5-3. Diner Incident
Pam drove to Diner, a local restaurant, at about 5:00 p.m. When she got out of her car in Diner’s
parking lot, she was robbed at gunpoint by an unknown assailant, who took her purse and her
cellular phone. Pam later discovered that she was not the first victim of a crime in the Diner
parking lot. In the past year, two other customers had been the victims of auto burglaries, which
occurred while they were dining inside the restaurant. Diner put two video cameras in the
parking lot, but did not hire security guards to patrol the parking lot.
As the robber began to flee, Pam wanted to get help and decided to run into Diner to use one of
its telephones. She hoped that by calling “911” quickly, the robber could be apprehended and her
property returned. As Pam ran across the parking lot she tripped in a large pothole and fell and
broke her arm. Diner had not repaired the pothole, although customers had been complaining
about it for weeks. All of the complaints were from customers who had not spotted the pothole
while driving, hit it, and worried that their tires would be knocked out of alignment. The pothole
was readily visible to pedestrians. Had Pam not been so panicked by the robbery, she likely
would have noticed the problem and avoided it.
When Pam entered the restaurant, she asked a waiter, Wayne, to let her use Diner’s phone to call
“911.” Wayne refused to let her use the telephone. He said Diner’s policy limited use of the
telephones to employees making business-related calls and strictly prohibited calls by customers.
In fact, Pam later found out that Wayne had misstated the policy, which included an exception for
emergencies. When Wayne refused, another customer promptly called “911” for Pam, using his
own cellular phone. The paramedics and police arrived shortly thereafter, enabling Pam to get
immediate treatment. However, the robber was never apprehended and Pam never recovered her
purse or her cellular phone.