In my opinion, the court would have ruled differently. If Flagiello had been a burglar, then she would not have been a paying customer. That was a big reason that stare decisis was not followed in this particular case. I do believe the judge would have had other similar cases to compare to before the actual decision would be made. I am not sure of the actual law, but I cannot imagine that any criminal would have legal rights to sue an organization that it was committing a crime against.
2. I believe that judges will have to make that determination for each and every case. Most cases have different circumstances that apply to that particular case. If there is precedent that follows that particular case to the letter, then stare decisis should be followed. If the circumstances of a case are not to the letter, then the judge will have to make the proper determination. Judges who make bad decisions in these matters may have to be overturned in appeal courts.
Case 3.1 Estate of Weingeroff vs Pilatus