Premises liability for criminal acts

PREMISES LIABILITY FOR CRIMINAL ACTS — RECENT DEVELOPMENTS

by Michael D. Abraham and Theani C. Louskos

One of the most controversial areas of California law concerns the liability of landlords, business proprietors or property managers for criminal acts by third parties which occur on or near their property. Several recent California court decisions have considered whether a landlord (or proprietor or property manager) was negligent in failing to take reasonable precautions to protect tenants and patrons from criminal acts of third parties. These decisions have important implications for commercial landlords, property managers and business proprietors.

The general rule in California is that a landlord, property manager and business proprietor owes a duty to tenants and patrons to take reasonable steps to secure the premises against foreseeable criminal acts of third parties. The pre-eminent California case on premises liability is the Ann M. decision issued by the California Supreme Court in 1993. In Ann M., the Supreme Court found that a shopping center landlord was not liable to a tenant's employee for negligence when the employee was raped inside the tenant's store. The key question for the Court was whether the landlord had reasonable cause to anticipate that criminal conduct, such as a rape, would occur in the shopping center unless it provided security patrols. The standard the Court applied was that a high degree of foreseeability, based on prior similar criminal acts, is required in order to impose on a landlord the burdensome duty to hire security guards. A landlord also has a duty to exercise reasonable care to discover that criminal acts are being or are likely to be committed on the property. In Ann M., the landlord had implemented a practice of recording all instances of crime and the records contained no reference to similar criminal acts prior to the attack on Ann M. The Court concluded that a violent criminal assault was not sufficiently foreseeable to have required the landlord to provide security guards. Although this case focused on the incidence of prior similar criminal acts, the Court suggested that there may be certain types of commercial property that are so inherently dangerous (such as parking garages and all-night convenience stores) that even in the absence of prior similar incidents, security guards may be required.

In the March 1996 decision Lisa P. v. J. Gordon Bingham, two employees of a shopping center tenant had been attacked by an assailant within the tenant's store. They sued the landlord, the property manager and the anchor tenant for negligence for failing to take reasonable steps to secure the shopping center. Several armed robberies had previously occurred in the shopping center but no violent assaults. The landlord claimed knowledge of only one robbery. This decision was problematic for landlords and property managers because the Court of Appeal held that since there were prior criminal incidents, even if dissimilar to the attack which occurred, it was foreseeable that other violent crimes would occur and, therefore, the landlord had a duty to hire security guards. The landlord tried to avoid liability by claiming that it had relied on voluntary reports of crimes at the center and had obtained actual knowledge of only one robbery. The Court considered this method of monitoring crime unreasonable, and therefore the landlord's lack of knowledge was no defense. The Court essentially found that one prior criminal incident was sufficient to put the landlord on notice of the need to hire security guards. In June 1996, the California Supreme Court refused to review this decision but also ordered that the opinion be "depublished" -- which means that it cannot be cited or relied on as precedent by another court. Although this decision has been depublished, landlords, property managers and business proprietors must still be concerned that any criminal incident that occurs on their premises may be deemed to put them on notice of the need to hire security guards or take other security measures. If, thereafter, they fail to implement security measures and another incident occurs, a landlord, property manager or business proprietor could be subject to liability.

Even when a landlord, property manager or business proprietor does provide security guards, they may be exposed to liability if the security guard failed to prevent a crime and did not act reasonably. In the 1995 Trujillo decision, the Court held that a restaurant owner may be liable for the failure of a security guard to protect a patron, even in the absence of prior criminal acts on the premises. If a security guard acts unreasonably and fails to protect a patron, the business which hires such a security guard may be liable to the patrons for not hiring a competent guard.

Two recent decisions have limited premises liability where the criminal acts occurred near but not on the landlord's property (even where there were prior similar criminal acts or where certain conditions on the landlord's property may have contributed to the crime).

In Medina v. Hillshore Partners, the mother of a man killed by a gang near an apartment complex sued the landlord for negligence and premises liability. The trial court had thrown out the case finding that the landlord had no duty to the victim since he was killed off the premises. The Court of Appeal agreed. A property owner has no duty to protect members of the public from gang members who congregate around an apartment complex and assault individuals on adjacent public streets. The Court was apparently unswayed by the plaintiff's allegations that the gang members used the complex as a headquarters, that some of the gang members were tenants, and that the landlord had received prior complaints about the gang. The Court held that premises liability is limited to the premises and refused to impose liability on the landlord.

A similar result was reached in the March 1996 decision, Debra S. Rosenbaum v. Security Bank Corporation. The Court ruled that a landlord was not liable for a tenant's injuries from a mugging on the street in front of her apartment building. The victim had alleged that the landlord's failure to adequately light the apartment complex, including the garage, caused her to park on the street and made her vulnerable to the street mugging. The Court rejected this theory of liability finding that the dangerous condition that the landlord created on the premises by the inadequate lighting did not spill over into the public street and cause the victim's injury.

The California Supreme Court has recently issued two premises liability decisions which have important implications for landlords, property managers and business proprietors. In the January 31, 1997 Alcaraz decision, the California Supreme Court held that a landlord may be liable for a dangerous condition on adjacent property under the landlord's control. In Alcaraz, the plaintiff was injured when he stepped on a water meter box located in the lawn in front of the rental property. The water meter box's top was either broken or missing. The trial court had granted a summary judgment in favor of the landlord as the water meter box was not located on the landlord's property, but within an adjacent strip of land owned by the city, running between the sidewalk and the landlord's property. The Court of Appeal initially and then the Supreme Court reversed the summary judgment holding that a triable issue of material fact existed as to whether the landlord had exercised control over the water meter box, thereby rendering him potentially liable for failing to warn the plaintiff or protect the plaintiff from the hazard created by the condition of the water meter box. The Supreme Court was careful to note that as a triable issue of material fact existed with regard to the issue of control, it need not and was not deciding the issue of under what circumstances, if any, a possessor of land may owe a duty to warn persons on the property of a hazard located on an adjacent property he or she does not own, control or possess.

The Alcaraz decision is important as it makes explicit that landlords, property managers and business proprietors are potentially liable for dangerous conditions on property which they do not own, but exercise some level of control over.

Likewise, pre-existing case law makes explicit that, if a landlord, property manager or business proprietor is deriving an economic benefit from property which it does not own, e.g. having customers park on an adjacent lot, he or she will potentially be held liable for dangerous conditions on that property.

In the January 6, 1997 Kentucky Fried Chicken of Cal., Inc. decision, the California Supreme Court held that a business proprietor does not owe a duty to customers to comply with the demands of an armed robber. In this case, the robber held a gun to a customer's back and ordered the cashier to give him all of the money in the cash register. When the cashier attempted to stall the robber by telling him that she needed to get the key to the register, the robber became agitated and told the cashier that he would shoot the customer if the cash registered was not immediately opened. Only after the customer screamed at the cashier to comply, did the cashier reluctantly comply with the robber's demand. The customer sued. The Supreme Court held that, as a matter of public policy of not encouraging crime, there is no duty to comply with a robber's unlawful demands and the simple refusal to obey does not breach a duty to customers on the premises.

In so holding, the California Supreme Court noted that it was not deciding whether liability exists for active resistance to the armed robbery which resulted in an injury to a customer. Rather, the Supreme Court limited its holding to the finding that there is no duty to comply with a robber's unlawful demands. Landlords, property managers and business proprietors should therefore not read too much into this decision as it is very likely that active resistance to the armed robbery which results in an injury to a customer would create liability. Furthermore, many businesses have established their own standard of care by having a policy which requires employees to comply with the robber's demands in order to protect the safety of customers and employees. For those businesses, if a customer is injured do to the failure to comply with this policy, it is very likely that the customer will be able to establish liability as the policy creates a duty and standard of care owed to the customer.

The preceding discussion illustrates the complexity of premises liability law. Although the decisions discussed in this article provide some guidelines, every case is "fact specific," making it difficult to specify which security measures are required and what conduct will be deemed sufficient to satisfy the duty to protect against reasonably foreseeable crime. Landlords, property managers and business invitees should consider implementing procedures for monitoring and recording incidents of criminal acts on or near the premises. If one is uncertain as to what security measures should be implemented, a security consulting firm can be retained to provide a security audit with recommendations for improved security measures. However, a security audit can be a double-edged sword. Once the security audit is received, the landlord, property manager or business proprietor must be prepared to carry through with the recommendations. If the recommended security measures are implemented and another incident occurs, it can be argued that the duty to take reasonable steps to prevent foreseeable crimes was met and no liability exists for the incident. On the other hand, if the security audit's recommendations are not implemented and there is a subsequent incident, the failure to implement the recommended security measures will be used by the plaintiff in the ensuing litigation. If security guards are hired, a reputable security firm with trained guards should be used to avoid liability for hiring incompetent personnel.

Premises liability for criminal acts is a rapidly changing area of California law. Landlords, property managers, business proprietors as well as their attorneys and brokers would be well advised to keep abreast with the changes in the law in order to minimize the risk of liability for these incidents.

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