Daily Development for December 14, 1999

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

Thanks to Chuck Trainor in Sacramento for this one.

LANDLORD/TENANT; LANDLORD'S LIABILITY FOR INJURIES TO INVITEES; CRIMINAL ATTACKS: California stands by Ann M. Absent evidence of prior criminal attacks, landlords have duty to foresee and protect against criminal attacks only when the character of the landlord's premises is such that criminal attacks are especially likely.

Nicole M. v. Sears, Roebuck & Co., No. H019268, 99 C.D.O.S. 9762 (Cal. App. 6th Dist. 12/13/99)

Plaintiff was attacked in a Sears parking lot by a "nicely dressed and clean cut" man who attempted to drag her into bushes at the edge of the parking lot. She fought off the attack, but later sued Sears for failing to prevent it. She alleged that a proximate cause of the attack was the presence of untrimmed shrubbery adjacent to the lot. Homeless people had been "encamped" there, and in fact the store manager had instructed his maintenance workers to trim back the shrubbery, but they lacked the tools to do there. Plaintiff alleged that the bushes had been in a dangerous, untrimmed condition for a year.

In Ann M. v. Pacific Plaza Shopping Center, 25 Cal.Rptr.2d 137 (1993), the California Supreme Court took a step back from prior authority on liability for criminal attacks, and held that in order to show that a landlord has a duty to protect invitees from such attacks, a plaintiff must show evidence that the landlord could anticipate that criminal attacks are especially likely to occur. Normally, this is shown by evidence of prior attacks of a similar nature.

The plaintiff argued, and the court admitted, that Ann M. stressed that the notion of duty is a balance of the degree of burden of the alleged duty and the likely benefit to be obtained. Thus, the Ann M. court took into account the fact that security guards are an expensive prevention measure, and rejected the Ann M. plaintiff's argument in that case that the landlord had a duty to provide such guards in common areas of a shopping center.

The plaintiff in the instant case acknowledged that, in light of the fact that there was no history of prior attacks in the Sears parking lot, but argued that the threshold of forseeability of criminal attacks was lower when all that was required to protect against such attacks was the trimming of some bushes. It produced an expert (surprise, surprise) who testified that bushes where homeless people camp out provide a haven for violent crimes, even those not committed by the homeless themselves:

"This danger is particularly high when the characteristics of the area create what are referred to as ' rape corridors' or ' rape areas' which can be described as dark passageways burrorowed out areas in bushes where a criminal act would be concealed from view." "[T]he nature and characteristics of the location where [plaintiff] was attacked facilitated the commission of the crime and increased its likelihood. I would characterize the area as a sexual assault waiting to happen."

The plaintiff, in sum, argued that the nature of the premises lined with overgrown bushes gave rise to a duty to trim the bushes because the overgrown bushes were inherently dangerous, notwithstanding the fact that no attack had ever occurred in the past. As to the fact that it was apparent that the "clean cut, well dressed" assailant here had nothing to do with the presence of homeless people, the plaintiff argued that the question was not whether homeless people did reside in the bushes, but whether this was the kind of place where they might reside.

The court concluded that it was inappropriate to stretch Ann M.'s dicta that far. It noted that the types of "specially dangerous" properties that the Ann M. court had in mind were all night parking structures or convenience stores, not ordinary department store parking lots. In these ordinary environments, there is no special duty to anticipate criminal attack, and hence no special duty to insure that the premises do not accommodate such attacks. Here is the bottom line language that undoubtedly will prove valuable to some shopping center owner at some future time:

"Ann M. observed, "Unfortunately, random, violent crime is endemic in today' s society. It is difficult, if not impossible to envision any locale open to the public where the occurrence of violent crime seems improbable." To hold a property owner legally liable for a crime occurring on his or her premises, the law requires that the owner should have "reasonably anticipated" the crime."[T]he 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." On the record before us, we conclude that the low lighting and overgrown bushes alone did not make the property inherently dangerous and further that these circumstances were not cause for the property owner to reasonably anticipate crime in the absence of prior similar incidents." (Footnotes omitted)

Comment 1: The editor is thankful that no plaintiff has yet sicced that expert on the editor's yard. Comment 2: The special problem in this area is that someone else committed the crime and caused the injury. As a matter of policy, landowners should not be held liable when someone else uses their land to cause harm. If we leave these questions to the jury, dollars (and big dollars) to donuts, the jury will find the landlord liable. This is the modern jury system at work. So the courts are in the business of finding a principled basis for ascertaining when essentially a factual issue should be kept from the alltoowilling hands of the jury.

Of course the expert has a point. The attacker may have picked the location he did because there were bushes nearby. The factual record showed that he attempted to drag his victim into those bushes. But if liability extends and extends, we'll have a world of flat walls and bright lights, solely to permit commercial landowners to avoid liability for attacks by unrelated third parties. Thanks to the California court here for drawing the necessary, albeit elusive, line.

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