*1 Thus, 436. if the district court Each party shall bear its own costs of determines on remand that current use of appeal. any promotional exams violate Title REVERSED AND REMANDED.
VII, Hispanics any should be included in remedy.
VII. INTERIM RELIEF injunction
In our pending appeal, we en-
joined permanent promotions based on the engineer’s and the 1970 lieutenant’s
examinations but temporary pro- allowed
motions positions. to these Promotions Algerie Lawrence MITCHELL and captain’s based on examination Mitchell, Plaintiffs-Appellants, injunction. were not included in the Clearly the creation of new eligibility carefully lists based on validated tests will KENDALL, INC., ARCHIBALD & obviate for the future problems most of the Defendant-Appellee. presented in this case. We are not aware there has been progress towards No. 77-2216. creating such tests and ap- lists while this United Appeals, States Court of peal pending. has been Our evaluation of Seventh Circuit. the case leads us to the conclusion that unless such lists have been created there Submitted Dec. 1977. should be some form of interim relief. Decided March We modify injunction now our pending Rehearing April Denied appeal. Permanent promotions based on the 1969 engineer’s, lieutenant’s, captain’s prohibited examinations are
unless such promotions are first offered to
minority candidates on the respective lists
in the order of their rank thereon. After
the minority any candidates on eligibility
list have been promoted, further vacancies be filled promoting whites on the
list according to their rank. injunction
This as modified shall remain
in effect until issued, our mandate is judgment merits,
therefore until on the ex-
cept that the district given court is leave to (or
modify it) vacate in the light of
developing circumstances.
Insofar as the appealed from
requires posting of vacancies and transfer
orders, and denies further relief with
respect assignment poli- transfer defendants-appellees,
cies of it is affirmed. respects,
In all other it is reversed and the
cause remanded to the district court for
further proceedings consistent with this
opinion. Circuit Rule 18 shall apply on
remand. may, The district court in its dis-
cretion, hear additional evidence. *2 Gaines, 111., Chicago, plain-
Melvin for tiffs-appellants. 111., Quinn, Chicago,
James R. for defend- ant-appellee. FAIRCHILD, Judge, PELL
Before Chief WOOD, Judges. Circuit PELL, Judge. Circuit and Al Plaintiffs-appellants Lawrence gerie appeal Mitchell from dismissing their cause the district court in Kendall, (A K) Inc. & against Archibald & which relief failure to state a claim for major legal question granted. can be diversity case is whether presented in this has a occupier owner or of land reasonably guarding an invitee place beyond the criminal attacks that take on a premises of his boundaries thoroughfare.1 conditions, physical the district opinion, from hazardous In his the district memorandum parked judge judge court asserted: stated that Mitchell was place business. truck near defendant’s injury neither occurred Plaintiff Mitchell’s liability citing holding of a After cases prem egress ingress or to defendant’s on an to an invitee for criminal acts landowner physical from hazardous ises nor resulted occurring generally criminal acts limited to Further, ques the criminal act in conditions. premises recognizing still cases other premises defendant’s tion did not occur on occupier’s This is of the on a street. Court but premises providing boundaries opinion as a landowner that defendant’s egress reasonably ingress and free means of degree. to such a should not be extended delivery following private sets forth the at said warehouse dock.” Mitchell, accompanied by Lawrence The Mitchells had no knowledge facts. or means grandchildren, becoming risk, his wife and two drove aware of the inherent products of A New dangers probabilities truckload & K’s of a criminal as- Jersey cargo and tendered the sault associated with attempting make delivery employees to A at its deliveries at A park- & K’s warehouse or in *3 on m. on ing warehouse Fulton Street 9:30 a. on area of Fulton Street as directed employees. 1973. At the time A & K’s November when arrived, K’s were employees Mitchells A & complaint The set forth five duties which already loading receiving truck assertedly A & K According breached. to area receiving area. Because A & K’s dock complaint, it was A & K’s to at a allowed one truck to be unloaded ordinary prem- exercise care to maintain its time, & or- employees A K’s directed and adjacent ises reasonably and areas in a in Lawrence to remain his dered Mitchell safe to leading condition so as avoid Mitch- Fulton park truck and to it on area of ell into a dangerous perilous A ware- immediately opposite & K’s Street by the injury per- criminal conduct of third adjacent to its until driveway house and sons of which A K was A & aware. & K they unload it. could further owed the duty Mitchell to exercise complaint alleged The that it was A & reasonably reasonable care provide to safe period custom and habit practice, K’s over a of ingress egress, means both within years openly visibly of several use premises the confines of the owned and directly the area in front of and immediate- by A and beyond precise controlled & K ly surrounding receiving area of its boundaries of such K premises. A & owed as an receiving warehouse extension the Mitchells the reasona- exercise parking dock and a area trucks area to protect ble care from criminal acts A waiting to unload deliveries to and persons of third on A premises while & K’s place K at its of business. After Mitchell of such precise boundaries parked his tractor-trailer on Fulton Street premises reasonably provide suffi- employees as ordered A & K’s and while cient number or employees of servants sitting family, in the cab un- two to invitees. A protection afford reasonable approached him known males and demand- & K owed Mitchell ade- money. ed his Mitchell When refused quate timely warning notice and demand, produced unlawful of the men one perils were latent concealed and, 12-gauge shotgun from a distance to A known & K not to the Mitchells. but feet, approximately directly three fired it Finally, according complaint, was The shotgun into Mitchell’s face. blast keep the Mitchells to & K’s towards permanent injuries to Mitchell. caused adjacent immediate premises and the reasonably policed and to exercise area well experience K’s had employees A & that its reasonable care to see repeated prior occasions to November from acts of protected injury criminal about of various criminal acts on and steps take third and to reasonable premises. complaint alleges A & K’s injury invitees. that A & K knew have or should being subjected risk to a high of drivers I. District Use of Claimed Error in Court’s waiting attack while in criminal and assault 12(b)(6) Rule of a in A & parked the cab truck the area. appeal K knew some weeks An initial allegedly present three issue in 12(b)(6), robbery perpetrated an armed was dismissal under Rule Fed. earlier whether R.Civ.P., parked proeedurally proper. another truck driver “while premises waiting plaintiffs-appellants on defendant’s to make contend that dis- plaintiffs Accordingly, because fendant’s motion to dismiss the defendant, existing granted. de- shown Saxbe, City as true. Mitchell’s taken of Milwaukee v. found trict court (7th However, nor ingress 1976). injuries occurred neither on 546 F.2d Cir. and that the premises to A & K’s egress required accept only the court is well- street act occurred on deciding facts as true pleaded They premises. A & K’s of on instead properly granted motion to dismiss was by the district that the issues decided assert required accept legal is not conclu- of a material opinion involved one court’s may be alleged or that sions e., Mitchell take fact, the attack on i. did Id., citing pleaded from the facts. drawn premises? plaintiffs- place on A & K’s 443 F.2d University, Blackburn v. Fisk alleg- assert their appellants 1971). (6th Cir. support and sufficient facts es extensive We think district of Fulton allegation that the area 12(b)(6) dispos properly relied Rule noting premises, A & Street is a ing plaintiffs-ap case. “premises” law the word that under Illinois ’ complaint distinguished care pellants itself *4 and fixed mean- precise not have one does and the fully “premises” between & K’s depend- is and that definition ing in law adjacent area on which A Fulton Street underlying factual circumstances ent on the parking as assertedly K used a warehouse in the term arises.2 the context which and present jury Their that argument area. prac- and through that the habit They insist part that the was a could find street area K, public way question in tices of A & theory “premises” A & K’s sets forth a new K’s integral adjunct of A & has become incor liability. allegations actually at its Fulton address business Street porated complaint into the drafted the acci- jury might that a determine that sculpted in such a as to articulate fashion premises. on A & dent occurred judge theory. that The district court in the district plaintiffs-appellants thus read dismissing ruling the cause in effect was opinion suggesting memorandum court’s legally complaint that as drafted was question that an affirmative answer to the insufficient. the attack on A & K’s occurred “premises” require denial of the mo- specious plaintiffs- character of They argue to dismiss. the dis- tion irregu- argument appellants’ procedural erred in A & K’s mo- granting trict court filing of larity highlighted by their is re- factual cannot be disputes tion because litigation original- appeal. notice of this 12(b)(6). by a motion Rule solved order dismissed the ly merely the court’s was en- judgment no complaint and final con pleadings
Where
raise a
in
case
margin
noted
this
is
tered.3 As
fact,
12(b)(6)
material
tested issue of
a Rule
us
the second time.
presently before
motion must be denied. Carroll v. Morrison
complaint
dismissing
When the order
404,
(7th
F.2d
Corp.,
Hotel
149
408
Cir.
in the
court under Rule
was entered
district
1945).
reviewing
of a motion
grant
Fed.R.Civ.P.,
15(a),
as construed
complaint
state a
dismiss
for failure to
court,
had an ab-
claim,
elementary
plaintiffs
would have
it
that all material
complaint
pleaded
complaint
right
well
in the
must be
to file
facts
solute
an amended
jurisdiction.
Subsequent-
plaintiffs-appellants
appellate
v.
of our
cite Gibbons
tion
Brandt,
385,
(7th
1948);
examining
ly,
process
170 F.2d
387
Cir.
Mer
this court
Import Company
Exchange Building
chants
v.
no
had been
final
record determined that there
26, 38,
Company,
(1904);
Ill.
appeal
210
circumstances complaint, disclosed in the Against Protect Criminal the district Duty II. to Acts court’s order must affirmed. If A of Third Persons on Public & K under a duty Mitchells, Street was to the court’s order must be reversed. law, Illinois a complaint Under a duty the breach of allege preliminary must owed One comment is order be- plaintiff to the in order fore turning analysis defendant to an sufficien- negligence. cy of action for state a cause law. Illinois The Exchange, Inc., parties Boyd Currency v. Racine 56 have both there asserted that is no 97, 95, 39, (1973). 40 Ill. 2d 306 N.E.2d exact reflecting Illinois decision circum- Nonetheless, existence is a of law question present stances of the case. quite clearly very determined court. Barnes v. there are a number of 22, 26, Washington, 535, Ill.2d N.E.2d recent Illinois cases which have considered (1973). question Our answer the issue of a landowner’s posed criminal by the must be based on tenants or invitees acts Although Illinois law. Erie Railroad of third all of these persons. state See Co. v. 817, Tompkins, holding 58 S.Ct. cases reference U.S. made some or (1938). par- Neering, L.Ed. 1188 Inasmuch as both rationale parties cited operation of trains and immediate original their briefs in either of them none as transportation, to sta- under our incidents authority additional by way of buildings appurtenances tion and other lag time allowing for some 11. Even Rule is required the carrier to exercise that at least one it appears publication, keep care in a ordinary reason- and several decision Court Supreme Illinois ably condition for use. safe ap the intermediate decisions recent purposes were available courts pellate at N.E.2d 501. The court 383 Ill. at their con Litigants who take of citation. thought question in the the decisive case injury claim from troversy personal over defendant, was had who notice federal into the system state loitering about its vagrants sta bring all care to take should courts waiting room, in its sleeping tion and had to the attention of state law relevant created a condition became menace this court. peace patrons using at station. Id. 50 N.E.2d Neering, and Fancil Boyd,
A.
Boyd, supra,
In
the court
affirmed
appellant was as
Neering, supra, the
dismissing
circuit court
passenger
raped at a railroad
plaintiff’s complaint
saulted
for failure to state a
a railroad
in the heart of
plaintiff
station located
cause
of action.
contended
with undesir
switching center infested
proprietor
had a
to his
a business
“bums and
many
Because
characters.
able
criminal demands when
honor
during
coming
into
vagrants” were
subject
to do so would
the invitees
failure
depression years of
risk.
unreasonable
also
Jungle.”
as “Hobo
See 383
area was
claimed that the
arose from
rela
371-72,
appellant
at
Ill.
and a
tionship between a landowner
busi
notified the
repeatedly
had
and her sister
responding to these
ness invitee.
con
presence
company’sagent
tentions,
railroad
Boyd majority
observed that
company
Yet
tramps
hoboes.
general
per
in Illinois
inspection made or a
single
to have
anticipate
failed
son has no
about the
attendant
parties.
station
It
Neering
acts of third
read
*6
her 4:59 a.
daily boarded
appellant
time the
general
the
establishing
exception
an
requiring
an
reversing
decision,
In
order
rule,
together
m. train.
observing
o.
in favor of
a
n.
v.
entry
of
cases,
the
many
other of the
involved the
Neering court
company, the
the railroad
question of whether facts existed which
company which
that a railroad
determined
should have alerted the defendant
a risk
numbers of
there were sufficient
knew that
his
of harm to
criminals.
vagrants congregating around
hoboes and
that the Re
Boyd majority further noted
a source
passenger
to constitute
its
station
(Second) of Torts did not con
statement
danger likely
result
as
potential
of
facing.
306
specific
sider the
issue was
was under
obli
upon passengers
saults
point
in the case
N.E.2d at 41. The dissent
and cau
gation
exercise reasonable care
majority
the
failed to
opinion
ed out that
[t]he
parties.
by third
criminal acts committed
companies
railroad
care on the
of
Fancil
arguing
position,
passengers applies
protection
of
Neering, supra;
approach
on the rationale of
Thus,
relied
to tort
liability.
while the
language
Harris,
opinion
of
Neering
387 Mich.
expressly
Johnston
stated that its
decision rested
302B,
the ordi-
(1972); and
N.W.2d 409
§§
nary
care,
standard
of
the Fancil court
(Second)
of
Restatement
of Torts
reads that earlier
as holding
that a
(1965).4
determining
the amended
possessor of land
injured
owed a
to the
dismissed,
properly
the court
person against
risk
harm from the
acknowledged that
or
intentional
intentional
per-
and criminal acts of third
appropriate
criminal conduct under
circum-
special
sons “because
relation of car-
be a
might
stances
risk
which an
passenger
rier and
which existed between
another,
citing
actor
injury
defendant
party.”
(Second)
302B,
of Torts
Restatement
§
(emphasis
N.E.2d at 542
supplied). More-
e,5
315.6
Comment
and §
over, the Fancil court
leaves no doubt re-
approach
analytic
of the Fancil deci-
garding
special
what
relations
it has in
pleaded
light
is to
sion
examine
facts in
mind.
opinion
Thus the
expressly
in Fancil
rules set
liability
appropri-
out
states that
(Second)
Restatement
of Torts
(Second)
ate sections of
314A sets
the special
forth
§
relations which
Quite clearly, the Fancil
inter-
Torts.
give rise
to a
or
aid
another
opinion
its earlier
prets
Neering
through
an unreasonable
risk
physical
lens
American Law Institute
harm.7 328 N.E.2d
opinion
(Second)
pro-
4. Restatement
of Torts
302B
exposed
§
affirmative act has created or
other to a
recognizable
vides:
high degree
risk
through
misconduct,
harm
negligent
An
act or an omission
if
which rea-
sonable
actor
man would
into
realizes
realize
it in-
take
account.
should
volves an unreasonable risk of
to an-
harm
6. Restatement
Torts
315 states:
§
through
other
third
harm,
the conduct of the
or a
other
Principle
General
person
which is intended
cause
There is no
so to control the conduct of
though
even
such conduct is criminal.
person
a third
as to
him from
provides:
Section
causing physical harm to another unless
person
committing
The act of a third
(a)
special
relation exists between the
superseding
intentional tort or
crime
person
imposes
actor and the third
resulting
cause of harm to another
there-
duty upon
per-
the actor to control the third
from, although
negligent
the actor’s
conduct
conduct,
son’s
oppor-
created a situation which afforded an
(b)
relation exists
between
tunity
person
to the third
to commit such a
gives
actor and the other which
other
crime,
tort or
his
unless
actor
at the time of
right
protection.
negligent
conduct realized or
should
realized the likelihood that such a situation
pro-
7. Restatement
of Torts
314A
created,
might
might
person
and that a third
vides:
opportunity
avail himself
Special
Giving
Duty
Relations
Rise to
to Aid
commit such tort or crime.
or Protect
provides:
Section 449
(1)
*7
A common carrier is under a
to its
person
If the likelihood that a third
act
passengers to take reasonable action
particular
in a
manner is the hazard or one of
(a)
protect
against
to
them
unreasonable
the
negligent,
hazards which
the
makes
actor
*
physical harm,
innocent,
such
negligent,
an act whether
in-
(b)
to
them first aid after it knows or
tortious,
tentionally
pre-
or criminal does not
they
has reason to know that
ill or in-
are
being
vent the actor from
liable
harm
jured,
they
and to care for them until
can be
thereby.
caused
by
cared for
others.
302B,
5. Restatement
of Torts §
Com-
(2)
duty
innkeeper
An
is
a similar
to
under
e,
pertinent part,
in
ment
states:
guests.
his
are, however,
(3)
There
possessor
open
situations in which the
of
who
land
holds
to
actor,
man,
required
duty
as a reasonable
is
to
the
of the
under
is
a similar
to members
anticipate
guard against
intentional,
response
the
to
who enter
criminal,
or even
misconduct of others.
In
invitation.
(4)
general,
by
required
these situations arise where the ac-
is
law to take or
One who
special responsibility
voluntarily
custody
tor is
a
under
who
toward
takes the
of another
harm,
the one
deprive
who suffers the
which includes
under
as to
circumstances such
the
duty
protect
protec-
opportunities
the
to
him
inten-
such
other of his normal
misconduct;
duty
tional
or where the
own
tion
actor’s
a similar
to the
under
other.
there was
with
charged
arises
that the defendant
duty generally
that
emphasizes
that
the area was infested with
special responsi-
knowledge
a
under
the actor is
where
hoboes,
harm or
that
the railroad had
tramps
who suffers
the one
bility toward
loitering
persons
exists.
Id.
these
special relation
notice
where a
room,
waiting
even
slept
about
O’Brien, Trice, and Smith
B.
had
fact been so
company
and that
by the
court con-
plaintiff.
notified
appel-
decisions of
intermediate
duty
that the
law
of reason-
cluded
common
con-
before and after Fancil are
courts
late
lawfully
prem-
persons
able care owed to
position
imposition
that the
with
sistent
to
duty
not
extended
a
to
ises could
guard against criminal attacks
duty to
aof
the criminal acts of a third
guard
depends upon both notice
persons
by third
previous
knowledge
absent
inci-
person,
special
danger and the existence of a
special
circumstances which
dents
relationship.
charge
knowledge
the owners with
of the
Inc., 119
Village,
O’Brien v. Colonial
In
anticipate
to
it.
Id.
dangers
(1970),
N.E.2d 205
Ill.App.2d
108, 255
205.8
at
N.E.2d
complaint
was whether the amended
issue
injuries result-
Housing Authority,
a cause
action for
In Trice v.
stated
by
per-
a
assault
a third
ing
(1973),
from criminal
N.E.2d 207
Ill.App.3d
a
parking
a
area of
which occurred in
son
a
the issue whether
landlord
court faced
complaint
center. The amended
shopping
to
tenants from intentional
to exercise reasonable
charged
criminally
acts of other tenants
reckless
unlawful
customers from
care
persons. The court found it unnec-
or third
dangers.
The com-
attacks and warn of
de-
essary
probe
the issue
notice but
pro-
plaint
charged
also
failure
basis of the lack of
the case on the
cided
security personnel
police
premis-
vide
determining that
relationship.”
“special
city
es,
with the fact
did
coupled
granting the defendant’s motion
the order
area,
police the
constituted
parking
not
complaint
must
to strike
amended
duty.
appellate
deter-
breach
affirmed,
recognized
that the
court first
law,
that,
com-
as a matter of
mined
(Second) of Torts
315 states
Restatement
allege
not
facts sufficient to cre-
plaint did
there is no
to control the conduct
on the
defendants
ate
person
degree
to such
as
of a third
Ill.App.2d
plaintiff.
at
causing physical harm to
him from
prevent
N.E.2d
relationship
unless
exists
another
measure,
and the other.
actor
large
the O’Brien court antic-
between
Neering
explained
at 208.
It further
ipated
reading
adopted
later
enu-
Supreme
Illinois
of the Restatement
explained
Court.
It
314A
§§
required
origi-
who
who is
law to take or
The O’Brien
had
One
deleted
custody
allegations
regarding “prior
voluntarily
another un-
nal
incidents of
takes the
activity
premises
deprive
on the
which were
as
der circumstances
Ill.App.2d
power
self-protection
defendants.”
at
of his normal
other
disposi-
subject
persons
255 N.E.2d
207 n. 1. Because our
or to
him to association
him,
case rests
likely
tion
Fancil and
to exer-
to harm
we need
to control the conduct
cise reasonable care so
allegation
determine whether
in the instant
as to
of third
of A K’s&
of one crimi-
intentionally harming
con-
the other or so
prior
attack some three weeks
rob-
nal
ducting
an unreason-
create
themselves
bery
distinguishes
of Lawrence Mitchell
him, if
the actor
able risk of harm
*8
Arguably,
possessor
from
O’Brien.
(a)
he
reason to know that
knows or has
pos-
has
land who
incident
one
ability
the conduct of
has the
to control
sufficient notice.
sesses
persons, and
third
necessity
(b) knows
should know of the
or
(Second)
pro-
Restatement
of Torts
§
opportunity
exercising
for
control.
such
vides:
Duty
Having Custody
of Person
of Another
of Third
to Control Conduct
Persons
special relationships,
merated certain
property
fendant as a
legal
owner a
carrier-passenger,
impossible
business invitor-invi-
which is
performance.
tee,
innkeeper-guest.
Id.
Because the
and essential duty. social There is no task, however, is not to measure the moral requirement reasonable or otherwise blame or worth of A & K. The Illinois any impose upon court could prop- cases have retreated from the broad view of erty owners which could conceivably pre- liability tort espoused Neering by accept vent occurrences such as described in ing liability rules by formulated plaintiff’s complaint. type This of crime American Law Institute. Because the clear springs complex social and other wording appropriate section denies causes far by rectification the business proprietor’s liability, we fulfill To impose liability court. in the case adjudicative our by adhering function to its unjustly place before us would upon de- formulation. pro- animals,
10. Restatement of Torts acts of third or vides: possessor failure of the to exercise reasona- ble care to Open Business Premises to Public: Acts of (a) being discover that such acts are done Third Persons or Animals done, likely possessor open or are of land who holds it entry (b) give warning adequate purposes for his to enable business subject liability harm, visitors members of the to avoid the or otherwise to they [Emphasis sup- while are the land for such a it. physical purpose, plied.] harm caused accidental, negligent, intentionally harmful *9 courts, recognized we be- sonable care is in the Restate- the Illinois Alternatively, 302B, e, 314A c to Comment lieve, § Comment ment § not the defend- regard We do provides part: which relevant controls.11 that Lawrence concession ant-appellee’s are, however, There situations which and on the date was an invitee Mitchell actor, man, as a is re- reasonable waiver injury as an irrevocable time of anticipate quired guard against an ceased to be that Mitchell its defense intentional, criminal, even miscon- when he left the moment invitee others. these situa- general, duct of area returned dock receiving arise where is a tions the actor under Com- wording of the direct Under street. responsibility the one who toward duty that & K had no c, is clear ment harm, duty suffers the which includes the court’s dis- The district the Mitchells. protect him intentional such want of the because missal of the misconduct; or the actor’s own where with that existing duty comports any act has or exposed affirmative created analysis. recognizable high degree the other to forth, set hereinbefore the reasons misconduct, For through of harm risk such cause must dismissing the which reasonable man would take into is (Emphasis added.) account. AFFIRMED. I conclude Illinois courts would fol- position low the the Restatement and FAIRCHILD, dissenting. Judge, Chief owed plaintiff find a defendant in this case question involved this The crucial under the facts of case. whether, law, accepting under Illinois true, of the averments plaintiff any duty owed
defendant with the quarrel I have no
was breached. majority proposition adopted by the
general is owed to
that no acts of third FOODS, INC. Nielsen Brothers JAYS However, prop- I do believe this street. Petitioners, Co., Cartage Inc., facts of Plaintiff fits the this case. osition him to re- alleged that defendant ordered park in his truck and it on a street main LABOR RELATIONS NATIONAL BOARD, Respondent. when defendant knew or should danger of plaintiff would be in No. 77-1326. criminal attack. Plaintiff followed defend- Appeals, United States Court of subsequently instructions ant’s Seventh Circuit. view, affirma- my shot in the face. increased greatly tive conduct defendant Argued Oct. 1977. plaintiff, creating the risk of harm thus Decided March plaintiff on defendant warn 6, 1978. Rehearing April Denied place direct danger or to made. safety delivery until could be principle affirmative conduct create a duty actor can to exercise rea- 314A, passenger, vehicle and ceased to nor of Torts Com innkeeper guest states: under a who is ment c away endangered injured he is while apply stated in rules this Section premises. possessor Nor of land is a parties, the relation exists between the where harm, who has ceased harm, to one the risk of or of further invitee. to be an the course A carri- arises in of that relation. left the is under no to one who has er