Criminal Acts of Third Parties – Who is Responsible?
At MCIS Lawyers, we have handled many assault cases involving business owners (third parties). This guide will address when a property or business owner is liable for an assault by a third party that causes injury to a victim.
Duty of Care
As a general rule, there is no duty on the part of a business owner to protect others from the conduct of third parties. Nevertheless, the courts have carved out an exception to this general rule when the “defendant stands in some special relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that conduct. Courts have found that such a special relationship exists between business proprietors of shopping centers, restaurants, and bars, and their tenants, patrons and invitees. Accordingly, the general duty to patrons includes the duty 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 precautionary measures. In determining the existence and scope of a duty to protect, a court considers several factors, including: 1) the foreseeability of harm to the plaintiff, 2) the degree of certainty that the plaintiff suffered injury, 3) the closeness of the connection between the defendant’s conduct and the injury suffered, 4) the moral blame attached to the defendant’s conduct, 5) the policy of preventing future harm, 6) the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and 7) the availability, cost, and prevalence of insurance for the risk involved.
Of all those factors, foreseeability is ordinarily the primary consideration. Typically, courts resolve the existence and scope of a defendant’s duty by balancing the foreseeability of the harm against the burden of the duty imposed. When the burden of preventing the harm is great, a high degree of foreseeability is required. The court looks at the specific action or actions plaintiff claims defendant should have taken. “Only after the scope of the duty under consideration is defined may a court meaningfully undertake the balancing analysis of the risks and burdens present in a given case to determine whether the specific obligations should or should not be imposed on the landlord.” Duty is determined by balancing the “foreseeability” of the criminal acts against the burdensomeness, vagueness, and efficacy of the proposed security measures. A case that illustrates the type of prior similar criminal incidents required to impose this heightened duty on defendant is Tan v. Arnel Management Co., (2009) 170 C.A. 4th 1087. There, plaintiff arrived at his apartment complex around 11:30 p.m. Unable to locate an available parking space with the gated area of the complex, plaintiff parked in the leasing office parking lot outside the gates. As he was parking his vehicle, the assailant approached him and asked for help. When plaintiff opened his window, the assailant pointed a gun at him and ordered him to get out of the car. Plaintiff responded, “ok, let me park my car first”. When the car moved, plaintiff was shot in the neck, rendering him a quadriplegic. Plaintiff brought suit against the management company and property owners. Before trial, the court ruled that three prior violent crimes against others on the property were not sufficiently similar crimes to the one perpetrated on plaintiff to make the assault foreseeable. The trial court therefore refused to impose a duty of care on defendants. On appeal, the court of appeal disagreed with the trial court, concluding that three vicious criminal assaults in a common area within two years of the attack amounted to substantial evidence of a reasonably foreseeable risk of a violent assault to impose a heightened duty on defendants to provide additional security gates. Similarly, in Saelzler v. Advanced Group, (2001), 25 C. 4th 763, the California Supreme Court imposed a duty to provide security guards, but only after finding the existence of prior criminal assaults.
What You Should Do
It takes experience and knowledge to know if third parties can be held liable if someone is attacked by a third party assailant. Schedule a free consultation with MCIS to find out if you have a case.