Premises Liability Essay, Research Paper
(LANDOWNERS AND OCCUPIERS)
I. Premises Liability – Responsibility of Landlords and Tenants.
Under the common law, a landlord was not liable for injuries sustained by third persons while on leased premises. Court decisions and statutes have since overridden this no-liability rule. Landlords owe a duty of reasonable care to tenants and third parties not to negligently cause them injury. This duty is based on the foreseeability standard of ordinary negligence actions. In addition, a tenant owes a duty of reasonable care to persons who enter upon the leased premises. If a third person is injured as a result of the negligence of the tenant, he is liable in tort for damages sustained by the injured person. The liability of landlords and tenants to persons injured on their premises is referred to as premise liability. (Cheeseman, p. 1030).
II. Categories of Injured Persons
In actions based on negligence, a landowner s duty to one on his property is measured by the status of that person, namely by the circumstances under which he came or remained on the property. The injured person is classified as a trespasser, licensee or invitee. The question would be, how did he come there or what was he doing there. The person could he be a burglar, social guest, or one on the possessor s business. (Franklin Rabin Tort Law and Alternative).
A trespasser is an individual who goes on property without the permission of the landowner or without some other right to be on the property. In this case, the entry is for the trespasser s own purpose or convenience and not for the benefit of the landowner. In that instance, the trespasser would not be protected. The possessor s only duty is to refrain from inflicting willful, wanton or intentional injuries upon a trespasser.
A licensee is one who is permitted to enter upon or remain on property with the possessor s consent, express or implied. The duty of care owed to a licensee is somewhat the same as that owed to a trespasser. The possessor is to again refrain from inflicting willful, wanton or intentional injury, or maintaining a trap.
An invitee is subdivided into two categories, a public invitee and a business visitor. A public invitee is one who, as a member of the public, is invited to enter or remain on property which is held open to the public, or is invited to enter or remain on the property which is held open to the public. A business visitor is one who is invited to remain on the property for a purpose directly or indirectly connected with business dealings with the possessor of the property. The duty owed to an invitee is to use due care to keep the property in a reasonably safe condition so that invitees will not unnecessarily be exposed to danger. This includes the duty to warn the invitee of any hidden danger if the possessor is unable to maintain the property in a reasonable safe condition.
In Basso v. Miller, 40 N.Y.2d 233, 352 N.E.2d 868, 386 N.Y.S.2d 564, 1976, plaintiff sued for injuries sustained as a motorcycle passenger in defendant s large scenic park when, after dark, the motorcycle hit a series of holes in the road and overturned. Because of the differing versions of the events, the trial judge charged the jury that the plaintiff could have been found to be a trespasser who has been asked to leave; a licensee whose presence was being tolerated, or an invitee patron of the park. The judge explained to the jury that a different duty was owed to plaintiff depending on how the jury classified him.
III. Categories of Premises and Considerations
A landowner that leases apartments and advertises security features creates a voluntary duty to provide security in a reasonable manner to his tenants. The Restatement (Second) of Torts, 323 (1965) provides the following:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other person or thing, is subject to liability to the other for physical harm resulting from his failure to undertake reasonable care to perform his undertaking if: 1) his failure to exercise such care increases the risk of such harm; or 2) a harm is suffered because of the other s reliance upon the undertaking.
Landlords may also be potentially liable for injuries, which occur on land not owned, or even controlled, by them. For example, a ruling in California, a landlord was held liable for the death of a tenant s child, which took place on the busy street in front of the owner s property. Although the landlord has presented evidence that he did not own or have control over the area where the accident occurred, the higher court ruled that a landowner s duty of care to avoid exposing others to a risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner. Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off-site if the landowner s property is maintained in such a matter as to expose persons to an unreasonable risk of injury off-site. The issue of who has control over property where accidents occur has been removed by this and similar rulings. It no longer matters where the hazardous condition exists, but whether one has knowledge of it. Now it will be juries duty to decide whether a landlord should have pro-actively protected his residents from potentially dangerous conditions, which are not necessarily under his control. (http://findlaw.com).
B. Parking Lots.
Premises security cases also involves parking lots. The analysis of these cases focuses on the element of foreseeability. Certain courts, however, draw distinctions when determining foreseeability as it relates to parking lots. For example, in Barefield v. City of Houston, 846 S.W.2d 399 (Tex. App.-Houston [14th Dist.] 1992, an assault that occurred in a parking lot following a rock concert was not the responsibility of the defendants, because the assault took place outside the leased premises. The court based its ruling on the concept that liability follows control. An exception exists if there is foreseeable criminal activity in the area. (http://findlaw.com).
There are some instances where owners of premises can be held liable for injuries sustained in parking lots. Such as, in a case where a plaintiff slipped, fell and was injured in the parking lot outside of appellant s tavern, in an icy area at a spot where there was water upon the ice. Although there was evidence that it has rained that day, respondent testified the water at the place of the fall came from a hose outlet connected with a sump pump in the tavern s basement. See, Adams v. Ferraro, 41 App.Div.2d 578, 339 N.Y.S.2d 554 1973, an appeal from a judgment of the Supreme Court, rendered a verdict in favor of plaintiff. See also, Butler v Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982), plaintiff was knocked down and robbed in the parking lot of defendant s supermarket after having finished shopping. There had been a number of previous muggings on Acme s premises, although they maintained security both inside and out the store. At the time of the incident, the one guard on duty was inside the store; therefore the court concluded that the store had a duty to use due care to protect its customers from criminal attacks on its premises.
Hotels oftentimes advertise a safe, home-like atmosphere for its guests. Generally, guests are unfamiliar with the locale and crime pattern of a particular city. The owner of the hotel must take reasonable care to provide for the safety of its guests. It is the duty of hotel owners to minimize liability exposure and to maintain control of their property. The Restatement (Second) of Torts, 314A (1965) states that special relationships as follows:
Special Relations Giving Rise to Duty to Aid or Protect.
1) A common carrier is under a duty to its passengers to take reasonable action (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can e cared for by others. 2) An innkeeper is under a similar duty to his guests.
Liability in the innkeeper-guest relationship is based as a matter of law either upon the innkeeper s supervision, care or control of the premises, or by reason of a contract which some courts have implied from the entrustment by the guest of his personal comfort and safety to the innkeeper. The contract is held to give the guest the right to expect a standard of treatment at the hands of the innkeeper, which includes an obligation on the part of the innkeeper to exercise reasonable care in protecting the guest. (Franklin Rabin Tort Law and Alternative).
D. Shopping Malls.
As in other types of premise cases, it is important for the owners and occupiers of shopping malls to be aware of the crime history at the particular mall and of the area surrounding the mall. In Ann M. v. Pacific Plaza Shopping Center, 863 P.2d 207 (Cal. 1993), the victim was raped while working at the Pacific Plaza Shopping Center. No rapes had previously occurred there, although the area surrounding the center was a high crime area. The California Supreme Court found that the shopping mall had no knowledge of prior similar violent crimes on its premises and held that it was not sufficiently foreseeable to impose a duty upon the shopping center to provide security. (http://findlaw.com).
IV. Issues of Foreseeability
Landowners and/or proprietors can be found liable for unanticipated torts and criminal acts of third parties. Section 344 of the Restatement (Second) of Torts, concerning criminal acts of third persons, provides the following:
Business Premises Open to Public; Acts of Third Persons or Animals.
A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused the by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.
The true ground for liability is the proprietor s superior knowledge of the danger therefrom to persons going upon the property. It is when the danger is known to the owner or occupant and not known to the person injured that a recovery is permitted. These cases typically involve invitees that have been attacked or assaulted, or otherwise injured, by the criminal act of a third party while on the property of another. See, Emory University v. Duncan, 182 Ga. App. 326, 328, 255 S.E.2d 446 (1987); Cole v. Cracker Barrel, 210 Ga. App. 488, 436 S.E.2d 488 (1983). Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such person for injuries cases by his failure to exercise ordinary care in keeping the premises and approaches safe.” It is the duty of a owner/landlord to protect invitees from injury caused by the misconduct of third persons if there is a reasonable apprehension of danger from the conduct of third persons or if the injury could have been prevented by the owner/landlord through the exercise of ordinary care and diligence. A showing that the landlord/owner had, or should have had, prior knowledge that the presence of third persons created a dangerous condition for patrons on his premises is typically necessary in order to show the existence of a duty o the part of the owner to provide preventative security measures. If there is no duty there, the random unforeseeable misconduct of a third person is considered to be the sole proximate case of the injury and insulates the owner/landlord from liability. In order to find liability in the case of intervening misconduct or criminal acts, the owner/landlord must have had reasonable grounds to believe that the particular criminal act was likely to occur. (http://findlaw.com).
Courts traditionally have determined foreseeability by the prior similar incidents rule or the one free crime rule. Under this analysis, a crime was foreseeable only if similar crimes had occurred on the premises. The majority of jurisdictions have abolished this rule and adopted the totality of the circumstances standard of foreseeability. For example, in apartment cases, some of the factors in determining foreseeability under the totality of circumstances standard would encompass the landlord s knowledge of prior similar occurrences. See, Kline v. 1500 Massachusetts Avenue Apartment Corp., 439 F.2d 477, 1970, the appellant sustained injuries when she was criminally assaulted and robbed in the evening by an intruder in the common hallway of an apartment house located at 1500 Massachusetts Avenue. At the time Appellant signed the lease a doorman was on duty at the main entrance twenty-four hours a day, and at least one employee manned a desk in the lobby from which all persons using the elevators could be seen. Subsequently, the security measures used to protect tenants lapsed and the entrances to the building were often left unlocked. Eventually, a number of assaults, larcenies and robberies were being perpetrated against the tenants in and from the common hallways of the apartment building. These facts were undisputed by the landlord. The appellee apartment corporation stated that there is only one issues presented for review whether a duty should be placed on a landlord to take steps to protect tenants from foreseeable criminal acts committed by third parties.” The District Court held that there is no such duty. The Court of Appeals held that there is, and that in the circumstances here the applicable standard of care was breached. The lower courts decision was reversed and damages awarded to appellant. The courts rationale behind their ruling was that in this jurisdiction, certain duties have been assigned to the landlord because of his control of common hallways, lobbies, stairwells, etc., used by all tenants in multiple dwelling units.
There may be reasons for not holding a landlord liable . For as a general rule, a private person does not have a duty to protect another from a criminal attack by a third person. Among the reasons for the application of this rule to landlords are under the traditional common law of landlord-tenant relationships; the notion that the act of a third person in committing an intentional tort or crime is a superseding cause of the harm to another resulting therefrom; the acts; the vagueness of the standard which the landlord must meet; and conflict with the public policy allocating the duty of protecting citizens from criminal acts to the government rather than the private sector. Id. (Franklin Rabin Tort Law and Alternative).
On the other hand, there are enough compelling reasons why landlord should be held liable for criminal acts by third persons. The court has reasoned that the landlord is no insurer of his tenants safety, but he is certainly no bystander. If the landlord has had notice of repeated criminal assaults and robberies, and has notice that these crimes occurred in the portion of the premises exclusively within his control, has every reason to expect like crimes to happen again, and has the exclusive power to take preventive action, it is not unfair to place upon the landlord a duty to take those steps which are within his power to minimize the predictable risk to his tenants. Id. (Franklin Rabin Tort Law and Alternative).
The court held that:
Given this duty of protection, and the standard of care as defined, it is clear that the appellee landlord breached its duty toward the appellant tenant here. The risk of criminal assault and robbery on any tenant was clearly predictable, and landlord had specific notice of this. . . .. His duty is to take those measures of protection which are within his power and capacity to take, and which can reasonably be expected to mitigate the risk of intruders assaulting and robbing tenants. . . . he is obligated to protect those parts of his premises which are not usually subject to periodic control and inspection by the municipal police. . . ..
Id. This case has set the standards of precedence in many cases involving the foreseeability standard of unanticipated criminal acts of third persons.
Another applicable section of the Restatement (Second) of Torts is 448, discussing foreseeability states:
Intentionally Tortuous or Criminal Acts Done Under Opportunity Afforded by Actor s Negligence. The act of a third person in committing an intentional tort or crime is a superseding cause of harm to another resulting therefrom, although the actor s negligent conduct created a situation which afforded an opportunity to the third person to commit such a tort or crime, unless the actor at the time of his negligent conduct realized or should have realized the likelihood that such a situation might be created, and that a third person might avail himself of the opportunity to commit such a tort or crime.
A case that involves this standard of foreseeability is the case of Berry Property Management, Inc. v. Bliskey, 850 S.W.2d 644 (Tex. App. Corpus Christi 1993), where the plaintiff was raped in her rented condominium in the middle of the night and subsequently forced to withdraw her savings from an automatic teller machine. The rapist broke into the apartment manager s office and pulled the key of the plaintiff s apartment number. Judgment was entered in favor of the plaintiff. The court held that the danger that someone could enter the management office, access resident rental information and the respective keys was foreseeable. Management owed a duty of reasonable care in maintaining its residences keys and rental information. The negligent act of mishandling the residences keys was a proximate cause of the assault. (http://findlaw.com).
There has been a substantial amount of verdicts rendered in favor of victims due to the criminal conduct of third parties on premises the premises of land and property owners. Juries are shifting the responsibilities of controlling violent criminal acts away from police and placing the responsibility upon owners and occupiers of premises. Therefore, it is the duty of owners/landlords to be fully aware of the issues concerning protecting persons that are in some form, utilizing their property.
Cheeseman, Henry R. Business Law: Ethical, International, & E-Commerce Environment. Fourth Edition. Prentice-Hall, Inc., Upper Saddle River, New Jersey, 2001.
Franklin, Marc A. and Robert L. Rabin. Tort Law and Alternatives: Cases and Materials-Fourth Edition. The Foundation Press, Inc., Mineola, New York, 1987.