida would have been devastating. Such an event would have made the operations of such businesses in higher-crime areas practically impossible, in that such businesses would have to operate with the constant worry that everyday operations could result in devastating liability.
Although the courts have affirmed the lack of liability by a delivery business in situations occurring off-premises, business owners should take into account that the law is different in circumstances that occur on their premises. When customers are on the property of a business, that business is deemed “in control” of the premises and is therefore responsible for providing a safe environment. Although Florida law has not extended this liability to off-premises deliveries, Florida businesses must still guard against criminals injuring customers at the business’s location.