Teenager Jerome Ellington and his friends, all of them members of a gang, went to a bowling alley. A rival gang was at the bowling alley when they arrived. The two gangs engaged in loud verbal taunting during the course of the evening. A bowling alley employee announced over a speaker that persons not actively engaged in bowling were to leave the building. Ellington and his friends exited the bowling alley, as did the rival gang. A member of the rival gang flashed “gang signs,” a form of insult. Ellington responded by punching a rival gang member. A brawl erupted. Two bowling alley employees, whose duties included crowd control, ran to the scene. A car pulled up and a man got out holding a sawed-off shotgun. He shot Ellington in the chest, killing him. The shooter was later tried and convicted of Ellington’s murder.

Ellington’s family sued the bowling alley. The family argued that the bowling alley had failed to provide adequate security, citing a history of crime in the area around the bowling alley, which made the shooting of Ellington a reasonably foreseeable event.

Bowling alley management defended the suit by giving evidence of having provided parking lot security for a number of years prior to the shooting but admitted that a professional security presence was not in the parking lot area on the night in question.

The family sought $2 million in compensatory damages and $1 million in punitive damages. The bowling alley argued that under a comparative fault analysis Ellington was the cause of his harm because he was the initial aggressor. Additionally, the bowling alley denied liability because Ellington was harmed by the intentional criminal actions of the shooter. The bowling alley filed a motion for summary judgment, which the trial court granted.

The state court of appeals reversed the ruling of the trial court. The court held that there was an issue of fact as to whether the bowling alley owed Ellington a duty to protect him from the criminal actions of the gang members. The court noted that state law required business owners to take reasonable measures to protect their customers from foreseeable criminal attacks. Although the bowling alley and the area surrounding it were free of murders and gang-related crimes in the year prior to the incident, the court held that courts must take a “balancing approach” in which incidents of prior crimes, or the absence thereof, are not determinative on the issue of foreseeability.

The court held that the bowling alley had not negated the duty element of the plaintiffs’ claim; the defendant only showed that the plaintiffs had not yet established that the shooter’s actions were foreseeable. Therefore, the bowling alley was not entitled to summary judgment on this basis. Similarly, the appeals court held that the trial court incorrectly ruled on the issue of comparative fault. The appeals court rejected the trial court’s judgment that because Ellington initiated the fight he was more at fault for his own injuries. The appeals court held that determination of fault was premature because the jury was required to first rule on whether the criminal acts that caused Ellington’s death were foreseeable.


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