One of the many challenges facing self-storage owners and operators is the ever-present risk of a person being injured on the premises. Because there are numerous ways for people to get hurt, management of this risk can seem daunting. It’s commonly understood that anyone who has control over property open to customers or the public should eliminate, or warn against, any unreasonably dangerous condition on those premises. Unfortunately, like beauty, “unreasonably dangerous” is often in the eye of the beholder.
Although it may seem unfair, “unreasonably dangerous” is usually analyzed in hindsight, often after someone has been seriously wounded. Anyone who has been sued for personal-injury damages knows the claim and subsequent lawsuit can last a long time (two to four years from the date of injury is not uncommon). Likewise, defending these claims can be expensive (lawyers aren’t cheap!). Another complicating factor is premises liability is determined by state rather than federal law and is not uniform among all states.
One of the lesser known aspects of premises-liability law concerns potential liability for criminal acts of third parties, i.e., neither you nor the injured person. Can a premises owner or occupier be held financially responsible for injuries suffered as a result of a criminal act by an unknown person? Likewise, if someone gets assaulted or raped on your property, can you be held liable for the victim’s injuries and damages? The short (though not helpful) answer is “maybe.”
Generally, an individual has no duty to protect another from a criminal attack by a third person. However, premises-liability law recognizes that a special relationship exists between a business and its customers. Notwithstanding this “special relationship,” a business is not an insurer of its customers. Therefore, the general rule is that criminal conduct of a third party is a superseding cause that relieves the premises owner of negligence liability. This general rule of non-liability, however, is fraught with exceptions.
Liability for crimes committed against visitors on a company’s premises is typically determined by the degree of foreseeability of the crime. In other words, if a particular harm is foreseeable, then the business in control of the premises where the harm occurred will likely be liable for the harm caused. Foreseeability can be based on actual knowledge, but it can also be based on what the business should have known. In other words, willful ignorance of a foreseeable danger isn’t a valid defense.
Conversely, if a crime is not foreseeable, then a business has no duty to prevent it and isn’t finally responsible for the victim’s damages. Stated differently, just because a crime occurs on the premises does not make the party in control of the premises liable for the harm caused to the victim. As stated above, the issue will likely be whether the crime was foreseeable.
Courts have looked at many factors in assessing whether a crime committed by a third party on the premises was foreseeable. These factors include:
- Proximity: Did prior crimes happen on or near the premises?
- Publicity: Was previous criminal activity reported in the local media?
- Recency: How long before the crime at issue did prior crimes occur?
- Frequency: How often had prior crimes occurred?
- Similarity: Were prior crimes similar to the one at issue?
With respect to proximity of prior crimes, the proper inquiry focuses not only on the premises where the crime occurred but the surrounding area. The fact that no similar crimes previously occurred on the specific premises is probative but not determinative of foreseeability.
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 [email protected].