Liability for Third Party Crimes Post 9/11
Shopping Center Security Post 9/11: The Law
ICSC and shopping center owners, tenants and managers were among the first to mobilize their resources provide support and comfort to the victims of the infamy of 9/11, their families, the public safety officers who risked their lives to minimize the loss of life and injuries and to recover the victims, their families, and the millions of Americans who wanted to help anyway they could. The shopping center world showed that they are effective and that they care.
ICSC and shopping center owners, managers and tenants were among the first to examine their role in the post 9/11 world and consider what changes and precautions might be appropriate in order to increase safety and the sense of safety of people going about the daily activities of their lives, and prove to themselves, the world and the forces of terrorism that they would not stop us, that we would not retreat to our homes like they were bunkers, and that the forces of terrorism would not win.
ICSC brought together security professionals, service and equipment vendors, and shopping center owners, tenants and managers to share ideas on these issues. A wide array of shopping center “hardening” physical improvements and security precautions have been considered throughout the industry. Protective bollards and other barriers, restricted access, including metal and chemical detectors, ventilation filtering and testing systems, increased surveillance including electronic surveillance, armed security as was applied at airports and bridges, and other possible protective procedures and improvements have been considered.
There are many considerations for shopping center professionals to consider: the level and quality of threats against which to protect, the likelihood of each of those threats, the precautions available to guard against them, the likely effectiveness of each of those precautions, the impact and inconvenience on customers, employees, owners and tenants, and, of course, cost. Two considerations that has not been included is what legal obligation may be imposed on shopping center owners, tenants or managers as a result of the infamy of 9/11, and what new legal obligations might be created inadvertently in any rush to adopt new security features. This article will consider those two issues.
Existing Law After 9/11
At least so far, there is no indication from the appellate courts that 9/11 has changed the law of negligence as it applies to shopping centers. In order for the victim of an injury to establish that the owner, tenant or manager of a shopping center where that injury occurred was legally negligent and responsible for that injury, it must be proven that shopping center owner, tenant or manager owed that person a duty to protect the person from that injury. As applied to injuries directly caused by the criminal activity of third party assailants not related to the shopping center excepting only that they chose the shopping center as the location for their criminal conduct, in order to impose negligence liability on the owner, tenant or manager of the shopping center, it must be proven that the criminal activity and resulting injury were sufficiently foreseeable that a duty should be imposed to implement and maintain security precautions that would have prevented the criminal activity and resulting injury. The critical issue is foreseeability.
Currently, there are four principle theories of foreseeability applied in American courts in negligence cases where the negligence claimed is the failure to prevent third party criminal activity resulting in injury to the plaintiff. Those four theories are:
- Imminent probability of harm;
- Prior similar incidents on the property;
- Prior similar incidents examining the totality of the circumstances; and
- Balancing of risk, harm, likelihood of success, and burden of adequate precautions.
Imminent probability of harm is exemplified by the 1997 Alabama Supreme Court case of Whataburger, Inc., v. Rockwell (1997, Alabama) 706 So.2d 1220, where a customer in a restaurant was approached by three individuals who clearly intended to beat him up. The customer implored the restaurant manager several times to call the police, which she refused to do. Instead, she ordered the customer and the three individuals out of the restaurant, where they proceeded to beat the customer up very badly. This was contrary even to the company’s own policy which required store managers to call the police when they saw such activity. The Court applied the imminent probability of harm standard, found that the jury had been correctly instructed on that standard, and that the jury had properly found imminent harm existed.
Applying this standard to a terrorist attack, such an attack always will be a surprise attack. Once the attack is occurring, imminent probability of harm would require the shopping center to do what it can at that time, but not to have taken any precautions in advance. Once the attack is occurring, well-armed terrorists willing to die for their cause or planting a bomb or poison are going to overwhelm any ordinary operating security in any retail setting. Therefore, in the absence of some active harmful action by the shopping center that contributes to the plaintiff’s injury, imminent probability of harm is not going to impose any obligation to take precautions in advance on a shopping center owner, tenant or manager.
Prior similar incidents recognized that criminal activities had become relatively more common than before, and that an owner, tenant or manager of a shopping center where crimes had occurred had knowledge of those prior crimes that customers and employees would be less likely to know of, and therefore were in a less knowledgeable position from which to protect themselves. Therefore, the shopping center owner, tenant or manager who has knowledge of prior similar incidents on the property reasonably could be expected to have the obligation to protect its employees and customers from subsequent similar incidents.
Applying the prior similar incidents standards to the 9/11air hijackings and crashes, and the post 9/11 anthrax mail poisonings, no such incidents have occurred anywhere else. Prior similar incidents applies only to incidents at the same property.
Next, as crime became even more common, courts recognized that examining prior crimes only within the legal boundary lines was illogical and unfair to visitors who could not have the same knowledge of what dangers might lurk in the neighborhood that should be known to the shopping center owner, tenant or manager. The “totality of the circumstances” theory did nothing more than expand the view to the neighborhood beyond the property’s boundary. The Superior Court of Kansas said in Seibert v. Vic Regnier Builders Inc. (1993) 856 P.2d 1332, at 1339:
“For instance, one should not be able to open an all-night poorly lit parking lot in a dangerous high crime area of an inner city with no security and have no legal foreseeability until after a substantial number of one’s own patrons have fallen victim to violent crimes. Criminal activity in such circumstances is not only foreseeable but virtually inevitable.”
Under both the “prior similar incidents” theory and the “totality of the circumstances” theory, a great number of appellate decisions spent a great number of pages discussing what was or was not a sufficiently “similar” incident to make a subsequent incident sufficiently foreseeable to impose a duty on the property owner, tenant or manager to implement and maintain precautions that would protect against injuries resulting from a subsequent similar incident. “Totality of the circumstances” added pages of discussion of how near or far allegedly “similar” incidents occurred, and whether those near or not-so-near “similar” incidents were sufficiently near and similar to make the incident that occurred on the property of the owner, tenant or manager sufficiently foreseeable to impose a duty on the owner, tenant or manager to implement and maintain sufficient precautions to have protected the victim against the criminal activity and resulting injury.
The latest theory of foreseeability balances the magnitude of the harm to the victim against the magnitude of the burden of maintaining security measures adequate to prevent such harm on a day to day basis. The greater the harm to the victim, the less foreseeable criminal activity must be in order to impose a duty on an owner or tenant. On the other hand, the greater the burden on the owner or tenant of maintaining security features sufficient to guard against harm, the more foreseeable the criminal activity must be in order to impose a duty to maintain such security features on the owner or tenant.
In the case of McClung Delta Square Limited Partnership (TN 1996), 937 S.W.2d 891, the decedent was abducted from a shopping mall parking lot and subsequently raped and murdered. The trial court granted summary judgment, finding that there was no evidence of prior similar incidents at the shopping center sufficient to make such an occurrence reasonably foreseeable to the owner and the principal tenant. The Court of Appeals affirmed, applying the prior similar incident standard. The Tennessee Supreme reversed, admitting that it was establishing a new standard for foreseeability and reversing the imminent probability of harm standard which had been its previous holding on the issue (reversing Cornprops v. Sloan (TN, 1975) supra.
In Anna M. v. Park Plaza Shopping Center (Cal. 1993) 6 Cal.4th 666 [25 Cal.Rptr.2d 137, 863 P.2d 207, there had been some auto burglaries and even incidents of someone coming up behind women and pulling down their slacks. There also was evidence, hardly mentioned in the Superior Court opinion that the shopping center was located in a high crime area. The victim in this case was raped and robbed inside a photo processing booth located on a pad in the parking lot of the shopping center. The plaintiffs asserted that the owners of the shopping center owed the victim a duty to maintain roving patrols of security guards about the shopping center and the parking lot. In order to prevent the crime in the Anna M. case, security patrols would need to have been armed and sufficient in number to look inside each store including the outparcel buildings more than once an hour.
The Court held as a matter of law that the requirement of security guards was such a heavy burden that it would not be imposed except in cases where there was a very high degree of foreseeability, and that such a high degree of foreseeability was highly unlikely to exist in any situation where there had not been a prior incidence of very similar conduct on the premises themselves in order to put the owner on actual notice of the problem.
In Sharon P. v. Arman, Ltd., (Cal. 1999) 21 Cal. 4th 1181, the California Supreme Court that seven armed robberies in the bank adjacent to the parking garage on the first floor did not make the rape of the plaintiff in the garage sufficiently foreseeable to create a duty of the landlord to have sufficient security to prevent the rape. The degree of foreseeability was not sufficient create a duty requiring security guards. The Court characterized the imposition of security guards as a “significant burden.”
Applying this balancing test to terrorism, the first step is to assess the foreseeability of any particular terrorist act occurring at any particular shopping center – your shopping center or your client’s shopping center. The only terrorist attacks identified in this country to date are the car bombing of a federal office building, the airplane crashes into the World Trade Center buildings and the Pentagon, and the anthrax letters to Congress. Notwithstanding the presence of a retail shopping center at the base of the World Trade Center, that retail shopping center was not the target of even that attack. There has been speculation that shopping centers might be suitable targets for a terrorist attack, because of the crowds, the value of the buildings and contents, their symbolism as icons of capitalism and materialism, their reputation for safety, and their openness and vulnerability. However, that has been nothing but speculation. There never has been a terrorist attack of any kind on any shopping center in this country. There have been no meaningful threats directed at any shopping center in this country. There is no reason to expect or foresee an attack on a shopping center in this country before attacks on any of many other symbols and icons of American culture, economics and power. Any such anticipation is nothing more than speculation.
Even if an attack on a shopping center were considered to be foreseeable, there is no way to guess or foresee what shopping centers are more or less likely to suffer such an attack. In Israel, retail establishments as small as a pizza parlor have been targeted for terrorism. Any suggestion that any particular retail establishment is relatively more or less likely to be the target of a terrorist attack would be nothing but pure speculation. For the time being, it simply is not legally foreseeable that any particular shopping center might become the target for a terrorist attack. Therefore, in balancing the risk and foreseeability of an attack against the burden of protecting against such an attack, the risk and foreseeability is effectively zero.
Even if a particular shopping center legally could be held to be a foreseeable target of a terrorist attack, the type and magnitude of the attack is equally unforeseeable. Will it be a car bomb? A personally worn suicide bomb? The release of a biological agent like anthrax? An attack by heavily armed and trained commandos? The human and economic costs of any such attack would be enormous. Nonetheless, in performing the balancing calculus, the magnitude of such injuries, even if enormous, must be multiplied by the likelihood of that magnitude of injuries occurring at any particular location. As long as the likelihood and foreseeability of any such catastrophic attack remains very small, product of the magnitude of the injuries multiplied by the likelihood and foreseeability of it occurring will remain very small.
Balanced against that very small likelihood of a catastrophic attack are (1) the burden of protective security measures to defend against such a terrorist attack, and (2) the likelihood of such protective security measures successfully preventing such an attack or catastrophic injuries from such an attack.
From precautions may be so simple, so unobtrusive and so inexpensive, that a court or jury might find them to be reasonably required even for a relatively unlikely and unforeseeable event. For example, there has been considerable discussion of controlling and protecting against access to HVAC equipment in order to guard against the introduction of biological agents like anthrax. On the other hand, controlling access to the equipment still will not protect against introducing the biological agent through air intakes in bathrooms, changing rooms or even in stores.
There has been consideration of prohibiting and policing parking at the curbs of malls and stores and the installation of steel and concrete bollards to protect mall entrances, in order to protect against car bombs. Even a policed curb would leave a delay while a tow truck or bomb squad were called to remove a car left along the curb. It would not protect against a suicide bomber who set off the car bomb before it actually stops or immediately after it stops. Bollards likewise will not protect against a car bomb or truck bomb driven directly through the windows, doors or wood and plaster exterior of a shopping center. Therefore, even these relatively inexpensive and relatively less burdensome precautions are highly unlikely to be effective in protecting against a terrorist attack, since these simple protections are easily circumvented.
California courts repeatedly have rejected calls for requiring security guards, both because the burden of employing and deploying security guards is relatively large relative to the foreseeability of an injury that could be prevented by the presence of security guards, and because of the relative effectiveness of the presence of security guards, since any security guard who roams is only effective during the time the guard is actually present at the target of the attack, and not when the guard is roaming to protect and deter attacks at other locations. A security guard does not provide protection against an attack that takes less time than the time between the guard’s presence at different locations.
How many criminals working together and how much firepower is a security plan based on security guards supposed to protect against? If an unarmed security guard is used, that guard is not going to be effective against an armed criminal. An armed security guard is not going to be effective against a criminal armed with automatic weapons. More heavily armed security guards are going to be perceived, and a committed criminal can merely measure the number of guards and their weaponry, and attack them with greater numbers and greater weaponry.
Until specific terrorist acts have occurred and caused injuries at shopping centers on multiple occasions, there is no particular terrorist act that is foreseeable and against which a shopping center owner, tenant or manager legally can be expected to protect. Even after any particular terrorist attack occurs at a single shopping center, there is no way to foresee that the next terrorist attack will involve the same type or level of force, nor where the next terrorist attack occur. It all still will be too unforeseeable to impose any particular burden on the shopping center owner, tenant or manager.
None of this discussion means that shopping center owners, tenants and managers will not want to implement new and improved security precautions. They will want to implement such security measures for community relations reasons, for marketing reasons, for competitive reasons, and to satisfy their own personal sense of responsibility or pride. The point of this discussion has been to demonstrate that, at least for now, there is no legal requirement for such precautions against terrorist attacks. Understanding the legal basis for imposing such responsibility and liability should assist in appraising that responsibility and liability as events change and if the threat of terrorist attacks on shopping centers in this country ever does become a reality.
Imposing Liability on Yourself
Shopping center owners, tenants and managers should be aware that adopting increased security precautions, even voluntarily, imposes a new obligation on that owner, tenant or manager, and may impose that obligation on other owners, tenants and managers. Courts do not like security measures which are broken, unused or discontinued. In Gomez v. Ticor 145 Cal.App.3d 622, there where surveillance cameras and guards in the office building but not in the adjacent parking garage. In Sharon P. v. Arman, Ltd. (Cal. 1997) 56 Cal.App.4th 266 [65 Cal.Rptr.2d 640], reversed December 1999, supra, the security cameras did not work and 16 light bulbs were out near the victim’s assigned parking spot, making the area dark even at 11:00 a.m. when she was attacked. In Butler v. Acme Markets (N.J. 1982) 89 N.J. 270 [445 A.2d 1141], the store had security guards on the weekends but not on the day the victim was assaulted. In Onciano v. Golden Palace Restaurants, Inc. (1990) 219 Cal.App.3d 385 [268 Cal.Rptr. 96], security cameras had been installed but they were not used. In Gans v. Parkview Plaza Partnership (NB 1997) 253 Neb. 373 [571 N.W.2d 261], the owner had been informed that the door locks were broken, which allowed the criminal access into the building where the victim was assaulted. In Holder v. Mellon Mortgage Co. (Tx., 1999) 954 S.W.2d 786, a police officer performed a traffic stop, ordered the woman driver to follow him to the third floor of a parking structure which the owner left open and unattended all night, and raped her. The police officer was convicted and sent to prison. The court held the owner liable for failing to close the entrances and exits at night. In that case, the Texas Supreme Court recently held that even though use of the parking structure at night for illegal activities was foreseeable, its use for the injury inflicted in this case was too remote. The Texas Supreme Court applied the prior similar acts standard, although it also noted that there had been very few criminal assaults in the neighborhood. In Saelzler, the security gates were broken and propped open, and the manager made sure the security guards arrived early enough to escort her to her car, but not early enough to deter the attack on the plaintiff.
In Carlock v. KMart Corp. (1997) 277 Ga.App. 356 [489 S.E.2d 99], the anchor tenant who was responsible for maintenance of the parking lot obtained a security guard who roamed the parking lot until its own store closed at 9:00 p.m., and then restricted his surveillance to guarding his own store employees from the store to their parking area, after which there was no further onsite security. That court found that the anchor tenant clearly knew and appreciated that there was a danger of criminal assaults in the parking lot for which it was responsible. The risk was not just foreseeable, but was actually known and foreseen. A customer of the small, late night grocery was murdered between 9:00 p.m. and 10:00 p.m. when the security guard was guarding the anchor tenant’s own employees and ignoring the rest of the parking lot. See also Roberts v. Forte Hotels (Ga. 1997) 227 Ga.App. 471 [489 S.E.2d 540].
The courts clearly believe that where there are security measures in place, the existence of the security measures indicate that the owner is actually aware of the risk of criminal attacks. The risk or danger of attacks is not just foreseeable, but actually foreseen by the defendant owner. In such cases the courts almost always find that there is a duty to at least maintain and use the existing security measures.
No appellate decisions were found where a court specifically found that the presence of specified security measures at one property demonstrated the foreseeability of similar criminal activity and resulting harm occurring at other properties and the need for such precautions at other properties. Nonetheless, the logic of such a finding makes it inevitable. The courts applying the totality of the circumstances version of the prior similar incidents standard already look beyond the crimes that have been committed on the subject property itself to the surrounding neighborhood. If criminal activity in the neighborhood already has caused another shopping center to adopt additional security precautions, thereby admitting the foreseeability of criminal activity requiring such precautions, it would be logical that another shopping center in the same neighborhood would be exposed to the same foreseeable criminal activity, and therefore should be legally liable for injuries caused by criminal activity that could have been prevented by implementing the same security precautions.
There are many reasons why shopping center owners, tenants and managers may decide to implement new security measures to deter or protect against different types and magnitudes of criminal or terrorist attack. In the absence of prior similar incidents at the same location or in the neighborhood, the reasons to adopt any such new security measures does not include the law of negligence. If any such security measures are adopted, one must be sure to maintain the effectiveness of such security measures. By adopting such a security measure, the shopping center owner, tenant or manager is making a statement admitting that it has a duty to main such security measures. Having admitted the duty to maintain, if allowing any such security measures to lapse or become ineffective causes injury to anyone, all of the elements of a solid negligence will be present. You will have admitted a duty, the duty will have been breached, and the breach will have caused an injury. Finally, check your neighbors’ security measures, because their admission that any particular security measures may be required may turn out to be good evidence that criminal activity exists in your neighborhood that you should know about and against which you should be implementing the same security measures. Applied to terrorism, if shopping center owners, tenants or managers were to admit that precautions against terrorism are needed by implementing such precautions, even voluntarily, that admission may be applied to other shopping centers. Caution should be exercised, since the implementation of any security measure subsequently may be used as an admission that there is a duty to implement and maintain such security measures, both at that location and at other locations subject to the same risk of criminal or terrorist acts.