Taverns’ Legal Duty of Care to Customers – Civil Law

To print this article, all you need to do is be registered or log in to Mondaq.com.

Most taverns are notoriously known for their insecurity and violent activities. Serious muggings, bar fights, and occasional deaths are not necessarily unheard of in taverns. Most societies have come to accept such events in taverns. Because of this acceptance, most incidents go unreported. In recent weeks, South Africa has seen a worrying increase in mass deaths in taverns. These, unlike isolated incidents of violent behavior, are of particular concern because they occur on a large scale and in a short period of time. In recent weeks there have been several incidents of tavern deaths, including the death of 21 children in Enyobeni, Eastern Cape, 15 people in Soweto, Gauteng, and 4 in Pietermaritzburg, KwaZulu-Natal. Additionally, 8 were seriously injured in the Pietermaritzburg shootout. Again, in Eastern Cape, there was another incident of assault which resulted in the death of a 19 year old boy. Importantly, these are just reported cases, and in an extremely violent society like South Africa, it would not be surprising if there were many more serious assaults and deaths in taverns. As frequent as they are, it would be irresponsible for society to accept such incidents as “normal” and not work to resolve this issue. We have laws in place that seek to prevent such incidents from occurring in taverns, to hold perpetrators accountable and to compensate victims. It is therefore necessary to examine the legal situation in this respect.

Violent incidents in taverns usually result in criminal prosecution. Thus, one usually sees criminal charges such as murder (for example, Griebenow vs. S), assault with intent to cause grievous bodily harm, assault, intimidation, harassment, etc. For the purposes of this article, however, the focus is primarily on the civil law remedy. Taverns have a legal duty of care to their customers (on the premises). To succeed with a negligence claim, victims must prove, in the aggregate, that the tavern failed in its legal duty to reasonably protect patrons from foreseeable harm, and that such failure resulted in injury (or dead). In determining the extent of the legal obligation and the foreseeable harm, courts are guided by well-established legal principles as well as the circumstances of the case. In an incident like the Enyobeni incident, for example, documentary evidence such as incident and investigation reports, evidence and testimony from survivors, eyewitnesses, etc. will prove essential in any legal action that may arise from such an incident. On mass shooting incidents like the one in Soweto and Pietermaritzburg, documentary evidence, eyewitnesses, etc. will be critical. Importantly, with shootings, the history of violence in surrounding areas and specific establishments may be relevant. This is so because the prevalence of violent activity nearby should inform the nature and extent of security measures to be put in place. If, for example, violence at these establishments (or similar establishments nearby) is widespread and security measures were minimal or non-existent, the court will most likely find that particular establishment legally liable.

Also, the taverns’ duty of care extends to what is served at that particular establishment. Although this duty is not “absolute”, they must take reasonable steps to ensure that everything they serve is safe to eat. Incidents such as customers slipping and falling are common. So, if someone slips and falls and injures themselves as a result, the institution can be held responsible. Similarly, it is possible to hold the tavern legally responsible for injuries resulting from fights in a bar, etc. The overriding principle is that these establishments must put in place reasonable measures to ensure the safety of customers. Either way, it is imperative to keep in mind that not all claims will be successful. There must be a thorough and careful investigation of the unique facts and circumstances surrounding each case/incident, and the establishment must be found to have breached a legal duty of care in order to succeed.

Various civil law claims may arise from such incidents. When the victim himself has suffered injuries (but not fatal), he can sue for personal injury where he can claim various heads of damages, depending on the nature and extent of the injuries. When a “breadwinner” has died, dependents can claim loss of breadwinner and funeral expenses. In the event that a minor child has died, parents/guardians may claim for emotional trauma, funeral expenses (and, sometimes, medical expenses).

While taverns should be allowed to operate freely given their role in the economic growth of communities, it is important that customer safety is protected. When an establishment has not met what is required of it in terms of security measures, the necessary legal ramifications must follow accordingly.

The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought regarding your particular situation.

POPULAR ARTICLES ON: Litigation, Mediation and Arbitration in South Africa

Curator Bonis vs Curator Ad Litem

SchoemanLaw Inc.

Under South African law, certain factors affect a person’s ability to act on their behalf and manage their affairs. For example, factors such as age in the case of minors or mental illness…

South Africa Legal Privilege Meets Journalistic Freedom of Expression

Herbert Smith’s Freehills

Investigative reports written by law firms, accountants or forensic specialists for large corporations are usually highly confidential, but are also highly sought after by the media looking to access information they believe to be of public interest.

Comments are closed.