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By Anna F. Roppo
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SUMMER NEWSLETTER ARTICLES |
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In
light of the events of September 11, 2001, property owners and landlords must
consider whether they owe their tenants and patrons a duty to provide heightened
security measures on their property.
In California, the general rule is that a property owner or landlord owes a duty
to tenants and patrons to take reasonable steps to secure the premises against
foreseeable criminal acts of third parties. There are two California Supreme Court
cases worth revisiting on this issue.
In Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666 (Ann
M.) the California Supreme Court discussed the scope of a commercial landlord's
duty of care where the plaintiff had been raped while working at a photo store
in a secluded area of the defendants' shopping center. The plaintiff in Ann
M. presented evidence that, in the year preceding the attack, violent crimes
had occurred in the census tract in which the shopping center was located. Id.,
at page 671. Transients loitering in the common areas had caused tenants and employees
of the shopping center to be concerned about their safety. There also was evidence
presented that the defendants failed to provide security patrols despite a request
by the merchants' association and that assaults, purse snatchings and bank robberies
may have occurred in the shopping center. Id., at pages 671-672.
The court in Ann M. emphasized foreseeability as a "crucial factor"
in determining the existence of duty and determined that "a duty to take
affirmative action to control the wrongful acts of a third party will be imposed
only where such conduct can be reasonably anticipated." Id., at page
676. Ann M. further concluded that a "high degree of foreseeability"
is required in order to find that the scope of a landowner's duty of care includes
the hiring of security guards to protect against violent crime by third parties.
Id., at page 679. It cautioned that the requisite degree of foreseeability
"rarely if ever, can be proven in the absence of prior similar incidents
of violent crime on the landowner's premises." Id. "To hold otherwise
would be to impose an unfair burden on landlords and, in effect, would force landlords
to become the insurers of public safety, contrary to well established policy in
this state." Id.
Ann M. found that the plaintiff failed to establish the high degree of
foreseeability necessary to require the posting of security guards in the common
areas of the shopping center, Id., at pages 679-680, and concluded that
the shopping center was not liable to the photo store's employee.
In Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181 (Sharon P.),
the California Supreme Court was called upon to decide whether and to what extent
a commercial parking garage owner's duty of care to its tenants required that
it provide security in the garage when no assaults had occurred on the premises
during the 10 years preceding the attack upon plaintiff. Plaintiff was a tenant
in the building and had an assigned parking space. As she was preparing to leave
her car, after parking in her space one morning, a masked assailant came up from
behind, held a gun to her head, forced her back into her car, and sexually assaulted
her.
The plaintiff presented evidence that the bank on the ground floor of the building
had been robbed on several occasions. In addition, records of the Los Angeles
Police Department reflected a total of 363 crimes, including two rapes, had occurred
in the 50 square blocks surrounding the office building the year before the plaintiff's
rape. In the quarter just prior to plaintiff's assault, 72 crimes, but no rapes,
were recorded.
Applying its previous analysis in Ann M. to the Sharon P. case,
the Supreme Court found that the sexual assault inflicted upon plaintiff was insufficient
to support the high degree of foreseeability necessary to impose a duty on the
owner of the garage to provide security guards. (Supra, 21 Cal.4th at 1190-1191).
"…[A]bsent any prior similar incidents or other indications of a reasonably
foreseeable risk of violent criminal assaults in that location, we cannot conclude
defendants were required to secure the area against such crime." (Supra,
21 Cal.4th at 1199).
The foregoing cases articulate limitations on a property owner or landlord's duty
to maintain reasonably safe premises. They do not, by any stretch of the imagination,
provide a property owner or landlord with immunity from liability for third party
criminal activity on its property. Instead, they should be read narrowly, using
the facts of the particular case as a guide.
Moreover, now that terrorist activity is considered not only possible, but probable
anywhere and everywhere, it may be that even if an act of terrorism has not occurred
on the premises previously, it could still be considered sufficiently foreseeable
to increase a property owner or landlord's duty to take precautions.
It bears emphasis that if a property owner or landlord has taken reasonable care
in the discharge of its duty, which in California requires reasonable steps to
secure the premises against foreseeable criminal acts of third parties, no breach
of duty will be found, even if injury is suffered.
Property owners and landlords are encouraged to assess the location of their property,
take into account and document previous criminal activity on the property, and
to always be aware of (and instruct employees and tenants to be aware of) and
report any unusual activity. It is impossible to say which security measures or
how much security will be held sufficient, but the foregoing is a "reasonable"
step in the right direction.
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