Establishing a duty: reaching the promised land.

Proving the defendant's duty to prevent or minimize violent crime is fundamental in inadequate security cases.

In inadequate security litigation--unlike motor vehicle cases, products liability actions, and many other areas of tort law--trial lawyers constantly face challenges in establishing the very existence of a duty on the part of the defendant. To withstand the inevitable summary judgment motion, plaintiff's counsel must constantly evaluate the evidence to determine what theories to use to establish a duty and should evaluate alternatives to negligence, particularly in jurisdictions hostile to security claims. The right theory will lead to the promised land: justice for the plaintiff.

Victims of criminal violence traditionally had no recourse against premises owners and operators, except for innkeepers.(1) Over the last 30 years, appellate courts have revisited the issue, and many states now recognize a cause of action for inadequate security provided that the defendant could have reasonably foreseen that a violent crime could occur.(2) Other states are far more restrictive, particularly with regard to negligence claims.(3)

Different states have established different criteria for proving foreseeability. Certain jurisdictions still cling to the restrictive view that victims must establish that "prior similar crimes" occurred at the premises. In these states, the law varies with respect to whether the analysis may include only crimes that were committed at the defendant's premises(4) or also those that were committed in the surrounding neighborhood.(5)

More progressive jurisdictions evaluate foreseeability based on the "totality of the circumstances."(6) For example, in Isaacs v. Huntington Memorial Hospital, an anesthesiologist was shot in a physicians' parking lot at a major hospital located in a high-crime area.

Although no prior crimes had occurred in the lot, numerous crimes--including violent ones--had been perpetrated in the nearby emergency room parking lot, prompting the hospital to hire security guards. The court held that the crime was foreseeable because the physicians' parking lot could not be isolated from the adjacent area where violent crimes had occurred regularly enough to warrant the hiring of security guards.(7)

Evidence that a defendant foresaw the danger of crime may be found in internal documents. In Small v. McKennan Hospital, a hospital employee was abducted from a parking ramp elevator, raped, and murdered. The South Dakota Supreme Court determined that the hospital had foreseen the risk of violent crime in its parking garage when it published crime advisories in staff newsletters.(8)

Assumption of a duty

Crime victims' negligence claims against premises owners may also be based on the defendant's assumption of a duty. It has been well established for decades that a defendant can voluntarily assume a duty to act and that, once assumed, the duty must be discharged with reasonable care.

In 1922, Judge Benjamin Cardozo enunciated the oft-repeated rule: "It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all."(9) The U.S. Supreme Court and federal and state appeals courts have recognized and applied assumption-of-the duty principles in identifying a duty to protect people from crime.(10)

In Sheridan v. United States, several military corpsmen found an obviously intoxicated serviceman "lying face down in a drunken stupor" on the floor of a military hospital.(11) They tried to bring him to the emergency room, but he broke away and grabbed a bag in which the corpsmen saw a rifle barrel. The corpsmen fled and never took any action to alert authorities to the danger posed by an inebriated, rifle-toting serviceman. He later shot and injured the plaintiff.

In ruling that the assault and battery exception to the Federal Tort Claims Act was inapplicable, the Supreme Court observed that the tortious conduct involved the negligence of the military corpsmen in not intervening to stop a crime from taking place. The Court expressly determined that liability could be based on the defendant's assumption of the duty to control the acts of others:

   By voluntarily adopting regulations that prohibit the possession of
   firearms on the naval base and that require all personnel to report the
   presence of any firearm, and by further voluntarily undertaking to provide
   care to a person who was visibly drunk and visibly armed, the government
   assumed responsibility to "perform [its] `good Samaritan' task in a careful
   manner."(12)

State appellate courts in a variety of jurisdictions also have ruled that defendants can assume a duty to protect people against violent crime. For example, in Sharp v. W.H. Moore, Inc., the plaintiff had been sexually assaulted in an office building by an assailant who allegedly entered the building after hours through a door left unlocked by a security guard.

The Idaho Supreme Court ruled that "a landlord, having voluntarily provided a security system, is potentially subject to liability if the security system fails as a result of the landlord's negligence."(13)

Apart from common law negligence claims, local ordinances or regulations may impose specific legal obligations, such as parking lot lighting requirements. Violations may constitute negligence per se. For example, the Virginia Residential Landlord Tenant Act provides that

   the governing body of any county, city, or town may require by ordinance
   that any landlord who rents five or more dwelling units in any one building
   shall install ... removable metal pins or charley bars in accordance with
   the Uniform Statewide Building Code on exterior sliding glass doors located
   on a building at any level or levels designated in the ordinance.(14)

Ordinances may require security guards at apartment buildings, shopping centers, arcades, and truck stops.(15)

Fraud claims

In certain circumstances, defendants may make representations regarding safety, security patrols, closed-circuit television cameras, and the absence of prior criminal activity at the premises.

If a defendant has made these or other similar representations and counsel can successfully establish that the plaintiff detrimentally relied on them, a fraud theory should be pursued.

Fraud theories are most common in landlord-tenant cases in which leasing agents make representations to sign up tenants. In certain states, these claims may be coupled with statutory deceptive trade practice counts.

A case my firm is handling illustrates the typical facts of a fraud and misrepresentation claim. We represent a young woman who was assured by the leasing agents of an apartment complex that no break-ins had taken place and that the complex was safe.

Relying on those statements, the woman moved into a second-floor unit. In fact, a serial rapist had recently broken into the apartment next to hers. The two units shared the same balcony. The perpetrator returned, used the balcony to break into her apartment, and then sexually assaulted her.(16)

Similarly, in Elizabeth E. v. ADT Security System West, a Nevada case, the plaintiff alleged that the defendant had misrepresented that a security system had a "panic alarm." The alarm was supposed to enable store employees to summon help immediately in the event of a crime. Confronted by an assailant, the plaintiff attempted to use the alarm, but the system had no such feature.

Reversing summary judgment for the company, the Nevada Supreme Court ruled that "if a representative of ADT negligently misrepresented the existence of a panic feature ... a basis for liability in tort has been asserted."(17)

The court, however, seemed to premise its ruling that the company owed a duty to the plaintiff on the basis of the contract that existed between ADT and the plaintiff's employer. The opinion thus may be of as much assistance in the third-party beneficiary context, discussed below, as it is for fraud.

Liability based on contract

Beyond traditional tort causes of action, trial lawyers representing crime victims should assess possible contract claims. In jurisdictions where negligence actions have met with hostility, the law may provide victims with a contractual remedy.

For example, in Richmond Medical Supply Co. v. Clifton, a landlord expressly promised in a lease to replace a defective exterior door. The tenant took possession of the premises, but the landlord never repaired or replaced the door. Some time later, thieves broke in through the door and stole cash, inventory, and equipment that was valued at $60,000, none of which was ever recovered.

The tenant sued the landlord for breach of contract. In distinguishing prior case law, the Virginia Supreme Court held:

   Each of the foregoing cases was an action ex delicto, and in each of them
   we were faced with the determination whether a duty was imposed by general
   law upon the defendant somehow to foresee, and to take effective measures
   to guard against, the danger of criminal acts by a third person. In none of
   them had the defendant expressly assumed a duty, by contract, to take some
   specific action to protect the plaintiff from a danger within the
   contemplation of the parties at the time of contracting.

   Contracting parties are entirely capable of assuming duties toward one
   another beyond those imposed by general law and, in fact, do so in nearly
   every contractual arrangement. It follows that those authorities which
   define the duties imposed by general law do not restrict the enforcement of
   additional duties assumed by contract. Therefore, we conclude that the
   doctrine [announced in previous cases] does not bar the recovery sought
   here.(18)

My firm has used contract theory successfully in a landlord-tenant case in which the landlord promised to repair a burned-out exterior floodlight. The court found that a cause of action existed for breach of contract.(19)

In certain circumstances, a crime victim may credibly argue that he or she was the intended beneficiary of a contract between two other parties, the breach of which provides the victim with a third-party beneficiary contract action.

In Professional Sports v. Gillette Security, Inc., the Arizona Court of Appeals ruled that a security company hired to "patrol and secure" a sports stadium and detect and prevent underage drinking "had a duty to exercise due care for the benefit of" minors such as the plaintiff.(20) The court noted that a duty in tort can arise from a contractual relationship.

Similarly, mall patrons may be able to demonstrate that they are the intended beneficiaries of a security services contract, and store employees held up at gunpoint certainly can argue that they are the intended beneficiaries of a lease between their employer and the mall if the lease requires common-area security.

In Galloway v. Bankers Trust Co., a mall patron was the victim of a homosexual rape in a mall restroom. He sued the mall's owners and managers and the company employed to provide security.

In reversing the district court's grant of summary judgment for the defendant, the Iowa Supreme Court ruled that the plaintiff arguably was the beneficiary of a security services contract.

This was true, the court said, because the contract mentioned "the protection of ... customers."(21)

Nuisance

Counsel should also explore the availability of nuisance in order to establish a duty. The typical case might entail an apartment building that had become a site for drug dealing and attracted criminal activity.

In Lew v. Superior Court, neighbors of a 36-unit apartment complex filed suit against the building's owners alleging defendants "allow[ed] illegal activity to occur on their property ... which has caused ... emotional and mental distress."(22)

The lower court ruled that at "all relevant times, the property `was being used as a center for sale and distribution of drugs'" and that the owners knew or should have known of the situation and failed to take reasonable measures to correct the problem.(23) The California Court of Appeals upheld the lower court's ruling.

Trial lawyers who are given the privilege of representing crime victims should carefully assess the range of legal theories that may establish a defendant's duty to provide security on a premises. The creative use of traditional legal theories may ensure that the rights of victims of violent crime are protected and that property owners responsible for inadequate security are held accountable.

Notes

(1.) Kveragas v. Scottish Inns, Inc., 733 F.2d 409, 412 (6th Cir. 1984).

(2.) See, e.g., Taco Bell v. Lannon, 744 P.2d 43, 47-48 (Colo. 1987); Doud v. Las Vegas Hilton Corp., 864 P.2d 796, 799 (1993); see also RESTATEMENT (SECOND) OF TORTS [sections] 344 cmt.f (1965).

(3.) See, e.g., Wright v. Webb, 362 S.E.2d 919 (Va. 1987); see also Henley v. Pizitz Realty Co., 456 So. 2d 272, 277 (Ala. 1984).

(4.) E.g., Scott v. Watson, 359 A.2d 548, 554 (Md. 1976).

(5.) E.g., Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 161 (4th Cir. 1988).

(6.) See, e.g., Clohesy v. Food Circus Supermarkets, 694 A.2d 1017, 1023 (N.J. 1997); Maguire v. Hilton Hotels Corp., 899 P.2d 393, 399 (Haw. 1995); Seibert v. Vic Regnier Builders, Inc., 856 P.2d 1332, 1339 (Kan. 1993).

(7.) 695 P.2d 653, 658-59 (Cal. 1985); but see Ann M. v. Pacific Plaza Shopping Ctr., 863 P.2d 207, 215-16 (Cal. 1993).

(8.) Small v. McKennan Hosp., 403 N.W.2d 410, 413 (S.D. 1987); accord, Kendrick v. Allright Parking, 846 S.W.2d 453, 457-58 (Tex. Ct. App. 1992) (holding that manual that noted danger of crime in parking lots raised factual issue concerning foreseeability).

(9.) Glanzer v. Shepherd, 135 N.E. 275, 276 (N.Y. 1922).

(10.) Sheridan v. United States, 487 U.S. 392 (1988); Losinski v. County of Trempealeau, 946 F.2d 544, 552 (7th Cir. 1991); Sharp v. W.H. Moore, Inc., 796 P.2d 506, 509 (Idaho 1990).

(11.) Sheridan, 487 U.S. 392, 395.

(12.) Id. at 401, quoting Indian Towing Co. v. United States, 350 U.S. 61, 65 (1955) (emphasis added).

(13.) Sharp, 796 P.2d 506, 509, citing Jardel Co. v. Hughes, 523 A.2d 518 (Del. 1987); see also Marshall v. David's Food Store, 515 N.E.2d 134, 137 (Ill. App. Ct. 1987); Professional Sports v. Gillette Sec., Inc., 766 P.2d 91, 95 (Ariz. Ct. App. 1988).

(14.) VA. CODE ANN. [sections] 55-248.13:1.2 (Michie 1999).

(15.) See Clohesy, 694 A.2d 1017, 1029.

(16.) Doe v. Roe Realty Co., No. 99-98 (Va., Arlington County Cir. Ct. settled Dec. 1999).

(17.) Elizabeth E. v. ADT Sec. Sys. W., 839 P.2d 1308, 1311 (Nev. 1992); see also Howarth v. Rockingham Pub'g Co., 20 F. Supp. 2d 959, 970 (W.D. Va. 1998).

(18.) Richmond Med. Supply Co. v. Clifton, 369 S.E.2d 407, 409 (Va. 1988); see also Flood v. Wisconsin Real Estate Inv. Trust, 503 F. Supp. 1157,1160 (D. Kan. 1980) (finding express warranty to provide security was created in part by "conversations between the plaintiff and the managers of the apartment complex").

(19.) Roe v. Great Atlantic Management Co., No. 7589 (Va., Williamsburg Cir. Ct. Nov. 5, 1996).

(20.) 766 P.2d 91, 95.

(21.) Galloway v. Bankers Trust Co., 420 N.W.2d 437, 440-41 (Iowa 1988); see also Elizabeth E., 839 P.2d 1308, 1311.

(22.) 25 Cal. Rptr. 2d 42, 43 (Ct. App. 1993); see also Moreland v. Cheney, 479 S.E.2d 745 (Ga. 1997) (enjoining nightclub operation as public nuisance).

(23.) Lew, 25 Cal. Rptr. 2d 42, 44.

RELATED ARTICLE: Identifying defendants in inadequate security cases

David B. Baum

Often, attorneys make quick assessments about liability for injuries in a premises case based on a client's initial statements about what happened. Careful investigation involves checking more than the facts of the incident. Perform your investigation with an eye to uncovering defendants other than the obvious ones. Check the following sources of information.

Title. Obtain the name of the property's current and previous owners, but also other information, such as property value, liens, purchase prices, deed restrictions, and easements. This investigation can lead to occupants or employees with information about prior accidents, modifications of the premises, warnings of danger, lack of security measures, and so on.

Learn if the property is managed or maintained by a management company, a corporate developer, a franchiser, or a conglomerate. Similar problems with other properties the company managed can become relevant or may determine jurisdiction and venue.

Health and building codes. Check with building departments for safety or security requirements, and find out if the property owner complied. Lighting or maintenance problems, prior complaints, or structural deficiencies may surface, as might notices that had been sent to the defendant.

Trade publications. A host of technical publications discuss safety standards for apartments, shopping malls, and businesses. Good resources include newsletters published by the National Safety Council and monographs on specialized aspects of safety engineering and management published by the American society of Safety Engineers.

Experts. Premises safety often involves technical matters, such as the run and rise of a staircase or the code requirements for handrails or glass. Retain experts early to educate you about the technical aspects of the case and to help you identify responsible parties. Experts in building, architecture, design, fire protection, lighting, engineering, property management, and security know the standards, codes, and facts to point you in the right direction.

Building plans, permits, and other records. City and county offices have plans and permits for construction, remodeling, or other uses of the property. A building department, fire department, or similar agency may have documents or plans that were reviewed, approved, or rejected. Plans for safety modifications may not have been carried out because of cost, property changes, or rezoning. Surveys, building permits, or notes of hearings may reflect these factors.

Obtain construction records from independent contractors or suppliers that worked on the premises, as well as maintenance and repair records from companies providing those services. Photographs showing the condition of the building are also critical.

Building or fire department files may provide evidence that the defendant had notice of hazards. Most community fire departments inspect premises for hazards and document them when found. Building inspectors' files can reveal whether a building has been properly maintained, built, or remodeled.

Property insurers regularly have buildings they insure inspected, often by independent adjusters. These reports in the insurer's file are a good source of evidence regarding premises safety.

David B. Baum is a partner in Baum & Blake in San Francisco.

Peter Everett is a trial lawyer with Blankingship & Keith in Fairfax, Virginia.