Myles M. Mattenson
ATTORNEY AT LAW
5550 Topanga Canyon Blvd.
Suite 200
Woodland Hills, California 91367
Telephone (818) 313-9060
Facsimile (818) 313-9260
Email: MMM@MattensonLaw.com
Web: http://www.MattensonLaw.com
"If A Customer Is Hurt During A Robbery
Because You Stalled In Responding To The Robber'S Demands,
Are You Liable?"

      Myles M. Mattenson engages in a general civil and trial practice including litigation and transactional services relating to the coin laundry and dry cleaning industries, franchising, business, purchase and sale of real estate, easements, landlord-tenant, partnership, corporate, insurance bad faith, personal injury, and probate legal matters.

      In providing services to the coin laundry and dry cleaning industries, Mr. Mattenson has represented equipment distributors, coin laundry and dry cleaning business owners confronted with landlord-tenant issues, lease negotiations, sale documentation including agreements, escrow instructions, and security instruments, as well as fraud or misrepresentation controversies between buyers and sellers of such businesses.

      Mr. Mattenson serves as an Arbitrator for the Los Angeles County Superior Court. He is also past chair of the Law Office Management Section of the Los Angeles County Bar Association. Mr. Mattenson received his Bachelor of Science degree (Accounting) in 1964 and his Juris Doctorate degree from Loyola University School of Law in 1967.

      Bi-monthly articles by Mr. Mattenson on legal matters of interest to the business community appear in alternate months in The Journal, a leading coin laundry industry publication of the Coin Laundry Association, and Fabricare, a leading dry cleaning industry publication of the International Fabricare Institute. During the period of May 1995 through September 2002, Mr. Mattenson contributed similar articles to New Era Magazine, a coin laundry and dry cleaning industry publication which ceased publication with the September 2002 issue.

      This website contains copies of Mr. Mattenson's New Era Magazine articles which can be retrieved through a subject or chronological index. The website also contains copies of Mr. Mattenson's Journal and Fabricare articles, which can be retrieved through a chronological index.

      In addition to Mr. Mattenson's trial practice, he has successfully prosecuted and defended appeals on behalf of his clients in various areas of the law. Some of these appellate decisions are contained within his website.


IF A CUSTOMER IS HURT DURING A ROBBERY BECAUSE YOU STALLED
IN RESPONDING TO THE ROBBER'S DEMANDS, ARE YOU LIABLE?

It is a pleasant, quiet mid-week morning. There are only a few customers in your coin laundry as you move about, emptying coin boxes. Suddenly, a robber appears and brandishes a gun. You watch with shock and dismay as a pregnant customer is taken hostage with the robber holding his gun to her back.

The robber, with his gun pointed at the back of your customer, orders you to open the currency changer, and tells you, borrowing a line from a movie popular a long time ago[1], "SHOW ME THE MONEY!" You attempt to stall the robber by telling him you need to get a special key to open the changer. The robber becomes agitated and tells you that he will shoot your customer if you do not immediately open the currency changer.

The customer then screams at you to open the changer and give the robber the money. You finally, reluctantly, comply with the robber's demands.

The customer later sues you, alleging that since you did not comply promptly with the robber's demands, the delay caused her emotional and physical injuries, hospital and medical expenses, loss of wages and a loss of earning capacity. Are you liable?

The Supreme Court of California considered this question in an appeal involving a customer who was assaulted at a Redondo Beach restaurant operated by Kentucky Fried Chicken ("KFC"). The plaintiff, a woman, alleged that she was a customer at the Redondo Beach outlet when she was seized and held at gunpoint by an unidentified person who threatened to seriously injure her if employees of KFC did not give the robber the money in the cash register. She alleged that an employee did not promptly comply with the robber's demands and that such delay, and other actions, caused further injury to her and resulted in additional threats of grave injury.

The Complaint also alleged that KFC failed to provide proper security, failed to properly train employees in how to respond to criminal activity to avoid endangering customers. [On the subject of providing security, the reader is referred to the author's April, 1996 New Era article.]


The decision reports that the woman was the only customer in the KFC restaurant when she was suddenly accosted by the robber, who put a gun to her back. The customer promptly complied with the robber's demands and surrendered her cash and wallet. He then demanded that a clerk open the cash register and give him all of the money. The clerk did not promptly comply with the robber's demands. The clerk, instead, told the robber that she would have to go to the back of the restaurant for a key. The decision further reports:

"The robber then became extremely agitated, shoved his gun harder into the woman's back, told the employee he would shoot the woman if the employee did not 'quit playing games' and open the cash register immediately. The woman, who believed she was going to die because of the employee's actions, then 'screamed' at the clerk to open the drawer and give the money to the robber, at which point the clerk complied and opened the cash register drawer. The robber seized the money and fled."

The woman later filed a negligence action in the Torrance branch of the Los Angeles County Superior Court. KFC felt that the employee had no duty to the customer and filed a motion for summary judgment. The trial court denied KFC's motion for summary judgment with the result that KFC filed a petition for writ of mandate in the Court of Appeal, seeking to overturn the trial court's order. The Court of Appeal, however, denied KFC's petition, holding that a shopkeeper owes a duty to a patron to comply with an armed robber's demand for money in order to avoid increasing the risk of harm to patrons.

The Supreme Court of California, however, reversed the judgment of the Court of Appeal, holding that there is no duty to comply with a robber's unlawful demand, and the simple refusal to obey such a demand does not breach any duty to third persons present on the premises. The Supreme Court concluded that recognition of such duty would be contrary to public policy as it would encourage similar unlawful conduct.

If this conclusion of the California Supreme Court appears questionable to you, you are not alone. The seven justices of the California Supreme Court were not of one mind on this question. The Supreme Court was divided 4 to 3 in its decision. The Supreme Court noted that the KFC employee did not actively resist or intentionally engage in provocative conduct. The Supreme Court thus concluded:

"Because we are not faced with a situation in which active resistance to a robbery resulted in injury to a third person, our holding is narrow. We hold only that there is no duty to comply with a robber's unlawful demand for the surrender of property. Simple refusal to obey does not breach any duty to third persons present on the premises."


In one of the dissenting opinions of the justices, the alternative argument is made that the issue is not whether there is a duty to comply with the robber's demand, but rather, whether KFC's employee breached a standard of care to the customer by unreasonably refusing to comply with the robber's demand for money. The dissent notes first that:

"the majority and I agree that the restaurant had a duty to take reasonable steps to protect its patrons from foreseeable assault by third parties on the premises. . . . Given this duty, the question of whether the restaurant breached this duty and failed to use due care when its cashier initially refused to comply with the robber's demands is a question for the jury."

The dissent continues:

"As the ultimate success of the robber in this case illustrates, however, it is unlikely that in most cases a proprietor's refusal to cooperate will deny the robber what he seeks. It also seems unlikely that the majority's decision will embolden business proprietors or their employees to refuse the demands of an armed robber at a greater rate than they would if they were under a duty to use reasonable care, for they too are in the robber's zone of danger."

How might you respond to such a robber if you were in his "zone of danger?"


[This column is intended to provide general information only  and
is  not intended to provide specific legal advice; if you have  a
specific  question  regarding the  law,  you  should  contact  an
attorney  of your choice.  Suggestions for topics to be discussed
in this column are welcome.]


Reprinted from The Journal
Myles M. Mattenson 2009

[1]Jerry Maguire 1996