SHOULD A BUSINESS OWNER ANTICIPATE CRIMINAL CONDUCT OF OTHERS?
Generally speaking, the owner of a business in the State of California that is open to the public must use reasonable care to protect its guests and patrons from another person’s harmful conduct on its property if the owner can reasonably anticipate such conduct.
First of all, it should be noted that a business proprietor is not an insurer of the safety of its guests, but is required to exercise reasonable care for their safety, and is liable for injuries resulting from a breach of that duty, where the business proprietor has reasonable cause to anticipate such acts, and the probability of an injury resulting therefrom. This generally exits only when there is a form of “heightened” foreseeability of third party criminal activity on the premises of the business proprietor. This heightened foreseeability may be shown by prior criminal incidents or other indications of a reasonably foreseeable risk of violent criminal assault at that location.
The question then becomes, is the hiring of security sufficient in and of itself to comply the duty imposed by law in the State of California. Generally speaking, a proprietor has no duty to hire a security guard, but must under the specific circumstances determine what security measures are reasonable to control the wrongful acts of third persons, which would threaten invitees or patrons on the proprietor’s premises. The issue of the existence of a duty is a question of law, not a question of fact. Questions of law are determined by the Court, whereas questions of fact are determined by the trier of fact, whether it be judge or jury. Once there has been a determination that a business proprietor has a duty to take affirmative action to control the wrongful acts of a third party, it becomes a question of fact whether the security measures taken were reasonable under the circumstances. This is a fact-finder decision as to the adequacy of security.
For purposes of summary, generally the possessor of property is not an insurer of the visitor’s safety. He is under no duty to exercise any degree of care, other than ordinary care, unless there is reason to know that the act of a third person is occurring, or likely to occur. If the nature of the business, or past experience lends itself to the possibility of criminal conduct on the part of third parties, then the proprietor is under a duty to take precautions and to provide reasonably sufficient measures to afford reasonable security and protection.
Should you have questions regarding the duty of business owners, whether it be as to criminal, negligent or intentional conduct of others, the attorneys at Heiting & Irwin are available for initial consultations on all issues related to negligence and premises liability matters.