Image 1 – In the same week in January 2020, two different vehicles crashed into this 7-Eleven storefront in Sacramento, CA — (the OSB panel had been installed as a temporary window repair only two days earlier).
Image 2 – This 7-Eleven store in Walnut Creek, CA opened in 2024 — note the row of structural “bollards” (spaced five feet apart) intended to prevent vehicle-into-building crashes.
Building owners have a duty to exercise reasonable care to maintain their property in reasonably safe condition and a duty to use reasonable care to discover any unsafe condition and a duty to remediate, or give adequate warning of, any condition that reasonably could be expected to harm others.
In recent years, there has been a spate of claims nationwide by convenience store patrons injured when drivers accidently crashed into these buildings. During ensuing litigation, it has been shown that such collisions are surprisingly common: e.g., such incidents occur every day (on average) at some 7-Eleven store somewhere in the United States.
Our 20-year dataset of 6,000 such vehicle-into-building incidents at unprotected 7-Eleven buildings well demonstrates that comparable nationwide convenience store chains similarly have failed to respond in a timely manner to defend their patrons from this long-known industry hazard. As seen above at Image 2, many large-scale chains are now installing protective “bollards” at head-on parking spaces fronting new stores. Further, we find that 7-Eleven has initiated a nationwide program to begin retrofitting bollards at their existing stores — while we certainly do applaud this long-overdue remediation plan, we also note the many thousands of unprotected 7-Eleven stores spread across North America.
Duty of Care Evaluations – What Did Defendants Know and What Should They Have Known It?
A duty of reasonable care is evaluated by ascertaining if the defendant knew (or reasonably should have known) of a hazardous condition. For example, our databases of vehicle-into-building crashes confirm that 7-Eleven has long been aware of the nature, seriousness, extent, and potential harm to patrons of this vehicle-into building hazard – as such, 7-Eleven has long had a duty to reasonably act to remediate this known danger.
In contrast, such determinations would not apply to owners of small (‘mom and pop’) shops who simply lack awareness of this issue. Specifically, we reject as unreasonable the opinions of ‘experts’ who assert that all of our nation’s business owners and property managers, no matter how small, local, recent, or uninformed, have the same duty of care to retrofit bollards (five feet apart) in front of their buildings.
Key differences in such ‘duties of reasonable care’ are reviewed in two short Case Studies below:
Case Study 1 (Chicago): 7-Eleven’s $91 Million Settlement in 2023
On September 20, 2017, after purchasing his morning coffee, “Carl” was standing outside of a 7-Eleven store in a Chicago suburb. At the same time, another patron was attempting to park head-on in the space directly in front of where Carl was standing. Unfortunately, this driver accidently pressed on his gas pedal instead of the brake and accelerated over the curb — smashing Carl against a concrete wall. Both of Carl’s legs had to be amputated above the knee.
Carl subsequently sued 7-Eleven — alleging that the absence of protective bollards in front of this store evinced negligent management. During discovery, it was found that another curb-jumping incident had occurred at the same store only 16 months prior. Further, produced data revealed that, on average, about one vehicle-into-building incident per day occurs at the many thousands of 7-Eleven storefronts across the United States. In 2023, a day before jury selection, 7-Eleven paid $91 million to settle Carl’s claim.
Case Study 2 (Small City in Northern California)
In September 2020, while sharply angling into a head-on parking space fronting a circa-1976 office building in a small city in Northern California, a driver (wearing ‘flip-flops’) mistook her gas pedal for her brake and accelerated over the curb at a 60-degree angle — driving a man and his young daughter through plate glass windows (see Image 3 below). These unfortunate victims sued the local building owner and local property manager — alleging that their failure to install a row of safety bollards (five feet apart) in front of this building evinced negligent management. In 2023, after expert depositions, this matter settled for a miniscule fraction of the settlement reached in Case Study 1
Image 3 – In September 2020, while sharply angling into this disabled parking space, a driver mistook her gas pedal for her brake, accelerated over the curb at a 60-degree angle (entirely missing the wood post at left) — driving two people standing at the red ‘X’ through the plate glass. (In deposition, plaintiffs’ expert asserted that this was a reasonably foreseeable event that could have been prevented by retrofitting bollards, 5 feet apart, between the posts.)
What Does “Reasonably Foreseeable” Mean?
As noted, plaintiffs’ expert for Case Study 2 opined that, even though no comparable incident had ever occurred in the 44-year history of this circa-1976 office building, its owner and manager still should have foreseen the possibility that someone parking in this particular space might mistake their gas pedal for their brake, accelerate over the concrete curb at a sharp angle (entirely missing the wood post), and then run into people standing at the red ‘X’ seen above at Image 3.
This absurd finding reflects a failure to differentiate between events that are simply conceivable versus ‘sufficiently likely’ incidents that are reasonably foreseeable — given unbridled imagination, everything can be foreseeable to some advocates:
This legal distinction between ‘reasonably foreseeable’ and ‘simply imaginable’ is well exemplified by the factual differences between Case Study 1 and Case Study 2:
As such, while this harm may have been conceivable, it was not reasonably foreseeable.
The False Equivalence Fallacy
“False equivalence” is a term for cognitive fallacies in which an equivalence is drawn between disparate subjects based on inexpert reasoning. Regarding Case Studies 1 and 2, a plaintiff consultant who would opine that the very same duty of care (to install protective bollards spaced five feet apart) applies to both 7-Eleven (at Case Study 1) and to the building owner and property manager at Case Study 2 would be expounding a false-equivalence (‘apples vs. oranges’) error in expert judgement.
Lonnie Haughton, GC, MCP, CASp
Senior Partner — Principal Codes Consultant
(All views expressed within this position paper are the professional assessments solely of the above-identified consultant. This position paper is general and introductory in nature and is neither intended nor authorized for project-specific use by any attorney, building professional, or other participant in the construction, codes, design, or litigation fields.)
1 Gonzalez v. Southern California Gas Co. (2011) 201 Cal.App.4th 1233 (https://casetext.com/case/gonzalez-v-southern-california-gas-co-1)
