Is the Business Owner Safe From Civil Liability for Third Party Criminal Activity on Your Premises?

January 2006

By Michael S. Eisenbaum, Esq.

It is well known in California that
if you are the owner of a business, you owe a general duty to members
of the public to protect people from criminal activity occurring on your
premises. This is true, for example, whether you are the owner of the
tiny corner market or Walmart, a small or massive apartment complex. The
nature of this duty is dependant on the foreseeability of such crime,
but when is a particular crime sufficiently foreseeable to require a particular
duty, such as providing live security guards on the premises? Unfortunately
for the business owners, there is no formula that establishes how they
are to go about meeting this duty. No matter what measures are taken,
if a crime occurs, particularly one which causes injury to the victim,
rest assured that the lawyer for the victim, who is now the plaintiff
in the ensuing civil lawsuit against the business, will assert that such
measures were inadequate. Moreover, the plaintiff’s attorney will
attempt to establish that had the business taken appropriate security
measures or provided additional security (in whatever form), the crime
would not have occurred.

The issue of foreseeability of crime
remains subjective, although objective criteria are discussed by the cases
which attempt to provide guidance on the issue. The primary factor, from
an objective standpoint, is the number of prior “similar”
instances of crime in the area surrounding the particular premises being
analyzed. However, what number of prior similar crimes is sufficient to
establish a particular duty? Is one similar crime that occurred a few
years ago sufficient? Perhaps. And what must the business owner now do
to meet his duty? Provide better lighting, change operating hours, trim
surrounding foliage or hire security guards? It becomes particularly troublesome
to determine the nature and extent of the duty when your business is in
a high crime area. California courts have indicated that the standard
test for negligence is applicable regardless of the situation. It requires
a balancing between the foreseeability of harm and the burden imposed
on a business proprietor. Thus, the determination of the duty can only
be decided on a case by case basis, and as such, remains subjective. Arguably,
in today’s society, all crime is foreseeable to some degree, even
if there have been no prior instances of criminal activity in a particular
area. As somewhat of a social commentary, is the business owner better
off purchasing insurance to protect from liability, or purchasing security
guards to protect the customers/guests at the premises? There is no good
answer to that question except to say both, if you can afford it. Regardless
of whether the business can afford both, count on being sued if something
happens, even if the business is located in the safest city in California.
The question then becomes whether the victim/plaintiff will obtain a financial
recovery by proving that the business owner did not meet his duty, and
the failure to do so was the proximate or legal cause of the harm suffered.

Let’s now take a look at California
case law, which attempts to set limitations or boundaries on the issues
of duty and causation with respect to the liability of the business proprietor
for third party criminal activity. We first discuss the issue of duty,
which is technically characterized as a question of law to be decided
by the court, rather than a question of fact for the jury.

The imposition of a duty is a question
of law to be decided on a case by case basis. In the case of a criminal
assault, the decision to impose a duty to protect against criminal assaults
requires balancing the foreseeability of harm against the burden of the
duty to be imposed. Wiener v. Southcoast Childcare Centers, Inc.,
(2004) 32 Cal. 4th 1138. A high degree of foreseeability is required to
find that a landlord’s duty includes hiring security guards to protect
against third party crimes. Ann M. v. Pacific Plaza Shopping Center,
6 Cal. 4th 666 (1993). Most of the cases deal with this issue of foreseeability.
It seems it is easier for the courts to determine whether there is a duty
based upon the nature of the criminal act and whether there were prior
similar instances making the act in question one that is foreseeable.
However, prior similar acts are not always required. For example, in the
case of Isaacs v. Huntington Memorial Hospital, 38 Cal. 3d 112
(1985), the court essentially eliminated the requirement of “prior
similar incidents” to establish a duty or lack thereof as a matter
of law, stating that the “prior similar incidents” rule improperly
removes too many cases from the jury’s consideration.” Id.
at p. 126. Unfortunately, this writer feels the opposite is true. Too
many cases are allowed to go to the jury’s determination because
the business is located in a high crime area, where numerous prior similar
incidents can be cited, almost automatically establishing a duty or a
least making the duty issue one of fact rather than law, based upon the
nature of the burden imposed. This raises another important and perhaps
unanswerable question: Should the business be required to operate at a
loss or at a minimal profit just to theoretically have complied with the
evermore subjective duty that is being imposed? Is that a proper question
for the jury to decide?

Recently, the issue of duty was refined
with respect to foreseeability established by something other than prior
similar incidents. In Delgado v. Trax Bar & Grill, (2005)
36 Cal.4th 260, the plaintiff, who was stabbed in the parking lot in front
of a restaurant by a gang member who had seized a knife from the restaurant’s
kitchen, filed a negligence action against the restaurant’s owner. At
trial, judgment was rendered in favor of the plaintiff, and the defendant
appealed. The Court of Appeal reversed that judgment, holding that there
was no duty to prevent criminal assault by gang members who ambushed a
patron just outside the bar. The Supreme Court, reversed the Court of
Appeal, holding that a showing of heightened foreseeability of criminal
conduct was not always required to impose a special-relationship-based
duty on a business proprietor; that the special-relationship-based duty
extended to the parking lot; and that an issue of fact remained, precluding
summary judgment, whether the owner’s employee’s acted reasonably in failing
to take any measures on the victim’s behalf (whether the business owner
breached a duty to the plaintiff. Thus, because the restaurant was aware
of an earlier incident involving one of the gang members and the plaintiff,
and the restaurant’s security had intervened in that incident, it
has a special-relationship-based duty to take reasonable steps to avert
the danger of an impending assault against the plaintiff. Foreseeability
still plays a role, regardless of its relationship to prior similar incidents.

This leads us to the dilemma of areas
that are infested with “gang violence.” There appears to be
something more to the foreseeability test when it comes to gang violence.
In Medina v. Hillshore Partners, 40 Cal. App. 4th 477 (1995),
the court held that the land owner breached no duty of care for a wrongful
death that occurred off its premises. The court noted that the landowner
could not be held liable for a shooting incident that took place outside
the apartment complex because landowners do not have the duty or ability
to stop gang related assaults in the street. Id. at p. 484. The
opinion in the Medina case leaves open a couple of important
questions. What if the gang member steps onto the property and commits
a crime? Should liability now be imposed? What if the gang member shoots
a weapon from a location off the property, and injures someone on the
property? Logically, the rationale of Medina should still apply
and bar liability.

Recently, in Castaneda v. Olsher
(2005) 132 Cal.App. 4th 627, the court addressed the issue of gang violence
occurring on one’s premises. In Castaneda, the plaintiff
was injured by a stray bullet shot during a gang fight in the mobile home
park where he was residing. Plaintiff sued the owner of the mobile home
park for negligence alleging that he breached his duty to take reasonable
steps to ensure the safety of the park’s residents. The trial court,
at the close of plaintiff’s evidence, granted the owner’s
motion for nonsuit on the grounds that the plaintiff failed to establish
the owner had a duty to him, or that any alleged breach of duty was a
proximate cause of the plaintiff’s injuries. The Court of Appeal
reversed, holding that there were sufficient facts to establish that the
gang shooting was reasonably foreseeable. The owner knew that gang members
were living and congregating at the park, and specifically in the location
from which the bullet came that injured the plaintiff. The owner was aware
that gang-related crimes and other activity had occurred on the premises,
and thus the owner had a duty to undertake additional security measures
to protect the park’s residents from gang violence. The Court of
Appeal held that a duty existed as a matter of law, and that the jury
needed to decide whether the breach of that duty was the cause of plaintiff’s
injuries.

The issue of causation is a limiting
factor with respect to the business owner’s liability. For the plaintiff
injured by criminal activity, it can be considered a “causation
dilemma.” Where generally the issue of causation has historically
been considered a question of fact to be determined by the jury, there
are instances where it has been decided as a matter of law in favor of
the business/property owners based upon the speculative nature of the
causation allegations. This remains true even where a court has made a
threshold determination that the owner did not meet his duty as a matter
of law to provide security measures. Many of the discussions in the case
law addressing whether there is a duty to provide security, recognize
that even if security guards had been provided, it is difficult, if not
impossible to determine precisely what type and amount of security would
have prevented the crime, even assuming that it was reasonably preventable
in the first place.

In Saelzler v. Advanced Group 400,
25 Cal. 4th 763 (2001), a delivery woman brought an action against the
owners of a large apartment complex because she was assaulted and seriously
injured on the premises while attempting to deliver a package. The attack
occurred in mid-afternoon as she entered through one of the many gated
entrances to the premises. She observed two men sitting on a gate that
had been propped open, and a third man was already inside the premises.
As she was attempting to leave, she was attacked and beaten by the three
men who attempted to rape her. She did not know if her attackers were
gang members, tenants or trespassers. Plaintiff contended that the owners
of the complex knew that dangerous persons frequented the premises, and
presented evidence that the defendants were previously aware of criminal
activity on the premises.

The lower court granted defendant’s
motion for summary judgment, finding that the plaintiff failed to show
that defendant’s breach of duty to safeguard her was a proximate
cause of her assault. The Court of Appeal reversed, concluding that the
plaintiff’s showing was sufficient to raise a triable issue on causation
for the jury. In reversing the Court of Appeal, the Supreme Court noted
that the defendants may have breached a duty to keep all entrance gates
locked and to provide additional daytime security guards. However, the
evidence merely showed the speculative possibility that additional security
guards or functioning gates might have prevented the attack. Thus, summary
judgment was proper, with the court deciding the causation issue as a
matter of law.

In Nola M. v. University of Southern
California
, 16 Cal. App. 4th 421 (1993), the plaintiff was attacked
and raped on the university campus. At trial, she introduced expert testimony
that the security measures were inadequate and that there was dense foliage
in the area which concealed the attacker. The jury awarded the plaintiff
compensatory and punitive damages. On appeal, the court reversed with
directions to enter judgment in favor of the defendant. The court reasoned
that although the defendant was negligent for providing inadequate security
and allowing dense foliage to exist, there was no causal link between
that negligence and the plaintiff’s injuries. The negligence in
this case was determined to be “abstract negligence.” Id.
at p. 430.

In reaching its conclusion, the court
surmised that it was impossible, both practically and financially, for
the defendant to ensure the safety of persons such as the plaintiff. No
one could determine what security measures would have been sufficient
to deter the attack. Id. at p. 437. Going even further, this
court notes that police protection is, and should remain, a governmental
as opposed to a private obligation. Landowners in violent crime areas
ought not to be forced out of the area by the imposition of liability
to victims of violent crimes which the police have been unable to prevent.
Id. at pp. 437-38. It is well established that abstract negligence
will not support liability. To conclude otherwise would create a form
of victim compensation which is not legislatively sanctioned. Id.

There are a number of cases where the
courts have found that the failure to provide security, whether required
by a legal duty or not, was not the cause of injuries to the plaintiff.
For example, in Thai v. Stang, 214 Cal. App. 3d 1264 (1989),
the plaintiff was a victim of a drive by shooting while standing outside
the entrance to Skateworld Roller Rink. Plaintiff offered expert testimony
that the shooting probably would not have occurred in the presence of
a uniformed security guard. However, given the random nature of drive
by shootings, the court refused to impose a duty on the owner of Skateworld
to protect against this type of harm. Id. at p. 1273. The court
went on to hold that, even if there was such a duty, no liability should
attach since the owner’s purported negligence was not a proximate
or legal cause of the injury as a matter of law. The court concluded that
the plaintiff’s expert opinion was pure speculation and did not
create a triable issue regarding causation. Id. at p. 435.

In Lopez v. McDonalds Corp.,
193 Cal. App. 3d 495, (1987), 21 people were killed and 11 more wounded
when an assailant entered the restaurant and started shooting with several
weapons at patrons and employees. This restaurant was in a high crime
area with heavy gang activity. Within the three prior years, there were
numerous robberies and other crimes on the premises and more within the
immediate area. The primary issue in the case was causation, since it
was undisputed that McDonalds failed to take any protective or precautionary
measures to safeguard its patrons for the reasonably foreseeable conduct
of unknown third parties. The court determined, despite expert testimony
that the use of security would have acted as a deterrent and could possibly
have prevented the massacre, that McDonalds’ negligent conduct was
not a substantial factor in bringing about the plaintiffs’ injuries,
if the injuries would have been sustained even if it had provided a security
guard. Id. at page 513-515. Of course, this case has extremely
unique and horrific facts, but seems to illustrate the overall reluctance
of the courts to hold landowners liable for random, violent criminal acts
on or near their premises, where the element of causation cannot reasonable
be established.

Although we have discussed many of
the cases addressing the issues of duty and causation, there are several
cases determining that there was no duty to provide security or more security
in particular factual contexts, as well as additional cases finding a
lack of causation. These cases include Weiner, cited above, (no
duty requiring child care facility to erect strong enough barrier to prevent
Motorist from intentionally driving his car through the fence and killing
children); Kadish v. Jewish Community Centers 112 Cal. App. 4th
711 (2003) Review Granted (no duty to provide security
despite the organization receiving vague threats against their members
and a racist man fired shots into a crowd at the organization, striking
a child); Gregorian v. National Convenience Stores, 174 Cal.
App. 3d 944 (1985) (no duty to prevent patron from being beaten at defendant’s
market by a marauding youth gang since the attack was not foreseeable,
and the adequacy of security measures taken to prevent injury is normally
a question of fact except when there is no evidence that some action on
the part of the owner could have prevented the attack); Noble v. Los
Angeles Dodgers
, 168 Cal. App. 3d 912 (1985) (Dodgers’ method
of policing the parking lot may have been negligent, but there was no
causal connection between that negligence and the plaintiffs’ injuries).

In conclusion, when defending against
claims involving third party criminal activity, the first prong of attack
should be with respect to the issue of whether a duty was owed. If the
criminal activity in the immediate vicinity of the defendant’s business
is minimal, or perhaps distinct from the crime that occurred to the plaintiff
in your case, a court can reasonably conclude that the alleged duty does
not exist. However, as the duty issue invariably involves the court having
to balance the foreseeability vs. the burden factors, the court may decline
to make such a determination.

The second prong of attack is on causation,
and follows a much more logical and objective approach. Ironically, the
likelihood of success on a motion for summary judgment actually appears
stronger on causation, which has traditionally been considered a question
of fact for the jury. The most likely means for the plaintiff and his
attorney to attempt to defeat a motion for summary judgment is to have
an expert testify that the property owner should have provided some form
of live, armed security on the premises, and that such security would
have prevented the attack. Logically, that might create a triable issue
of fact on either or both issues. The plaintiff would have a reasonable
chance of defeating summary judgment on the duty issue, but significantly
less chance on causation. Perhaps it was stated best by the court in the
Nola M. case: “it is one thing for an expert to testify
concerning the mechanical devices such as locks, safes, fences, etc. which
are designed to protect property by ‘hardening the target,’
it is quite another for such expert to discuss deterring conduct such
as rape, robbery or physical assaults….It is an easy matter to know
whether a stairway is defective and what repairs will put it in order,…but
how can one know what measures will protect against the thug, the narcotic
addict, the degenerate, the psychopath and the psychotic?” Id.
at p. 430.

Please Note: This article is necessarily general in nature and is not a substitute for legal advice with respect to any particular case. Readers should consult with an attorney before taking any action affecting their interests.