Common case theories, typical fact patterns, foreseeability, comparative negligence, assumption of risk, and a very effective analogy

By Larry and Roger Booth

Excerpted from Personal Injury Handbook

I.     Elements of Cause of Action and Affirmative Defenses

A.   Theories of Liability

§6:01       Negligence

Premises security is an offshoot of premises liability, which is a specialized form of negligence. See Ch. 5, Premises Liability Cases. In premises security cases, the plaintiff sues a property owner or manager for damages for injuries inflicted on the plaintiff during a criminal attack committed on the defendant’s property. The theory is that the defendant caused or contributed to the plaintiff’s injury by failing to provide adequate security on the property or to eliminate conditions on the property that encourage criminal activity.

These cases require the plaintiff to prove usual elements of negligence, namely, duty, breach of duty, causation and damages. The property owner or manager has a duty to use reasonable care to protect those legally on the premises from foreseeable harm.

The parameters of the defendant’s duty may be an issue. For example, does the duty extend to protecting others from third-party criminals? Is the premises owner required to employ security guards? To what extent does the duty extend to nearby, but off-premises locations? The law in this area is on a factually driven case-by-case basis, which varies widely from state to state.

Other common theories of negligence in premises security cases include failure to train security personnel, failure to warn the victim against the potential of criminal activity, and negligent supervision of employees.

§6:02       Typical Cases

Some of the typical factual scenarios are:

  • A tenant or visitor in an apartment building is attacked or robbed and severely injured or raped by a criminal often in a subterranean garage.
  • A customer at a shopping mall is attacked, robbed or raped in or near the parking facilities.
  • A customer is killed or injured in a convenience store by a robber. The store may or may not have had prior similar trouble. The issue is often the duty to employ a security guard (armed or not).
  • A student on a large college campus is attacked usually in a closed parking facility.
  • n a more unusual case in our practice, an employee of an independent store security company was seriously injured making an after hours cash deposit at a bank. This brings into play evidence of prior similar incidents, lighting and the location of these deposit facilities on the bank premises.

§6:03       Forseeability

To establish duty and breach, the plaintiff must show that the criminal attack was foreseeable. The forseeability analysis generally depends on the number and types of crimes committed on the property or in the surrounding area.See, e.g., Scalice v. Kullen, 710 N.Y.S.2d 632 (App. Div. 2d Dept. 2000) (assault on a supermarket patron by another customer following an argument between the customer and supermarket clerk was spontaneous and an unexpected criminal act of a third party for which the supermarket could not be held liable); Staples v. CBL & Associates, Inc., 15 S.W.3d 83 (Tenn. 2000) (harm suffered by mall patron who was abducted was foreseeable where a visibly shaken patron informed store employees that she was being stalked, one employee agreed to watch as she left store, but forgot; there were numerous incidents of crime on mall premises in the months preceding the abduction, and the gravity of foreseeable harm outweighed the burden of calling security.)

The forseeability analysis is fact-based and different courts have adopted different tests for assessing it. Some jurisdictions require at least one prior similar incident on the property within the recent past to establish forseeability. See, e.g., Kolodziejzak v. Melvin Simon & Associates, 685 N.E.2d 985 (Ill. App. 3d 1997), appeal denied, 690 N.E.2d 1381 (1998) (shooting of patron at mall by gang member was not foreseeable because there were no prior incidents of gang violence or gang activity on the premises; armed robbery in one of tenant’s stores was not linked to gang activity; and report of man with gun concerned an incident that occurred off premises).

Others look at “the totality of the circumstances,” examining crimes committed on the premises, and in the area, as well as conditions on the property that might have made it attractive to criminals, such as poor lighting, inadequate locks and alarms, overgrown shrubbery, and absence of security guards. See, e.g., Seibert v. Vic Regnier Builders Inc., 856 P.2d 1332 (Kan.1993) (duty of shopping center to provide security depends on totality of circumstances and level of such security must be reasonable and economically feasible).

§6:04       Additional Theories

In addition to negligence, other liability theories may be viable depending on the situation including:

  • Violation of statutes requiring security measures; for example, locks on doors and windows, and proper handling of keys in hotels, motels, and apartments. See, e.g., Berry Property Management, Inc. v. Julie Bliskey, 850 S.W.2d 644 (Tex. App.–Corpus Christi 1993) (plaintiff raped in apartment by assailant who stole her key from office; verdict based on negligence for failure to secure keys and violation of Deceptive Trade Practices Act and lease, which required landlord, on tenant’s request, to provide deadbolt locks and night latches).
  • Breach of the implied covenant of habitability in residential tenancies.
  • Fraud, misrepresentation, and breach of express warranties of security, based on oral representations and written representations in leases, advertisements, and brochures.

[§§6:05-6:09 Reserved]

B.   Defenses and Defense Strategies

§6:10       Plaintiff’s Negligence and Assumption of Risk

The defendant may raise the usual negligence defenses of comparative negligence and assumption of risk. These may be successful when the plaintiff is injured while pursuing or attempting to subdue the criminal or after leaving the premises in the wake of a crime. See, e.g., Cook v. Safeway Stores, Inc., 354 A.2d 507 (Dist. Col. App. 1976) (grocery store not liable for injuries incurred by patron when she rashly attempted to restrain a purse snatcher from fleeing the scene, since the store owner could not be expected to anticipate such an incident); Williams v. Cunningham Drug Stores, Inc., 418 N.W.2d 381 (Mich. 1988) (patron who was shot when he ran from store in a panic directly behind robber was not entitled to recovery).

Similarly, adequate warnings that have been properly communicated to the plaintiff can establish the plaintiff’s negligence or assumption of risk, or, from a practical standpoint, make the case extremely difficult to win.

§6:11       Employer Negligence

If the employer was involved in the plaintiff encountering the dangerous premises, for example, because the employer sent the employee into harm’s way on an errand, it may have some share of responsibility. The employer’s negligence will simply reduce the defendant’s share of the liability in states where joint and several liability is not in force or reduce the workers’ compensation carrier’s right to recover its lien.

§6:12       Apportionment of Fault to the Criminal

A big issue in trial is often the defense blaming the third-party (often unknown) criminal. Most jurisdictions no longer follow the principle that the criminal act of a third party is an independent intervening cause that cuts off the defendant landowner’s liability (unless, of course, the act is unforeseeable [see §6:03].) However, jurisdictions that have adopted comparative fault and abolished or partially abolished joint and several liability may require the apportionment of liability between the defendant and the criminal. See, e.g., Thomas v. First Interstate Bank, N.A., 488, 930 P.2d 1002 (Ariz. 1996) (lower court must allow apportionment of liability between bank and assailant who murdered decedent as he was using ATM, rejecting plaintiff’s argument that allowing apportionment would thwart innocent person’s opportunity to recover damages from negligent parties); Weidenfeller v. Star & Garter, 2 Cal. Rptr. 2d 14 (Cal. App. 1991) (court affirmed apportionment between bar and assailant under comparative fault statute rejecting plaintiff’s argument that statute should not be applied to intentional conduct stating that its purpose is to prevent the unfairness of requiring a minimally culpable tortfeasor, as compared to the other parties, to bear all the damages). Other jurisdictions have concluded that their comparative fault statutes do not permit apportionment of damages between the defendant landowner and the assailant who acted intentionally. See, e.g., Wal-Mart Stores v. McDonald, 676 So.2d 12 (Fla DCA 1 1996) (store owner could not seek apportionment against assailant who shot plaintiff in mall parking lot; comparative fault statute allowed plaintiff choice of collecting full damages from either intentional assailant or negligent owner).

An effective argument for the plaintiff to reduce the fault apportioned to the criminal is to compare the facts to renting a boat. A boater rents a boat to traverse shark-infested waters. Unknown to the boater, the boat leaks. The boater takes it into shark infested waters where it sinks and the boater is injured or killed by a shark. We used this argument with spectacular success in the after-hours deposit case (see §6:02). We argued that a boat owner who rents a defective boat to traverse shark infested waters cannot blame the sharks for the boater’s injuries. Similarly, when sending someone to make a bank deposit in a high crime area, the defendant cannot blame the known criminal element. The defendant should have used an armored car service instead of sending some minimum wage security guard with no weapon to be injured and paralyzed. The jury found 5 percent fault on the criminal.

Larry Booth concentrates on high-profile personal injury and death cases in a wide variety of areas including auto defects, construction accidents, products liability, drugs, malpractice, and governmental liability. His firm has produced over 75 verdicts and settlements exceeding $1,000,000.  In 1974, Larry Booth was elected to the Inner Circle of Advocates, which is a national organization limited to the top 100 trial lawyers in the United States. In 1978, he was the President of the Los Angeles Trial Lawyers Association.

Roger Booth. In a legal career that began in 1991, Roger Booth has handled many large, complex cases, representing both plaintiffs and defendants.  Since 1997, he has focused on representing people who have suffered catastrophic injuries or the loss of a loved one.  Roger Booth has handled more than 20 cases that have resulted in verdicts or settlement in excess of $1,000,000.  In 2009 and 2010, he was named a “Super Lawyer,” an honor limited to the top 5 percent of attorneys in Southern California.

Larry and Roger Booth are the authors of Personal Injury Handbook, from which this article is excerpted.