Contact Us Home
LinkedIn Facebook Twitter

Defense Research Institute

The Law of Premises Liability - An Overview

 THE LAW OF PREMISES LIABILITY -

AN OVERVIEW

 By: F. Robert Radel, II, Esq.

 

I. INTRODUCTION

One of the emerging civil actions of this decade has been lawsuits by victims of violent crimes committed on the premises of motels and hotels, apartment complexes, shopping centers, office buildings, and other public facilities. Allegations of inadequate security, failure to secure storage areas, inadequate lighting, failure to warn residents or patrons of previous activities in the area, failure to provide security devices and failure follow reasonable security practices have been common place in this the premises liability arena.

The focus of this paper is to analyze the recognized duties of owners and occupiers of land and premises, and more specifically, to discuss the approaches to liability, whether evolving or traditional, adopted by the various jurisdictions. Finally, the paper will address an issue which continues to generate discussion among the defense bar - namely, whether a defendant owner is entitled to inclusion of the assailant on the jury verdict form.

II. DUTIES OF OWNERS AND OCCUPIERS OF LAND FOR VIOLENT CRIMES COMMITTED ON THEIR PREMISES

A. Basis for Liability

Historically, the courts have hesitated to burden an owner of property with an affirmative duty to protect a resident or patron from the criminal activity of a third person. However, when a certain special relationship exists between the owner or occupier of a business and its guest, the courts have generally carved out exceptions to this no-duty rule.

The Restatement of Torts, underscores this willingness of the courts to find liability when such special relationships exist, stating:

        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 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 visitors to avoid the harm or otherwise protect them against it.

Restatement (Second) of Torts, Section 344 (l965).

A comment to the Restatement section makes clear that the existence of the duty depends, to a great extent, on the foreseeability of criminal conduct by third persons.

Duty to police premises.  Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

Id. Comment f.

The comment emphasizes two distinct situations in which a special duty may arise. The first occurs when the owner knows or has reason to know that a third party is harming or is about to harm a guest. At this point, the owner may be able to protect the guest only by warning him or her, alerting police authorities, or employing available security measures. The second situation may exist where the nature of the owner's business or experience provides a basis for the reasonable anticipation on the owner's part that prior or potential criminal activity may put guests at risk. In the latter scenario, the owner may be liable for failing to adopt security measures which might have prevented the third person from inflicting harm upon the guests. The distinction between these situations is critical, since the duty to foresee a general risk of criminal activity and to take necessary steps to safeguard guests from it may require substantial expenditures on the part of the owner or occupier.

Whichever approach is recognized by a jurisdiction under a given set of facts, however, the issue which must also be addressed is that of foreseeability.

B. Approaches to Foreseeability

Obviously, regardless of jurisdiction, liability for premises owners is still predicted upon fault. Thus, although it is established that the owner owed the victim a duty to protect him or her from harm, the question of the scope of that duty and whether the resulting injury was a direct result of the owner's failure to carry out his duty must be resolved.

The nature and degree of proof a plaintiff must introduce in order to establish that the owner/occupier knew or had reason to know of a risk of criminal assault upon guests will depend largely upon whether the jurisdiction adopts a liberal or more narrow (traditional) approach to foreseeability.

Under the latter, more restrictive, approach, which generally requires actual knowledge of imminent danger, evidence of prior assaults will be inadmissible. This approach is often labelled the "no duty rule."

In jurisdictions adopting a somewhat less restrictive view, generally known as the "similar acts rule," a duty may arise when the owner knows or has reason to know of prior incidents of the same or similar kind committed on the premises. In these jurisdictions, knowledge of prior purse snatching, for example, may not render the risk of forcible rape foreseeable.

In those jurisdiction adopting a still more expansive view of foreseeability, a jury question may arise when evidence is introduced showing that the owner had reason to foresee criminal assault when burglaries or unarmed robberies are common in the surrounding area. Under this rule, the courts are willing to analyze the "totality of the circumstances" in determining responsibility of the owner.

Few jurisdictions continue to recognize the no duty rule. The rationale of the no duty approach is perhaps best illustrated by the New Jersey Superior Court in a somewhat dated decision, Goldberg v. Housing Authority, 186 A.2d 291, (N.J. l962). In Goldberg, the plaintiff was robbed and beaten in a self-service elevator while delivering milk to a housing project. The court ruled that a commission of a crime is foreseeable virtually anywhere, anytime, and thus there is no need to provide protection against criminal activity. The court reasoned that since criminal attacks are always foreseeable, a duty to protect patrons against such attacks would require "every residential curtilage, every shop, every store, every manufacturing plant.... to be patrolled by the private arms of the owner." Id. at 293.

In a more recent decision, the Supreme Court of Alabama affirmed the trial court's granting of summary judgment against the administrator of the decedent's estate seeking to recover damages from a motel owner for the death of the deceased, who was shot outside the motel following a teen dance. Moye v. Gaston Motels, Inc., 499 So.2d 1368 (Ala. l986). The court stressed that the "uncontroverted evidence" in the case demonstrated that "there had not been a single criminal incident at any prior teen dance" at the motel. Further, the appellant offered "no other evidence to indicate that the defendants were on notice that this criminal act might occur." Id. at 1373.

The Georgia Court of Appeals likewise affirmed the granting of a summary judgment against a claimant who was injured in a bar fight. Knudson v. Lenny's, Inc., 413 S.E.2d 258 (Ga.App. l991). The court reasoned that the mere fact that fights and arguments are predictable in drinking establishments did not create a factual issue as to foreseeability. Rather, the court opined that no evidence had been introduced establishing that the club's employees were aware, or should have been aware, of the attack. Further, the court stressed that no evidence was present in the record to establish that the club could have prevented the incident occurring by utilizing a different security system. The court reasoned that "[a] landowner does not become an insurer of safety by taking some security precautions on behalf of invitees." Id. at 260.

The Michigan high court also adopted a relatively conservative position, affirming a directed verdict for a store owner in a case where a customer, fleeing the store behind a fleeing robber, was shot. In Williams v. Cunningham Drug Stores, Inc., 418 N.W.2d. 381 (Mich. l988), the court noted that the issue before it was whether the merchant's duty to exercise reasonable care included providing armed, visible security guards to protect invitees from criminal acts of third parties. The court rejected such a duty, noting that the position advocated by the plaintiff was essentially a duty to provide police protection.

Three recent appellate decisions indicate that Michigan is apparently unwilling to abandon its pro-business approach in favor a totality of circumstance analysis. In Fuga v. Comerica Bank, No. 138128, Mich.App.Ct., l993, the Court held that a bank cannot be held liable for a third-party attack by an assailant on a patron using the bank's automated teller machine. The Court reasoned that placing a duty on a landowner to protect invitees, licensees or trespassers from criminal acts of third-parties would place upon that landowner a "greater burden than that which is placed upon the community for the protection of its members."

The same analysis was applied by the Michigan Appellate Court in Stanley v. Town Square Cooperative and Allison and Associates, 203 Mich. App. 143, 512 N.W. 2d 51, rev. denied, 521 N.W. 2d 609 (Mich. l994). In that decision, the Court noted that the duty which a possessor of land owes his invitees is not absolute. Since the owner is not an insurer of the safety of the invitee, the possessor "does not owe a duty to their invitees to make their parking lots safer than the adjacent streets." See also Prebeck v. Herfert Chiropractic Clinics, No. 137628, Mich.App.Ct., l993 (defendant owed no duty to plaintiff to protect her from criminal acts of third-parties).

Finally, a Tennessee court adopted a more restrictive approach when it granted a defendant's motion for summary judgment holding that the shooting and killing of the decedent while waiting in line at a McDonald's drive-thru was unforeseeable. Gray, individually, and as executrix of the Estate of Edward Gray v. McDonald's Corp., et al., 874 S.W. 2d 44 (Tenn. App. Ct. l993). The Court followed a prior Supreme Court decision, Cornpropst v. Sloan, 528 SW.2d 188 (Tenn. l975), wherein the Court held that "conditions in the area are irrelevant." That Supreme Court decision also refused to "speculate" upon the appropriate number of prior criminal acts which would give rise to a duty on the part of the owner to protect its patrons. See also McClung v. Delta Square Limited Partnership, 1995 WL 30595 (Tenn. App.) and Allmond v. Koger Properties, Inc., 1994 WL 706323 (Tenn. App.), where summary judgment was affirmed in each case.

Courts have further refused to find the existence of a duty to protect certain plaintiffs who were exposed to criminal misconduct by the very nature of their employment. In one such case, a freelance photographer brought an action against a newspaper for injuries sustained when he was attacked and beaten while photographing a hotel while on assignment for the newspaper. In Gutierrez v. Scripps Howard, 823 S.W.2d 696 (Tex. App.-El Paso l992), the appellant alleged that the newspaper failed to warn of a danger associated with his assignment. He further alleged that the newspaper concealed information about the type of individual with whom the appellant would come into contact with on the assignment. The court refused to find a duty on the part of the newspaper to protect the photographer under those circumstances. Similarly, it has been held that a retailer which contracted with a security service for the services of security guard to protect its warehouse against theft, owed no duty to protect the guard against rape where there had been no previous assaults or threats of violent criminal activity at the warehouse. Wingard v. Safeway Stores, Inc., 123 Cal.App.3d 37, 176 Cal.Rptr. 320 (l981). The Wingard court further noted that previous thefts at the warehouse neither provided notice nor created any reasonable foreseeability of the sexual attack inflicted upon the guard.

Applying the similar acts rule, the Supreme Court of Virginia, in Wright v. Webb, 362 S.E.2d 919 (Va. l987), held that motel owners owed no duty to protect a dinner theater patron from criminal assault in an adjacent parking lot, notwithstanding reports of prior larcenies and violent crimes in the motel, parking lot and on other adjacent property. However, the Supreme Court expressly stated in a subsequent decision the general rule in Virginia is that of a no-duty approach. Gupton v. Quicke, 442 S.E.2d 658 (Va. l994).

In Wright, the plaintiffs sought damages against the defendants, the latter operating the motel as a Quality Inn, alleging negligence in failing to provide adequate exterior lighting of the parking lot, fencing, closed circuit television, perimeter patrols and speed bumps which, it was alleged, would protect business invitees from "foreseeable criminal attacks." Id. at 920.

The court pointed out that police reports indicated prior larcenies had been committed once or twice a month in either the motel rooms or in automobiles parked in the lot. Further, the motel manager was aware of some of the prior larcenies occurring in the parking lot, as well as a prior physical assault upon a female guest in a hotel room and a double murder in the parking lot of an adjacent parcel.

In addition, the court pointed out that the record contained evidence from which the jury could conclude that the parking lot was dimly lit and that other available precautions, such as fencing, closed circuit television, security patrol and a speed bump, may have deterred criminal activity in the parking area.

Nevertheless, the court opined that a business invitor, whose method of business does not attract or provide a climate for violent crimes, does not have a duty to undertake major procedures to protect a guest against criminal assault "unless he knows that criminal assaults against persons are occurring, or are about to occur, on the premises which indicate an imminent probability of harm to an invitee." The court further reasoned that the two prior "isolated" acts of violence in the area would not lead a reasonable person in charge of the dinner theater parking lot to preclude that there was imminent danger of criminal assault. Id. at 922.

Despite reported decisions following less stringent approaches to foreseeability, the trend among most jurisdictions is to adopt the totality of the circumstances rule. Under this approach, even absent any prior similar acts, a landowner may be held liable for criminal attacks, depending upon an analysis of all surrounding facts and circumstances.

One of the earlier decisions adopting the "totality" approach was handed down by the California Supreme Court in Isaacs v. Huntington Memorial Hospital, 695 P.2d 653 (Cal. 1985). In that case, a doctor was severely injured after being shot while returning to his car in a hospital parking lot. The doctor filed suit against the hospital alleging inadequate security measures to protect him against criminal acts. The court soundly rejected the prior similar acts approach, noting that it was contrary to public policy. The court reasoned:

The rule has the effect of discouraging landowners from taking adequate measures to protect premises which they know are dangerous. This result contravenes the policy of preventing future harm. Moreover, under the rule, the first victim always loses, while subsequent victims are permitted recovery. ...Surely a landowner should not get one free assault before he can be held liable for criminal acts which occur on his property.

Id. at 658.

Interestingly, although initially adopting the trend toward liberality in finding owner liability in cases involving third-party criminal acts, the California Supreme Court has recently attempted to "refine" Isaac and, perhaps, return to a similar acts approach. In Ann M. v. Pacific Plaza Shopping Center, et al., 6 Cal. 4th 666, 863 P.2d 207, 25 Cal.Rptr. 2d 137, the Court noted that random, violent crime is "endemic in today's society." The Court concluded that:

"... the 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. [Footnote 7]. To hold otherwise would be to impose an unfair burden upon landlords and, in effect, would force landlords to become the insurers of public safety, contrary to well-established policy of this state."

Unfortunately, other jurisdictions have not yet followed California's lead in abandoning the totality of circumstances approach. The Kansas Supreme Court recently joined the trend toward liberality in Sibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 856 P.2d 1332 (Kan. Sup. Ct. 1993), holding that the "totality of the circumstances is the better reasoned basis for determining foreseeability." The Court went on to state that the circumstances must, however, "have a direct relationship to the harm incurred in regard to foreseeability."

The Florida Supreme Court has likewise adopted the totality of the circumstances approach. Hall v. Billy Jack's, Inc., 458 So.2d 760 (Fla. l984); Allen v. Babrab, Inc., 438 So.2d 356 (Fla. l983); Stevens v. Jefferson, 436 So.2d 33 (Fla. l983).

In Stevens, the widow of a bar patron, who was shot and killed in a bar by another patron, brought an action against the bar owner. The plaintiff introduced evidence at trial demonstrating that the bar had a history of fights and gun play, that the owner had terminated all security service and had left the premises in the hands of a female employee who was unable to maintain order. The plaintiff, however, failed to allege or prove that the defendant was aware of any dangerous propensities on the part of the decedent's assailant. On appeal, the defendant contended that the plaintiff could not prevail due to the lack of knowledge of such propensities.

The Supreme Court affirmed the trial court's judgment against the bar owner, stating that to impose liability on a tavern owner for injuries to patrons intentionally inflicted by third parties, the risk of harm to the bar's patrons must be reasonably foreseeable. With respect to the issue of foreseeability, the court maintained:

Although knowledge of a particular assailant's propensity for violence is often found to be evidence of foreseeability in these cases, we reject the contention ... that proof of foreseeability should be limited by law to evidence of actual or constructive knowledge of a particular assailant's propensity for violence. A tavern owner's actual or constructive knowledge, based upon past experience, that there is a likelihood of disorderly conduct by third persons in general which may endanger the safety of his patrons is also sufficient to establish foreseeability.

436 So.2d at 35.

 

Applying the facts of the case to this reasoning, the court found that a jury could determine that a foreseeable risk of harm to patrons existed, that the risk was either created or tolerated by the defendant, that the defendant could have remedied the danger but failed to do so, and that because of that failure to perform his duties, a patron was killed.

In Hall, a tavern customer brought an action against the tavern and another customer for injuries sustained in an assault. The plaintiff was assaulted by the fellow customer while watching a pool game in the tavern. After the Court of Appeals affirmed the trial court's judgment against the assailant, the Supreme Court reversed the appellate court, holding that foreseeability may be established by demonstrating that the owner had actual or constructive knowledge of a particular assailant's inclination towards violence or by proving that the owner had actual or constructive knowledge of a dangerous condition on the premises that was likely to cause harm to a patron. The court further stressed:

A dangerous condition may be indicated if, according to past experience (i.e., reputation of the tavern), there is a likelihood of disorderly conduct by third persons in general which might endanger the safety of patrons or if security staffing is inadequate. These indicia are not exhaustive. If the lounge management knew or should have known of a general or specific risk to Hall and failed to take reasonable steps to guard against the risk and if, because of that failure, Hall was injured,

Bill Jack's may be shown to have breached its duty and may be held financially responsible for Hall's injuries.

458 So.2d at 762.

 

In Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 (La. 1984), the Supreme Court of Louisiana utilized the totality circumstances approach in discussing the foreseeability of harm to a patron during an armed robbery in the presence of a security guard hired by the establishment. See Nixon V. K&B, Incorporated, 649 So.2d 1087 (La. App. 4th Cir. 1995), which distinguished Harris. During the robbery of the Pizza Hut, one patron was killed and another injured by a shotgun blast. At trial, the jury concluded that the plaintiffs' injuries were a result of the negligence of the restaurant's security officer and awarded substantial damages. The Court of Appeal reversed, finding that the security officer's actions were not a cause of the plaintiffs' damages.

In reversing the appellate decision, the court noted that the establishment was located in a high crime area. Further, there was evidence that the hiring of the security guard had resulted in a lull of criminal activity and that this particular armed robbery would not have occurred if the criminals had been aware that a security guard was on the premises. Thus, the court reasoned, the jury may well have concluded that the guard who was hired to protect the patrons and property of the restaurant was negligent in carrying out his duties by failing to position himself at the door or just outside the door of the establishment.

The court further reasoned that the guard was hired to prevent financial loss to the restaurant and to assure patrons that the premises were safe. This, according to the court, turned out to be an illusory impression of security. Therefore, the court indicated that whether the restaurant had a duty to hire security guards is "irrelevant." Since a security guard had already been hired, the question is whether the guard breached his duty of providing adequate measures to protect patrons of the eatery. Id. at 1371.

Other jurisdictions have also recently adopted or reaffirmed their adherence to the totality of circumstances approach. See Taco Bell, Inc. v. Lannon, 744 P.2d. 43 (Colo. l987), (an owner owes a non-delegatable duty to use reasonable care to protect invitees from foreseeable misconduct, including intentional criminal conduct) and Allison v. McDonald's Restaurants, 1993 WL 453689 (Ohio App. 8th Dist.), (the correct test of foreseeability is the application of the totality of circumstances approach). The Nevada Supreme Court recently held that an owner had a duty to provide adequate security to its patrons under either the prior similar acts or totality of circumstances approach, noting that there had been numerous crimes and arrests on the premises in the two years preceding the incident. Doud v. Las Vegas Hilton Corp., No.23513, Nev.Sup.Ct., l993.

III. DUTIES OF OWNERS AND OCCUPIERS FOR VIOLENT CRIMES COMMITTED OFF-PREMISES

Another evolving issue in the area of premises liability is the liability of an owner for injuries to guests which occur off-premises. The gravamen of claims alleging such an injury is that the owner should have implemented security measures beyond his premises to protect the invitee from criminal assault.

In Ember v. B.F.D., Inc., 490 N.E.2d 764 (Ind. Ct. App., 2nd Dist., l986), reh'g denied, 521 N.E.2d 981 (l988), a bar patron was injured in an assault in a parking lot across from a bar. Evidence showed that the lot was often used by bar patrons since the pub's only parking lot was located behind the building.

The record was replete with evidence that the pub had incurred problems in the past with excessive noise, bottle-throwing and parking. Additionally, the pub's management was aware of at least five or six incidents of violence, both inside and outside the tavern.

After holding that the proprietor knew that his patrons customarily utilized the adjacent lot for parking, the court reasoned:

An invitor's duty normally extends only to its "premises." However, we recognize that in this case "the premises" may not be limited to the area actually owned or leased by the Pub because its business activities extended beyond its legal boundaries.

A duty of reasonable care may be extended beyond the business premises when it is reasonable for invitees to believe that the invitor controls premises adjacent to his own or where the invitor knows his invitees customarily use such adjacent premises in connection with the invitation. Here, the record supports a reasonable inference the Pub knew its parking lot was insufficient for its patrons' use; additionally, the Pub was aware its patrons customarily used the parking lot across the street while patronizing it.

Id. at 772.

Similarly, a Florida appellant court was faced with the issue off-premises liability in Drake v. Sun Bank and Trust Company of St. Petersburg, 377 So.2d 1013 (Fla.App, 2nd Dist., 1979). In that action, a widow filed suit alleging negligence against the bank to recover for the death of her husband occurring when he was kidnapped from the bank's parking lot and driven to a remote location where he was robbed and murdered. The trial court held that the plaintiff failed to allege sufficient facts to meet the test of foreseeability.

The Court of Appeals affirmed the trial court's dismissal of the action, but reversed on the basis that the plaintiff should be given the opportunity to amend the pleading. In support of its holding affirming dismissal of the complaint, the court pointed out that the only allegation bearing on foreseeability was that because it was a bank, the appellee knew its customers often carried cash. Therefore, it was alleged, the bank should have anticipated that its customers might be robbed in the parking lot. The court pointed out that there were no allegations of advance warning of the attack, nor were the allegations of similar incidents having previously occurred in the parking lot. Further, since the attack took place during daylight hours, the plaintiff had not alleged inadequate lighting of the premises.

After remand of the action, the plaintiff amended her complaint and the trial judge against dismissed the action. On the second appeal, reported as Drake v. Sun Bank and Trust Company of St. Petersburg, 400 So.2d 569 (Fla.App., 2nd Dist., l981), the appellate court held that the allegations contained in the amended complaint were sufficient to state a cause of action for negligence. The court reasoned that the amended pleading contained added allegations that the bank was located in a high crime area, provided less protection than other banks and that the bank's security guards were negligent in allowing a dangerous condition to develop.

Other jurisdictions have also dealt with the issue of foreseeability with respect to off-premises criminal assaults. See Badillo v. Devivo, 515 N.E.2d 681 (Ill.App. l987)(a bar owner ejecting patron for arguing with a third party did not have duty to protect patron from later assault by same third party one-half block away); DeMare v. Woodbridge l985, Inc., 451 N.W.2nd 871 (Mich.App. l990)(nightclub owner had no duty to prevent off-premises attack by one patron on another after the two were expelled from the club); Krinnick v. Sharac Restaurant, Inc., 533 N.Y.S.2d 1013 (l988) (restaurant had no duty to illuminate rear alley way used in common with other tenant to protect prospective patron from criminal attack); and Southland Corp. v. Superior Court, 203 Cal.App.3rd 656, 250 Cal.Rptr. 57 (l988)(genuine issue of material fact existed as to whether store exercised actual or constructive control over vacant lot adjoining store where third parties attacked customer).

IV. RECENT DEVELOPMENTS - APPORTIONMENT OF FAULT TO THE ASSAILANT

Finally, an issue which has generated recent concern among both the defense and plaintiffs bars, is whether the trial court will allow apportionment of fault to an intentional tortfeasor in the premises liability setting. In other words, is the owner entitled to inclusion of the assailant on the jury verdict form. Several jurisdictions have addressed the issue. Additionally, several state legislatures, such as the Florida Legislature, are currently debating the issue to some extent.

California appears to have resolved the issue in favor of allowing possible allocation of fault to the assailant. In Weidenfeller v. Starr & Garter, 2 Cal.Rptr. 2d 14 (Cal.App.Ct., l991), the plaintiff was a victim of an armed assault in the parking lot of a bar. The plaintiff sued the bar and the barowner alleging negligent security. The jury found the bar's negligence caused plaintiff's injuries and attributed 75% to the assailant, 20% to the bar, and 5% to the plaintiff. The Weidenfeller court affirmed the apportionment, relying upon Civil Code § 1431.2, Subdivision (a), which provides that a defendant is liable for non-economic damages only in direct proportion to his fault.

The plaintiff argued that the comparative fault principles do not apply when a party acts intentionally. In rejecting those arguments, the Weidenfeller court stated that it would be absurd to interpret the comparative fault statute as benefiting a negligent tortfeasor only when there are equally culpable defendants, but eliminating the benefit when the other tortfeasor acted intentionally. Id. at 16. The court held that penalizing the negligent tortfeasor under such circumstances frustrates the purpose of the statute, which is to prevent the unfairness of requiring a tortfeasor who was only minimally culpable as compared to other parties to bear all the damages. The court also found that such an interpretation would violate the common sense notion that a more culpable party should bear the financial burden caused by its intentional act. Id.

The court specifically rejected numerous arguments advanced by the plaintiff. The court rejected arguments that applying the comparative fault statute to intentional and negligent acts would limit a plaintiff's opportunity to obtain full recovery. Id. at 16, 17. The court noted that the California Supreme Court has held that a consequence of comparative fault is that persons who are unfortunate enough to be injured by an insolvent tortfeasor would not be able to obtain full recovery for their non-economic losses. Id. at 17.

The court also rejected the argument that application of the comparative fault statute to intentional acts was against public policy because it would fail to effectively deter more culpable tortfeasors. Id. The court noted that negligent actors remain liable for all economic damages and are liable in proportion to their fault for non-economic damages. Id.

The court noted that comparative fault would not result in negligent defendants benefiting unfairly from a party's intentional conduct. Id. The court noted that a negligent actor is not relieved of liability because of the intervening act of a third person if the act was reasonably foreseeable. Id. The court held that such liability does not affect principles of causation, but merely shifts the party's responsibility for a portion of the damages once that liability is established. Id.

Finally, the Weidenfeller court rejected the plaintiff's argument that application of the comparative fault statute to injuries caused by intentional and negligent acts would violate due process rights because the jury would have no standard under which it could compare intentional misconduct to ordinary negligence. Id. The court found that juries are fully competent to apply comparative fault principles between negligent and strictly liable defendants. Id. The court found that the jury's allocation of most of the fault to an individual who actually committed the assault reflected that the jury applied the proper standard and understood fully how to compare the tortfeasor's conduct. Id.

Similar reasoning was adopted by the New Jersey court in Blazovic v. Andrich, 590 A. 2d 222 (N.J. 1991). In that case, a customer at a bar received injuries in a fight with other customers at the bar and filed suit against those customers and the bar. The jury found the bar negligent. The trial court instructed the jury to compare only the relative fault of the negligent parties (apparently finding that the negligent conduct of those parties could not be compared with the intentional conduct of the remaining parties). The appellate court held that the jury verdict was incomplete because the jury did not apportion a percentage of fault to the intentional tortfeasors. The Blazovic court affirmed the appellate court decision.

The Blazovic court reasoned that the adoption of the New Jersey Comparative Negligence Act reflected a legislative decision to ameliorate the harsh results of the doctrine of contributory negligence. Id. at 226. The court further noted that decisions rejecting apportionment of fault in actions involving intentional tortfeasors derive from an earlier time when courts attempted to avoid the contributory negligence defense and sought to deter and punish tortfeasors. Id. The court also stressed that the Act's application also applied to strict liability actions and covered fault in a broader sense than the narrow concept of "negligence." Id. at 226, 227. For instance, comparative fault principles also apply to wanton and willful conduct. Id. at 227.

The court also rejected the concept that intentional conduct is "different in kind" from both negligence and wanton and willful conduct and cannot be compared with them. Instead, the court viewed intentional wrongdoing as "different in degree" from other negligence and/or wanton or willful conduct. Id. at 231. The court noted that the different levels of culpability involved in negligent, willful and wanton and intentional conduct would merely be reflected in the jury's apportionment of fault. Id. The court finally noted that by viewing loss in this way it had adhered most closely to the guiding principle of comparative fault to distribute the loss in proportion to the respective fault of the parties causing the loss. Id.

In Barth v. Coleman, 878 P.2d 319 (N.M. l994), the Supreme Court of New Mexico likewise held that imposing full liability to a premises owner is inconsistent with holding tortfeasors responsible only for their percentage of fault. The Court reasoned that the liability of the premises owner must be reduced by the percentage of fault attributable to the tortfeasor.

A recent Florida case has also followed this rationale, although not specifically in an intentional tort context. In Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), Marin alleged that Fabre had negligently changed lanes causing Marin to sustain injuries in a subsequent accident while a passenger in a car driven by her husband. Marin did not sue her husband and brought suit against Fabre.

In holding that liability for non-economic damages should be apportioned to all potentially liable parties whether or not joined in the action and despite any immunity which those parties might assert, the Court noted that the Florida Comparative Fault Statute discarded the doctrine of contributory negligence, which prevented a plaintiff from any recovery if the plaintiff's negligence contributed at all to the plaintiff's injuries from the accident at issue. Id. at S453, S454. The Court also noted that it had judicially abolished the rule against contribution against joint tortfeasors stating that "[i]t would be undesirable for this Court to retain a rule that under a similar system based on fault, cast the entire burden of a loss for which several may be responsible upon only one of those at fault . . . ." Id. at S454, quoting Lincenberg v. Issen, 318 So. 2d 386, 391 (Fla. 1975).

Thus, Weidenfeller, Blazovic, and Fabre each apparently rely upon many of the same policy considerations. Most importantly, all stress that the purpose of comparative fault is to limit a negligent tortfeasor's liability to reflect only the fault incurred by that negligent tortfeasor. It should be noted, however, that at the present time a bill is pending before the Florida Senate seeking to modify Florida's Comparative Fault Statute. Senate Bill 1008 attempts to limit allocation of fault to actual party defendants, rather than allowing non-economic damages to be apportioned to all potentially liable parties whether or not joined in the action.

At least two jurisdictions have apparently refused to permit apportionment of fault to the assailant. In Kansas State Bank & Trust Co. v. Specialized Transp. Services, Inc., 819 P.2d 587 (Kan. l991), an action was brought on behalf of a young girl against a school bus driver, a school bus transportation service, and the school district based on the bus driver's alleged sexual molestation of the girl. The trial court held that, under Kansas Statute § 60-258(a), the bus driver's intentional acts could not be compared to the school district's and transportation services' negligence in failing to take steps to protect the student from such intentional acts for the purpose of reducing the school district's and transportation services' percentage of fault. The Specialized Transp. Services court affirmed this portion of the judgment. Id. at 592.

The Specialized Transp. Services, Inc. court expressly held that negligent tortfeasors would not be allowed to reduce their fault by comparison to the intentional fault of another that they had a duty to prevent. Id. at 606. The court noted that this was consistent with previous rulings of Kansas courts involving bailment and premises liability. Id.

The court insisted that it would be unfair to allow the intentional act of one defendant to be compared to the negligent act of a defendant whose duty it is to protect the plaintiff from the act committed by the intentional tortfeasor. Id. at 605.

Finally, the Michigan Supreme Court also refused to equate intentional acts with negligence when allocating fault. In Gibbard v. Cursan, 196 N.W. 398 (Mich. 1923), the Supreme Court noted that "[i]f one willfully injures another . . . he is guilty of more than negligence. The act is characterized by willfulness, rather than by inadvertence, it transcends negligence—[it] is different in kind."

Thus, as courts and legislatures continue to grapple with the issue of whether to allow allocation of fault to an intentional tortfeasor, it is likely that the argument will center on whether intentional acts are "different-in-kind" from negligence or, rather, "different-in-degree." To the legislature and the courts, the issue may be one of semantics. To an owner, however, resolution of the issue may be a million dollar consideration.

V. CONCLUSION

The issues of duty and foreseeability in the context of liability of owners and occupiers of land for violent crimes committed both on and off their premises are continuing to evolve. A duty may arise on the part of the owner when he or she knows or has reason to know that a third party is harming or is about to harm an invitee. Additionally, a duty may exist where the nature of the owner's business or experience provides a basis for anticipating potential criminal activity.

Further, the courts have approached the issue of foreseeability with three approaches, namely: (1) the no-duty rule; (2) the similar acts rule; and (3) the totality of circumstances rule. Of the three approaches, the latter is clearly utilized by the majority of jurisdictions today. As can be seen by the Ann M. decision, however, at least California has demonstrated a willingness to retreat from the liberal trend.

It can be expected that claims for injuries sustained as a result of third-party criminal activity will continue against premises owners. It is important, therefore, for owners, their attorneys and insurance carriers to be well aware of the case law developing in their respective jurisdictions. Only through awareness will they be able to begin to defend current litigation and guard against future actions.

BIBLIOGRAPHY

93 A.L.R.3d 999 (1979), "Liability of Owner or Operator of Shopping Center, or Business Housed Therein, for Injury to Patron on Premises from Criminal Attack by Third Party."

51 A.L.R.3d 711 (l973), "Liability of Bank for Injuries Sustained by Customer in Court of Robbery."

45 A.L.R.3d 1428 (l972), "Liability of Owner or Operator of Drive-In Restaurant for Injury or Death to Patron."

39 A.L.R.3d 579 (1971), "Liability of Operator of Business Premises to Patron Injured by Condition of Adjacent Property."

38 A.L.R.2d 10 (l971), "Liability of Owner or Operator of Parking Lot for Personal Injuries Allegedly Resulting from Condition of Premises."

70 A.L.R.2d 628 (l960), "Liability of Innkeeper, Restaurateur, or Tavern Keeper for Injury Occurring on or About Premises to Guest or Patron by Person Other Than Proprietor or His Servant."

Bayzler, The Duty to Provide Adequate Protection:

Landowner's Liability for Failure to Protect

Patrons from Criminal Attack, 21 Ariz. L. Rev. 727 (1979).

Boyd, Parking Lots and Personal Injuries, 19 Clev. St. L. Rev. 349 (May 1970).

Cabrera, Negligence Liability of Landowners and  Occupiers for the Criminal Conduct of Another: On a Clear Day in California One Can See Forever, 25 Cal.West L. Rev. 165 (1987).

Prosser, Business Visitors and Invitees, 26 Minn. L. Rev. 573 (1942).Banks v. Hyatt Corporation [722 F.2d 214]: Degree, Nature and Extent of Innkeeper's and Business Proprietor's Duties to Protect Invitee from

Criminal Assault, 30 Loy. L. Rev. 1040 (Fall 1984). [722 F.2d 214]: , 30 Loy. L. Rev. 1040 (Fall 1984).

Premises Liability Law and Practice, Landau, et al., Landau, et al., [722 F.2d 214]: , 30 Loy. L. Rev. 1040 (Fall l984)., Landau, et al., Matthew Bender, 1987.

  

NOT NECESSARILY DEFINITIVE