An attendant employed by you to assist customers and keep
your Coin Laundry clean is physically assaulted within your
premises. Is there an obligation to provide a security guard at
the Coin Laundry to deter criminal misconduct?
The California Supreme Court has provided some guidance on
this subject. On December 16, 1993, the California Supreme Court
issued a written opinion regarding an event which occurred on
June 17, 1985. (It sometimes takes a bit of time to obtain a
review of a trial court decision by the California Supreme
Court.)
On June 17, 1985, a woman identified in the opinion as "Ann
M.", was employed by a photo processing service located in the
Pacific Plaza Shopping Center, a strip mall in San Diego,
California. The shopping center was generally occupied by
approximately 25 commercial tenants. According to the opinion,
"At approximately 8 a.m. on June 17, Ann M. opened the
photo store for business. She was the only employee with a
'drop gate' that was designed to prevent customer access
behind the counter but it had been broken for some period of
time. Shortly after Ann M. opened the store, a man she had
never seen before walked in 'just like a customer'. Ann M.
greeted the man, told him that she would assist him shortly,
and turned her back to the counter. The man, who was armed
with a knife, went behind the counter, raped Ann M., robbed
the store, and fled. The rapist was not apprehended."
Subsequently, Ann M. filed a civil complaint for damages
alleging causes of action against the owner and operator of the
photo processing service, the shopping center, and the company
employed to manage the shopping center. She also filed a
worker's compensation claim against her employer for which she
was awarded benefits. Worker's compensation was deemed to be her
exclusive remedy against her employer, and, as a result, the suit
against the owner and operator of the photo processing service
was subsequently dismissed.
The lease between the photo processing store and the
shopping center provided the owners of the shopping center with
the exclusive right to control the common areas. Although the
lease gave the shopping center the right to police the common
areas, it did not impose an obligation to either police the
common areas or those areas under the exclusive control and
management of the tenants. If the shopping center had provided
walking patrols by security guards, the tenants would have borne
the cost in the form of additional rent. No security guards were
in fact hired by the shopping center.
According to deposition testimony, tenants, through a
merchants' association, had complained about a lack of security
in the shopping center and the presence of transients. The
merchants' association took the step of hiring a security company
to drive by the area three or four times a day.
Ann M. essentially argued that the shopping center's failure
to provide walking security patrols in the common areas
constituted 1negligence.
The Supreme Court held that it would impose the duty to take
affirmative action to control criminal misconduct only in
situations where such misconduct is foreseeable i.e., where such
conduct can be reasonably anticipated. The Supreme Court
determined that in the Ann M. case, "violent criminal assaults
were not sufficiently foreseeable to impose a duty upon Pacific
Plaza to provide security guards in the common areas." The Court
observed:
"While there may be circumstances where the hiring of
security guards will be required to satisfy a landowner's
duty of care, such action will rarely, if ever, be found to
be a 'minimal burden.' The monetary costs of security guards
is not insignificant. Moreover, the obligation to provide
patrols adequate to deter criminal conduct is not well
defined. 'No one really knows why people commit crime,
hence no one really knows what is 'adequate' deterrence in
any given situation' . . . . Finally, the social costs of
imposing a duty on landowners to hire private police forces
are also not insignificant. . . . For these reasons, we
conclude that a high degree of foreseeability is required in
order to find that the scope of a landlord's duty of care
includes the hiring of security guards. We further conclude
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. 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 in
this state." [Emphasis added]
The Supreme Court, however, also noted that "it is possible
that some other circumstances such as immediate proximity to a
substantially similar business establishment that has experienced
violent crime on its premises could provide the requisite degree
of foreseeability." Ann M. did not present any such evidence,
however. Since Ann M. was unable to demonstrate that Pacific
Plaza had knowledge of prior similar incidents occurring on the
premises, the court concluded that the physical violence suffered
by Ann M. was not sufficiently foreseeable to impose a duty upon
the landlord to provide security guards in the common areas, and
upheld judgment for the defendant shopping center.
How do you believe the court would have ruled if a similar
incident had occurred within six months at the photo processing
store? What if a similar incident had occurred 18 months earlier
in the adjacent store? What if a similar incident had occurred
thirteen months prior in a store located at the other end of the
strip mall?
