The Illinois Appellate Court handed down an opinion last week dealing with the sufficiency of proof when trying to hold a business owner liable for the criminal acts of third parties.
In Witcher v. 1104 Madison Street, Toney Adewoye was a patron of Plush Restaurant back in late 2011. The restaurant is located a mile or so west of downtown Chicago. He was with his wife. As Adewoye prepared to leave, he began speaking with another man in the restaurant. [This other person, who was never identified, will be referred to as “assailant”]. Initially the interaction between Adewoye and assailant was cordial. Suddenly however, the other man struck Adewoye. The assailant then quickly left the restaurant, and was followed by Adewoye. Shortly thereafter, Adewoye was found bleeding heavily from a neck wound. The entire incident transpired in a matter of seconds.
The assailant jumped in a car nearby and fled the scene. A doctor inside the restaurant came to Adewoye’s aid but could not save him. Adewoye died – apparently at the scene.
Plaintiff Natalie Witcher, the Special Administrator of Adewoye’s estate, filed suit against the restaurant, alleging it failed to provide proper security. Evidence was uncovered which showed that there was some history of trouble at the restaurant in the years prior to Adewoye’s death. In the five years before the incident there had been eleven battery complaints; one assault; five thefts and three motor vehicle thefts that were linked to Plush. Most of the incidents had occurred during the week. The owner of the restaurant acknowledge employing security personnel but only on weekends due to larger crowds.
The defense argued that Plush had no duty to protect Adewoye as the attack was a sudden, unpredictable event they could not guard against. The assailant was not a regular. He apparently did not order anything to drink. He spoke directly to Adewoye, stabbed him in the neck and fled. And, of critical importance, there had never been similar violent events at the restaurant. The restaurant filed a Motion for Summary Judgement, seeking to have the case tossed. The restaurant argued that this injury simply was not foreseeable.
The Appellate Court opinion first noted that a restaurant is not an insurer of its patrons’ safety. In order to establish that Plush a duty to protect against this horrific act, the assault must be shown to have resulted from the same risk as was present in prior incidents of criminal behavior. And there was little evidence of similar prior events. There had been no previous fights inside Plush. The witnesses that testified said they have never even seen a weapon inside Plush prior to Adewoye’s murder. The crowd that night was well-behaved. Witcher was unable to show any prior events that would have put Plush on notice that some sort of violent assault was likely. While Witcher did present evidence of some 20 prior incidents where the police were on site, none of those prior incidents were similar to Adewoye’s assault. Those prior crimes were not the same type of crime the ultimately claimed Adewoye’s life.
The Appellate Court agreed with the trial court and upheld the decision tossing the case.