On The Job

Jul 1, 2005 12:00 PM, BY MICHAEL FICKES

Last June, a woman slipped four butcher knives into her purse, went to a mall, stabbed two women and chased another one, sending shoppers and employees fleeing for cover. Finally, an off-duty law enforcement officer drew his gun and ordered the woman to drop the knives. She did.

Might the store be held liable for the injuries caused during the woman's rampage? What about the landlord or mall owner? Did either have a responsibility to provide security for shoppers and employees against such a crime?

Definitive answers depend on the common law of the state where the incident occurred, whether the crime was foreseeable, whether any state statutes apply and whether agreements made by the landlord apply. According to legal experts, liability related to criminal acts of third parties, such as the knife-wielding shopper, is a constantly evolving area of the law.

The law, in general

According to a survey article in American Law Reports, fifth edition, the law traditionally assigns no duty to a private person to protect another from a criminal act committed by an unrelated third party. Similarly a landlord generally has no duty to protect its tenants — or their customers — against the criminal actions of third parties.

The article, entitled “Landlord's Liability For Failure To Protect Tenant From Criminal Acts Of Third Person,” notes two key exceptions. First, the language of a lease, contract, state statute or local regulation might create a duty for the business to protect tenants or customers. Second, if a landlord could reasonably foresee that a criminal act might occur, a duty to protect others on the property could exist.

The common law

Questions raised in lawsuits about third party crime will turn on these exceptions and on state common law. Third party crimes almost always fall under common law, says William A. McDaniel, Jr., a Baltimore trial attorney who has dealt with third party issues in different states. “Common law is made by and large by judges deciding individual cases, not by a state legislature,” McDaniel says. “A state legislature could create broad rules in this area, but tort law has traditionally developed case by case. Some believe it is better for rules to grow incrementally by taking into account specific facts in specific cases instead of creating generalized legislative rules related to conditions that may never exist.”

Debate about the merits of common law goes back centuries, McDaniel says. Jeremy Bentham, a 19th century English legal authority, preferred that legislatures enact laws to settle such issues. Bentham said that common law was like “dog law,” in that when your dog does something wrong you beat him for it after the fact. In a common law case, a court beats the losing party after the fact for not knowing what it should have done.

Different state, different results

Common law differs from state to state, and common law cases can be decided all over the lot.

In a 1977 case decided by Louisiana courts, burglars broke into a shopping center utility room, disconnected the telephone line connected to a security monitoring firm, and then robbed a jewelry story. The store sued the shopping center owner. Evidence showed that the lock on the door of the utility room containing the security system had been broken for months and that the door had remained ajar. According to the American Law Reports summary: “The court found it eminently foreseeable that a jewelry store had the highest exposure to a burglary and the risk of burglary existed to all stores in the shopping center. While agreeing that the duty of a shopping center owner should not extend to protect all tenants against all risks, the court found that it could easily associate the duty of the shopping center to reasonably secure its utility room with the risk that a burglar may use the room to facilitate the success of his crime.”

In a 1994 California case reported in the American Law Reports article, a jewelry business in an open market sued the landlord claiming that a negligent security guard employed by the market was responsible for the theft of a suitcase of jewelry. The tenant argued that before a lease had been signed, the landlord had promoted the security guard as a benefit of leasing the space. The landlord argued that the lease negotiations involved no bargaining about security and that no fees related to security were exchanged. The court found no evidence that the landlord had voluntarily assumed a duty to protect the tenant's jewelry and so ruled against the jeweler.

In 1983, a Florida court decided that altered security in a commercial office building made the landlord liable for an attack on a commercial tenant. The tenant, a real estate broker, was working late one night. Sometime after 6 p.m., he went across the hall to the bathroom. When he returned, he was attacked and beaten, sustaining serious permanent injuries. The American Law Reports article says that the tenant claimed that when he had rented the office, the landlord had posted a security guard at the entrance from 4 p.m. to 11 p.m. Two years later, however, the landlord eliminated the guard and began locking the building at 7 p.m. The landlord installed a remotely monitored security camera at the rear entrance, along with an electronic lock and buzzer. The tenant argued that the new measures were insufficient given the high crime rate in the area around the office.

According to the court, the evidence showed that the owner foresaw trouble, took measures to guard against the trouble, and later abandoned those measures despite the continuing and foreseeable danger to tenants.

In dozens of examples, the American Law Reports survey shows how cases from different states have led to a bewildering array of conclusions.

“One common denominator is often the failure of a landlord or business owner to do something that society, as evidenced by a statute or regulation or by the generally-known circumstances of life in that community, believes a reasonable landlord would have done,” McDaniel says. “Another is that the landlord fails in some duty that the landlord itself voluntarily assumed in a lease, a contract, or as evidenced by its actions. Prudent landowners and businesses will watch state statutes and local regulations to see if they impose new duties. They will be careful of voluntarily assuming duties to provide alarms or other security measures. And if they do assume such duties, they should take care to fulfill those duties completely and competently.”

Lest they be beaten like a dog.

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