by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

LANDOWNER'S LIABILITY; ADJACENT PREMISES; LIABILITY FOR CRIMINAL ACTS: Landowner may have duty to prevent injury from criminal attacks on adjacent premises used by landowner's patrons with landowner's knowledge, even if landowner has limited control over the adjacent premises itself. Shire v. Ferdiando, 540 N.Y.S.2d 964 (Misc. 2nd 1995), plaintiff's decedent was stabbed to death in a parking lot outside of a late-night lounge. The lower appeals court had found that the lounge operator had no liability because the event occurred off premises in an area over which the operator had no control. The lounge had the right to authorize its patrons to park in the lot, but that right was shared with others, and the lounge did not have the legal right to control access to the lot.

The court held that if the plaintiff could show that criminal attacks upon lounge patrons in the parking area were forseeable, then the operator of the lounge had a duty to take reasonable steps to protect its patrons.

Comment: Although, of course, the parking lot was private property and the lounge operator had legal rights of use pursuant to its lease, the reasoning of the opinion would appear to extend to public streets and even vacant lots as to which there is no use right if the owner of a tavern or other public facility is aware that patrons regularly use it in connection with their patronage of the facility. Of course, one would also assume that the lack of legal control over such off-premises sites would have an impact on the extent of duty, even though the duty may exist. Compare: Palmer v. Prescott, 617 N.Y.S.2d 411 (N.Y. App. Div. 1994) (Restaurant operator has no duty to keep neighboring lot free of dangerous icy conditions even though restaurant patrons regularly park there ).

Note: The ABA shortly will be publishing a book specifically addressing the question of landowner liability for criminal acts, including a state-by state summary. For information contact Jane Johnston at the ABA, (312) 988 6082.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. Contact Shawn Kaminsky at the ABA. (312) 988 5260.

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