The lack of publicity of prior crimes is likewise not determinative of foreseeability. Where a business has actual knowledge of prior similar crimes, the lack of reporting on those crimes isn’t a defense. Actual knowledge in this context isn’t limited to personal experience or observation but may include what was learned through conversations with others, including police officers and nearby businesses.
Concerning recency of prior crimes, there’s no magic number for the time period at issue. Likewise, there’s no specific number for the frequency evaluation. Suffice it to say that the more recent and greater the number of prior similar crimes, the more likely it is the crime at issue will be determined to have been “foreseeable.” As one would expect, foreseeability of a crime will usually be determined by an examination of the totality of the circumstances rather than any single factor.
As in other kinds of personal-injury cases, the liability of a premises owner for a crime committed by an unknown person will typically be weighed against the victim’s own negligence, if any. This concept is referred to as comparative or proportionate responsibility. In other words, percentages totaling 100 percent are typically assigned to the various parties, and in most jurisdictions, the victim’s recovery will be reduced, and possibly barred, as a result of his own negligence.
Returning our attention to the original question: If someone is a victim of a crime on your property, can you be held liable for the victim’s injuries and damages? Unfortunately, it’s a possibility. However, a more illuminating answer is: “Not unless the crime was foreseeable based on the totality of the circumstances.” In other words, one who owns or controls a business has a duty to take necessary precautions against criminal conduct by third persons when that conduct can be reasonably anticipated.
Editor’s Note: Because of the variability of premises-liability laws among the states, specific questions should be addressed to an attorney who is licensed to practice law in the state where the premises are located.
Joshua T. Kutchin and Rocky Little are directors with Fanning, Harper & Martinson P.C. in Dallas. Both are board certified in personal-injury trial law by the Texas Board of Legal Specialization, and practice primarily in the areas of personal-injury negligence, product-liability litigation, and premises-liability litigation, with significant experience in self-storage issues. For more information, call 214.369.1300; e-mail firstname.lastname@example.org.