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When negligence leads to crime: many courts have expanded the potential liability of property owners, possessors, and managers for negligent security. Thorough case analysis means rounding up the usual suspects - and a few unusual ones.

A potential client, Susan Lake, sits in your office. She tells you she was struck by a car and shot by one of its occupants at a shopping center six months ago. Doctors had to amputate one of her legs above the knee. Susan is awaiting a liver transplant; hers was lacerated during the attack. Her story--a hypothetical account with elements typical of many inadequate security cases-involves many characters and plot twists. All are important for you to consider as you determine how to help her obtain just compensation.

The night before the incident, three teenage gang members--two of whom were on probation and had not talked to their probation officers for more than a year--stole a car from a service station. They found the keys on the vehicle's roof.

The next day, the teens skipped school, pawned items they found in the car, and cashed the pawnshop check with fake identification. Then they bought two semiautomatic handguns. Two of the boys already had weapons: One had taken a gun from his father's night table, the other from his employer. The boys used their fake IDs to buy four six-packs of beer.

The gang members went to a local shopping center that is part of a large national chain. Advertisements in magazines and newspapers and on TV and signs bear the slogan "Variety, Convenience, and Safety--A Shopper's Paradise."

Retail leases at the shopping center are managed by a company owned by a relative of the center's corporate president. The management company has been in business for only a few months. It hasn't managed commercial property before, and none of its employees holds relevant credentials.

The owner of the management company contracted a friend's security company to patrol the shopping center. The security company's owner is a military police officer, but he has had neither formal training nor experience providing security at commercial premises. He has no written post orders, patrol plans, training manual, logbook, or journal for recording security incidents. In addition, the company assigns only three guards at a time to security duty at the shopping center, even though its contract specifies that it provide four. Only some of the guards have state licenses, and one wears a unregistered firearm in a holster without his employer's knowledge.

Susan went to the shopping center the evening that she was assaulted to buy cookies from some Girl Scouts who set up a card table on the sidewalk outside a health club. One girl's father manages the club; he arranged for the shopping center's security company to change its patrol so two of the three guards on duty would be near the health club from 3 p.m. until after dark.

Some gang members in an unfenced, unlit alley behind the mall saw Susan returning to her car. They piled into the car they had stolen the night before and struck Susan from behind, knocking her to the ground. One of the gang members took Susan's packages and handbag. When she screamed, another shot her. The boys then got back into the car and sped away.

After Susan's attack, a friend who is a police officer checked for prior crimes at the shopping center and found that 61 violent crimes had occurred there in the past two years. Four people died in three separate incidents--a fight and two armed robberies. The crime reports reveal that teens committed 40 of the cringes; 33 incidents occurred between 3 p.m. and 9 p.m.; and only 6 crimes occurred before 3 p.m. Shop owners have complained that gang activity intimidates customers.

Susan's friend also learned that a police liaison officer went to the shopping center three years ago to speak to security personnel and on-site management, but no one was available. The officer sent a follow-up letter and telephoned twice but received no reply.

You call the district attorney who is prosecuting the teens and learn that they confessed as part of a plea agreement. In their statements, they said the shopping center has been their gang hangout for three years. They have spray-painted the gang insignia there and defend it as their turf against rival gangs. The boys also admitted involvement in other fights and robberies and said they are usually armed because security guards have fired on them.

As you think about Susan's story, you consider several legal theories that you may be able to use to hold various parties liable for her injuries.


At least one court has held that a landlord may be liable for intentional or negligent misrepresentations regarding security when a prospective tenant relies on those statements in renting an apartment from the landlord and is later injured. (1)

In Susan's case, the property owner made representations about the safety of the shopping center. If you determine that they were merely general assertions of an opinion that the premises were safe, the statements may not be actionable.

However, if you can prove that the property owner made specific representations about particular security measures, such as the presence of trained security guards, Susan may have a viable claim. In that case, explore the degree to which she was aware of and relied on the safety assurances and how they encouraged her to shop there.

Unattended motor vehicle

In some states, plaintiffs can file claims against vehicle owners or bailees if a vehicle was stolen because of negligence--for instance, if the owner left an unlocked vehicle unattended with the keys in the ignition--and the car thief operated the vehicle in a negligent manner. (2)

For the owner or bailee to be found liable, he or she must have been able to foresee the risk of theft. You can establish foreseeability in some jurisdictions if the vehicle was left unsecured in a readily accessible location, such as a public street or parking lot. (3) Other courts require additional evidence of foreseeability. You may need to show that the owner knew that he or she parked the car in a high-crime area. (4)

Some jurisdictions require the existence of a "special circumstance," such as the vehicle owner's knowledge that he or she has left the vehicle in a high-crime neighborhood, before imposing liability. A California court noted in Palina v. U.S. Industrial Fasteners, Inc., that a "special circumstances" test is merely another way to refer to the foresee-ability requirement. (5) There is thus little practical difference between jurisdictions that require special circumstances to impose liability and those that do not.

Many jurisdictions have statutes or ordinances that penalize motorists who leave vehicles unattended and unsecured. A violation may constitute negligence per se or rebuttable evidence of negligence, depending on the local laws. Although some decisions imposing liability on vehicle owners have been based on unattended-vehicle statutes, most are based on common law principles. (6)

Some jurisdictions do not recognize a cause of action against a vehicle owner for damages arising from a thief's negligent operation of a stolen vehicle. The rationale behind opinions such as Pendrey v. Barnes (7) and Hartford Insurance Co. v. Manor Inn of Bethesda, Inc., (8) is that although an owner's or bailee's failure to secure a vehicle may make theft foreseeable, the thief's negligent operation of the vehicle is not foreseeable, even though the states in which the crimes occurred--Ohio and Maryland, respectively--had unattended-vehicle laws: These courts held that the statutes did not impose civil liability and did not change the fact that the thief's negligent operation of the vehicle was not foreseeable.

In Susan's case, the service station attendants' failure to place the car keys in a secure place may be considered negligence in some jurisdictions, depending on exactly where the car was stolen from--a visible, accessible location or a locked garage--and other facts that the service station owner may know, such as the neighborhood's crime rate.

Misuse of a firearm

Several courts have held firearm retailers liable under a common law negligent-entrustment theory for selling a weapon to a person who is noticeably intoxicated, violent mentally disturbed, or otherwise unfit to handle it. (9) Other courts impose liability only on retailers that violate specific provisions of an applicable statute, such as the federal Gun Control Act of 1968. (10)

Find out how Susan's assailants appeared when they purchased the guns and what they said during the transaction. Also look into whether the sales clerk complied with the applicable state and federal statutes regulating firearm sales and made reasonable efforts to verify that the assailants were responsible enough to possess firearms. Since the gang members were teenagers, it is likely that their appearance and statements made, or should have made, their unsuitability to possess firearms obvious to the sales clerk.

Access to a firearm

For more than 40 years, some courts have imposed liability on a parent or custodian who negligently allows minors access to firearms and ammunition. (11) In several recent cases, however, courts have not imposed liability where someone takes the weapon without the owner's actual knowledge or permission. These courts have found either that no duty exists or that the taking of the firearm is a superseding, intervening cause that relieves the owner of liability. (12)

Some cases that deny liability suggest that the outcome might be different if the relationship between the firearm owner and thief is close or if it was foreseeable that a specific person would take the firearm without permission. (13)

In Susan's case, it is unlikely that a court would impose liability on an employer whose gun was taken. A few jurisdictions might impose liability on the father whose son stole his firearm if the father stored the gun negligently and should have known that his son might steal it.

Alcohol seller

Several states impose dram-shop liability on businesses for injuries caused by intoxicated customers. In addition, most jurisdictions impose a duty on employees of establishments that sell alcohol to intervene if they think a patron may turn violent on their premises. Many jurisdictions do not impose common law liability on commercial alcohol dispensers when the intoxicated patron does not commit a violent act until he or she leaves the premises. These courts reason that intoxication does not automatically lead to violence, so an alcohol dispenser cannot foresee from a patron's intoxication alone that he or she will commit a violent act. (14) Some courts are more willing to impose liability if the alcohol seller violated a dram-shop act or other applicable statute. (15)

Most jurisdictions would not impose liability on the store that sold beer to the gang members, since the assault on Susan took place off the store's premises. A few jurisdictions might find the store liable, depending on whether the gang members gave indications of a propensity for violence and how negligent the store clerk was in failing to adequately check the buyers' identification.

Negligent security

Many premises operators do not provide their own security, but instead rely on independent security contractors. If negligent practices by the security guards or company contribute to a criminal incident on the premises, the company itself may be liable. You must also determine whether the premises operator can insulate itself from liability on the ground that the security company is an independent contractor rather than an employee or agent.

A few jurisdictions impose liability on a premises owner or lessee only when he or she has knowledge of a threat posed by a specific assailant at a specific time. (16) Most jurisdictions impose liability when the owner or lessee can foresee the likelihood of crime in general on the premises. Jurisdictions vary in the evidence they deem relevant in determining foreseeability. Some require only evidence of prior crimes. A handful of these jurisdictions further restrict the scope of relevant evidence, considering only prior violent crimes as evidence that a violent assault was foreseeable. (17)

Other jurisdictions reject the "prior crimes" test altogether as illogical or unduly restrictive. Some of these jurisdictions determine foreseeability on the basis of a totality-of-the-circumstances test. They consider the location and layout of the premises, nature of the business it conducts, and other relevant factors, along with any history of criminal activity on the premises. (18)

Other jurisdictions have adopted a balancing test--under which courts balance the foreseeable likelihood and severity of crime on the premises against the cost and availability of a given security measure--to determine whether the premises owner has a duty to adopt that measure. (19)

Although there is a recent trend toward adoption of the totality-of-the-circumstances test, some jurisdictions have deliberately resisted it. (20)

Whichever foreseeability test applies, a plaintiff's ability to file a claim against the owner or lessee depends on the owner's or lessee's actual or constructive knowledge of a dangerous condition on the premises. The danger may be the presence of a specific violent person or the general likelihood of violent crime on the premises. Where the possessor's liability is based on actual or constructive notice, as it is in negligent security cases, liability does not depend on who or what created the dangerous condition; the possessor's duty to keep the premises reasonably safe is nondelegable. The possessor cannot insulate itself from liability even if an independent contractor's security guard or security company contributed to the injury. (21)

Also, if the possessor knows or should know that its security contractor is unqualified or incompetent, it can be held liable for negligent hiring or retention. (22)

The security company may be liable for negligent action or inaction, despite the lack of privity between the security guards and invitees, based on these theories:

* Invitees are intended third-party beneficiaries of the contract between the premises possessor and the security services contractor.

* The contract creates a special relationship between the security guards and invitees.

* The security services contractor has undertaken to provide protection for the invitees and has a duty to do so without negligence. (23)

The owner of the shopping center where Susan was injured knowingly assigned management and security responsibilities to companies owned and managed by relatives and friends. The owner should have known that the management company and security company were not qualified. Explore the owner's potential liability for negligent hiring and retention.

In addition, the security program had many obvious flaws. If an expert witness can show that inadequate security caused or contributed to Susan's attack, consider an action against the security company.


Someone who performs an action for the benefit of another has a duty to do so in a non-negligent manner. As noted above, courts have used an Undertaking theory to hold security companies liable for guards' negligence. (24) This theory could also be used to hold other parties liable where the victim expressly or implicitly relied on the actions undertaken. (25)

In Susan's case, you can use an undertaking theory to establish liability not only on the part of the security company, but also on the part of the health club manager, who arranged a location and security for the Girl Scout cookie sales that brought the victim to the shopping center.

Inadequate probation or parole Supervision

Jurisdictions are split as to whether a government agency or individual probation or parole officer may be liable for failure to supervise a parolee or probationer adequately. Most view the decision to release a prisoner on parole, conditional release, or a similar status as immune from suit.

These jurisdictions hold that the state has no duty to individuals regarding release decisions, that these decisions are discretionary for purposes of sovereign immunity, or that the decision is quasi-judicial--that is, it is sufficiently similar in nature to a court decision that the state and state officials should share judicial immunity from damages suits. (26) Some courts acknowledge at least theoretical liability if the officials making the release decision know or should know of a threat the releasee poses to a specific, identifiable individual. (27)

Jurisdictions diverge on whether negligence in supervising a parolee or probationer is actionable. Some courts deny liability based on the "public duty" rule, that parole or probation officers have a duty only to the public as a whole, not to individuals injured by a parolee or probationer.

They note the general principle, summarized in [section] 315 of the Restatement (Second) of Torts, that a person has no duty to guard others against injury if the allegedly liable person has no "special relationship' with the victim or the person who caused the injury. This may occur, for example, when the allegedly liable person "takes charge" of a third person known to be likely to harm others. Several courts have concluded that parole and probation officers lack sufficient control over parolees and probationers to create a special relationship. (28)

Courts in other jurisdictions hold that a parole or probation officer may have a duty to a person injured by an inadequately supervised releasee. This is particularly true when the officer failed to enforce specific conditions of the release order. (29)

Even if a court decides that an officer has a duty to supervise a parolee or probationer adequately, the action may be barred under the jurisdiction's sovereign immunity statutes. The laws vary by jurisdiction. California, for example, holds that governments are statutorily immune from suit for negligent supervision of a parolee. (30) Wisconsin holds that decisions regarding the supervision of a parolee or probationer are generally discretionary and immune, but may not be in some instances. (31) Courts in Idaho and Utah have concluded that these decisions are not immune, discretionary functions. They held that the courts framing the probation or release order had made the applicable policy or planning-level decisions; the supervising officers were merely implementing those decisions. (32)

Two of Susan's attackers hadn't checked in with their probation officers in over a year. The probation office may have been negligent in failing to enforce the probation orders' reporting requirements and failing to investigate why the probationers failed to report. In jurisdictions where negligent failure to supervise probationers and implement provisions is actionable, consider pursuing a cause of action against the state, probation agency, or probation officers.

As Susan's case shows, several defendants and legal theories may provide relief to clients injured in criminal attacks. Local laws may make recovery against the property owner, manager, or tenant difficult, but other options may be more promising. If your jurisdiction has not addressed a particular theory of liability, law from jurisdictions that have done so may persuade local courts to develop the law and adopt a new theory. The key is to think outside the box and consider alternative theories and defendants.


(1.) O'Hara v. W. Seven Trees Corp., 142 Cal. Rptr. 487 (Ct. App. 1977) (tenant relied on landlord's representations of safety); RESTATEMENT (SECOND) OF TORTS [section] 311 (1965) (negligent misrepresentation regarding risk of physical harm); cf. Smith v. Brutger Cos., 569 N.W.2d 408 (Minn. 1997) (refusing to recognize cause of action for negligent misrepresentation under 311 of the restatement).

(2.) See Christian v. Overstreet Paving Co., 679 So. 2d 839 (Fla. Dist. Ct. App. 1996); Hill v. Yaskin, 380 A.2d 1107 (NJ. 1977); Ill. Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630 (Minn. 1978); M. Bruenger & Co. v. Dodge City Truck Stop, Inc., 675 P.2d 864 (Kan. 1984); McClenahan v. Cooley, 806 S.W.2d 767 (Tenn. 1991); Vining v. Avis Rent-A-Car Sys., Inc., 354 So. 2d 54 (Fla. 1977); cf. Whaley v. Anderson, 461 N.W.2d 913 (Minn. 1990) (no special circumstance).

(3.) See McClenahan, 806 S.W.2d 767.

(4.) See Tapemark, 273 N.W.2d 630; Vining, 354 So. 2d 54; Yaskin, 380 A.2d 1107.

(5.) 681 P.2d 893 (Cal. 1984). See also Tapemark, 273 N.W.2d 630.

(6.) See McClenahan, 806 S.W.2d 767; Vining, 354 So. 2d 54; Yaskin, 380 A.2d 1107.

(7.) 479 N.E.2d 283 (Ohio 1985).

(8.) 642 A.2d 219 (Md. 1994).

(9.) See Bernethy v. Walt Failor's, Inc., 653 P.2d 280 (Wash. 1982); Cullum & Boren-McCain Mall, Inc. v. Peacock, 592 S.W.2d 442 (Ark. 1980); Howard Bros. of Phenix City, Inc. v. Penley, 492 So. 2d 965 (Miss. 1986); Kitchen v. K-Mart Corp., 697 So. 2d 1200 (Fla. 1997). But cf. Fly v. Cannon, 836 S.W.2d 570 (Tenn. Ct. App. 1992).

(10.) 18 U.S.C. [section] 922 (2000). See Buczkowski v. McKay, 490 N.W.2d 330 (Mich. 1992).

(11.) See Kuhns v. Brugger, 135 A.2d 395 (Pa. 1957); Long v. Turk, 962 P.2d 1093 (Kan. 1998); Seabrook v. Taylor, 199 So. 2d 315 (Fla. Dist. Ct. App.), cert. denied, 204 So. 2d 331 (Fla. 1967).

(12.) See Estate of Strever v. Cline, 924 P.2d 666 (Mont. 1996); Finocchio v. Mahler, 37 S.W.3d 300 (Mo. Ct. App. 2000); McGrane v. Cline, 973 P.2d 1092 (Wash. Ct. App. 1999).

(13.) See Finocchio, 37 S.W.2d 300 (distinguishing cases such as Kuhns, 135 A.2d 395; Long, 962 P.2d 1093; and Seabrook, 199 So. 2d 315).

(14.) See Moore v. Willis, 767 P.2d 62 (Or. 1988); Welch v. R.R. Crossing, Inc., 488 N.E.2d 383 (Ind. Ct. App. 1986). But cf. Sipes v. Albertson's, Inc., 728 So. 2d 1243 (Fla. Dist. Ct. App. 1999). See also Paragon Family Rest. v. Bartolini, 769 N.E.2d 609 (Ind. Ct. App. 2002) (distinguishing Welch, 488 N.E.2d 383, where tavern undertook duty of protecting even against unforeseeable events).

(15.) See Fritsch v. Rocky Bayou Country Club, Inc., 799 So. 2d 433 (Fla. Dist. St. App. 2001); Ward v. Rhodes, Hammonds & Beck, inc., 511 So. 2d 159 (Ala. 1987).

(16.) MacDonald v. PKT, Inc., 628 N.W.2d 33 (Mich. 2001).

(17.) See Baptist Mem'l Hosp. v. Gosa, 686 So. 2d 1147 (Ala. 1996). But cf. Jardel Co., Inc. v. Hughes, 523 A.2d 518 (Del. 1987) (all prior crimes on the premises, regardless of nature, are relevant evidence of foreseeability).

(18.) Clohesy v. Food Circus Supermarkets, Inc., 694 A.2d 1027 (N.J. 1997); Seibert v. Vic Regnier Builders, Inc., 856 P.2d 1332 (Kan. 1993) (attack in poorly lit, underground garage).

(19.) Ann M. v. Pac. Plaza Shopping Ctr., 863 P.2d 207 (Cal. 1993); McClung v. Delta Square Ltd. P'ship, 937 S.W.2d 891 (Tenn. 1996); Posecai v. Wal-Mart Stores, 752 So. 2d 762 (La. 1999). See also Philip M. Gerson, An Ounce of Prevention: Proving Shopping Center Liability for Third-Party Crime, TRIAL, Apr. 1997, at 52.

(20.) See Ann M., 863 P.2d 207 (replacing previously adopted totality-of-the-circumstances test with a balancing test).

(21.) See U.S. Sec. Servs. Corp. v. Ramada Inn, Inc., 665 So. 2d 268 (Fla. Dist. Ct. App. 1995).

(22.) See Marois v. Royal Investigation & Patrol, Inc., 208 Cal. Rptr. 384 (Ct. App. 1984); Pippin v. Chi. Hous. Auth., 399 N.E.2d 596 (Ill. 1979); Trujillo v. G.A. Enter., 43 Cal. Rptr. 2d 36 (Ct. App. 1995).

(23.) See FPI Atlanta, L.P., v. Seaton, 524 S.E.2d 524 (Ga. Ct. App. 1999); Marois, 208 Cal. Rptr. 384; Marshall v. David's Food Store, 515 N.E.2d 134 (Ill. App. Ct. 1987); Prof'l Sports, Inc. v. Gillette Sec., Inc., 766 P.2d 91 (Ariz. Ct. App. 1988). But cf. Balard v. Bassman Event Sec., Inc., 258 Cal. Rptr. 343 (Ct. App. 1989).

(24.) Marshall, 515 N.E.2d 134; Prof'l Sports, Inc., 766 P.2d 91.

(25.) See Nova S.E. Univ., Inc. v. Gross, 758 So. 2d 86 (Fla. 2000).

(26.) See Doe v. Arguelles, 716 P.2d 279 (Utah 1985); Marshall v. Winston, 389 S.E.2d 902 Wa. 1990); Taggart v. State, 822 P.2d 243 (Wash. 1992) (absolute immunity for release decision, but only qualified immunity for supervision decisions). But cf. Sykes v. Grantham, 567 So. 2d 200 (Miss. 1990) (no immunity for reckless or grossly negligent release decisions).

(27.) Orzechowski v. State, 485 A.2d 545 (Ill. 1984); cf. Ryan v. Hayes, Nos. 1001578, 1001630, 1001631, 2002 WL 442717 (Ala. Mar. 22, 2002).

(28.) See Fox v. Custis, 372 S.E.2d 373 (Va. 1988); Lamb v. Hopkins, 492 A.2d 1297 (Md. 1985); Mun Kim v. Multnomah County ex rel. Multnomah County Dep't of Corr., 970 P.2d 631 (Or. 1998); Small v. McKennan Hosp., 403 N.W.2d 410 (S.D. 1987).

(29.) Savage v. State, 899 P.2d 1270 (Wash. 1995).

(30.) Duffy v. City of Oceanside, 224 Cal. Rptr. 879 (Ct. App. 1986); Fleming v. State, 41 Cal. Rptr. 2d 63 (Ct. App. 1995).

(31.) C.L. v. Olson, 409 N.W.2d 156 (Wis. Ct. App. 1987); cf. Taggart, 822 P.2d 243.

(32.) Sterling, 723 P.2d 755; Arguelles, 716 P.2d 279.
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Author:Schwartz, Edward S.
Date:Dec 1, 2002
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