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Crime victims face mixed bag of rulings on inadequate security.

Corey Gordon, a Minneapolis attorney who represents crime victims, compares recent case law on inadequate security to the carnival game "whack-a-mole," in which mechanical rodents pop out of holes and back in again while a player tries to strike them with a padded club. Only players with quick reflexes can keep up.

Several recent court rulings support his unlikely metaphor. "You get these ugly little cases, and you whack one down in one jurisdiction and it pops up in another," Gordon said. "It's an area that's in constant flux."

Gordon, who co-chairs ATLA's Inadequate Security Litigation Group, said the trend in case law favors victims who are harmed as a result of poor security at stores, hotels, and other businesses. Courts in about half the states have eased burdens on plaintiffs who try to show that landowners should be held liable for crime-related injuries when they fail to safeguard their premises.

But courts are still unpredictable. "Conservative jurisdictions have been moving to liberal decisions, and liberal jurisdictions have been retreating," Gordon said. He cited recent cases in California, Minnesota, and Nevada as evidence that attorneys representing crime victims in premises liability cases face a "patchwork quilt" of case law in which virtually no issue is settled.

In the California case, the state supreme court backpedaled from an earlier decision that had been seen as a victory for crime victims. The court ruled in December that a landowner cannot be held liable to a victim for failing to provide security guards unless the landowner knew that similar crimes had occurred on the premises in the past. (Ann M. v. Pacific Plaza Shopping Center, 25 Cal. Rptr. 2d 137 (Cal. 1993).)

In 1985, the court had held that prior similar incidents were not a prerequisite for proving that a crime was foreseeable--the element necessary to hold a landowner liable for crime-related injuries. "[F]oreseeability is determined in light of all the circumstances and not by a rigid application of a mechanical prior similars' rule," the court held in Isaacs v. Huntington Memorial Hospital. (211 Cal. Rptr. 356, 362 (1985).)

But Justice Edward Panelli, writing for the majority in Ann M., said that the widespread increase in violent crime made "refinement" of Isaacs necessary. "Unfortunately, random, violent crime is endemic in today's society," he wrote. "It is difficult, if not impossible, to envision any locale open to the public where the occurrence of violent crime seems improbable."

The case involved an employee of a photo-processing store in a San Diego shopping center who was raped shortly after opening the store one morning in 1985. She sued the owners of the shopping center, alleging that they had ignored calls by tenants for security guards. She said the guards were necessary because robberies and purse snatchings had occurred and that "transients" loitering in the common areas posed a threat to the safety of employees and customers.

But Panelli said there was no evidence that the owners knew of prior crimes at the shopping center. Because hiring security guards is costly, the court said, a landowner cannot be required to do so without a "high degree" of foreseeability.

The court held that this could "rarely, if ever" be proven without prior incidents of crime.

"To hold otherwise would be to impose an unfair burden upon landowners and, in effect, would force landowners to become the insurers of public safety, contrary to well-established policy in this state," Panelli wrote.

Justice Stanley Mosk, the lone dissenter, said the decision "resurrects an improper test discarded by this court eight years ago." He said that juries, not judges, should determine whether landowners are liable for failing to provide security guards and whether the cost of providing guards is overly burdensome.

The decision "reinstates the first-free-assault rule," said Carl Lewis, a La Jolla, California, attorney who represented the woman. "It's clearly a pro-business decision and tends to abridge individual rights that had been established in the state."

But Gordon said the decision is not the catastrophe for crime victims that some observers believe it is.

"This is only a security-guards case," he said. The Isaacs totality-of-the-circumstances rule will still apply when victims seek less costly security measures, such as better lighting or locks, he added. Under the court's decision, less foreseeability would be necessary to require landowners to provide these protections than to hire security guards.

He also cited a footnote in which the justices left open the possibility that some types of commercial property, like parking garages and 24-hour convenience stores, may be "so inherently dangerous that, even in the absense of prior similar incidents, providing security guards will fall within the scope of a landowner's duty of care."

The court turned aside a recent plea by a California appeals court to overturn Isaacs outright. In another case arising out of a rape, the lower court said a plaintiff must prove that the crime would not have occurred if the landowner had implemented security measures. (Nola M. v. University of Southern California, 20 Cal. Rptr. 2d 97 (Ct. App. 1993).)

"The supreme court could have adopted the same reasoning" in the case of Ann M., Gordon said. "It didn't do that. What it did was carve out a very narrow and limited exception to the general rule of applying a duty of reasonable care to a landowner."

No Duty

The same week Ann M. was decided in California, the Minnesota Court of Appeals took a much more restrictive view. Holding that there is no special relationship between a business and its customers, the court said a convenience store chain had no duty to protect a customer who was being assaulted in the store's parking lot--in full view of employees. (Errico v. Southland Corp., No. C3-93-980, 1993 WL 513601 (Minn. Ct. App. Dec. 14, 199 3).)

The plaintiff, Juanita Errico, had presented evidence that convenience stores are dangerous by nature and that the store where she was assaulted had a history of criminal activity. But the court said the crime's foreseeability was irrelevant because without a special relationship the store had no duty to protect Errico.

Judge Jack Davies dissented, saying the store owed Errico "some minimal duty" because she was a customer who had been invited onto the premises. At a minimum," Davies said, "store employees, having discovered unlawful and dangerous activity in the store parking area, should call the police, rather than merely pulling up scats for a ringside view."

The Minnesota Supreme Court refused to review the decision. Although other cases in the state have held that certain premises owners do have a duty of care, Errico leaves inadequate security litigation involving commercial establishments "essentially dead" in Minnesota, Gordon said.

On the other hand, crime victims claimed victory last November in Nevada, the most recent state to adopt the more lenient totality-of-the-circumstances test of foreseeability. The plaintiff, Darwin Doud, had been shot in his motor home parked in a Las Vegas casino's parking lot. The Nevada Supreme Court reversed summary judgment for the casino and held that a jury could decide that inadequate security in the parking lot was at least partly responsible for the victim's injuries. Gordon submitted an amicus brief for ATLA on Doud's behalf. (Doud v. Las Vegas Hilton Corp., 864 P.2d 796 (Nev. 1993).)

"The vast majority of case law is very plaintiff-oriented," Gordon said, pointing out that the prior-similar-incidents requirement has been dropped in 25 states, the District of Columbia, and four federal circuits.

Nevertheless, inconsistent decisions in the other half of the states--and in some states, like Maine, the lack of any case law at all--have prompted lawyers to look for help sorting through the confusion. The Inadequate Security Litigation Group has grown substantially in the two years since it was founded, Gordon said, and he expects it to remain busy. "Practitioners are frustrated because it's not a settled area," he said.
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Author:Shoop, Julie Gannon
Publication:Trial
Date:Apr 1, 1994
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