Is a property owner liable when a person is injured on its property by a criminal act committed by a third party over whom the property owner has no control? This question is the preliminary legal issue in a premises liability, third- party crime case. As crime in the United States has become an increasing societal problem, courts have established analytical structures to determine whether a plaintiff can and should recover from the property owner. As set forth below, the analysis in third-party crime cases turns on which test the court applies to determine whether the third-party crimi- nal act was foreseeable. This article discusses four tests applied in different jurisdictions and explains the “balancing test” South Carolina adopted in Bass v. Gopal, Inc., 395 S.C. 129, 135-38, 716 S.E.2d 910,
- Legal Duty and Foreseeability
As a general proposition of law, to succeed on a cause of action for negligent or inadequate security in a premises liability case involving harm caused by a third-party criminal act, the plaintiff must prove each of the following elements: (a) the defendant owed a duty of care to the plaintiff; (b) the defendant breached that duty; (c) the breach was the legal or proximate cause of the plaintiff’s injury; and (d) the plaintiff suffered damages.2
The property owner has a legal duty to protect against such harm only when the criminal act in question was legally foreseeable. Id. at 134-35, 716 S.E.2d at 913.3 If the third-party criminal act was not legally foreseeable, then the property owner owes no legal duty to the injured party, and the plain- tiff’s claim should never get to the jury. Id.4 Therefore, foreseeability is a key element that the plaintiff must prove.
A criminal act is foreseeable if the property owner knows or has reason to know the act is reasonably likely to occur. A property owner “knows” that a third-party criminal act is going to occur when the property owner has actual knowledge—when the property owner has been informed in advance. Examples include bomb threats or warn- ings of gang violence. However, whether a property owner “has reason to know” a third-party criminal act is going to occur is a more fact-sensitive question. This question may be dispositive of a third- party crime case.
- “Imminent Harm” or “Specific Harm” The “imminent harm rule” provides that “a landowner owes no duty to protect patrons from violent acts of third-parties unless he is aware of
specific and imminent harm about to
befall him.” Id. at 135, 716 S.E.2d at 913. Prior to Bass, this was the law of South Carolina, as set forth in Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C. 479, 238 S.E.2d 167 (1977),
although it was called into question by the Court of Appeals in Miletic v. Wal- Mart Stores, Inc., 339 S.C. 327, 529 S.E.2d 68 (Ct. App. 2000). In Shipes, the plaintiff was assaulted at night by a third- party in the parking lot of a grocery store. The plaintiff alleged there was a breach of the duty to exercise reasonable care for his protection because the evidence indi- cated that parking lot lights were either not shining brightly or were not turned
B. Tests For Establishing Foreseeability
Courts and commentators have identified four tests applied in different jurisdictions to determine whether a landowner owes a duty to protect a patron from third-party criminal acts: (1) the “imminent harm” or “specific harm” test; (2) the “prior similar incidents” test; (3) the “totality of the circum- stances” test; and (4) the “balancing test.” Id. at 135- 38, 716 S.E.2d at 913-15.5 Each test is discussed separately below.
on, and therefore, the grocery store failed to adequately light its parking lot. The court concluded the store did not have a legal duty to protect the plaintiff in these circumstances. The incident occurred between 7:30 p.m. and 8:00 p.m. The evidence indicated that the neighborhood where the store was located included several bars, a liquor store, an awning company, and a real estate insur- ance company. No violent crimes had been commit- ted in the neighborhood, and the only crimes known by the store manager to have occurred at the store
were the theft of an employee’s cassette tape deck in the parking lot and shoplifting in the store. One arrest, for an unspecified offense, had been made in the parking lot between 10:00 p.m. and 11:00 p.m. Based on this evidence, the court affirmed a directed verdict for the store, concluding that the store owner “did not know or have reason to know of criminal attacks such as the one on [the plaintiff].” 269 S.C. at 485, 238 S.E.2d at 169. The Shipes court held that Piggly Wiggly did not know or have reason to know the specific assault at issue would occur, so the defendant owed no legal duty to protect the plaintiff from the third-party criminal act.
The South Carolina Court of Appeals questioned Shipes in Miletic, which involved a customer who was abducted from a Wal-Mart parking lot and brought an action against the store for failing to protect her from this third-party criminal act. The Court of Appeals followed Shipes because it was the law of South Carolina, holding Wal-Mart did not have a duty to protect the plaintiff because it did not know or have reason to know the specific criminal act at issue was about to occur. However, the court also questioned the propriety of the imminent harm test and laid the groundwork for the Supreme Court to abandon it. The court noted that Shipes relied primarily on a similar Tennessee case but that “the law ha[d] evolved in other jurisdictions since . . . Shipes,” observing the Tennessee Supreme Court had overruled that case in 1996. 339 S.C. at 331, 529 S.E.2d at 69-70.
2. “Prior Similar Incidents”
The “prior similar incidents” test provides that “foreseeability may only be established by evidence of previous crimes on or near the premises.” Bass, 395 S.C. at 135-36, 716 S.E.2d at 913.6 This test envisions that a past history of criminal conduct will put the property owner on notice of a future risk. Courts applying this test consider the nature and extent of the previous crimes, as well as their frequency and similarity to the crime in question. The basic rationale is if similar crimes have occurred on or near the property in question, the premises owner should take reasonable steps to protect against reoccurrence. Trial courts are given some leeway in determining what qualify as “substantially similar” crimes. “[S]ome courts require that prior crimes be of the same general type and nature as the offense at issue, while others will impose a duty to protect patrons based on past crimes of any type.” Id. at 135-36, 716 S.E.2d at 913-14 (internal citation omitted). For example, the Georgia Supreme Court held:
In determining whether previous criminal acts are substantially similar to the occur- rence causing harm, thereby establishing the foreseeability of risk, the court must inquire into the location, nature and extent of the prior criminal activity and their like- ness, proximity or other relationship to the
crime in question. While the prior criminal activity must be substantially similar to the particular crime in question, that does not mean identical. . . . [What] is required is that the prior [incident] be sufficient to attract the [landlord’s] attention to the dangerous condition which resulted in the litigated [incident].
Doe v. Prudential-Bache, 492 S.E.2d 865, 867 (Ga.
3. “Totality of the Circumstances”
The “totality of the circumstances” test is more liberal than the “prior similar incidents” test because the plaintiff can utilize additional factors in estab- lishing foreseeability. This test, which is used in the majority of jurisdictions, considers “all relevant factual circumstances, ‘including the nature, condi- tion, and locations of the land, as well as prior simi- lar incidents, to determine whether a criminal act was foreseeable.’” Bass, 395 S.C. at 135-36, 716 S.E.2d at 913 (quoting Delta Tau Delta v. Johnson, 712 N.E.2d 968, 972 (Ind.1999)).7 It has been
summarized as follows: “[a] substantial factor in the determination of duty is the number, nature, and location of prior similar incidents, but the lack of prior similar incidents will not preclude a claim where the landowner knew or should have known that the criminal act was foreseeable.” Delta Tau Delta, 712 N.E.2d at 973. This test is generally regarded as a more relaxed legal burden on plaintiffs because it considers additional factors to establish foreseeability.
Two California cases illustrate the difference between the “prior similar incidents” test and the “totality of the circumstances” test. Prior to 1985, California had settled on the “prior similar inci- dents” test in determining a property owner’s liabil- ity for harm caused by third-party criminal acts. Then, in Isaacs v. Huntington Mem’l Hosp., 695 P.2d 653 (Cal. 1985), California changed the test for prov- ing foreseeability to “totality of the circumstances.” However, in 1993, the California Supreme Court reverted to the “prior similar incidents” rule in Ann
M. v. Pacific Plaza Shopping Ctr., 863 P.2d 207 (Cal. 1993).
In Isaacs, the plaintiff, an anesthesiologist associ- ated with the defendant private hospital, was shot by a stranger in the hospital’s parking lot and brought a negligence action against the hospital for inadequate security. The court identified the issue as “whether foreseeability, for the purposes of establishing a landowner’s liability for the criminal acts of third persons on the landowner’s property, may be estab- lished other than by evidence of prior similar inci- dents on those premises. . . . [F]oreseeability is of primary importance in establishing the element of duty.” Isaacs, 695 P.2d at 657. The court held that “foreseeability is determined in light of all the circumstances and not by a rigid application of a mechanical ‘prior similar incidents’ rule.” Id. at 659.