CACI 1005 Business Proprietor’s or Property Owner’s Liability for the Criminal Conduct of Others

New September 2003; Revised May 2018

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A business owner or a landlord has a duty to take affirmative steps to protect against the criminal acts of a third party if the conduct can be reasonably anticipated. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676 [25 Cal.Rptr.2d 137, 863 P.2d 207], disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5 [113 Cal.Rptr.3d 327, 235 P.3d 988].) Whether there is a duty as defined in the first paragraph is a question of law for the court. The jury then decides whether the defendant’s remedial measures were reasonable and adequate under the circumstances (second paragraph). (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 131 [211 Cal.Rptr. 356, 695 P.2d 653].)

•“A landlord generally owes a tenant the duty, arising out of their special relationship, to take reasonable measures to secure areas under the landlord’s control against foreseeable criminal acts of third parties.” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213 [63 Cal.Rptr.3d 99, 162 P.3d 610].)

•“[B]road language used in Isaacs has tended to confuse duty analysis generally in that the opinion can be read to hold that foreseeability in the context of determining duty is normally a question of fact reserved for the jury. Any such reading of Isaacs is in error. Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.” (Ann M., supra, 6 Cal.4th at p. 678, internal citation omitted.)

•“[T]he decision to impose a duty of care to protect against criminal assaults requires ‘balancing the foreseeability of the harm against the burden of the duty to be imposed. [Citation.] “ ‘[I]n cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. [Citation.] On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required.’ [Citation.]” [Citation.] Or, as one appellate court has accurately explained, duty in such circumstances is determined by a balancing of “foreseeability” of the criminal acts against the “burdensomeness, vagueness, and efficacy” of the proposed security measures.’ ” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1146–1147 [12 Cal.Rptr.3d 615, 88 P.3d 517].)

•“ ‘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 the visitors to avoid the harm, or otherwise to protect them against it.’ ” (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 124 [52 Cal.Rptr. 561, 416 P.2d 793], quoting Restatement of Torts, § 344.)

•“[T]he property holder only ‘has a duty to protect against types of crimes of which he has notice and which are likely to recur if the common areas are not secure.’ The court’s focus in determining duty ‘ “ ‘is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.’ [Citation.]” ’ ” (Janice H. v. 696 North Robertson, LLC (2016) 1 Cal.App.5th 586, 594 [205 Cal.Rptr.3d 103], internal citation omitted.)

•“[O]nly when ‘heightened’ foreseeability of third party criminal activity on the premises exists—shown by prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location—does the scope of a business proprietor’s special-relationship-based duty include an obligation to provide guards to protect the safety of patrons.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 240 [30 Cal.Rptr.3d 145, 113 P.3d 1159], internal citations and footnote omitted, original italics.)

•“[F]oreseeability, whether heightened or reduced, is tested by what the defendant knows, not what the defendant could have or should have learned.” (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 158 [42 Cal.Rptr.3d 519].)

•“Here [defendant] argues it has no duty unless and until it experiences a similar criminal incident. We disagree. While a property holder generally has a duty to protect against types of crimes of which he is on notice, the absence of previous occurrences does not end the duty inquiry. We look to all of the factual circumstances to assess foreseeability.” (Janice H., supra, 1 Cal.App.5th at p. 595, internal citation omitted.)

•“Knowing there is a general potential for rowdy or troublesome conduct by bar patrons, however, does not make the category of aggressive parking lot assaults reasonably foreseeable, any more so than the presumed awareness of previous assaults and robberies or problems with transients on the property establishes the foreseeability of a violent sexual assault.” (Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654, 671–672 [250 Cal.Rptr.3d 46].)

•“Even when proprietors … have no duty … to provide a security guard or undertake other similarly burdensome preventative measures, the proprietor is not necessarily insulated from liability under the special relationship doctrine. A proprietor that has no duty … to hire a security guard or to undertake other similarly burdensome preventative measures still owes a duty of due care to a patron or invitee by virtue of the special relationship, and there are circumstances (apart from the failure to provide a security guard or undertake other similarly burdensome preventative measures) that may give rise to liability based upon the proprietor’s special relationship.” (Delgado, supra, 36 Cal.4th at pp. 240–241.)

•A business proprietor is not an insurer of the safety of his invitees, “but he is required to exercise reasonable care for their safety and is liable for injuries resulting from a breach of this duty. The general duty includes not only the duty to inspect the premises in order to uncover dangerous conditions, but, as well, the duty to take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.” (Taylor, supra, 65 Cal.2d at p. 121, internal citations omitted.)

•“In the case of a landlord, this general duty of maintenance, which is owed to tenants and patrons, has been held to include the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” (Ann M., supra, 6 Cal.4th at p. 674, internal citation omitted.) (Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499–501 [229 Cal.Rptr. 456, 723 P.2d 573].)

•“[Restatement Second of Torts] Section 314A identifies ‘special relations’ which give rise to a duty to protect another. Section 344 of the Restatement Second of Torts expands on that duty as it applies to business operators.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 823 [59 Cal.Rptr.2d 756, 927 P.2d 1260].)