Customer injuries in employee only areas
March 10, 2007 3:55 PM   Subscribe

Can a business be held liable if a customer sneaks into an off-limit area (i.e. employees only) and injuries themself?

This hasn't happened to me, or anyone I know, but I've always been genuinely interested in the answer. For instance, what if a kid wandered into the prep kitchen at a restaurant, and burned his or her hand on the stove. Who's liable: the restaurant for not locking down the kitchen, or the parents for letting their kid wander off into a dangerous area?

Let the "IANAL"s begin!
posted by (bb|[^b]{2}) to Law & Government (19 answers total) 1 user marked this as a favorite
Whoever has the better lawyer.
posted by Brandon Blatcher at 4:02 PM on March 10, 2007

Almost certainly, at least in some states. Many years ago, I believe in California, a man was attempting to burgle a school, and fell through a skylight. He sued for faulty skylight construction -- and won.

The laws may have changed since then, but doing something you're not allowed to -- even if there's an actual LAW against your behavior -- does not apparently release other people's potential liability if you are injured.
posted by Malor at 4:04 PM on March 10, 2007

The word "liable" is a holdover from a time when there was sense in such things. In an age when McDonald's is liable for the heat of their coffee, it's effectively meaningless.

Everyone is liable for everything. Protect and insure yourself up the wazoo, don't ever let anybody do anything ever, and hope to God nobody ever shoves your product up their nose too far.

Sorry to be bleak...
posted by jimmyjimjim at 4:16 PM on March 10, 2007

One relevant term of art is "attractive nuisance".

A lot of it has to do with just how easy it was for the injured party to reach the dangerous place.

Who's liable: the restaurant for not locking down the kitchen, or the parents for letting their kid wander off into a dangerous area?

Another relevant term of art: "joint and several liability". There is no element of tort law that has led to more abuse. In your example, if the parents are 90% responsible and the restaurant is 10% responsible, the restaurant can still be forced to pay 100% of the damages -- or at least, it could have been until fairly recently.

Because joint and several liability has been so severely abused, a lot of states have changed it, so this varies widely depending on the state.
posted by Steven C. Den Beste at 4:24 PM on March 10, 2007

The word "liable" is a holdover from a time when there was sense in such things. In an age when McDonald's is liable for the heat of their coffee, it's effectively meaningless.

Can we please not drag this one out? McDonald's habitually served coffee that would destroy human flesh on contact. Destroying human flesh falls well outside the job description of food. In this particular case, the coffee was hot enough that it had started melting the lid to the cup, which was why Mrs. Liebeck had trouble opening the cup.
posted by ROU_Xenophobe at 4:38 PM on March 10, 2007 [5 favorites]

In an age when McDonald's is liable for the heat of their coffee

Oh god, not that again. Look, there are reasonable and serious issues to be discussed about over-litigation, but using the McDonald's coffee case as an example doesn't make the case; the woman was hospitalized for 8 days with full thickness (i.e., 3rd degree) burns and still only asked for $20,000 in compensation. McDonald's refused and that's when the fun began:

There were at least 700 previous cases of scalding coffee incidents at McDonalds before Liebeck's case. McDonalds had settled many claim before but refused Liebeck's request for $20,000 compensation, forcing the case into court. Lawyers found that McDonalds makes its coffee 30-50 degrees hotter than other restaurants, about 190 degrees. Doctors testified that it only takes 2-7 seconds to cause a third degree burn at 190 degrees. McDonalds knew its coffee was exceptionally hot but testified that they had never consulted with burn specialist. The Shriner Burn Institute had previously warned McDonalds not to serve coffee above 130 degrees. And so the jury came back with a decision- $160,000 for compensatory damages. But because McDonalds was guilty of "willful, reckless, malicious or wanton conduct" punitive damages were also applied. The jury set the award at $2.7 million. The judge then reduced the fine to less than half a million. Ms. Liebeck then settled with McDonalds for a sum reported to be much less than a half million dollars. McDonald's coffee is now sold at the same temperature as most other restaurants.

Anyway, it's an interesting hypothetical, and if it passes the moderators' general "avoid hypotheticals, please" position I look forward to folks with actual knowledge of the particulars to begin responding.

posted by mediareport at 4:43 PM on March 10, 2007 [8 favorites]

Sorry. I didn't mean to start a ranting flamewar via my lazy choice of a problematic example. I didn't realize people had baggage on that.

So swap in any example of insane litigation you'd prefer. My point remains. The term "liable" is effectively meaningless.
posted by jimmyjimjim at 4:53 PM on March 10, 2007


It would depend on how the area had been fenced off, whether it had been effectively signed (which may have to be specific as to any dangers), whether it could reasonably be expected for a customer to go to such a place and do such a thing, amongst other things. If you can reasonably expect kids to be around, then the standards are higher should anything happen to them, and the general rule is, the greater the danger, the harder it is to remove all liability.

With regards to the skylight incident, he probably argued that the constructor had a duty of care to ensure that skylights didn't fall open/break, and it was reasonably foreseeable that someone might be in such a situation (e.g. a janitor, adventurous schoolkids). I would imagine that the state allowed a duty of care to trespassers, and the the defence tried volenti non fit injuria (you know the act is dangerous, yet carry on anyway) and failed.

Of course, there may be an American lawyer who will tell me that's all rubbish. If that's the case, believe him/her, as IANAL, and my knowledge does not pertain specifically to the US.
posted by djgh at 5:27 PM on March 10, 2007

Jimmy, I hate to tell you, but "liable" has a fairly well-defined meaning when it comes to tort law.

There are 5 elements of a negligence (which is what this hypo is) claim: duty, breach, causation, scope of liability, and negligence.

Duty: Landowners, or lessors, have what's called a limited liability to people who come onto their land (as opposed to a general liability, which is what most torts fall under). Most jurisdictions use what is called "the trichotomy" - basically, there are three different levels of responsibility for three classes of people entering the land. Business invitees, which is what the person in the store might be, are given the highest level of protection: the owner must protect that person from any condition that creates a risk of harm that is unreasonable - and this harm must be known about or would have been discovered by the owner if he had taken proper precautions. Now, if the jury found that the person who was injured was a trespasser, because they snuck into an area they were forbidden from, the level of liability drops; the owner is then only required to not cause willful, wanton or gross negligent harm to the trespasser. So, if there was grease all over the floor of the back room, and it had been there for days, and nobody had bothered to clean it up - and the trespassor slipped and fell, that might qualify as "gross negligence." Or, if there was a pit that was located right inside the door with spikes at the bottom, and the trespasser fell into it and really really hurt himself, that might qualify, too.

Breach: The injured party must prove that the injuring party breached the duty that was set up above. This is pretty much a given if you're bringing an action, but is often confused with Duty - just because you breached a duty, doesn't mean you breached your duty.

Causation: This is one of the easiest parts. This is often determined by using the term "but for" - "But for the (powners negligence in not cleaning up the grease, owner's lack of postings about the pit behind the door), the injury to X would not have happened." This is really really simplified and doesn't work in all situations, but its usually the easiest test to determine if causation exists.

Scope of Liability: I'd go more into explaining this, but this is a tough concept to pass on, even for law students in a Torts class. The basic rule is that there must not have been any additional events that both intervened and superseded the actual event; the easiest concept for this would be if the guy snuck back into the employee area and then a tornado hit the business for damages that occurred to him from pieces of the building. The tornado would have "intervened" in the event, and "superseded" any negligence on the behalf of the store. Really odd example, I know, but its as simple as this gets.

Damages: You actually have to be injured to get any sort of remedy. Kinda "duh", but still an element of the action.

So, under this setup, you can see where a jury could, in good faith, find a building owner liable for injuries to a "trespasser" (or customer), even though they were in an employee-only section.

IANYAL - none of this is to be taken as legal advice. Further, you could get everything I just told you from the Wiki.
posted by plaidrabbit at 5:37 PM on March 10, 2007 [2 favorites]

It really depends. It's possible that the restaurant would be liable, but then again, it's possible that it woudl not be. Tort liability is usually fact-specific.

It would depend on: (a) the law of the jurisdiction (not all states give business invitees the highest levels of protections, but most do); (b) whether or not it was reasonably foreseeable that someone may find themselves in the "off limits" area; (c) what the nature and scope of the injury was.

Tort law usually requires (1) duty, (2) breach, (3) causation, and (4) damage. If the party can't show all four, then the claim will fail.

Remember, it's easy to think that people are "liable for everything" due to media coverage given to crazy cases which have been filed, but those same oddball lawsuits seem to never get coverage when a judge tosses them out at the summary judgment level. And when the case does have merit (see the McDonald's coffee case) there are foreces opposed to the plaintiff's bar who like to distort the facts of the case to fit their own purposes. I.e., making it more difficult to successfuly hold large corporations liable for damages (e.g., Ford: Of course, this from the company which gave us the Ford Pinto and its subsequent tort litigation,
posted by herc at 5:52 PM on March 10, 2007

Purely intellectiual, fairly bad 1-L outlines of the definition of tort liability aside, the answer to the question asked is YES, under a variety of legal theories it is possible that a landowner could be found legally responsible for the injuries of a trespasser sustained on the landowner's property. Question answered, the end. No discussion of odball tort liability needed.
posted by bunnycup at 6:23 PM on March 10, 2007

Plaidrabbit, that was a really useful and informative posting! Thanks for taking the time!

But in terms of addressing my point, you're arguing the other way from me. I'm saying the legal system overreaches, not underreaches.

Yes, there are formal grounds for establishing liability which continue to serve those who bring suit. In that sense the term is not moot. But seeing as how those grounds have been been diluted and eroded by juries siding with victims bringing dubious claims only tenuously fitting those grounds, the reality is that a jury can (and very well may) find nearly anyone liable for nearly anything. it's not hard, in other words, to shuttle most any claim under one or more of those elements. So determining whether you're liable or not in any given instance is generally a silly question. You can be sued for ANYTHING, and you can be sued effectively if the victim is sympathetic enough, regardless of adherence to grounds.

Actually, at this point, it's not even about juries. The whole system has become so skewed and random that even the most baseless claim can often draw a settlement, just so the defendent can avoid the legal morass.

I had a crazy woman touch my car with her hand as I backed into a parking spot at slow speed. She started screaming and cursing and clutching her clearly uninjured hand. She sued. It turned out that she'd had this happen over a dozen times...once, she'd claimed to have been attacked by a tree (I forget the specifics). The whole thing was surreal.

And my insurance company settled with her. Not massively, but she got paid.

Am I "liable" for people thrusting their hands out suddenly behind my slowly backing up car? Sure! Why not? It hinges on juries and process issues, not grounds.
posted by jimmyjimjim at 7:25 PM on March 10, 2007

One amusing detail on the aforementioned lawsuit...she sued me for several million dollars, but her husband sued, as well, for a million bucks, for his having lost her conjugal services for several months.

Those services, it is clearly to be assumed, require the ongoing functionality of this woman's right hand.
posted by jimmyjimjim at 7:40 PM on March 10, 2007

Huh, jimmyjimjim. That isn't something I'd want on public record.
posted by Monday at 10:28 PM on March 10, 2007

IAAL ... depends on jurisdiction but in many places yes, under tort law. Although the blame allocation may be influenced ... IE the idiot was 50% responsible for his injuries so the award is reduced by 50% ... J
posted by jannw at 1:47 AM on March 11, 2007

Hooray for law students -- I was once one -- but the practical answer is a bit simpler.

The key concept is common and reasonable precaution. What do most restaurants do to avoid an epidemic of scalded children? If the restaurant in question did visibly less, it is sure going to be in trouble. Sometimes you'll find an entire industry which seems to disregard a risk, and thus even the common precautions won't help when the risk is realized. You get a few multi-million dollar awards and then there becomes a new standard of precaution for the industry. The name for the defendants on the sharp edge of that learning process is "unlucky bastards."

Another key concept is that liability is whatever a jury will say it is. The poorer a community, the worse off for business and government defendants in injury cases, because jurors don't have the asset ownership or tax bills necessary to have appropriately balanced sympathies between plaintiff and defendant. Poor communities also tend to produce juries which will award bigger economic damages in respect of injuries to children than to adults, exactly reversing the results elsewhere, where attention is paid to someone's economic productivity and dependents (children having neither, of course).
posted by MattD at 6:04 AM on March 11, 2007

Depends on the dangerous area. I am certainly liable for letting people into my high radiation areas, whether it results in injury or not. Signs don't relieve me of my responsibility for positive controls of my danger. A restaurant, probably not the same thing. I have knives in my kitchen - if I don't lock my house and someone goes in there and chops a finger off, I don't think that's reasonably my fault. In between... probably has to do with accepted best practice in similar industries and whether you are significantly less diligent than that in your safety controls. I'd guess any business would have some sort of relationship with a business-knowledgeable attorney in that industry, and that that person would have given the place a look-over for any gross problems at least once when starting the business. But I'm neither a business owner nor an attorney.
posted by ctmf at 11:04 AM on March 11, 2007

Keep an eye on this lawsuit; that appears to be exactly the question it revolves around. (It seems strange to link to a British newspaper for something that happened 120 miles from my town, but they had the fastest no-registration site I could quickly find.)
posted by TedW at 3:27 PM on March 11, 2007

jimmy - i wrote up this whole long response to your initial McDonald's example... but then I read the rest of the posts, and everything I wanted to say has pretty much been said.

The only detail I didn't see: the reason McD's was serving their coffee at such lavaesque temperatures despite being repeatedly warned that it was hot enough to injure and having had to pay out scores of previous settlements was twofold:

1. the majority of their coffee was sold via drive-through, primarily in the morning, when people would buy it on their way to work. so by serving it extra hot, it was at the perfect temperature by the time the average consumer got it to work, as opposed to being faced with tepid coffee if McD's had been selling it at a lower (safer) temperature.

2. brewing the coffee that hot also improved the aroma and, more importantly, the aroma's waftability quotient (that's the technical term I just made up). By making it so hot, it improved the smell inside the franchise and led to measurably higher coffee sales.

Lowering the temp 20 degrees would have lowered the scalding risk significantly, but it would have resulted in a bunch of people facing tepid coffee and less aroma in the store, leading to a projected decrease in coffee sales. McD's weighed their options and decided that it would be cheaper to pay out the occasional settlement than reducing their coffee sales.

THAT's why the "McD's coffee burned my vajayjay" case isn't quite the archetypal frivolous lawsuit you were thinking of.
posted by yggdrasil at 12:48 PM on March 12, 2007

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