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Foreseeing one's duty to protect.

Foreseeing One's Duty to Protect

IN CALIFORNIA, 21 PEOPLE WERE killed and 11 injured in a massacre by an armed gunman at a McDonald's restaurant. (1) The restaurant was located in a high crime area and was on notice of prior criminal activity. (2) Fearful employees had requested security guard services, but McDonald's management refused to provide it after a local security company estimated the cost would be $ 5.75 per hour for each guard.(3) In a suit against McDonald's for failing to provide adequate security, the California Court of Appeals upheld a summary judgment for the defendant.(4)

Two years earlier, however, a case was presented involving a doctor who was shot in a hospital parking lot. The California Supreme Court held that the question of foreseeability should be submitted to the jury when security conditions are known or should have been known and when there is sufficient information to provide notice of a risk of assault.(5)

In Michigan, the Court of Appeals ruled on two cases where the plaintiffs alleged that businesses failed to provide adequate security and, as a consequence, the plaintiffs were criminally assaulted.

In the first case, the court upheld a summary judgment in favor of the defendant, White Castle Restaurant.(6) The plaintiff was shot in White Castle's parking lot, which was in a high crime area of Detroit, on October 31, 1980 - locally known as Devils' Night.(7) The plaintiff argued the defendant owed him a duty to protect him from unknown assailants and take protective measures to prevent his foreseeable injuries. The court held, "It is one thing to require apartment building owners to equip their buildings with adequate locks and lighting, but it is another thing to require fast food restaurants to provide armed guards."(8)

In the second case, Belton v. McDonald's Corp., (9) the court reaffirmed its position that the defendant was under no duty to post guards but reversed the lower court on the alternative basis that there was a duty to provide adequate lighting.(10)

These apparently inconsistent holdings in California and Michigan can be reconciled by a thorough review of the new tort(11), "failing to provide adequate security." A suit by a victim against a business, the third party, for criminal acts of another may be maintained when the third party's negligence permits the act to occur. Injured parties can, therefore, sue third parties in addition to or in place of the assailant who is primarily responsible for the plaintiff's injuries.

This review explores

* the background for requiring businesses to protect others from criminal attack,

* the rationale for imposing a legal duty based on status and traditional tort rules,

* the criteria for assessing whether a business is negligent for not providing security,

* the analysis used by courts in determining what are and are not foreseeable circumstances in terms of conditions that facilitate crime,

* the approach in finding a causal connection between a defendant's action and a plaintiff's injury,

* the defenses available to defendants charged with a breach of the duty to provide adequate security,

* the damages available to plaintiffs, and

* reasonable precautions businesses can take to avoid civil liability.

Although the duty to foresee the consequences of criminal behavior extends to government agencies and private persons, this review focuses on the responsibility of the business community. Only the issue of civil liability will be discussed though, in extreme cases, criminal liability is possible.(12)

CERTAIN CONDITIONS WITHIN A businessperson's control facilitate the commission of a crime and, in some cases, are foreseeable and preventable. Crimes are seldom committed at random. Criminals prefer to operate in locations where they will not be identified or captured. They therefore select sites that offer opportunity without risk. The criminal's decision to strike at a particular location can be made on impulse, or it can be the result of a long-term plan. Regardless, the reason the criminal has chosen a particular location is his or her perception of the likelihood of success.

Criminals are stimulated to commit crimes when their surroundings suggest they can get away with it. Causes of action are based on the premise that when businesses operate sites that attract or encourage criminal activity, they will be found negligent and liable to the victims of criminal attacks if they owed a duty to the victim and knew or should have known that factors within their control increased the likelihood of criminal attacks.(13)

As a rule, a private person does not have a duty to protect another from criminal acts by third persons.(14) However, cases have established that owners or occupiers of business premises owe their customers and prospective customers a duty to use reasonable care to protect them from foreseeable criminal acts.(15)

In Tucker v. Sandlin,(16) Phylis Tucker was raped on a parking ramp. The Michigan Court of Appeals held: "An act or omission may be negligent if the actor realizes or should realize an unreasonable risk of harm to another through the conduct of the other or a third person which is intended to cause harm, even though such conduct is criminal."(17)

The issue of third party liability as a consequence of a criminal act is one of current interest due to increased litigation and the efforts of businesses to shield themselves from exorbitant civil judgments.

Courts now reject the argument that personal security of individuals is solely a police function and hold, as the New Jersey Supreme Court did in Butler v. Acme Market,(18) that merchants have a duty to provide adequate protection to their customers.(19)

In a effort to provide adequate protection, businesses are lighting their parking lots, warning employees and customers about dangerous conditions, and making private security one of the largest growth industries in the country. With businesses spending over $20 billion each year and employing over 1.1 million people in private security, it is obvious that the prudent businessperson is listening to what the courts are saying.(20) The message is clear: Provide a reasonably secure environment for customers or compensate the victims of foreseeable criminal attacks. By simply conducting a cost-benefit analysis, businesses are being persuaded to take security precautions in lieu of paying huge jury awards.

Business owners, customers, employees, and the community as a whole are the benefactors. A safe environment for living, shopping, and conducting business is achieved when responsibility for crime prevention is delegated to those who are in a position to effect it.

DUTY IS A QUESTION OF WHETHER the relationship between the actor and the injured person gives rise to any legal obligation on the actor's part for the benefit of the injured person. The responsibility of business is determined by the status of the individual coming onto the premises, the duty of care owed under traditional tort rules, and what the businessperson knew or should have known about the likelihood of criminal attack.

Status. Status should be the first consideration in analyzing a duty relationship. The status of the plaintiff is a question of law to which different legal duties are attached.(21)

Most jurisdictions continue to differentiate the duties owed to the plaintiff depending on his or her status as trespasser, licensee, or invitee. As stated in Duarte v. State of California University,(22) the "indispensable factor to liability founded upon negligence is the existence of a duty of care owed by the alleged wrongdoer to the person injured or to a class of which he is a member."(23)

Trespassers come on the premises or land without permission.(24) Usually, the duty to a trespasser is only to refrain from willful, wanton, or reckless disregard for the trespasser's rule include children and continuous and known trespassers.(25) WHILE CONSIDERABLE agreement exists that general negligence standards should be applied to all persons invited or permitted on premises, there is less accord as to how trespassers should be handled.

A licensee is a person who has permission from a competent authority to do an act that without permission would be illegal or constitute a trespass or a tort.(26) This is usually the person who comes on the property with express or implied permission. The occupier of the premises is required to warn the licensee of unreasonably dangerous hidden conditions known by him or her but unappreciated by the licensee.(27)

An invitee, on the other hand, is a person on the land of another who enters by invitation, express or implied; whose entry is connected with the owner's business or with an activity the owner conducts or permits to be conducted on his or her land; and whose presence represents a mutuality of benefit to the owner.(28)

The leading British case of Indermann v. Domes(29) holds that those who enter premises on business that concerns the occupier will enjoy the occupier's affirmative duty to protect them not only against dangers of which he or she knows but also against those that with reasonable care he or she might discover. Therefore, the duty of reasonable care owed to an invitee is greater than that owed to a licensee.

Armstrong v. Sundance Entertainment Inc.(30) exemplifies the importance of status designation. In Armstrong, the plaintiff was shot while sitting inside his car outside a closed nightclub.(31) The grounds for liability turned on whether persons who were earlier patrons should be considered licensees or invitees once a business closes.

The court ruled that "one who uses the premises of a merchant at a time beyond which the implied invitation extends is a mere licensee."(32) In denying liability the court ruled:

"To determine whether a person

is an invitee or a mere licensee,

the nature of his relation or contact

with the owner or occupier of the

premises must be determined. The

test is `whether the injured person

at the time of the injury had present

business relations with the

owner of the premises which would

render his presence of mutual aid

to both, or whether his presence

on the premises was for his own

convenience. . . .'''(33)

The view in Restatement of the Law, Second, Torts agrees with Armstrong. Section 314A makes it clear a possessor of land has no duty of reasonable care to one who has ceased to be an invitee.(34) Therefore, a defendant may be negligent but not civilly liable if the plaintiff's status failed to establish a duty that the defendant's actions breached.(35)

A minority of jurisdictions, however, follow the rule of Rowland v. Christian(36), in which the California Supreme Court eliminated the status distinction and created a simple negligence test. The status of the plaintiff is an important first step in this type of lawsuit, but this review will focus on cases that involve invitees or follow the Rowland v. Christian rule.

Traditional tort rules. Originally, businesspersons had no recognized legal duties toward those who chose to come on their premises. Such persons took the premises as they found them, including the physical hazards known to the occupier. The injustice of such a policy forced courts to carve out exceptions to nonliability. For one of the exceptions to arise and create a duty there must be a special relationship between the holder of the duty and the one to whom the duty is owed. According to Restatement of the Law, Second, Torts, specific relationships imposing duties have been found as follows:

* A common carrier is under a duty to its passengers to take reasonable action to protect them against unreasonable risk of physical harm and to give them first aid after it knows or has reason to know they are ill or injured and to care for them until such time as they can be cared for by others.

* An innkeeper is under a similar duty to his or her guests.

* A possessor of land who holds it open to the public is under a similar duty to persons who enter in response to his or her invitation.

* One who is required by law to take or who voluntarily takes the custody of another under circumstances that deprive the other of his or her normal opportunities for protection is under a similar duty.(37)

The Restatement of the Law, Second, Torts in a caveat expressed no opinion on whether other relations may impose a similar duty. However, it states in a later comment that "the law appears to be working slowly toward a recognition of the duty to aid or protect in any relation of dependence or of mutual dependence."(38) The prediction appears to be accurate since the trend has been to find a duty based on the dependence between businesses and customers.

In 1970, in Kline v. 1500 Massachusetts Ave. Apartment Corp.,(39) Sarah B. Kline was assaulted and robbed in a common hallway of her apartment building. The United States Court of Appeals reviewed the issue of "whether a duty should be placed on a landlord to take steps to protect tenants from foreseeable criminal acts committed by third parties." The District Court was reversed and the appellate court found, as a matter of law, there was such a duty.(40)

The landlord is no insurer of his or her tenants' safety, but he or she certainly is no bystander. And when, as here, the landlord

* has notice of repeated criminal assaults and robberies,

* has notice that these crimes occurred on the premises exclusively within his or her control,

* has every reason to expect like crimes to happen again, and

* has the exclusive power to take preventive action, it is fair to place on the landlord a duty to take steps within his or her power to minimize the predictable risk to his or her tenants.(41)

By holding that a landlord is not an insurer the court clearly rejected the imposition of strict liability. Likewise, no strict liability is imposed on businesses to provide absolute safety for customers. Any such liability is based on negligence.

While Kline held the landlord responsible for common areas of a building, a more recent case, Laz v. Dworman,(42) held that a renter should be protected from foreseeable criminal acts inside a rented apartment.(43)

The renter had complained about a defective lock on her sliding glass door. Despite these complaints, the lock was not repaired, and she was later raped. The plaintiff also established that other rapes had occurred in the complex that the owners knew about. Although previous Oklahoma cases dealt only with liability for crimes committed within common areas, Laz broadened an owner's duty to protect tenants from foreseeable crimes in the rented premises when reasonably prudent steps could prevent such occurrences.

Duty is not only imposed on landlords. Illustrative of this line of cases is a 1986 case in which the California Supreme Court ruled a condominium association could be liable to a victim of a crime.

In Frances T. v. Village Green Owners' Assn.,(44) the plaintiff asked the association to install lights in her courtyard because her condominium had been burglarized. When the board of directors voted not to install lights, she installed her own. Later she was ordered to turn them off because they violated association rules. She complied with the order and was raped that night.

The court ruled that an association owes the same duty of care as a landlord because it has the authority to regulate security.(45) The court also ruled that individual directors could be found liable if they "specifically authorized, directed, or participated" in the negligent acts or did not act to prevent injury.(46)

Liability for the assault was premised on the factual finding that the association had knowledge of existing crime. In addition to the broadening of owners' duties, there is a trend to hold others in position of authority liable for their negligent business decisions.

Many business-customer relationships fall into this special relationship category as discussed in Section 314A of the Restatement of the Law, Second, Torts but, as the court in Duarte vs. State of California(47) stated,

"the list and the concept (special

relationship) has a general elasticity,

characteristic of tort law principles. . . .

In keeping with this

growth process, the California

courts have determined that the

entrepreneurial land occupier has

the duty to exercise reasonable care

to protect invitees, patrons on the

premises, from unlawful acts of

third persons."(48)

The growth process discussed in Duarte gives plaintiffs a better opportunity to survive motions for summary disposition and get to the jury even if they do not fall specifically within the narrower requirements of Section 314A. This is done by applying traditional tort rules and Section 344 of the Restatement of the Law, Second, Torts.(49)

Section 344 was clearly intended to cover criminal conduct and subject businesses to liability for third party criminal acts:

"A possessor of land who holds

it open to the public for entry for

his business purposes is subject to

liability to members of the public

while they are upon the land for

such a purpose, for physical harm

caused by the accidental, negligent,

or intentionally harmful act

of third persons or animals, and

by the failure of the possessor to

exercise reasonable care to (a) discover

that such acts are being done

or are likely to be done, or (b)

give a warning adequate to enable

the visitors to avoid the harm, or

otherwise to protect them against

it."(50) (Emphasis added)

Comment f, paragraph 344 provides:

"Since the possessor is not an insurer

of the visitor's safety, he is

ordinarily under no duty to exercise

any care until he knows or

has reason to know that the acts

of the third person are occurring

or are about to occur. He may,

however, know or have reason to

know from past experience that

there is likelihood of conduct on

the part of third persons in general

which is likely to endanger the

safety of the visitor or even though

he has no reason to expect it on

the part of any particular individual.

If the place or character of

his business or his past experience

is such that he should reasonably

anticipate careless or criminal

conduct on the part of third persons,

either generally or at some

particular time, he may be under

a duty to take precautions against

it, and to provide a reasonably sufficient

number of servants to afford

a reasonable protection."(51)

(Emphasis added)

According to Section 344, therefore, a businessperson who has knowledge of a large number of criminal attacks taking place on the premises may have a duty to provide adequate security precautions against such attacks. The failure to do so may subject him or her to liability for negligence.(52) Conversely, where there is no reason to anticipate the probability of a criminal attack on a patron, there is no liability for the failure of the owner or operator to take precautionary measures.(53)

In Duarte, Tanya Gardini was raped and murdered in the student residence hall owned and operated by California State University. In deciding the issue of negligence the court held, "The most important consideration in establishing want of ordinary care or duty is foreseeability."(54) California State University failed to warn students and concealed the true state of affairs concerning the rapes and assaults on students. No warnings or security devices were installed on campus.

The court held the university had superior knowledge of the crime problem and had the means of instituting some reasonable protective measures. By failing to apprise students of potential risks and taking any action to increase security, the likelihood of students becoming rape victims was increased.

The court concluded that a duty of care arose since the university was on notice of potential harm to a person or class of persons (female students). Therefore, a duty of care was owed under traditional tort rules. The university's failure to perform its duty was negligent and, as a consequence, liable.

NEGLIGENCE WAS NOT A WELL-recognized separate tort prior to the 19th century.(55) Some of the earliest negligence cases involved liability of those who professed to be competent in certain public callings.(56) Carriers, innkeepers, and surgeons were regarded as holding themselves to the public as those in whom confidence might rest. Hence, they assumed an obligation to give proper service for the breach of which by any negligent conduct they might be liable.(57) In later years other groups were added, including businesses.

For a plaintiff to establish a cause of action for negligence the following basic requirements must be established:

* The defendant had a duty to conform to a certain standard of conduct.

* The defendant failed to conform to the standard of conduct.

* A causal connection existed between the conduct and the injury.

* An actual loss or damage resulted.(58)

Actionable negligence consists of the legal duty to use due care, a breach of that duty, and a legal causal connection between the breach and the plaintiff's injury.

To comply with the duty to use reasonable care the businessperson is required to conform to a certain standard of conduct for protection of others against unreasonable risks of criminal victimization.(59) This standard requires the businessperson to act as a "reasonably prudent man."

The creation of an unreasonable risk by act or omission that a reasonable and prudent man would not create is negligence. Negligence refers to conduct that falls below the standard established by law for the protection of others against unreasonable risk of harm.

The defendant is put into the shoes of the reasonably prudent man to determine if the acts of the defendant were consistent with those of the reasonable man. If the defendant's actions were inconsistent with those of a reasonable man, the inconsistency results in a lack of care. If the plaintiff suffered as a consequence, the defendant is found negligent and held liable.

In Isaacs v. Huntington Memorial Hospital, Dr. Isaacs sustained serious injuries as a result of being shot in the hospital parking lot. He sued the hospital for failing to provide adequate security. In Isaacs,(60) the Supreme Court of California held that in an action against a landowner for criminal acts of third persons the plaintiff may establish foreseeability by proof other than evidence of prior similar incidents on the premises.

Thus, the trial court had erroneously concluded the doctor's assault was not foreseeable when

* the hospital was in a high crime area,

* several threatened assaults had occurred in the emergency room directly across from the parking lot,

* thefts had taken place in the area,

* two lights on the building that was adjacent to the parking lot were not in working order, and

* the parking lot was devoid of security at the time of the shooting.(61) Isaacs struck down a prior rule in California that in the absence of prior similar incidents, a landowner was not bound to anticipate the criminal activities of third persons.

The court went on to say the prior rule was fatally flawed in the following respects:

* "Under the rule the first victim always loses." This results in "one free assault" before the defendant is held liable.

* The rule leads to arbitrary results and distinctions. Different courts will allow different standards.

* The rule erroneously equates foreseeability of a particular act with previous occurrences of similar acts. "Fortuitous absence of prior injury does not justify relieving defendant from the foreseeable consequences of his acts."(62)

The Isaacs court concluded the totality of circumstances strongly suggested the foreseeability of an assault in the parking lot, and the case should have been submitted to a jury. While prior similar incidents are helpful, they are not required to establish foreseeability.(63) "Such rules are inherently unfair and contrary to public policy."(64)

A similar incident occurred in Detroit on June 26, 1980. Antonios Rodis, an employee of an independent contractor, was shot and injured by an unidentified assailant while painting garage doors within the fenced-in premises of the Herman Kiefer Health Complex, which is owned and operated by the City of Detroit.(65) The plaintiff filed a negligence action alleging the defendant breached its duty to "exercise reasonable care, provide safe premises, and protect its business invitees on the premises from assault."(66)

The defendant filed a motion for summary judgment on the grounds that no duty existed to protect the plaintiff from the assault. The trial court granted a summary judgment.(67)

In reversing the lower court, the Michigan Court of Appeals held, "The owner of property generally has a duty to protect tenants and invitees from unreasonable risks, including the risk of harm resulting from the foreseeable criminal activities of third parties."(68) Thus, the court established that claims of failure to protect from potential criminal conduct by third parties are dependent on the particular facts of a case instead of a general rule based on duty.

TWO GENERAL APPROACHES EXIST to the problem of proximate cause - the hindsight or direct causation approach and the foreseeability approach. Direct causation, also referred to as cause in fact, uses the "but for" test - the event would not have occurred "but for" the actions or inaction of the defendant. The foreseeability approach is used by a majority of jurisdictions. In tort law, most cases deem a party's actions negligent only when the injurious consequences of those actions were foreseeable.(69)

Foreseeability is a concept limiting liability of a party for consequences of his or her acts to those consequences within the scope of foreseeable risk, "risks whose consequence a person of ordinary prudence would reasonably expect to occur."(70)

The burden is on the plaintiff to show the criminal act was foreseeable. This can be done either by showing actual notice of prior criminal activity or by constructive notice from which a reasonable person would have foreseen the injury.

Courts do not agree as to what types of activities constitute actual notice. The majority of the courts require similar types of crimes; others say the exact type of crime is required. However, a minority of courts say any prior type of criminal activity amounts to actual notice. Courts following the constructive notice approach consider factors such as the type and frequency of crime in the area, the risk to a particular business, or crime in society as a whole.

The causal connection, commonly called the proximate cause or legal cause between the conduct and the resulting injury, usually results from inaction on the part of businesspersons to take security precautions. This inaction results in victimization to one entitled to protection.

Mere inaction, however, is not sufficient to render a business enterprise liable for injuries to patrons. For instance, surviving family members and survivors of the McDonald's massacre brought lawsuits against McDonald's for failing to provide adequate safety devices or security personnel to protect customers from known and dangerous risks.(71)

The restaurant, located in San Ysidro, CA, was in a high crime area. The employees were so fearful of crime they solicited a private security company to offer its services to McDonald's. In its proposal, the security service noted the high crime rate in the area, increasing gang activity, and the nearby incidents of violent crimes that would have endangered patrons had the crimes occured on restaurant premises. Yet, the restaurant declined to provide a uniformed security guard at a rate of $5.75 an hour.(72)

James Oliver Huberty, the gunman, entered the restaurant during the day dressed in camouflage pants and armed with a 9 mm semiautomatic rifle, a 9 mm semiautomatic pistol, and a 12-gauge shotgun. He immediately began indiscriminately slaughtering patrons and employees within the glass-enclosed structure. The hour before he was killed by a police officer, he had showed no intent to rob the restaurant, made no demands for money, and made no effort to take hostages. His single purpose was to kill as many people as possible, which resulted in 21 dead and 11 wounded.(73)

The court considered the property crimes and general assault activity recorded in the area but found those factors inapposite since they "bear no relationship to purposeful homicide or assassination."(74)

In upholding a summary judgment in favor of McDonald's, the California Court of Appeals said:

"This unprecedented assault was

so remote and unexpected that, as

a matter of law, the general character

of McDonald's nonfeasance

did not facilitate its happening.

Huberty's deranged and motiveless

attack, apparently the worst

mass killing by a single assailant

in recent American history, is so

unlikely to occur within the setting

of modern life that a reasonably

prudent business enterprise would

not consider its occurrence in attempting

to satisfy its general obligation

to protect business invitees

from reasonably foreseeable

criminal conduct."(75) (Emphasis


In addition to the question of foreseeability, the court also found no potential causal connection between the restaurant's failure to provide security and the injuries suffered. Under the circumstances, the court said, "It cannot be reasonably argued that the massacre would have been prevented simply by providing an unarmed, uniformed, licensed security guard."(76) Further, any other reasonable protective measures, such as security cameras or alarms, which might have deterred "ordinary criminal conduct because of the potential of identification and capture," could not have deterred or hindered the "maniacal suicidal" individual in this case, a man who had told his wife he was going out "hunting humans."(77)

The facts in Lopez established that the restaurant was in a location where the likelihood of criminal victimization was high. This situation created a duty on McDonald's part to provide a safe place for its customers, but McDonald's did not take affirmative measures to provide it. The court concluded the existence of nonfeasance, yet held that McDonald's was not liable for the injuries.

Had McDonald's been robbed by a local gang that killed or seriously injured several of its customers, the result would probably be different. The court likely would have determined that McDonald's should have foreseen the likelihood of that type of crime and could have prevented it by taking some security precautions. There would have been a potential causal connection between the injuries suffered and McDonald's failure to take precautions. At the very least, that issue probably would have been sent to a jury.

The Michigan Court of Appeals reached a similar result with similar reasoning. In Jones v. Williams(78) the court held the defendant restaurant did not owe a duty to protect a plaintiff from an "unforeseeable assassination attempt."(79) A review of the record revealed that the plaintiff was actually an assassination target. Under the circumstances the defendant (White Castle) could not have foreseen the assassination and did not have a duty to protect Jones. Assassinations, like massacres, are not predictable events.

This line of cases was refined in the important case of Williams v. Cunningham Drug Stores Inc.(80) As a customer in Cunningham's, Williams was shot during a store robbery. Williams argued Cunningham's had a duty to protect him from foreseeable criminal assaults.(81)

In Williams, the court clearly stated that businesses in Michigan are not required to provide security guards, noting

* store owners would be driven out of business if such a duty were imposed, and

* neither the state legislature nor the Constitution has established public policy requiring law enforcement responsibilities to extend to commercial business.(82)

Both Jones and Belton were heard by the Michigan Court of Appeals in 1987 and challenged the Williams holding without success. However, as noted earlier, when the Jones court addressed the duty of businesses to provide guards to protect customers, it concluded that it is one thing to require apartment building owners to equip their buildings with adequate locks and lights but another to require fast food restaurants to provide armed guards.(83)

Jones made it clear that apartment building owners in Michigan are required to provide adequate locks and lights, and fast food restaurants are not required to provide armed guards.(84) What Jones did not clarify was whether other businesses - specifically fast food restaurants - are required to provide adequate locks and lighting to protect customers. Arguably, the Jones decision implied this duty was only owed to those in special relationships - such as a landlord-tenant relationship - and not to business patrons.

This confusion appeared to have been settled in August 1987 when the Michigan Court of Appeals decided Belton v. McDonalds Corp.(85) In Belton, the plaintiffs were robbed while they waited in their car for their fast food order in the exterior drive-through line. The court affirmed the lower court on the issue of armed guards, finding no duty to post guards, but it reversed on the issue of lighting.(86) The court found, "There is a duty to provide adequate lights if the events occurred when the natural light was inadequate."(87)

In early 1988, the Michigan Supreme Court decided Williams v. Cunningham Drug Stores Inc.(88) In Williams, a case of first impression, the court was asked to determine whether a store owner must provide armed, visible security guards to protect customers from criminal acts of third parties.(89) The Supreme Court held, "We concluded as a matter of law that the duty of reasonable care a merchant owes his invitees does not extend to providing armed, visible security guards to protect customers from the criminal acts of third parties. The merchant is not an insurer of the safety of his invitees, and for reasons of public policy does not have the responsibility to provide police protection on his premises."(90)

The Williams court reasoned an affirmative duty to protect is imposed on the party in control because that party is best able to provide a place of safety, but the duty is not absolute; "It does not extend to conditions from which an unreasonable risk cannot be anticipated or to dangers so obvious and apparent that an invitee may be expected to discover them himself."(91)

In affirming the Michigan Court of Appeals'(92) findings that a merchant's duty of reasonable care does not include providing armed, visible security guards to deter criminal acts of third parties,(93) the Michigan Supreme Court said, "Such a duty is vested in the government by the Constitution and statute."(94)

The Michigan Supreme Court specifically focused on the issue of armed guards but suggested crime prevention in general is not a duty of businesspersons in Michigan. The court's discussion centered on public policy concerns of private citizens resorting to self-help remedies.(95) The court suggested that since crime cannot be controlled by the public sector, then it cannot be controlled by the private sector. The court did not discuss foreseeable, preventable crimes nor did it look at a particular criminal situation.

In citing the New Jersey Supreme Court in Goldberg v. Newark Housing Authority(96) the Michigan Supreme Court focused on all crime and suggested that defining a reasonable standard of care may be impossible, stating: "But how can one know what measures will protect against the thug, the narcotic addict, the degenerate, the psychopath, and the psychotic? Must the owner prevent all crime? We doubt that any police force in the friendliest community has achieved that end."(97)

By reaching this conclusion the Michigan Supreme Court deviated from the modern trend. Nowhere in the 10-page decision did the court mention foreseeability or look to the cost-benefit reasoning of other courts. By taking this approach, businesses will be discouraged from active involvement in reducing factors within their control that facilitate crime.

California and other courts that have reviewed this issue have also concluded police agencies are not able to handle the crime problem alone. However, the other courts have held that police agencies' inability does not relieve businesses of their duty to protect invitees from criminal acts of third parties that are foreseeable and reasonably prevented.(98)

The Michigan Supreme Court did little to encourage crime prevention. One must wonder whether it is a convincing answer that businesses should be excused from taking prudent crime prevention efforts because it is infeasible to prevent all crime in modern society.

THE TASK OF THE DEFENSE IS TO dispel the notion that the business owner has an absolute duty to prevent crime.(99) This position is supported in all jurisdictions by the holding stated in Kline that "the owner is no insurer." The issues of notice and foreseeability must then be placed in context with the business setting to provide a realistic appraisal of the owner's duty to protect.

It is important for the defense to repeat the principles first stated in Palsgraf v. Long Island R. R. Co.: "The risk reasonably to be perceived defines the duty to be obeyed."(100) The businessperson, therefore, has a duty to protect those entitled to his or her protection from unreasonable risks. This does not mean from all risks. There is no absolute duty nor, as stated earlier, is there strict liability.

Defense postures will also attempt to sever the businessperson's liability by claiming the criminal acts of a third party are a superseding cause. For example, a railroad car full of gasoline was negligently dumped into the street and a third party was responsible for lighting it. The trial court directed a verdict for the defendant railroad company.(101)

The facts were not clear whether the acts of the third party were intentional or negligent. The Kentucky Court of Appeals reversed the trial court, holding, "The lighting of the match by Duerr (third party) having resulted in the explosion, the question is, was the act merely a contributing cause or the efficient and, therefore, proximate cause of the appellant's injuries."(102) The court stated this was a issue that should be sent to a jury.(103)

Although the Watson court did not think intentional setting of the fire would be foreseeable by the defendant, it found negligent setting of fire should have been foreseen. It would be up to a jury to decide if the third person's act was intentional or negligent. The court concluded:

"The mere fact that the concurrent

cause or intervening act was unforeseen

will not relieve the defendant

guilty of the primary negligence

from liability, but if the

intervening agency is something

so unexpected or extraordinary that

he could not or ought not to have

anticipated it, he will not be liable,

and certainly he is not bound to

anticipate the criminal acts of

others by which damage is inflicted

and hence is not liable

therefor."(104) (Emphasis added)

The severing of liability due to extraordinary events is a superseding cause. A superseding cause is an intervening cause that is so substantially responsible for the ultimate injury that it acts to cut off the liability of the preceding actor regardless of whether his or her negligence was a substantial factor in bringing about the complained of injury.

As seen throughout this discussion, criminal acts will not always be so unexpected or extraordinary that they should not be anticipated. If the criminal act is not foreseeable or is so remote as in Lopez and Jones, the defendant will not be liable, and the criminal's acts will sever the defendant's liability.

When the criminal conduct is foreseeable, however, as in Isaacs, the defendant often will be required to anticipate those acts and will not be allowed to say that the criminality was a superseding cause. Therefore, when the business owner has a duty to the defendant, the owner's responsibility will not be dismissed automatically when a criminal assaults a plaintiff. "Where the acts of third persons intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed."(105) Liability turns on whether the intervening act is normal or a foreseeable consequence of the situation created by the defendant's negligence.

In Michigan, businesses can continue to defend themselves in lawsuits that allege failure to provide adequate security when plaintiffs claim they should have been protected by security guards. The Michigan Supreme Court has now held, as a matter of law, that imposing such a cost would be excessive and that neither the state legislature nor the state constitution has established public policy requiring law enforcement responsibilities to be extended to commercial businesses.

THE DELAWARE SUPREME COURT recently upheld an award of $530,000 in compensatory damages to a woman who was kidnapped from a shopping mall parking lot and repeated raped, beaten, choked, and run over by her car.(106) She was left by her assailants with her hair pinned under a tire while her car was set on fire. The ordeal left her scarred and disfigured.(107)

The court overturned the punitive damages award because there was no allegation that the mall management's failure to provide security was intentional, malicious, reckless, or showed a conscious indifference to its customers' safety.(108) Punitive damages were awarded for an additional $250,000 for failing to provide adequate security.(109)

The mall's management argued that mere knowledge of prior crimes, such as shoplifting and other property crimes, should not put it under a duty to protect against violent assaultive crimes. The court held that the repetition of criminal behavior, regardless of its type, was enough to put the mall owners on notice that there was a reasonable possibility of personal injury to customers and employees.(110) As stated earlier, this is a minority approach to the problem of notice.

In the famous case of Garzilli v. Howard Johnson's Motor Lodges Inc.,(111) the $2.5 million award to Connie Francis - an internationally known singer, recording artist, and professional entertainer - was affirmed following her criminal assault and rape. The court held the amount was not excessive since the plaintiff's projected earnings would be between $5,330,000 and $11,950,000.(112)

Francis's award was compensatory. No punitive damages were awarded. The Delaware court's ruling on punitive damages, however, reflects the majority rule that allows additional sums over and above compensation to the plaintiff for the harm he or she suffered. The damages are awarded for the purpose of punishing the defendant and deterring others from following his or her example.

Michigan allows exemplary damages, which are not considered punishment but extra compensation for injured feelings or sense of outrage. Exemplary and punitive damages essentially accomplish the same thing - they provide the plaintiff extra compensation.

IN ISAACS, THE COURT HELD THE HOSpital had a duty to take precautions to protect Dr. Isaacs from criminal assaults. The foreseeability of an assault was high in comparison to the minimal burden on the hospital to take security measures to ensure the safety of persons using the research parking lot.(113)

Other courts have reached similar conclusions by analyzing all the factors and establishing a cost-benefit ratio.(114) When costs are low and the likelihood of preventing crime is high, courts will hold a duty exists and there is liability to the victims. Conversely, when costs are excessive and the likelihood of crime reduction is low, the courts often find no liability is owed by the businessperson. The difficult cases arise somewhere in between when the cost-benefit ratio is almost equal.

Isaacs established that the cost of taking security precautions would have only minimally burdened the hospital and the probability of eliminating or reducing the likelihood of robbery, shooting, or other serious crime was significant.(115)

Although the Isaacs court did not specifically quote cost-benefit analysis, its reasoning was similar. The cost of ensuring Dr. Isaac's safety was low, and the likelihood of preventing his assault was high. A duty was, therefore, imposed on the hospital to take precautions.

When applying the above scale, it is also important to keep in mind the degree of harm or injury to the plaintiff. When a slight chance of great harm exists, a defendant can be held actionably negligent.

CRIME PREVENTION IS THE ANTICipation, recognition, and appraisal of crime risks and the taking of affirmative steps to remove or reduce those risks.(116) Modern, progressive police departments acknowledge the need for community and business involvement in their efforts to fight crime. The police openly request businesses' help to reduce vulnerabilities that attract criminals. The courts are neither as polite nor as patient.

Crime is no longer regarded by the judicial process as a random, unforeseeable misfortune. Once a crime is foreseeable, most courts will allow the jury to hold the businessperson liable for expectable criminal attacks. "The risk reasonably to be foreseen defines the duty to be obeyed."(117)

Crime has steadily increased in the postwar era, especially in the 1960s and 1970s.(118) The hardest hit have been commercial establishments operating in the poorer areas of the inner cities.

This rising rate of victimization and society's inability to control it through traditional law enforcement methods calls to tort law for a possible answer.(119) The decision on whether to impose tort duty in any given situation ultimately depends on the seriousness of the dilemma the law is called on to solve.(120) If the dilemma is serious enough, tort law, by imposing a duty, can be used as a tool to help remedy the situation.(121)


(1) Lopez v. McDonald's, 238 Cal. Rptr. 436, 438 (Cal. App. 4 Dist. 1987).

(2) Lopez v. McDonald's at 440.

(3) Lopez v. McDonald's at 439.

(4) Lopez v. McDonald's at 440.

(5) Isaacs v. Huntington Memorial Hosp., 38 Cal. 3d 112, 695 P.2d 653, 665, (1985).

(6) 160 Mich. App. at 428. Devils' Night, October 30, is a locally celebrated night of mischief with a high increase in crimes against persons and property. This particular assault occurred in the early morning hours of October 31, 1980. However, Jones did not argue that the defendant was put on notice of a foreseeable criminal action because of these circumstances.

(8) Mich. App. at 430.

(9) No. 94904, slip op. at 4 (Mich. App., August 31, 1987). (10) No. 94904, slip op. at 6. (11) Carrington, Trial, 52 (December 1983). (12) Commonwealth v. Welansky, 316 Mass. 383, 387, 55 N.E.2d 902, 905, (1944). (When the defendant was accused of locking or concealing several emergency exits, the court held, "Whereas in the present case there is a duty of care for the safety of business visitors invited to the premises the defendant controls, wanton or reckless conduct may consist of intentional failure to take such care in disregard of the probable consequences to them or of their right to care." The court affirmed the lower court conviction of manslaughter where the invitees were killed in a fire.) (13) Isaacs v. Huntington Memorial Hosp., 38 Cal. 3d at 130. (14) Kline v. 1500 Massachusetts Ave. Apartment Corp., 141 US App. D.C. 370, 439 F.2d. 477 (1970). (15) Lopez v. McDonald's, at 444. (16) 126 Mich. App. 701, 337 N.W.2d 637 (1983). (17) 126 Mich. App. at 704, 337, N.W.2d at 63940. (18) 89 N.J. 270 (1982). (19) 89 N.J. at 274. (20) William C. Cunningham and Todd H. Taylor, Private Security and Police in America (Portland, OR: Chancellor Press, 1985). (21) Rodis v. Herman Kiefer Hosp. 142 Mich. App. 425, 370 N.W.2d 458 (1985). (22) Duarte v. State of California, 151 Cal. Rptr. 727 (1979). (23) Duarte v. State of California at 731. (24) Restatement of the Law, Second, Torts sec. 339 (Philadelphia, PA: American Law Institute, 1977). (25) Restatement of the Law, Second, Torts, (setting out the criteria where child trespasser would not be barred from recovery). (26) Joseph R. Nolan and others, Black's Law Dictionary, ed. Henry C. Black, 5th ed., 829, (St. Paul, MN: West Publishing Co., 1985). (27) Restatement of the Law, Second, Torts sec. 342. (28) Black's Law Dictionary 5th ed., 742 (1985). (29) Black's Law Dictionary. (30) Armstrong v. Sundance Entertainment Inc., 347 S.E.2d. 292 (Ga. App. 1986). (31) Armstrong v. Sundance Entertainment Inc. at 293. (Armstrong left the nightclub before it closed and remained in its parking lot.) (32) Armstrong v. Sundance Entertainment Inc. at 296. (33) Armstrong v. Sundance Entertainment Inc. (34) Restatement of the Law, Second, Torts sec. 314A comment b (1977). (35) William L. Prosser and others, Torts, Cases & Materials On, 7th ed., 144 (Mineola, NY: Foundation Press, 1987). (36) Rowland v. Christian, 69 Cal.2d. 108, 70 Cal. Rptr. 97, 443 P.2d 561 (1968). (37) Restatement of the Law, Second, Torts sec. 314A (1977). (38) Restatement of the Law, Second, Torts sec. 314A comment b (1977). (39) 141 US App. D.C. 370, 439 F.2d. 477 (1970). (40) 141 US App. D.C. at 485. (41) 141 US App. D.C. (42) 732 P.2d 455 (Okla 1986). (43) 732 P.2d at 458. (44) 42 Cal.3d 490 (Cal. 1986). (45) 42 Cal.3d at 493. (46) 42 Cal.3d at 494. (47) 151 Cal. Rptr. 727 (1979). (48) 151 Cal. Rptr. at 734. (49) Restatement of the Law, Second, Torts sec. 344 (1977). (50) Restatement of the Law, Second, Torts. (51) Restatement of the Law, Second, Torts sec. 344 comment f (1977). (52) Annot., 93 A.L.R.3d, 999, 1001. (53) Annot. (54) Duarte v. State of California, 151 Cal. Rptr. at 731. (55) Prosser, Torts, 143 (7th ed. 1987). (56) Prosser. (57) Prosser. (58) Prosser, Torts, 4th ed. sec. 63 at 125 (1971). (59) Note, "The Duty to Provide Adequate Protection; Landowners' Liability for Failure to Protect Patrons from Criminal Attack," 21 Ariz. L. Rev. 727, 1979. (60) 38 Cal.3d 112, 695 P.2d 653 (1985). (61) 38 Cal. at 129. (62) 38 Cal. at 130. (63) 38 Cal. (64) 38 Cal. (65) Rodis v. Herman Kiefer Hosp., 142 Mich. App. at 427, 370 N.W.2d at 19. (66) Rodis v. Herman Kiefer Hosp. (67) Rodis v. Herman Kiefer Hosp. (68) Rodis v. Herman Kiefer Hosp. at 429, 370 N.W.2d at 20. Defendant also raised the defense of governmental immunity. The court refused to rule on this issue, sending the case back to the trial court. (69) Barron's Law Dictionary 2d.ed. 191 (1984). (70) Barron's. (71) Lopez v. McDonald's, 238 Cal. Rptr. at 440. (72) Lopez v. McDonald's at 442. (73) Lopez v. McDonald's at 442-444. (74) Lopez v. McDonald's at 445. (75) Lopez v. McDonald's at 445-446. (76) Lopez v. McDonald's at 448. (77) Lopez v. McDonald's at 448. (78) Jones v. Williams, 160 Mich. App. at 681, 408 N.W.2d at 426. (79) Jones v. Williams at 685. (80) 146 Mich. App. 23, 379 N.W.2d 458 (1985), aff'd 429 Mich. 495, 418 N.W.2d 381 (1988). (During the robbery of Cunningham's, Williams panicked and was shot as he chased the robbers out of the drug store.) (81) 146 Mich. App. at 25, 379 N.W.2d at 459. (82) 146 Mich. App. at 27, 379 N.W.2d at 460. (83) Jones v. Williams, 160 Mich. App. at 685, 408 N.W.2d at 428. (84) Jones v. Williams. (85) No. 94904, slip op. at 1 (Mich. App. August 31, 1987). (86) No. 94904, slip op. at 3. (87) No. 94904. (88) 429 Mich. 495, 418 N.W.2d 381 (1988). The facts of the Williams case are found in the discussion of the Court of Appeals opinion. (89) 429 Mich. at 497, 418 Mich. at 382. (90) 429 Mich. at 504, 418 Mich. at 385. (91) 429 Mich. at 500, 418 Mich. at 383. (92) Williams v. Cunningham Drug Stores Inc., 146 Mich. App. 23, 379 N.W.2d 458 (1985). (93) Williams v. Cunningham Drug Stores Inc., 429 Mich. at 501, 418 N.W.2d at 384. (94) Williams v. Cunningham Drug Stores Inc. (95) A merchant may voluntarily provide security guards in accordance with the Private Security Guard Act, MCL 338. 1051 et seq.; MSA 18.185(1) et seq. The court held only that he or she is under no duty to do so. (96) 38 NJ 578, 589-590, 186 A.2d 291 (1962). (97) Williams v. Cunningham Drug Stores Inc., 429 Mich. at 503, 418 N.W.2d at 395. (98) Taco Bell Inc. v. Lannon, 744 P.2d 43 (Colo., 1987). (The Michigan Supreme Court cited this case in a footnote, involving similar facts in which the Supreme Court of Colorado, in a four-to-three decision, affirmed the imposition of liability on a merchant for failing to take protective measures to protect invitees from the criminal acts of unknown third persons. The court also recognized that Restatement of the Law, Second, Torts states a business owner is subject to liability for physical harm caused by intentional acts of third parties. However, in view of the public policy concerns underlying this case, it declined to apply that section to these facts.) (99) Levy, Practice Tips - Defending the Owner, 51 (Winter 1987). (100) 248 N.Y. 339, 342, 162 N.E. 99 (1928). (101) Watson v. Kentucky & Indiana Bridge and R.R. Co., 137 Ky. 619, 126 S.W. 146 (1910). (102) Watson v. Kentucky & Indiana Bridge and R.R. Co., 126 S.W. at 149. (103) Watson v. Kentucky & Indiana Bridge and R.R. Co. at 150. (104) Watson v. Kentucky & Indiana Bridge and R.R. Co. (105) W. Prosser, Torts 7th ed. 338 (1987). (106) Jardel Co. Inc. v. Hughes, 523 A.2d 518, 521, (Del. 1987). (107) Jardel Co. Inc. v. Hughes. (108) Jardel Co. Inc. v. Hughes at 523. (109) Jardel Co. Inc. v. Hughes. (110) Jardel Co. Inc. V. Hughes. (111) 419 F. Supp. 1210 (E.D. 1976). (112) 419 F. Supp. at 1213. (113) Isaacs v. Huntington Memorial Hosp. 38 Cal.3d at 128. (114) Levy, supra note 99, at 54. (115) Isaacs v. Huntington Memorial Hosp., 38 Cal.3d at 131. (116) J. Humphrey, Remarks at Meeting, Update 84, Law Enforcement and Security Personnel (1984). (117) Palsgraf v. Long Island R.R. Co. 248 N.Y. at 441. (118) J. Concklin, The Impact of Crime III, LEAA, US Dept of Justice, 10 (1979). (119) Note, Landowners' Liability, supra note 59, at 745. (120) Prosser, supra note 58, at 15. (121) Prosser.

About the Author . . . James Kohl, CPP, is a lieutenant in the legal affairs division of the Detroit, MI, police department. He is currently pursuing a law degree. Kohl is a member of ASIS.
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Title Annotation:businesses' ability to foresee factors that facilitate crime
Author:Kohl, James
Publication:Security Management
Date:Sep 1, 1989
Previous Article:Security with interest.
Next Article:To arm or not to arm.

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