Business Liability for Criminal Acts of Third Persons

Businesses have an affirmative duty to take reasonable steps to secure their premises, as well as adjacent common areas within their control, like parking lots, against reasonably foreseeable criminal acts of third parties . [Delgado v. Trax Bar & Grill].

In a tort action, “causation” is an essential element where defendants are not liable unless their conduct (i.e., act or omission constituting a breach of duty to plaintiff) was a “legal cause” of plaintiff’s injury [Saelzler v. Advanced Group 400 (2001); PPG Industries, Inc. v. Transamerica Ins. Co. (1999); Whiteley v. Philip Morris Inc. (2004)]. Legal causation is generally a question of fact to be determined by the jury … unless, as a matter of law, the facts admit of only one conclusion. [Ortega v. Kmart Corp. (2001)].

For example, in a tenant’s suit alleging that the landlord’s failure to provide adequate security contributed to her rape at night by an intruder, it was for the jury to determine whether various security deficiencies, such as her apartment’s lack of security features found in other apartments in the complex, together were a substantial factor in the attack.

Raven H. v. Gamette (2007)

“Bearing in mind that we address only the issue of causation, we conclude that there are triable issues of material fact regarding whether the decedent’s and Mr. Franklin’s efforts to keep unauthorized persons out of the apartment complex, and their allegedly not providing plaintiff with security devices provided to other tenants, were substantial factors in causing plaintiff’s injuries.” (Emphasis added)

While in another case, inadequate security at a large apartment complex was not, as a matter of law, a legal cause of plaintiff’s rape by unknown assailants in broad daylight: There was no proof additional security would have prevented the assault. [Saelzler v. Advanced Group 400].

The extent to which a business must take measures to prevent criminal conduct (e.g., hiring security guards) is determined largely under general negligence principles [(per Rowland v.
Christian (1968)]. The most important consideration is the foreseeability of third persons’ criminal conduct, determined primarily by incidents of prior similar conduct. Other factors include the closeness of connection between defendant’s conduct and the injury suffered; the “moral blame” attached to defendant’s conduct; the extent of the burden to defendant and consequences to the community of imposing a duty of care with resulting liability for breach; and the availability, cost and prevalence of insurance for the risk involved.

To know one’s rights and landlord’s liabilities in a tort action, it is best to work with an attorney who is an expert in personal injuries.

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