It’s rare to see textbook examples of the application of legal principles, even less common for Illinois liquor lawyers must be the application to a scenario that could impact a bar, brewpub, taproom, tasting room, or restaurant.
The issue in Witcher v. 1104 Madison St. Restaurant d/b/a Plush Chicago involved a Chicago restaurant/lounge’s duty in tort law to protect its patrons from criminal acts committed by third parties (note: this is not about dram shop liability).
That duty to patrons hasn’t changed since you learned it in law school:
- As a general rule, there isn’t a duty imposed on landowners (restaurants, brewpubs, bars, taprooms, tasting rooms) to protect others from criminal attacks by third persons on their property.
- But, there might be a duty to protect patrons in the taproom or bar/brewpub/restaurant/tasting room if circumstances such as prior incidents give the owner knowledge of a danger facing patrons. Think a nightclub where a fight breaks out every evening and the owner never hires a security guard and people get seriously injured in the altercations – then you’ll likely have liability after a few instances if you don’t hire security.
- So in assessing whether the owner has liability in the situation that might impact a liquor license, whether as in this case, a Chicago liquor license, or elsewhere, the “question is whether the criminal activity was reasonably foreseeable such that the business should be held to have a duty to protect its patrons from such activity.”
- So bar/brewpub/restaurant/taproom/tasting room owners might have a duty to protect customers when the owners have knowledge of the dangers posed to their patrons.
Here’s how the Restatement (Second) of Torts describes it:
“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 of 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.”
In expounding on this principle, the court in this case remarked that before the courts impose a duty “the court must also consider (1) whether the criminal attack was reasonably foreseeable, (2) the likelihood of the injury, (3) the magnitude of the burden to guard against the injury, and (4) the consequences of placing that burden upon the possessor.”
In Witcher, a bar/restaurant/lounge patron was stabbed in the neck and died from the wound. An unknown man came into the lounge and did not order a drink and spoke directly to the patron and then stabbed him and left the premises. The court examined the record and found that it contained nothing leading to the conclusion that the murder was related to anything that happened at the lounge, nor was there any evidence that the murder occurred because of the patron’s presence at the lounge. Nor was there any evidence of a similar event occuring at the lounge. A series of several fights outside the Chicago establishment over a five year period could not be considered incidents that shared the characteristics of the murder or that put the owner on notice that a murder might happen.
In describing the general rule for restaurants/bars/brewpubs/taprooms/tasting rooms, the court stated “to establish that a restaurant has a duty to protect … from criminal acts … the criminal act at issue must have resulted from the same risk as was present in the prior incidents of criminal activity.” (In this case, “people with weapons” was the hypothetical the court asserted would have been that type of incident and there was no testimony that there were any incidents involving weapons.) Generalized allegations of crimes will not suffice to establish a duty on the part of a business to protect its patrons.
Another interesting nugget an Illinois bar owner might want to make their Illinois liquor license attorney aware of in discussing similar issues with them:
On the topic of having security, the court noted, “there is nothing in the record to suggest that Plush [the lounge] needed to have security at all times. The evidence submitted by plaintiff suggests that there were approximately four incidents a year over a five year period that required police attention at Plush’s address. See Davis v. Allhands, 268 Ill. App. 3d 143, 152 (1994) (even though a bar had four fights in 90 days, that fact was not sufficient to impose a duty on the bar to employ additional security personnel). Both this case and Sameer involved stabbings that the owners of the establishments could not have foreseen and had no legal duty to prevent. See Sameer, 343 Ill. App. 3d at 89. For us to say that Plush should have prevented the attack in this case would be to say that just about every bar and restaurant should have round-the-clock security lest they be liable for any unexpected targeted killing on their premises. Illinois law does not support such a result.”
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