Contrary to what most insurance companies and property owners want to believe, a prior crime is only one factor used to evaluate the foreseeability of future crimes that would impose civil liability. An owner or controller of land must take reasonable steps to secure common areas against foreseeable criminal acts of third parties likely to occur absent such precautionary measures. Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819 & 823–824. A person or entity who has reason to believe, from observation or experience, that the conduct of another endangers another must try to protect that person. Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235-236. Courts must determine the general character of the event or premise that is conceivable and not just the precise nature or manner of the occurrence. Isaacs v. Huntington Memorial Hospital, (1985) 38 Cal.3d 112, 126-127.
Foreseeability of third party criminal misconduct is no longer restricted to situations in which prior criminal misconduct has occurred. Such restrictions would preclude “recovery to first-injured victims, and has been held to be inherently unfair and in contravention of public policy.” Gray v. Kircher (1987) 193 Cal.App.3d 1069, 1074. To rule otherwise would remove too many cases from the jury’s consideration simply because a crime had not yet been committed and would prevent the court from determining whether certain conditions exist that could foster criminal misconduct.
It is short-sighted to assume there must be a prior incident to prove foreseeability. Other factors the courts have examined include:
- the physical size and layout of the property
- the location of the property
- the lighting at the property
- the hours of operation for the property
- the characteristics of the surrounding area and neighborhood
- manner of egress and ingress on the property
- security on the property
For example, in Onciano, a parking lot that “is largely deserted and automobiles there are left unattended for long periods of time” arguably invite crimes to be committed, particularly at night. Courts continue to recognize that parking structures are dangerous places, and an assessment of the physical characteristics and location of the property must be considered. Sharon P. v. Arman, Ltd., (1999) 21 Cal.4th 1181, 1192.
Instead, foreseeability must be case-by-case under a totality of the circumstances to see if the owner or control of land must take affirmative reasonable steps to secure common areas against criminal acts that could occur without precautionary measures. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674. Courts focus on what is likely to exist when determining the probability and predictability of crime so a reasonably thoughtful person would take account of it in guiding practical conduct. Onciano v. Golden Palace Restaurant, (1990) 219 Cal.App.3d 385, 392. Clearly, prior crimes place the landowner or occupier on notice of reasonable foreseeability.
A high degree of foreseeability is not required to impose a minimal burden on the landowner. In fact, a “lesser degree of foreseeability is required when the proposed duty involves simple, effective, and easily defined steps.” See Vasquez v. Residential Investments, Inc., (2004) 118 Cal. App. 4th 269, 286. Properly secured gates, fences, and doors can discourage crime at little cost to the landowner. Equally true, lighting conditions can deter criminal misconduct because it illuminates what perpetrators would not want in plan view. It’s common knowledge that dark public places encourage crime. See Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484, 488. In addition, visible presence, whether it is through a security guard, attendant or even a video camera, fosters a safer environment and is relatively inexpensive compared to the potential harm victims may suffer without that presence. This presence discourages crime because it can provide potential witnesses. A monitored property is infinitely safer than one that is vacant and unattended. Gomez v. Ticor (1983) 145 Cal.App.3d 622, 633. This is especially true when the landowner derives a commercial benefit from those who use the property. In Onciano, this could be as simple as collecting money to park cars in a lot and then leaving the lot before those cars are retrieved. The landowner should not forsake their duty once they have undertaken a duty to act.
No one factor defines what crimes are foreseeable and therefore imposes a duty on landowners to try to guard against those risks. Owners and possessors of land therefore must not turn a blind eye to foreseeable criminal misconduct simply because it has not happened yet. To do so would allow landowners to be absolved of liability simply because they did nothing.