Avoiding Liability for Criminal Assaults at Your Business

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Thy Patron's Keeper

When it comes to protecting your customers from the wrongful acts of others, just how much security is enough?

In the modern times in which we live it is practically a foregone conclusion that, if your business entails inviting customers onto your premises, the possibility exists that someday one of those customers may become the victim of a criminal assault by a third party on your premises. The rising tide of violent criminal activity is certainly not a new phenomenon. It has to some extent always been with us. However, under a growing line of cases in California, the risk of criminal assault to your patrons can translate into a risk to you, as the business owner, of civil liability for damages sustained to persons on your premises in an assault. Whether your business will be liable to someone who has been assaulted on or about your premises depends on the answer to a question which is simple to pose, but not nearly so simple to answer: Has your business taken sufficient security measures to protect those on your premises from criminal assault? California law requires landowners to maintain their premises in a reasonably safe condition.⁽¹⁾ This duty has, in some cases, been held to include the obligation to take reasonable precautions to guard against foreseeable criminal acts.⁽²⁾ Such an obligation, naturally, begs two questions: (1) What criminal acts are foreseeable? and (2) What are reasonable precautions against those criminal acts?

Foreseeable Criminal Acts

California's courts have recognized the unfortunate fact that "random, violent crime is endemic in today's society" and that it is difficult, if not impossible, to envision any public place where the occurrence of violent crime seems improbable.⁽³⁾ It would seem, therefore, that violent crime is foreseeable, in the strict sense, anywhere and at anytime.⁽⁴⁾ However, the foreseeability necessary for the imposition of a duty to prevent criminal assaults requires something more than this. In the effort to define "foreseeability," in terms of imposing a duty of care within the context of tort liability, the courts have taken various approaches.

Prior Similar Incidents

Without the benefit of a clear direction from either California's legislature or its Supreme Court on the issue, some appellate courts developed a rule which provided that, in the absence of any prior similar incidents, a landowner was not bound to anticipate the criminal acts of third persons, particularly where the perpetrator was a stranger to both the victim and the landowner and the criminal act came about precipitously.⁽⁵⁾ However, in Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d. 653 [hereafter Isaacs] the California Supreme Court disapproved of the "prior similar incidents" rule and the appellate line of cases which had established it. The Isaacs Court held, instead, that foreseeability should be determined in light of all the circumstances and "not by rigid application of a mechanical 'prior similars' rule."⁽⁶⁾ Foreseeability, therefore, could be established despite the absence of any prior similar incidents.

Subsequently, in Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207 [hereafter Ann M.], the high Court seemed to retreat from its earlier opinion, stating that "refinement" of the rule it had enunciated in Isaacs was required.⁽⁷⁾ The plaintiff in the Ann M. case was raped at her place of employment and she sued the owner of the shopping center where she worked. She alleged that the defendant was negligent for failing to provide security patrols in the common areas of the shopping center to protect her from an unreasonable risk of harm. The Ann M. Court stated that a "high degree" of foreseeability is necessary before a landowner's duty will include the hiring of security guards. The Court further concluded that "the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner's premises."⁽⁸⁾ [Italics added.] The Court thus seems to embrace the "prior similar incidents" rule it disapproved of in Isaacs, at least insofar as determining whether the defendant's duty encompasses an obligation to hire security guards.⁽⁹⁾

Interestingly, while the Supreme Court seems at last to have approved of the "prior similar incidents" rule developed by the lower courts, some courts at the appellate level now seem to be retreating from the rule. For instance, in Phillips v. Perils of Pauline Food Production, Inc. (1994) 33 Cal.Rptr.2d 371 [hereafter Perils of Pauline], the Fourth District Court of Appeal held that the foreseeability of an assault is only one of many factors to be considered by the court in analyzing the question of duty. The Court, citing Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495 at pp. 506-507, 238 Cal.Rptr. 436, stated that, in deciding the question of duty, the court "applies the Rowland⁽¹⁰⁾ analysis of landowner liability of weighing the foreseeability of harm with a non-exhaustive list of other factors and policy considerations to determine whether liability should be restricted under the factual circumstances of the case at hand." This opinion was not unlike that of the Supreme Court in Isaacs. However, the Appellate Court was instructed by the Supreme Court to vacate its decision in Perils of Pauline and to reconsider the case in light of the holding of the Supreme Court in the Ann M. case.⁽¹¹⁾ On reconsideration, the Appellate Court held that, despite the defendant's lack of actual knowledge of any prior similar incidents, the evidence in the case supported a finding that the defendant had "constructive knowledge" of prior similar incidents.⁽¹²⁾ Presumably not wishing to deal with the novel question of constructive notice in the context of the prior similar incidents rule, the Supreme Court, in denying review, ordered that the opinion not be officially published. More recently, in Trujillo v. G.A. Enterprises, Inc. (1995) 36 Cal.App.4th 1105, 43 Cal.Rptr.2d 36, the Second District Court of Appeal held that a fast-food restaurant, which had hired a security guard to protect its patrons, had the duty to protect a patron threatened in the presence of the security guard, even absent proof by the patron that the restaurant had notice of any prior similar incidents.

In light of this equivocation on the issue, it is safe to say that the effect and reach of the prior similar incidents rule are in question. Suffice it to say, however, that a landowner who is in fact on notice of prior criminal assaults on her premises will no doubt be found to have a duty to take reasonable precautions to prevent any future similar incidents. On the other hand, a defendant landowner who does not have actual knowledge of any prior similar criminal acts cannot safely rely on that fact alone to protect her from liability.

Other Factors Affecting Foreseeability

Courts in California have considered a number of other factors, apart from knowledge of prior similar incidents, to determine the extent of a business owner's duty to protect his patrons from the wrongful acts of third persons. It has been stated that the relevant considerations include the "nature, condition and location" of the defendant's premises.⁽¹³⁾ Among the many factors which the court might consider are: whether the neighborhood surrounding the business constitutes a "high crime area," whether, by its nature, the business invites persons or encourages activities which might lead to assaultive behavior, and whether the business is open during peak hours for criminal activity (i.e. late night or early morning).⁽¹⁴⁾ Other factors have to do with the design or layout of the property itself. For example, the court might take into account whether the property has adequate lighting or whether it has structural features which would facilitate lying in wait or otherwise be inviting to criminal activity. In some cases, the courts have gone so far as to suggest that certain types of premises (such as all night convenience stores⁽¹⁵⁾ or parking structures⁽¹⁶⁾), in and of themselves, constitute "an especial temptation and opportunity for criminal misconduct," thus increasing the foreseeability of a criminal assault.

It should certainly be pointed out, however, that it is not possible to list each and every factor which might be considered in any given case, as it has been judicially determined that foreseeability should be determined in light of the "totality of the circumstances"⁽¹⁷⁾ and that the list of factors and policy considerations which should be taken into account is "non-exhaustive."⁽¹⁸⁾

Reasonable Precautions Against Criminal Acts

To the question of what constitutes a reasonable precaution against criminal acts, the courts have provided little, if any, guidance. The difficulty in defining adequate security measures was amply demonstrated in the case of 7735 Hollywood Boulevard Venture v. Superior Court (1981) 116 Cal.App.3d 901, 172 Cal.Rptr. 528, when that court stated: "In this day of an inordinate volume of criminal activity, there are a myriad of 'security devices' available to the public, including the hiring of armed guards. No one really knows why people commit crime, hence no one really knows what is 'adequate' deterrence in any given situation. While bright lights may deter some, they will not deter all. Some persons cannot be deterred by anything short of impenetrable walls and armed guards." (p. 905) Certainly it is not the owner of every business who will be required to implement "impenetrable walls and armed guards." Indeed, in Ann. M., supra, 6 Cal.4th 666 at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207 the California Supreme Court suggested that, at least in the absence prior similar incidents, a defendant will rarely, if ever, be put to the onerous burden of hiring security guards. So then, to protect himself from liability, what is the "reasonable" business/premises owner required to do?

Unfortunately, there is no single answer which will apply to every business or in every situation. However, business owners would be well advised to know how their security measures will be evaluated by the court, should they find themselves involved a suit for damages based on an assault on the business premises. The court will engage in a balancing test in which the likelihood of harm will be weighed against the burden of preventing that harm. Where the burden of prevention would be great, in terms of cost or feasibility, a high risk of harm will be required before such a duty will be imposed. On the other hand, where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser risk will be required for the imposition of the duty. In other words, the extent of the defendant's duty is determined by balancing the risk of harm against the "burdensomeness, vagueness, and efficacy" of the proposed security measures.⁽¹⁹⁾ In balancing these burdens, the court may look to preventative measures taken by similar or nearby businesses in determining whether similar measures would have been feasible or effective in preventing crime on the defendant's premises.⁽²⁰⁾ The size and profitability of the business may also be taken into account. For instance, it has been recognized that those security precautions which may be a minimal burden for the owner of a large business may indeed constitute a significant burden for the proprietor of a relatively small business.⁽²¹⁾

In the event that your business becomes a defendant in a lawsuit to recover damages for injury sustained in a criminal assault, whether, and to what extent, you will be required to compensate the plaintiff for such damages will depend on the "reasonableness" of the security precautions, if any, you took prior to the assault. However, other than to say that precautions which fall short of what is "reasonable" will constitute a breach of the business owner's duty of care to his patrons, the courts have provided precious little in terms of guidance as to what precautions will or will not be found to have been reasonable.

What is clear, however, is that a business owner must be mindful of safety issues, particularly as they relate to patrons on or near the business premises. A business owner who has made no attempt to determine the nature and extent of the risk faced by his patrons of the wrongful acts of others, will not, in all likelihood, be exonerated simply for not having actual prior notice of the risk to his customers. A business owner would be well advised to take, and document, real efforts to determine the nature and extent of risk to his patrons.

One thing, perhaps, that a business owner can do is to determine in advance whether the business is located in a high crime area. Many police agencies maintain statistics on the type and frequency of crimes committed in their jurisdictions and, on request, will make that information available to area residents. You might be surprised and dismayed to discover that certain types of crime occur in the vicinity of your business more frequently than you had previously thought. It may not be comforting to discover this sort of information. However, it is certainly more advisable to make such a discovery before an assault occurs on your premises, and in time to take preventative action, than to discover it during the course of litigation when it will be compounded by the fact that, although the information was available, you never made an attempt to access it.

Another good idea would be to find out what precautions other similar or nearby businesses have taken to prevent crime on their premises. The mere fact that a nearby competitor has taken certain preventative measures will not assure that you will be insulated from liability by undertaking similar measures. However the security measures of nearby or similar businesses just may become admissible evidence in a case against your business to show that feasible, effective security precautions were in fact available to your business.

Perhaps the safest path would entail retaining the services of a qualified security consultant to (1) evaluate the risk of harm to patrons and employees on your premises, and (2) make recommendations as to what security measures would be best suited to your business, given its nature, condition and location. While even hiring a qualified security expert is not guaranteed to protect your business from liability, a plaintiff's burden of showing that your security efforts fell below the standard of reasonableness will certainly be much more difficult to meet in the face of evidence that your business sought out the services of a qualified security consultant, and that you heeded his recommendations.

For the time being there are no clear guidelines to direct a business owner to the path of certain non-liability for criminal assaults which occur on the business premises. Given the almost unlimited circumstances under which third parties' wrongful acts can occur on any given business premises, it is unlikely that there will ever be a single definition of "reasonable precautions" which would apply in every case. In light of these realities, it is incumbent upon each individual business owner to objectively evaluate as best he can the risk of harm to his patrons and to take whatever feasible security precautions are necessary to most effectively minimize that risk, keeping in mind that the ultimate judge of the reasonableness of those precautions will likely be a jury which contains more business patrons than business owners. Until a fool-proof method to protect customers from third party criminal attacks is devised, let the business owner beware.

1. Civ. Code, §1714; Rowland v. Christian (1986) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561.

2. Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490 at pp. 499-501, 229 Cal.Rptr. 456, 723 P.2d 573; O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798 at pp. 802-803, 142 Cal.Rptr. 487.

3. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.

4. 7735 Hollywood Boulevard Venture v. Superior Court (1981) 116 Cal.App.3d 901 at p. 906, 172 Cal.Rptr. 528.

5. Wingard v. Safeway Stores, Inc. (1981) 123 Cal.App.3d 37 at p. 43, 176 Cal.Rptr. 320; accord Anaya v. Turk (1984) 151 Cal.App.3d 1092 at p. 1099, 199 Cal.Rptr. 187.

6. Isaacs, supra (1985) 38 Cal.3d at p. 126, 211 Cal.Rptr. 356, 695 P.2d 653.

7. Ann M., supra (1993) 6 Cal.4th 666, at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.

8. Id. at p. 679.

9. cf. Pamela W. v. Millsom (1994) 25 Cal.App.4th 950, 30 Cal.Rptr.2d 690, holding that the "prior similar incidents" rule is also applicable when the duty sought to be imposed would require the provision of lesser security measures, provided that those measures are sufficiently burdensome to the defendant.

10. In Rowland v. Christian (1968) 69 Cal.2d 108 at pp. 112-113, 70 Cal.Rptr. 97, 443 P.2d 561 the California Supreme Court indicated that the question of "duty" involves the balancing of a number of considerations. The major ones are: "the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved."

11. Phillips v. Perils of Pauline Food Production, Inc. (1994) 36 Cal.Rptr.2d 39, 884 P.2d 987.

12. Phillips v. Perils of Pauline Food Production, Inc. (1995) 42 Cal.Rptr.2d 28.

13. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 at p. 677, 25 Cal.Rptr.2d 137, 863 P.2d 207; Isaacs v. Huntington Memorial Hospital (1985) 38 Cal..3d 112 at p. 129, 211 Cal.Rptr. 356, 695, P.2d. 653.

14. Phillips v. Perils of Pauline Food Production, Inc., supra 33 Cal.Rptr.2d 371 at pp. 376-377.

15. Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, 203 Cal.Rptr. 572.

16. Gomez v. Ticor (1983) 145 Cal.App.3d 622, 193 Cal.Rptr. 600.

17. Isaacs, supra 38 Cal.3d 112 at pp. 127-128, 211 Cal.Rptr. 356, 695 P.2d. 653; Ann M., supra, (1993) 6 Cal.4th 666 at p. 677, 25 Cal.Rptr.2d 137, 863 P.2d 207.

18. Phillips v. Perils of Pauline Food Production, Inc., supra 33 Cal.Rptr.2d 371 at p. 376; Lopez v. McDonald's Corp. (1987) 193 Cal.App.3d 495 at p. 506, 238 Cal.Rptr. 436.

19. Gomez v. Ticor, supra 145 Cal.App.3d 622 at p. 631, 193 Cal.Rptr. 600.

20. Perils of Pauline, supra 33 Cal.Rptr.2d 371 at p. 377.

21. Pamela W. v. Millsom (1994) 25 Cal.App.4th 950 at p. 958, 30 Cal.Rptr.2d 690