Security Guards Not Always Required

Author: Po Waghalter

August 7, 2019 10:00am

The California Court of Appeal has made a recent ruling in a premises liability case that amounts to a victory for landowners: the Court ruled generalized knowledge of potential future crime does not meet the “heightened foreseeability” requirement for premises liability.  In layman’s terms, just because a parking lot owner has some general idea that a random crime has the possibility of occurring at some random point in the future, does not mean that the owner is required to hire a security guard for the parking lot.  The public policy – and common sense – of not making all landowners the insurers of everyone’s safety at all times has been positively affirmed by the Court.

In the recent case of Tayler L. Williams v. Fremont Corners, Inc. (“Fremont Corners,”) (Williams v. Fremont Corners, Inc., No. H043218, 2019 WL 3231089, Cal. Ct. App. June 24, 2019) plaintiff Williams confronts the issue of whether a landowner liable for injuries to an invitee from criminal acts of a third party, where the landowner has a general knowledge of the possibility of future violent criminal conduct.

Plaintiff Williams argued that a parking lot owner is liable for his injuries caused by a third party because the parking lot did not have “adequate security on the premises.”  In brief, Fremont Corners argued their security measures were appropriate at the time, which included security cameras and adequate lighting.  Additionally, Fremont Corners argued they had insufficient knowledge of any prior similar incidents.  After litigation, and a motion to dismiss via summary judgment by Fremont Corners, the California Court of Appeal affirmed the State’s public policy that generally, landowners are not insurers of public safety.  Essentially, although every business and parking lot might be safer with a security guard present at all times, imposing this requirement on all business would be an unfair burden, considering the high cost of additional security, unless that business had notice of prior similar criminal violence.

The current authority as to liability between landowners and guests is intertwined between several Court decisions.  With regard to liability of business proprietors, such as shopping centers, and their patrons or invitees, California courts hold that there is a “special relationship” such that a proprietor must “take reasonable measures to protect such persons against foreseeable criminal attack.”  (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224 (Delgado).)  With regard to third party crimes, California courts follow the holding that “the scope of a landlord’s duty to provide protection from foreseeable third party crime . . . is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed.”  (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 678 (Ann M.)) “[D]uty 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.” (Id. at p. 679.)  Simply, the standard is that “imposition of a high burden requires heightened foreseeability, but a minimal burden may be imposed upon a showing of a lesser degree of foreseeability.” (Ibid.; accord Morris, supra, 36 Cal.4th at p. 271.)

Of significance, a proprieter has a “duty to take preventative measures to guard against possible future criminal conduct” (Morris v. De La Torre, supra, 36 Cal.4th at p. 271) however, such duty is not triggered unless there a showing of a heightened degree of foreseeability.  (Italics added.)  (Ann M., supra, 6 Cal.4th at p. 679.) Such foreseeability is rarely proven “in the absence of prior similar incidents of violent crime on the landowner’s premises.” (Sharon P., supra, 21 Cal.4th at p. 1190.)

Here, specifically, plaintiff Williams was physically assaulted by a third party at around 1:30 a.m. in a shopping center parking lot, after leaving a bar, Peacock Lounge, in the shopping center, owned by defendant Fremont Corners, Inc.  At the time of the assault, plaintiff contends no security guards were present.  Williams brought suit against Fremont Corners for failing to protect him from what he claimed to be a reasonably foreseeable criminal act in light of the nature of the bar business and “prior similar occurrences” on the premises.  In support, plaintiff Williams notably argued that Fremont Corners had a legal duty to uncover incidents of criminal acts on the premises.

Fremont Corners moved for summary judgment on the grounds that there was insufficient support for the allegation that the assault was reasonably foreseeable.  Specifically, Fremont Corners argued that Fremont Corners had did not have sufficient knowledge of “prior similar incidents” and further, plaintiff failed to show such knowledge.

In response to Fremont Corners, plaintiff Williams supported his claims of foreseeability of potential future criminal conduct and knowledge or “prior similar incidents” by offering evidence of five service calls from the Sunnyvale Department of Public Safety to Fremont Corners and Peacock Lounge, including reports of simple assault, battery with serious bodily injury, and a physical alteration resulting in a broken right jaw, all in 2011.  Plaintiff further argued that Fremont Corners had a legal duty to discover the possibility of harm from third party criminal acts.  The Court of Appeal was not persuaded.

Ultimately, the Court sustained the Motion for Summary Judgment in favor of Fremont Corners, ruling that Fremont Corners did not owe the duty to provide the additional security measures plaintiff claims would have prevented his injury.  Specifically, the Court found that plaintiff did not provide sufficient evidence of prior similar incidents to support the heightened level of foreseeability required to justify the additional security measures.  The Court noted plaintiff’s provision of records regarding reports of injuries from Sunnyvale Department of Public Safety did not constitute record evidence of previous assaults, however indicted that “[e]ven assuming that there is record evidence of previous assaults occurring” at the shopping center, plaintiff failed to offer any evidence that Fremont Corners had notice of these incidents.  Moreover, the Court noted that plaintiff failed to “fully identify specific measures” Fremont Corners should have taken to prevent the harm.  The Court accepted that although Fremont Corners may have had a “general knowledge of the possibility of violent criminal conduct,” that general knowledge was not in itself enough to create a raised duty under California law on the part of Fremont Corners.

In summary, the Court held that although Fremont Corners may have known that there was a possibility of future criminal conduct, plaintiff Williams did not establish notice of prior similar incidents of criminal conduct, such that Fremont Corners may have had a legal duty to provide security guards at the time of plaintiff Williams’ injury.  Without the establishment of this legal duty, plaintiff lacked an essential element of Negligence, and Fremont Corners was entitled to summary judgment.

Of significance to defense practitioners in premises liability, the Court here further clarifies the meaning of “heightened foreseeability” in denying the imposition of additional duty on the part of a landowner to take additional steps of security in the parking lot- such as the provision of security guards- where there is no notice of prior similar incidents.  Additionally, the Court clarifies that a landowner must have more than a general knowledge of the potential violent criminal conduct, and that a landowner does not necessarily have an affirmative duty to inquire about criminal activity, and specifically not beyond Fremont Corners’ activities, as reflected in the record of this case[1].


[1] To determine whether criminal conduct was occurring on the property, Fremont Corner’s manager, Jay Murray, stated he would listen to the tenants if they had anything to report, conducted onsite visits once or twice a week when he would stroll around and ask if everything was okay, without specifically asking about violence or criminal activity, check the lighting system every two to three months, replace broken bulbs or fixtures, provide video surveillance to police when requested.

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