The Volokh Conspiracy - Calling the Police as Negligence:

Yesterday, I blogged about the silent alarm case: A store was being robbed. The safe was set up to trigger a silent alarm to the police station when it was opened (supposedly contrary to company policy). The police came. There was a shootout with the criminals, in which a patron died. The patron's family sued the store for negligence, on the theory that the store shouldn't have risked patrons' lives by triggering the silent alarm. The trial court granted the store summary judgment. The appellate court reversed the grant of summary judgment, holding that it was for the jury to decide whether silently calling the police was negligent.

Some readers agreed with the appellate decision, and thus presumably thought that a reasonable jury might find such conduct negligent, even if other reasonable juries might reach the opposite conclusion. (If no reasonable jury could find such conduct negligent, or if the store lacked any duty to try to prevent injury caused by a police reaction, then the trial court was right to deny summary judgment.) I thought I'd test this broad view of negligence law with the following questions:

(1) Let's say that a store owner is being shaken down by the mafia. Instead of giving in, he calls the FBI. Foreseeably, the mafia learns of this, and, equally foreseeably, decides to retaliate by shooting the store owner. They miss, but hit a patron. The patron's family sues, claiming that the store owner took "action which served to increase the hazard" of mafia attack "and which in fact caused the injury."

(2) Let's say that a store owner sees a gang crime taking place outside the store. Instead of ignoring it, he calls 911. The same chain of events happens.

Would you also conclude that a reasonable jury could hold the store owner liable in such cases as well?

Or would you think that, as a matter of law, there should be no liability for calling the police to alert them to the crime (especially if one calls them without at the same time broadcasting the fact to the criminals, though realizing that the criminals might learn of the call, or might get into a gunfight with the police)?

Or do you think that there's a legally significant differences between my two hypotheticals and the silent alarm case? (I agree that there are factual differences, for instance related to whether the call happens while the criminals are there or after they leave but when it's foreseeable that they'll return with violence; but I don't see why those differences should be relevant to the legal analysis.)

UPDATE: I notice that some commenters are trying to distinguish the cases on foreseeability grounds, but I don't think that works. Just as it's foreseeable — though far from certain — that silently calling the police when a robbery is in progress will lead to a shootout in which a patron can get killed, it's foreseeable that calling the police about mafia or gang activity will lead to retaliation in which a patron can get killed. (Sure, it could lead to retaliation when the store is closed, or against the store owner when he's not at the store; but so a silent alarm could lead to no shootout, or a shootout when the robbers have gotten a few blocks away from the store.) And if you're not persuaded that this is usually so, just assume the quite plausible scenario in which this is indeed foreseeable, because similar criminals have made a habit of retaliating that way in the recent past.

Nor do I think that there's a legally significant distinction — of the sort that would make a difference between granting summary judgment and denying summary judgment — between the risk of a shootout right away and a risk of a shooting some time later, assuming that the later shooting is indeed foreseeable. Why would it be potentially negligent to risk today's batch of customers but not to risk next week's batch of customers? If anything, the silent alarm scenario at least involved some possibility that calling the police would diminish the risk to today's customers, perhaps more than it would increase the risk (though I doubt there's any reliable way of estimating and comparing these two effects). My hypotheticals, at least as I have cast them, only increase the risk to customers.

	[Eugene Volokh, August 14, 2009 at 3:44pm] Trackbacks Calling the Police as Negligence: Yesterday, I blogged about the silent alarm case: A store was being robbed. The safe was set up to trigger a silent alarm to the police station when it was opened (supposedly contrary to company policy). The police came. There was a shootout with the criminals, in which a patron died. The patron's family sued the store for negligence, on the theory that the store shouldn't have risked patrons' lives by triggering the silent alarm. The trial court granted the store summary judgment. The appellate court reversed the grant of summary judgment, holding that it was for the jury to decide whether silently calling the police was negligent. Some readers agreed with the appellate decision, and thus presumably thought that a reasonable jury might find such conduct negligent, even if other reasonable juries might reach the opposite conclusion. (If no reasonable jury could find such conduct negligent, or if the store lacked any duty to try to prevent injury caused by a police reaction, then the trial court was right to deny summary judgment.) I thought I'd test this broad view of negligence law with the following questions: (1) Let's say that a store owner is being shaken down by the mafia. Instead of giving in, he calls the FBI. Foreseeably, the mafia learns of this, and, equally foreseeably, decides to retaliate by shooting the store owner. They miss, but hit a patron. The patron's family sues, claiming that the store owner took "action which served to increase the hazard" of mafia attack "and which in fact caused the injury." (2) Let's say that a store owner sees a gang crime taking place outside the store. Instead of ignoring it, he calls 911. The same chain of events happens. Would you also conclude that a reasonable jury could hold the store owner liable in such cases as well? Or would you think that, as a matter of law, there should be no liability for calling the police to alert them to the crime (especially if one calls them without at the same time broadcasting the fact to the criminals, though realizing that the criminals might learn of the call, or might get into a gunfight with the police)? Or do you think that there's a legally significant differences between my two hypotheticals and the silent alarm case? (I agree that there are factual differences, for instance related to whether the call happens while the criminals are there or after they leave but when it's foreseeable that they'll return with violence; but I don't see why those differences should be relevant to the legal analysis.) UPDATE: I notice that some commenters are trying to distinguish the cases on foreseeability grounds, but I don't think that works. Just as it's foreseeable — though far from certain — that silently calling the police when a robbery is in progress will lead to a shootout in which a patron can get killed, it's foreseeable that calling the police about mafia or gang activity will lead to retaliation in which a patron can get killed. (Sure, it could lead to retaliation when the store is closed, or against the store owner when he's not at the store; but so a silent alarm could lead to no shootout, or a shootout when the robbers have gotten a few blocks away from the store.) And if you're not persuaded that this is usually so, just assume the quite plausible scenario in which this is indeed foreseeable, because similar criminals have made a habit of retaliating that way in the recent past. Nor do I think that there's a legally significant distinction — of the sort that would make a difference between granting summary judgment and denying summary judgment — between the risk of a shootout right away and a risk of a shooting some time later, assuming that the later shooting is indeed foreseeable. Why would it be potentially negligent to risk today's batch of customers but not to risk next week's batch of customers? If anything, the silent alarm scenario at least involved some possibility that calling the police would diminish the risk to today's customers, perhaps more than it would increase the risk (though I doubt there's any reliable way of estimating and comparing these two effects). My hypotheticals, at least as I have cast them, only increase the risk to customers.