Third-party criminal activity and premises liability

Foreseeability and safety precautions are keys to liability

2014 March

Recent case law on third-party criminal activity and premises liability has established a further understanding of the analysis California courts use in determining liability for the criminal acts of third parties, as well as the factual circumstances required to hold defendants liable for those acts.

The current analysis consists of three parts: First, the court should examine what security measures the plaintiff contends the defendant should have implemented to prevent the harm plaintiff suffered; second, the court should evaluate the financial and social burden of providing those security measures; and third, the court must determine how foreseeable the third party’s conduct was in light of the factual circumstances of the case and balance that against the requested security measures.

Factually, the prior acts giving rise to the duty of a defendant to prevent future acts must be similar in nature, but are not required to be identical. For example, prior criminal incidents involving property crimes such as robberies may not be sufficient to establish liability for a subsequent violent attack on a person where the prior incidents did not involve injuries to the victims. In another case, however, where prior criminal incidents involved a common underlying pattern (gang-related activity), that did establish a duty to prevent future criminal acts.

Alvarez v. Jacmar Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190

This case involves a murder at a Shakey’s Pizza in Hollywood, California. Mr. Alvarez and his friends went to Shakey’s for dinner. While the men in the group took the children to the arcade, the women remained at the table. While at the table, the women were harassed by three other male patrons. When Mr. Alvarez and the group came back from the arcade, the women complained. Alvarez and his friends confronted the harassers. A fist fight ensued. The police were called. Thirty minutes later, the group of harassers returned and shot Mr. Alvarez to death.

Plaintiffs brought an action for premises liability and negligence. During the trial, a Shakey’s employee testified to three prior acts of violence: two incidents where a gun was brandished and one where a fist fight occurred.

The trial court granted defendant’s motion for non-suit basing its decision on the lack of foreseeability of Mr. Alvarez being shot by another restaurant patron. The court stated that a prior event has significance in establishing duty if that event increases the probability of harm in a reasonably foreseeable manner. The plaintiff has to establish that prior similar incidents of violent crime occurred on the premises. Essentially, the prior incidents in this case would have had to involve verbal and physical altercation between customers with a verbal threat of future harm and a return of one of the customers who commits murder. The prior incidents to which the Shakey’s employee testified, while violent, were not similar enough to the incident at bar and thus did not establish foreseeability.

Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666

Ann M. was an employee at a photo-processing shop in a shopping mall. Early one morning, after she opened the store for business, a man entered the store and raped her. Ann M. claimed that defendant failed to provide security patrols in the common areas and that constituted negligence.

In the two years preceding the rape, there were bank robberies, assaults and purse snatchings at the shopping mall.

The court held that under California law, landowners are required to maintain their land in a reasonably safe condition, including taking reasonable steps to secure common areas against foreseeable criminal acts that are likely to occur without such safety measures. Foreseeability can be established despite the absence of prior similar incidents on the premises; but if failure to provide adequate security is the cause of action, prior similar incidents are a must. The court further reasoned that while prior similar incidents are helpful to determine foreseeability, they are not necessary; instead, it should be assessed in light of the totality of the circumstance.

Additionally, the scope of a landlord’s duty to provide protection from foreseeable third-party crime is determined by balancing the foreseeability of the harm against the burden of the duty to be imposed; thus, a high degree of foreseeability is required in order to find that the scope of a landlord’s duty of care includes the hiring of security guards. The requisite degree of foreseeability for requiring the hiring of security guards can only be proven with prior similar incidents of violent crime on the landowner’s premises.

Claxton v. Atlantic Richfield Co. (2003) 108 Cal.App.4th 327

Mr. Claxton pulled into a gas station at 4 a.m. He parked his car at the pump and walked up to the cashier window to pay for his gas and cigarettes. Mr. Claxton was confronted by an alleged gang member who began yelling racial epithets and chasing Mr. Claxton. The attacker began hitting Mr. Claxton with his fists and stabbing him with a screwdriver. Mr. Claxton alleged that defendant negligently operated the gas station and consciously took no efforts to protect and warn their patrons of the criminal activity on the premises.

The trial-court record contained lengthy testimony regarding the gas station’s significant gang-related crime problems including an incident a few months prior when Mr. Claxton’s attacker robbed the gas station manager at knife point.

The trial court granted defendant’s motion for non-suit finding that there were no previous racially motivated assaults at the station, the attack on Mr. Claxton was unforeseeable and therefore defendant did not owe Mr. Claxton a duty. Mr. Claxton appealed.

The appellate court held that Mr. Claxton presented substantial evidence of notice to the defendant due to the significant crime problem at the gas station including the robbery at knife point, the robbery of a customer at the pump (both reported to defendant’s crime hotline), gang-member assaults and altercations at the station, gang graffiti, gang loitering and robberies. The court held that Mr. Claxton presented substantial evidence of prior similar incidents or other indications of reasonably foreseeable risk of violent criminal assault at the station, so as to put defendant on notice and impose a duty to provide additional security measures. The court reiterated that the test for foreseeability is prior similar incidents, not prior identical incidents.

Sharon P. V. Arman. Ltd. (1999) 21 Cal.4th 1181

In this case an unknown assailant sexually assaulted Sharon P. at gunpoint in a commercial parking garage owned and operated by defendants. Plaintiff paid a monthly fee to park in an assigned parking space located below her building. One afternoon, she parked in her space and while preparing to exit her car, she was assaulted by a masked gunman.

Plaintiff sued the owner of land and the owner of the parking company alleging failure to provide adequate security, including poor lighting and inoperative security cameras. She also introduced evidence that in two years before her rape, there were seven robberies in the bank on the ground floor of the building.

Notwithstanding the numerous other robberies, the appellate court concluded that the rape was unforeseeable. The court reasoned that the bank robberies did not involve violent attacks against anyone and were not sufficiently similar to the sexual assault so as to establish the requisite degree of foreseeability to adopt various security measures.

Zelig v. County of Los Angeles (2002) 27 Cal.4th 112

Plaintiffs in this case are the minor children of a woman who was shot to death by her former husband in a Los Angeles courthouse. The decedent and her former husband were in the courthouse for a spousal and child-support hearing. On previous occasions, decedent informed the court bailiff that her former husband might attack or kill her in the courthouse. On at least one occasion, the bailiff searched him for weapons. The decedent sought and obtained restraining orders that prohibited her ex-husband from possessing or carrying firearms. After one of the hearings, decedent and her ex-husband were headed downstairs when the ex-husband pulled out a concealed revolver and shot decedent in the chest. Plaintiffs brought a variety of causes of action of negligence against the county.

Generally, although the government may assume responsibility for providing adequate police protection against third-party violence, there is no legal duty to do so and thus no civil liability for the failure to provide it. Public entities are generally not liable for failing to protect individuals against crime. Public entities, however, are liable for injury caused by a dangerous condition of its property if the plaintiff can establish that the condition existed at the time of injury, the injury was proximately caused by the condition, the condition created a reasonably foreseeable risk of the kind of injury suffered and either an act or omission created the dangerous condition or there was actual or constructive notice of the dangerous condition in sufficient time to take measures to protect against it.

The Court recognized that private landowners have a duty to maintain their premises in a reasonably safe condition and to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautions. Further, the Court recognized that a public entity may owe to members of the public a similar duty if it maintained the property in such a way so as to increase the risk of criminal activity or in such a way so as to create a reasonably foreseeable risk of criminal conduct. Essentially, there is no public-entity liability for injuries caused solely by the acts of third parties. Such acts must be combined with a defective condition of property for a public entity to be liable.

The key to keeping a landowner in a case resulting from third-party criminal activity is to show that similar-type violence had occurred at the location in the past. Without allegations that the landowner had reason to suspect that this type of activity would take place on his property, there is no foreseeability, and without foreseeability there is no duty of care owed to patrons.

If the plaintiff is claiming that not only should the landowner have reason to believe that criminal activity would occur on his premises, but that he should have taken steps, such as hiring security, to prevent it, you have just upped the ante. The more burdensome and costly the security measures you allege should have been taken, the more significantly related the prior criminal acts must be to the criminal act at issue in the current case.

More recent case law has provided some hope for holding the premises owners and operators accountable when they expose their customers to an increased risk. The cases below shed light on the types of fact patterns that successfully establish a duty on the part of premises owners and operators to make efforts to reduce the dangers to people rightfully using the premises.

Landlords and operators of premises cannot decline to take reasonable measures to protect their customers where the conduct on their premises establishes that criminal activity has occurred.

Castaneda v. Olsher (2007) 41 Cal.4th 1205

Plaintiff sued defendant, the owner of a mobile home park, for negligence after plaintiff was injured by a stray bullet shot during a gang fight in the mobile home park where he lived. After defendant purchased the 60-space park, there were several indicators of gang activity on the premises. Two persons hired to manage the property had reported general gang-related activity to defendant including graffiti, at least one sexual assault, witnessed drug sales, and gang members congregating in the park and intimidating other residents. In addition to the general gang-related activity at the park, there were two prior similar incidents that occurred in or around the park in the year and a half prior to the shooting incident in the case.

Although neither shooting took place in the park, the shootings were closely connected to the park.

Plaintiff sued defendant for premises liability. The trial court granted defendant’s motion for a nonsuit. Plaintiff appealed and the Court of Appeal reversed the judgment of the trial court and remanded the case for trial. The Court of Appeal held that when a landlord is on notice of the presence of gang members and gang activity on his property, it is reasonable to expect the landlord to make efforts to increase security measures on the premises.

The California Supreme Court reversed that decision, saying that the facts in this case did not make the violence at issue highly foreseeable and that imposing a duty not to rent to potential gang members is highly problematic because of the potential for housing discrimination.

Further, a landlord is obligated to begin eviction proceedings against a tenant only where the risk of violence toward neighbors or others is highly foreseeable. In this case, evidence of two prior incidents involving gun violence, one involving a gang member, was offered to support that the gang violence in the instant case was highly foreseeable. However, neither of those incidents involved the tenant, and there was no way to connect them to those tenants’ propensity for violence. There were no reports connecting the tenants in question to gun violence, and no one had ever reported seeing any of them with a gun. To establish a duty to evict, the plaintiffs would have had to demonstrate that violence by those tenants or their guests was highly foreseeable.

Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224

This case arises out of a criminal assault against the plaintiff that took place in the parking lot of defendant’s bar. The bar employed two security guards, one to be stationed inside the bar and the other to be stationed on a stool outside the bar in the bar’s parking lot. During the time plaintiff and his wife were at the bar, plaintiff endured constant hostile stares from his attacker and friends, all of which were noticed by the inside security guard. Plaintiff’s wife approached the security guard and expressed her concern that there was going to be a fight. In an effort to prevent a fight, the security guard asked plaintiff and his wife to leave. Thereafter, plaintiff was followed outside by the attacker into the parking lot where the attacker’s affiliates were waiting and was beaten by several people and suffered a fractured skull and a subdural hematoma.

Plaintiff filed a personal-injury suit against defendant on a premises liability theory. Defendant appealed the trial court’s decision that it was negligent contending that because there was no evidence of prior similar assaults either on its premises or in the vicinity, the assault upon plaintiff was unforeseeable as a matter of law, and that as a consequence it owed no duty to provide a security guard and thus was not liable. Plaintiff responded to the argument by asserting that defendant owed him a duty of care because of the special relationship created by the hiring of security guards. The Court of Appeal reversed the judgment in favor of the plaintiff, concluding that although there was evidence establishing that prior fights had erupted in the Trax bar parking lot, there was no evidence of any previous “coordinated gang attack” by “a large group of assailants lying in waiting in the parking lot”.

The California Supreme Court affirmed the decision in Claxton, reiterating that foreseeability remains a highly relevant factor and that the test for foreseeability is prior similar incidents, not prior identical incidents. The Court disagreed with the Court of Appeal that the defendant owed a duty to plaintiff pursuant to the special relationship doctrine because plaintiff produced insufficient evidence of heightened foreseeability in the form of prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assault on defendant’s premises. If that heightened foreseeability had been established, it would have imposed upon defendant an obligation to provide a guard or additional security guards to protect against third-party assaults. The absence of heightened foreseeability, the Supreme Court found, did not signify that defendant owed no other special-relationship-based duty to plaintiff, such as a duty to respond to events unfolding in its presence by undertaking reasonable, relatively simple, and minimally, burdensome measures. Further, the Court recognized that because defendant had actual notice of an impending assault involving the attacker and plaintiff, its special-relationship-based duty included an obligation to take reasonable, relatively simple, and minimally burdensome steps to attempt to avert the danger such as attempting to dissuade the attacker and his group from following plaintiff outside to the parking lot.

Morris v. De La Torre (2005) 36 Cal.4th 260

Mr. Morris, who was a frequent customer of defendant’s restaurant but who did not plan to eat on that occasion, waited outside in the front parking lot while his companions purchased food. Two gang members arrived and began punching Mr. Morris and throwing cans of beer at him. One gang member ran inside the restaurant and departed from the kitchen with a knife. The gang member stabbed Mr. Morris at least twice and used the knife to puncture the tires on the vehicle that he had arrived in. The gang members drove off in their car and soon tracked down Mr. Morris and stabbed him several more times. The criminal attack upon plaintiff in the parking lot commenced in full view of the restaurant’s three employees.

Plaintiff brought an action for visitor’s negligence.

The Court of Appeal ultimately concluded that defendant had a duty to take reasonable and minimally burdensome measures to aid plaintiff in the face of an ongoing attack occurring upon the premises and in the presence of the proprietor’s employees, although at the time of the attack, plaintiff was not a customer planning to eat. Plaintiff asserted that in this case, measures reasonable under the circumstances included defendant’s employees’ use of the restaurant telephone to call 911 in order to summon assistance. The Court stated “[w]hen consistent with the purpose for which the invitation is implicitly or explicitly issued, those who accompany the invitee are themselves invitees.” (1 Dobbs on Torts, supra, section 234, at p. 601.)

Yu Fang Tan v. Arnel Management Co. (2009) 170 Cal.App.4th 1087

Plaintiff in this case was shot by an assailant during a carjacking that occurred in an unsecured area of the parking lot of an apartment complex. Plaintiff had returned home at approximately 11:30 p.m. and was unable to locate an available parking space anywhere other than the leasing office lot, where residents were given special permission to park overnight. Plaintiff brought an action for negligence, loss of consortium, and fraud against the landlord. The fraud claim was dismissed on summary adjudication. At a pretrial hearing, plaintiff’s expert identified three prior violent incidents on the property that bore a strong resemblance to the incident that led to Plaintiff’s paralysis in the instant case.

The prior incidents all involved violence late at night against strangers in unsecured areas of the parking lot. The first incident was an assault with a deadly weapon that occurred near the maintenance garage on the property; a bicycle patrol guard saw a person standing by the garage in the middle of the night and was attacked when he stopped to ask the person what they were doing on the property. The second incident was a robbery that occurred about a year before the attack on the plaintiff, prior to the installation of gates at the back of the property. The assailants blocked a tenant’s car, struck him on the head, and took personal property from him. The third incident involved a sudden, violent attack on a tenant late at night in the parking lot. The victim suffered heavy bleeding from the face, and although the victim did not report the use of a weapon, the severity of the attack led police to classify it as an assault with a deadly weapon.

The trial court granted judgment on the pleadings, and plaintiff appealed. The Court of Appeal reversed, saying that the prior violent incidents were sufficient to establish foreseeability for future violence. In addition, the security measures that plaintiff proposed were held to be minimal and not overly burdensome in light of the facts of the case. Plaintiff asked for an extension of the existing gate structure or some other minimal steps to establish the boundary of the property. The court noted that the trial court’s interpretation of plaintiff’s request imputed security measures not actually requested: there was no request for a guard gate or an overnight guard to admit invited guests beyond an extended fence.

Conclusion

Recent plaintiffs who have been successful in holding premises owners and operators liable for third-party criminal acts have established patterns of criminal activity that render the criminal act that led to their injuries foreseeable, and proposed reasonable security measures that would have prevented those injuries in light of the factual circumstances. To maximize a plaintiff’s chances of success, practitioners evaluating these cases should look for common facts underlying the history of criminal acts on the premises, as well as security precautions that are reasonably tailored to the circumstances that would have prevented the plaintiff’s harm.