Premises Liability for Crimes Outside the Business Premises: Uncertainty at the Courts
by Mitchell B. Stein

It is a sad reality of modern life that crimes happen, and often enough, they happen on sidewalks and in parking lots right outside our front (or back) doors. If one of your patrons is injured or assaulted by criminals on adjacent property, can you be held liable? The general rule is that an owner or operator of a business is liable for dangerous conditions that he or she knew about, or should have known about, and that he or she did not warn about. But as to criminal attacks, the general rule has been that the business operator is not an insurer of patron safety, and only has a duty to guard against foreseeable criminal activity - and then only if security measures are not too burdensome. However, as often occurs with regard to attempts to state a "general rule," these general rules are subject to a myriad of exceptions, corollaries, and clarifications.

Two recent decisions from the California appellate courts illustrate the difficulty in harmonizing the law as it relates to premises liability for third party criminal conduct. In Avila v. Jado Properties, a case decided late last year, a restaurant catered a party in one of its banquet rooms, and advised the customers that it would provide security. At the event, two invited attendees were shot by gang members in a "drive-by" shooting, and thereafter sued the restaurant alleging inadequate security. The restaurant defended by citing the general rule that a restaurant has no duty to protect from actions taken by third parties (i.e., the gang members) on a public sidewalk or street. The Avila court said no. Since the restaurant undertook to provide security, so the court reasoned, it undertook a duty to provide reasonable security - even as to activities impacting its patrons on public streets and sidewalks outside the entrance. So much for the "general rule" that the owner owed no duty to prevent attacks occurring on or from a public street or sidewalk.

In Morris v. De La Torre, another appeals court decision from late last year, a patron of a fast food restaurant was attacked in the parking lot by an assailant who entered the restaurant to get a knife. Once the assailant began attacking the victim, a restaurant employee did not call the police. The victim sued, claiming the restaurant should have done something to prevent the attack, and should have had its employee call the police once it started. The Morris court agreed as to the latter, but not as to the former. In doing so, the court drew a distinction between preventing a crime and doing something about a crime in progress. Although the court felt that the employee's fear was eminently justifiable, a business operator (and its employees) must take reasonable action to protect customers once a crime is occurring. Here, the jury should have had the opportunity to decide whether under the facts it was reasonable for the employee to stand by and not call the police while the patron was being assaulted.

The moral of the story (and both cases) is that the "general rule" is of questionable vitality in many instances. Notwithstanding the applicability of the general rule, the prudent business operator must do everything reasonably possible to protect patrons. In those situations where security is promised, the business may be liable if security personnel act unreasonably under the circumstances. And in those situations where, for whatever reason, a crime is occurring, the business should have the ability to promptly summon aid - and do it.