When Must Property Owners Protect Against Third-Party Criminal Acts?
DOES A PROPERTY OWNER EVER HAVE A DUTY TO PROTECT PEOPLE AGAINST THIRD PARTY CRIMINAL ACTS?
In many cases, property owners have no liability for injuries resulting from the acts of third parties who are not under the property owner’s actual or legal control. In these cases, as you might expect, the third party wrongdoer bears liability for his or her own actions.
However, in some situations a property owner may have a duty to protect certain people against the wrongful criminal acts of third parties. Generally, this duty arises when the property owner has a legally recognized special relationship with the (potential) victim.
Some of the legally recognized special relationships which expand the property owner’s duty are:
Adult/child (sometimes referred to as “parent/child” but legally speaking the obligation often reaches beyond an adult’s own biological children)
Landlord/tenant
Business/customer
Innkeeper/guest
Private security/client or patron
THE LAND OWNER’S DUTY TO WARN OF, PREVENT, AND RESPOND TO CRIMINAL ACTS.
First and foremost, the land owner’s duty to warn about and/or prevent criminal acts is limited to foreseeable criminal acts. In many cases, foreseeability requires actual, prior criminal acts of a similar or related nature. Once a land owner knows that such crimes could occur (because they have occurred) the crime is considered foreseeable. Crimes can be considered foreseeable even without previous occurrences, but once a crime has actually occurred, it becomes much harder to claim a lack of foreseeablity.
For public policy reasons, courts also usually recognize a more stringent duty where the potential harm is extremely serious (e.g., rape, murder, and other violent crimes against people) and a lower duty where the harm is purely economic and/or where public policy takes a less stringent stand on its avoidance.
Case law generally recognizes three forms of land owner duty relating to criminal acts:
1. The duty to warn of actual or potential criminal acts. As might be expected, this duty increases with the occurrence of repeated criminal acts on or near the premises. As foreseeability rises, the obligation to warn becomes more distinct.
2. The duty to respond to actual (or imminent) criminal acts. There is no foreseeability element of the land owner’s duty to respond to a crime in progress, because the crime is actually occurring (and therefore 100% foreseeable). In these cases, the court will analyze what (if any) duty the land owner had to respond to the crime and whether or not the land owner fulfilled that duty in a reasonable manner.
3. The duty to prevent or take action to prevent criminal acts. When analyzing a land owner’s compliance (or lack of compliance) with this duty, courts often use a three-step analysis: (a) identify measures the land owner could have taken to prevent the injury, (b) analyze the foreseeability of the wrongdoer’s conduct, and whether the measures would have effectively stopped it (or reduced its foreseeability), and (c) evaluate the obligation in light of the financial and/or social burdens the measures would create for the land owner and other similarly situated land owners.
In all such cases, where the land owner has a duty to act, (s)he is obligated to act as a reasonable person would act in similar circumstances.
Where property is open to the public on a commercial basis, landlords and business owners should be aware that the duty of care may be higher, and should seek and obtain a clear analysis of their individual rights and obligations with regard to inspections and the condition of the property. Always comply with your legal duty to maintain, inspect, and repair property, as well as any duties owed to warn of, prevent, or respond to criminal acts. Ignorance of the law is not a defense.
***
DISCLAIMER: This article is intended for informational purposes only, does not constitute legal advice to any person or entity, and does not create an attorney-client relationship with any person or entity. Premises liability is a complex legal topic, and no single article can provide complete or comprehensive coverage or information about this or any other legal topic or issue. Your personal liability may differ, based on your individual facts and circumstances. If you believe you have a legal claim or issue, or wish to know more about your individual rights, consult an experienced attorney without delay.
