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 through the use of a security camera system or guards. 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 from services from, 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.

Don’t think that you are safe if your business is outside California. Several states treat the issue of “foreseeability of crime” in the same way. Take for instance what a Premises liability South Carolina firm writes on its website – “The South Carolina Supreme Court passed a ruling in Bass v. Gopal, Inc. that since there was a foreseeable risk of a crime taking place, the owner of the property should have taken adequate safeguards to mitigate said risks, failing which he is now held liable in court.” 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 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 f 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. However, if you are in a similar situation where a wrongful death has occurred and you are not to blame then you can check out these wrongful death statutes so you can understand your situation better. 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.