Increasing Premises Violence Litigation Threatens Owners

(Originally appeared in Real Estate Law Journal, Fall 1997)

Premises violence lawsuits, which have increased substantially in the last decade, are lawsuits brought by crime victims against landlords, management companies, and other potential deep pockets who might be responsible for the operation of the premises where the crime occurred. The victims argue that the owners and operators of the premises were negligent because they failed to provide adequate security to prevent the crime. Some courts have adopted a balancing approach, declaring that the duty owed by a property owner is determined by balancing the degree of foreseeability of harm against the burden to be imposed. This article suggests that the balancing approach does not provide businesses with the degree of certainty regarding their potential liability that they have in other areas of the law and suggests various measures businesses can take to reduce the risk of crime's occurring and to provide a better legal defense in the event of litigation.

One evening several years ago, a woman drove her car to the main campus of the University of Southern California, intending to drop off a deposit at the USC Federal Credit Union. She parked her car across from the credit union building, walked down the street, and cut across a lawn to the sidewalk in front of the human resources center, just to the east of the building.

As the woman was walking, she was grabbed from behind by an unknown assailant, stabbed, beaten, pushed to the ground, dragged to some bushes in front of the human resources center, and raped. About 30 to 45 minutes later, she heard a car drive by and screamed. Her assailant fled, taking her purse. The car stopped and two men got out; one tried (unsuccessfully) to catch the assailant, and the other took the woman to a campus security station.

The woman later sued USC on the theory that the university had been negligent in failing to deter the attack. After trial she was awarded $1,288,888 in compensatory and punitive damages.

The university appealed, and the award was overturned.1 The appellate court ruled that there was no proof of any causal connection between the woman's injuries and the university's alleged negligence.

Deep Pockets

The case against USC is one example of what has come to be known as "premises violence" litigation -- an area of the law that over the past decade or so has increased substantially, and has cost landowners and operators dearly. As crime increases, so too have civil lawsuits for damages by people who claim to have suffered injury as victims or bystanders to the crime. The lawsuits are brought against landowners, management companies, retail stores, and any other potential "deep pocket" that conceivably might be responsible for the operation of the premises where the crime occurred. The injured parties invariably complain that the owners and operators of the pre- mises failed to provide adequate security to prevent the crime.

Consider these cases, for example:

After one "friend" stabbed another in front of a convenience store, in a parking lot owned by the store, a Massachusetts appellate court affirmed a judgment against the store and ruled that the store should have realized that there was a real and preventable danger to its patrons, in part because the store manager knew the boys were "high," "a condition in which it is foreseeable that almost any irrational act is foreseeable"; the store manager knew that one of the friends had a knife; and the store admitted concern with gang unruliness in that area;2
The estate of an employee murdered in a parking lot sued the employer/store claiming that the lighting was below standard, that the store knew or should have known of the inherent danger due to the store's location in a high-crime area, and that the store failed to provide adequate security;3
A young man sexually abused by his ice skating teacher argued that he was entitled to damages from the owner of the ice rink on the ground that the owner had failed to exercise ordinary and reasonable care for his safety;4
A person who was robbed and shot while making a deposit at a bank's night depository contended that the bank's failure to take additional steps to secure the safety of its customers should result in its being held liable for his injuries.5

Competing Interests

Courts considering these cases have to weigh the competing interests of the parties. Innocent people often suffer severe injuries, even death, as the result of intentional actions by other. But courts recognize that police protection is a governmental, not a private, obligation.

Moreover, although people are often injured on property owned by businesses as the result of the negligence of others, courts are clear that owners and operators of property open to the public for business are not insurers of their guests' welfare under all circumstances.6 The legal question typically at issue in lawsuits filed after people are injured on business property is whether the property owners or operators themselves acted negligently.

To establish negligence a plaintiff has to prove that the defendant owed the plaintiff a duty of care and that there was conduct that amounted to a breach of that duty, injury or loss, cause in fact, and proximate, or legal, cause.

One of the most important elements in dispute in premises violence cases is whether the property owner owed the injured person a duty of care.7 Generally speaking, the duty of care is the legal obligation owed by a defendant to a plaintiff to conform to a reasonable-person standard of care for protection against unreasonable risks of harm.8 Although questions relating to duty of care arise with respect to a third party's negligence as well as with respect to a third party's intentionally criminal acts that lead to a plaintiff's injuries, it is when a plaintiff has been the victim of a crime that the issues can be clearly distilled.

No Duty

When premises liability cases first began reaching the courts in large numbers in the 1960s and 1970s, many courts were reluctant to allow recovery to plaintiffs underthe theory that a business had no duty to protect its patrons from criminal attacks by unknown third parties.9 This initial reluctance to impose a duty was attributed to several reasons, including general principles of fairness, given the unpredictable nature of criminal conduct;10 fear of creating an undue economic burden upon commercial enterprises and the consuming public;11 belief that protecting citizens is a function of the government that should not be shifted to the private sector;12 desire that merchants not become insurers of customer safety;13 and the notion that the criminal's act constituted a superseding, intervening cause sufficient to break the causational chain of liability.14

Nevertheless, the majority of courts that have considered the issue have been unwilling to hold that a business never has a duty to protect customers from criminal acts. Instead, most have held that businesses have a duty to take reasonable precautions to protect customers from foreseeable criminal acts.15 Indeed, this is the position taken in the Restatement (Second) of Torts.16

Courts, however, do not universally agree on the meaning of foreseeability.17

Prior Incidents

In determining foreseeability, some courts have used the so-called "prior incidents rule.18 Under this rule, a plaintiff must introduce evidence of prior incidents of crime on or near the defendant's premises to establish foreseeability. Courts vary, however, on whether the prior crimes must be of the same general type and nature as the offense against the defendant. For example, some courts have held that previous crimes against property were insufficient to give rise to a duty to protect customers from personal assaults.19 By contrast, others have rejected any requirement that the past experience relied on to establish foreseeability must be of the same type of criminal conduct to which the plaintiff was subjected.20

Some jurisdictions have rejected the prior incidents rule, expressing a number of concerns about its fairness, including that because it limits evidence of foreseeability to prior similar criminal acts it leads to arbitrary results and distinctions.21 A number of courts therefore have adopted a "totality of the circumstances" approach, in which the foreseeability of criminal conduct may be determined by considering all of the circumstances, including the nature or character of the business, its location, and prior incidents of crime, if any.22 This approach seeks to avoid determining foreseeability by the rigid application of a mechanical prior incidents rule, which requires finite distinctions between how similar prior incidents must be.

Critics of the totality approach consider it too broad a standard, effectively imposing an unqualified duty to protect customers in areas experiencing any significant level of criminal activity. They believe that it might deem criminal attacks on customers foreseeable as a result of circumstances such as the level of crime in the neighborhood, inadequate lighting, or architectural designs, even if no prior instances of crime had occurred. In addition, there is concern that as a practical matter the totality approach arguably requires businesses to implement expensive security measures (with the costs passed on to consumers) and makes them the insurers of customer safety, two results that courts seek to avoid. As one court has stated, "[b]usinesses may react by moving from poorer areas where crime rates are often the highest."23

Balancing Approach

A number of courts, including the Supreme Courts of California24 and Tennessee25 have adopted a balancing approach that declares that the duty owed by a property owner to a customer or other invitee is a flexible concept that seeks to balance the degree of foreseeability of harm against the burden to be imposed. A high degree of foreseeability of harm would justify a more onerous burden than would a limited degree of foreseeability of harm. Moreover, the balancing approach recognizes that the presence or absence of prior similar incidents of crime is an important factor in determining the degree of foreseeability. Under this rule, as stated by the Tennessee Supreme Court, "[a] business ordinarily has no duty to protect customers from the criminal acts of third parties which occur on its premises. The business is not to be regarded as the insurer of the safety of its customers, and it has no absolute duty to implement security measures for the protection of its customers." The Tennessee Supreme Court continued, however, by stating that a duty to take reasonable steps to protect customers arises "if the business knows, or has reason to know, either from what has been or should have been observed or from past experience, that criminal acts against its customers on its premises are reasonably foreseeable, either generally or at some particular time.26

The Tennessee Supreme Court announced this rule in a case brought by Roger McClung, whose wife, a customer at a shopping center, was abducted from the parking lot and later raped and murdered. McClung's suit alleged that Wal-Mart, the anchor tenant at the shopping center, and the owner and operator of the center were negligent in failing to provide security measures for the parking lot and that their negligence was the proximate cause of his wife's death.

In applying the balancing test, the court noted that in the 17 months prior to the abduction, there had been numerous reports to police of crimes on or near the defendants' premises. These included a bomb threat, 14 burglaries, 12 reports of malicious mischief, 10 robberies, 36 auto thefts, 90 larcenies, and one attempted kidnapping on a parking lot adjacent to the defendants' parking lot. The court also stated that the record established that the defendants' property was located in a high-crime area, that other nearby major retail centers used security measures to protect customers, and that one business even posted guards in five separate watchtowers located throughout its parking lot. Moreover, the court pointed out that the manager of the WalMart store at the time of the abduction testified that he would not hold "sidewalk sales" or place merchandise outside the store, except for "dirt," out of fear it would be stolen.

The court then concluded that considering the number, frequency, and nature of the crimes reported to police, management's acknowledgment of security problems, and other evidence in the record, a finding that the risk of injury to McClung's wife was reasonably foreseeable would be supportable. It therefore ordered the case remanded so that the trial court could weigh the magnitude of the potential harm against the burden imposed on the defendants and whether the defendants had breached any duty that they may have owed.

California Ruling

The California Supreme Court, in a stunning decision rejecting its analysis from a decision in the mid-1980s,27 performed a different balancing test and came to a somewhat different conclusion in a recent case. 28

The case arose after a woman employed by the Original 60 Minute Photo Company in San Diego was raped by a man who came in to the store soon after it opened for business one morning. The woman sued the owners and operators of the Pacific Plaza Shopping Center, where the photo shop was located, contending that Pacific Plaza's failure to provide security patrols in the common areas constituted negligence.

The court conceded that there may be circumstances where the hiring of security guards will be required to satisfy a landowner's duty of care. It stated, however, that such action will rarely, if ever, be found to be a "minimal burden" on the landowner because the monetary costs of security guards is "not insignificant." The court then held that a high degree of foreseeability is required to find that the scope of a landlord's duty of care includes the hiring of security guards.

The plaintiff had introduced evidence at trial that indicated that during the year or two before she was attacked violent crimes -- including bank robberies, purse snatchings, and a man pulling down women's pants -- had occurred in the census tract in which the shopping center was located.

The court concluded, however, that violent criminal assaults were not sufficiently foreseeable to impose a duty on Pacific Plaza to provide security guards in the common areas.

First, it said that Pacific Plaza did not have notice of prior similar incidents occurring on the premises. The court stated that although a landowner's duty includes the duty to exercise reasonable care to discover that criminal acts are being or are likely to be committed on its land, Pacific Plaza presented uncontroverted evidence that it had implemented a standard practice to note or record instances of violent crime and that Pacific Plaza's records contained no reference to violent criminal acts prior to the plaintiff's rape. In a stunning departure from its own precedent, the court ruled that foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner's premises. Moreover, the court added, even assuming that Pacific Plaza had notice of these incidents, the plaintiff conceded that they were not similar in nature to the violent assault that she suffered. The court then concluded that the plaintiff had not presented sufficiently compelling evidence to establish the high degree of foreseeability necessary to impose on Pacific Plaza a duty to provide security guards in the common areas.

Steps to Take

As indicated above, there are various standards that courts use to determine whether to impose liability on the owner or operator of business property following an injury to a member of the public on that property. On some level, at least, the standards seem to be moving in favor of property owners.

  1. Nola M. v. University of Southern California, 16 Cal. App. 4th 421 (Ct. App. 1993).
  2. Flood v. Southland Corp., 601 NE2d 23 (Mass. App. 1992).
  3. Clement v. Peoples Drug Store, 634 A2d 425 (D.C. App. 1993).
  4. Kuhn v. Youlten, 1997 Ohio App. LEXIS 320 (Jan. 30, 1997).
  5. Torres v. U.S. Nat'l Bank, 670 P2d 230 (Or. Ct. App. 1983).
  6. Budet v. K-Mart Corp., 491 So. 2d 1248 (Fla. Ct. App. 1986).
  7. See, e.g., McCall v. Wilder, 913 SW2d 150 (Tenn. 1995).
  8. Id.
  9. See, e.g., Cook v. Safeway Stores, Inc., 354 A2d 507 (DC Cir. 1976).
  10. See, e.g., Davis v. Allied Supermarkets, Inc., 547 P2d 963 (Okla. 1976).
  11. See, e.g., Nappier v. Kincade, 666 SW2d 858 (Mo. App. 1984).
  12. See, e.g., Nappier v. Kincade, supra.
  13. See, e.g., Shaner v. Tucson Airport Auth., Inc., 573 P2d 518 (Ariz. App. 1977).
  14. See, e.g., Ford v. Monroe, 559 SW2d 759 (Mo. App. 1977).
  15. See, e.g., Taco Bell, Inc. v. Lannon, 744 P2d 43 (Colo. 1987).
  16. Restatement (Second) of Torts § 344 states:
    "A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it." Comment f to that section also is relevant and states: "Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection."
  17. Of course, the foreseeability requirement does not apply to a party that has assumed a contractual duty to provide security. Fontana v. Falides Associates, 609 NYS2d 640 (2d Dep't 1994).
  18. See, e.g., Polomie v. Golub Corp., 640 NYS2d 700 (N.Y. App. Div. 1996).
  19. See, e.g., Taylor v. Hocker, 428 NE2d 662 (111. App. 1981) (prior incidents of shoplifting and auto theft at mail did not lead to duty on the part of the mail to protect customers from physical attacks).
  20. See, e.g., Polomie v. Golub, supra.
  21. See McClung v. Delta Square Limited Partnership, 937 SW2d 891 (Tenn. 1996).
  22. See, e.g., Seibert v. Vic Regnier Builders, Inc., 856 P2d 1332 (Kan. 1993).
  23. See McClung v. Delta Square Limited Partnership, supra.
  24. Ann M. v. Pacific Plaza Shopping Center, 6 Cal. 4th 666 (1993).
  25. McClung v. Delta Square Limited Partnership, supra.
  26. Id.
  27. Isaacs v. Huntington Memorial Hospital, 695 P2d 653 (Cal. Sup. 1985).
  28. Ann M. v. Pacific Plaza Shopping Center, supra.
  29. See, e.g., James Strenski, "Standing up for security: Recent Indiana cases limited premises liability," The Indiana Lawyer, May 29-June 11, 1996 at 4.