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§62.5 Liability for Criminal Acts of Third Persons

The Case: McClung v. Delta Square Limited Partnership , 937 S.W.2d 891 (Tenn. 1996).

The Basic Facts: Plaintiff, administrator of the estate of a mall customer, brought negligence action against owner of the mall and mall's tenant for failing to provide security in parking lot after the customer was abducted from a shopping mall parking lot and was subsequently raped and murdered.

The Bottom Line:

  • "This case presents the question of the continued viability of Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975), in which this Court strictly limited the duty of care owed by owners and occupiers of business property to customers." 937 S.W.2d at 893.
  • "We must disavow the observation made in Cornpropst that 'conditions in the area [of the defendant business] are irrelevant' in assessing the foreseeability of a criminal act. Cornpropst v. Sloan, 528 S.W.2d at 197. It makes little sense to ignore the frequency and nature of criminal activity in the immediate vicinity of the business, such as an adjacent parking lot, if the crucial inquiry is the foreseeability of a criminal act occurring on defendant's premises. Conditions in the immediate vicinity of defendant's premises are relevant in making this determination. We also find that foreseeability of harm on which liability may be imposed is not limited to criminal acts of third parties that are known or should be known to pose an imminent probability of harm to customers. Id. at 198. Conditions other than those which pose an imminent threat to persons on the premises are relevant to the foreseeability of harm.

    We, therefore, join those courts which generally impose a duty upon businesses to take reasonable measures to protect their customers from foreseeable criminal attacks." Id. at 899.
  • "After careful consideration of the jurisprudence of other jurisdictions and our own, we adopt the following principles to be used in determining the duty of care owed by the owners and occupiers of business premises to customers to protect them against the criminal acts of third parties: A business ordinarily has no duty to protect customers from the criminal acts of third parties which occur on its premises. The business is not to be regarded as the insurer of the safety of its customers, and it has no absolute duty to implement security measures for the protection of its customers. However, a duty to take reasonable steps to protect customers arises if the business knows, or has reason to know, either from what has been or should have been observed or from past experience, that criminal acts against its customers on its premises are reasonably foreseeable, either generally or at some particular time.

    In determining the duty that exists, the foreseeability of harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against that harm. In cases in which there is a high degree of foreseeability of harm and the probable harm is great, the burden imposed upon defendant may be substantial. Alternatively, in cases in which a lesser degree of foreseeability is present or the potential harm is slight, less onerous burdens may be imposed. By way of illustration, using surveillance cameras, posting signs, installing improved lighting or fencing, or removing or trimming shrubbery might, in some instances, be cost effective and yet greatly reduce the risk to customers. See Seibert v. Vic Regnier Builders, Inc., 856 P.2d at 1339-40. In short, 'the degree of foreseeability needed to establish a duty decreases in proportion to the magnitude of the foreseeable harm' and the burden upon defendant to engage in alternative conduct. Pittman v. UpJohn Co., 890 S.W.2d at 433 (Tenn. 1994). 'As the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less to generate a duty of precaution.' [Prosser & Keeton on the Law of Torts at 171]. The degree of foreseeability needed to establish a duty of reasonable care is, therefore, determined by considering both the magnitude of the burden to defendant in complying with the duty and magnitude of the foreseeable harm." Id. at 902.
  • "As a practical matter, the requisite degree of foreseeability essential to establish a duty to protect against criminal acts will almost always require that prior instances of crime have occurred on or in the immediate vicinity of defendant's premises. Courts must consider the location, nature, and extent of previous criminal activities and their similarity, proximity, or other relationship to the crime giving rise to the case of action.FN8 To hold otherwise would impose an undue burden upon merchants.
    FN8 This approach is consistent with the approach taken in Doe v. Linder Const. Co., Inc., 845 S.W.2d 173 (Tenn. 1992). There, we dealt with the liability of a builder for an assault occurring to a purchaser of property after a third party and an employee of the builder used the builder's key to enter the premises of the purchaser and commit various crimes. In holding for the builder, we stated that '[finding] circumstances such as minor thefts, unexplained use of a bathroom, and unsubstantiated rumors to be sufficient notice on which to base liability for subsequent criminal assaults is not the law in Tennessee. . . .' Doe v. Linder Const. Co., Inc., 845 S.W.2d at 180."
    Id .
  • "The balancing approach we adopt appropriately addresses both the economic concerns of businesses and the safety concerns of customers who are harmed due to the negligence of one seeking their business. The interpretation of the notice requirement of Cornpropst, see text preceding n. 2, supra, virtually eliminated these causes of action. The criminal who intends to strike in defendant's parking lot will not enter defendant's store to announce his intentions and thereby provide defendant actual notice of the impending attack. In short, this new rule provides the fairest and most equitable results. It creates a duty in limited circumstances, giving merchants neither absolute immunity nor imposing absolute liability. It recognizes the national trend that businesses must justifiably expect to share in the cost of crime attracted to the business. It encourages a reasonable response to the crime phenomenon without making unreasonable demands.

    The standard we adopt is the product of attempts by many jurisdictions to deal with this admittedly difficult issue. While embracing neither the totality of the circumstances nor the prior incidents tests in toto, we have retained the desirable features of both approaches, while avoiding the inherent problems associated with each. For example, we have preserved the primary advantage of the prior incidents rule by not creating an environment where businesses are essentially held strictly liable for customer safety. At the same time, our approach should enable meritorious cases to proceed to the jury which is typical of deserving cases tried under the totality of the circumstances approach. Moreover, rather than having an incentive to do nothing (out of fear of having assumed a duty), businesses will be encouraged to take reasonable security precautions, another characteristic of the totality of the circumstances test.FN9 The merchant is in the best position to know the extent of crime on the premises and is better equipped than customers to take measures to thwart it and to distribute the costs. Craig v. A.A.R. Realty Corp., 576 A.2d at 693. FN10
    FN9 As stated by one of the amicus participants in this case, '[i]f the premises owner does nothing to make himself or herself aware of the potential imminent probability of harm to a customer, then no liability will extend under the [current] rule. The effect is that ignorance translates into nonliability and economic bliss for merchants, while business patrons can easily be victimized by criminals who stalk the malls and parking lots of shopping and retail centers.' See also [31 So. Tex. L. Rev. at 110-11] ('Only by imposing a duty to protect will business proprietors have the necessary incentive to take measures that will limit the number of crimes committed....While very generalized economic incentives will encourage owners to take some steps to reassure customers about their safety, common experience demonstrates that these incentives are not enough to encourage efficient crime prevention.').

    FN10 [O]f all the involved parties, the cost of crime reduction is cheapest to the landowner. For the criminal, imposing civil liability on him in addition to existing criminal sanctions does not deter him from committing the crime. Imposing duty on the patron, so that he must protect and compensate himself, may result in crime reduction, but only at the expensive cost of the patron staying home. While the patron can prevent crime by not going out at night, the price of staying home is high not only for him but also for society in general. As opposed to the transient patron, who has little information about the crime problem on the landowner's premises and little ability to directly influence it, the landowner can be much more effective in dealing with the problem. While the patron holds just one expensive option, staying home, the landowner holds many options ranging from installation of better lighting, fences, or guard service, to even varying hours of operation. All of these options should be less expensive and much more effective in deterring crime than the patron's sole choice of staying home.
    [Bazyler, The Duty to Provide Adequate Protection: Landowner's Liability for Failure to Protect Patrons from Criminal Attack, 21 Ariz L. Rev. 727, 747-48 (1979)]." Id. at 902-03.
  • "Having established the appropriate test for determining the duty of care in cases involving business premises liability for the acts of unknown third parties and for the purpose of offering an illustration of the analysis required of courts in these type of cases, we return to the facts of the case at bar." Id. at 903.
  • "We reject defendants' argument that it owed plaintiff's wife no duty because the attack was not reasonably foreseeable. In the seventeen months prior to the abduction, the numerous reports of crime to police on or near defendants' premises included a bomb threat, fourteen burglaries, twelve reports of malicious mischief, ten robberies, thirty-six auto thefts, ninety larcenies, and one attempted kidnapping on a parking lot adjacent to defendants' parking lot. All of these crimes occurred on or in the immediate vicinity of defendants' parking lot, took place within a relatively short period of time prior to the abduction of plaintiff's wife, and involved a significant threat of personal harm. The record also establishes that defendants' premises was located in a high crime area, and that other nearby major retail centers utilized security measures to protect customers.FN11 The manager of the Wal-Mart store at the time of the abduction testified that he would not hold 'sidewalk sales' or place merchandise outside the store, except for 'dirt,' out of fear it would be stolen.
    FN11 Although the measures varied, one business even posted guards in five separate watch towers located throughout its parking lot."
    Id . at 903-04.
  • "Considering the number, frequency, and nature of the crimes reported to police, management's acknowledgement of security problems, and other evidence in the record, we conclude that the proof would support a finding that the risk of injury to plaintiff's wife was reasonably foreseeable. Of course, foreseeability alone does not establish the existence of a duty. On remand, the magnitude of the potential harm and the burden imposed upon defendants must also be weighed to determine the existence of a duty. While we know little from this record about the extent of injury to customers as a result of criminal acts on or near defendants' premises, we are persuaded that whatever the extent of the injuries, the magnitude of the potential harm was substantial given the nature of the crimes reported to police.FN12
    FN12 As we have said before, 'the degree of foreseeability needed to establish a duty decreases in proportion to the magnitude of the foreseeable harm.' Pittman v. UpJohn Co., 890 S.W.2d at 433. [Accord Prosser and Keeton on the Law of Torts at 171] ('As the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less to generate a duty of precaution.').
    On remand, the court must also consider the burden which the duty would impose upon defendants. We note, for example, that defendants contend that they have no reasonable means of foreseeing the possibility of crime on their premises; that security measures are not effective in reducing crime; and that providing security is cost prohibitive. These arguments must be considered on remand in light of conflicting information supplied by one of Wal-Mart's senior security and loss prevention executives.FN13
    FN13 In an article written for a trade publication, it was acknowledged that 80% of crime at Wal-Mart stores occurred in the parking lots or the exterior perimeter of the stores. The article praised newly implemented parking lot security measures ranging from roving patrols to employees wearing orange vests to surveillance cameras. These measures were said to produce 'outstanding' results in reducing crime, helping 'halt many crimes in progress,' and providing 'crucial evidence to local [law enforcement authorities].' The article also noted that the costs of these security measures 'wasn't quite as expensive as what [the store] had been doing. So [the store] saved a little money and did much more effective work.'
    In weighing the magnitude of harm and the burden imposed upon defendant, the court must consider whether imposing a duty to take reasonable measures to protect patrons from the consequences of criminal acts of third persons would place an onerous burden - economic or otherwise - upon defendants. If it does not, then the court must consider whether the burden outweighs the foreseeability and gravity of the possible harm, so as to preclude the finding of a duty to take reasonable steps to protect patrons. We hasten to point out, however, that the question of duty and of whether defendants have breached that duty by taking or not taking certain actions is one for the jury to determine based upon proof presented at trial. Additionally, if properly raised as a defense, under our doctrine of comparative fault, a plaintiff's duty to exercise reasonable care for her own safety would be weighed in the balance. Perez v. McCoskey, 872 S.W.2d 897 (Tenn. 1994)." Id. at 904.
  • "Finally, we must address defendants' argument that random criminal acts of unknown third persons amount to superseding, intervening causes for which defendants cannot be held liable as a matter of law. It is true, as pointed out by defendants, that a superseding, intervening cause can break the chain of causation. In this regard, we have stated that
    [t]here is no requirement that a cause, to be regarded as the proximate cause of an injury, be the sole cause, the last act, or the one nearest to the injury, provided it is a substantial factor in producing the end result. An intervening act, which is a normal response created by negligence, is not a superseding, intervening cause so as to relieve the original wrongdoer of liability, provided the intervening act could have reasonably been foreseen and the conduct was a substantial factor in bringing about the harm.

    Haynes v. Hamilton County , 883 S.W.2d 606, 612 (Tenn. 1994) (quoting McClenahan v. Cooley, 806 S.W.2d 767, 775 (Tenn. 1991)). Proximate cause, as well as the existence of a superseding, intervening cause, are jury questions unless the uncontroverted facts and inferences to be drawn from the facts make it so clear that all reasonable persons must agree on the proper outcome. Haynes v. Hamilton County, 883 S.W.2d at 612; Cook v. Spinnaker's of Rivergate, Inc., 878 S.W.2d 934, 940 (Tenn. 1994); McClenahan v. Cooley, 806 S.W.2d at 775-76."
    Id . at 905.

Other Sources of Note: Staples v. CBL & Associate, Inc. , 15 S.W.3d 83 (Tenn. 2000) (duty owed to prevent abduction; jury question on degree of fault of plaintiff); Helton v. Glenn Enterprises, Inc. , 209 S.W.3d 619 (Tenn. Ct. App. 2006) (duty owed to motel patrons for criminal acts which occurred on adjoining property); Patterson-Khoury v. Wilson World Hotel-Cherry Road, Inc., 139 S.W.3d 281 (Tenn. Ct. App. 2003) (jury verdict for defendant in motel robbery and stabbing case affirmed; opinion includes discussion of typical evidentiary issues).

Recent Cases: Giggers v. Memphis Housing Authority , 277 S.W.3d 359 (Tenn. 2009) (reversing summary judgment in premises liability case for criminal acts of third party finding the potential for violence in housing project was reasonably foreseeable and the gravity of harm outweighed the burden on defendant to take reasonable protective measures) (Holder, J., dissenting) (finding foreseeability should be excluded from the legal analysis as to whether a duty exists and left to the trier-of-fact in determining whether a defendant actually breached a duty and caused foreseeable injury); Barron v. Emerson Russell Maintenance Company, No. W2008-01409-COA-R3-CV, 2009 WL 2340990 (Tenn. Ct. App. July 30, 2009) (reversing summary judgment finding duty on part of defendant security company and rejecting security company's argument that only the owner of premises has a duty to customers); Keaton v. Wal-Mart Stores East, L.P., No. E2008-00118-COA-R3-CV, 2009 WL 17853 (Tenn. Ct. App. Jan. 2, 2009) (affirming summary judgment in premises liability case for criminal acts of third party finding there was not enough crime in vicinity of defendant's store to give rise to a duty); Smith v. State, No. E2007-00809-COA-R3-CV, 2008 WL 699062 (Tenn. Ct. App. Mar. 17, 2008) (concluding that the evidence does not preponderate against the Claims Commission's findings that the State negligently created or maintained a dangerous condition on state-controlled property due to improper lighting in parking garage, that the attack on the plaintiff was foreseeable, and that the State had adequate notice of the dangerous condition); Giggers v. Memphis Housing Authority, No. W2006-00304-COA-R3-CV, 2007 WL 2216553 (Tenn. Ct. App. Aug. 3, 2007) (affirming trial court's grant of summary judgment in favor of defendant owner and operator of housing authority holding that the isolated violent outburst by the shooter was insufficient to notify the defendant that criminal acts against its tenants were reasonably foreseeable, either generally or at some particular time; also holding it is against public policy and scope of landlord's duty to require landlord to evict or closely monitor a tenant who is known to have a criminal history).

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The foregoing is an excerpt from Day on Torts: Leading Cases in Tennessee Tort Law, published by John A. Day, Civil Trial Specialist, Fellow in the American College of Trial Lawyers, recipient of Best Lawyers in America recognition, Martindale-Hubbell AV® Preeminent™ rated attorney, and Top 100 Tennessee Mid-South Super Lawyers designee. Read John’s full bio here.

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