Understand 'Foreseeable' Crime to Reduce Site's Premises Security Liability
Every manager’s worst nightmare is a violent crime against a resident at his assisted housing site. And compounding the tragedy of the crime is the risk of liability. You could be held liable for the crime if you knew your residents were at risk of that type of crime. In legal terms, the crime would be “foreseeable,” and if you failed to take reasonable steps to prevent it from happening, you would be liable.
When is a crime foreseeable? Courts look to see if there were signs that should have tipped you off that the crime might occur. For example, if a resident is assaulted in her unit, you now know that an assault is possible—that is, foreseeable—and you’ll need to take reasonable steps to prevent it from happening again. But what if no assaults have occurred at your site? Do you still need to take precautions to prevent one? You might if there are other signs that make such a crime foreseeable.
We’ll go over the basic legal principles underlying premises security liability. By identifying and properly fixing weaknesses in your security measures, you can reduce the potential for liability arising from the corresponding risk of crime at an assisted housing site.
Owner’s Liability: The Basics
An owner’s obligation to protect residents stems from five principles established in the Common Law regarding liability for negligence. They are: duty of care, breach of the duty, damages, causation, and foreseeability.
Duty of care. A site owner owes residents a duty of care to maintain “reasonably” safe premises. “Reasonable” safety is an elastic term that in this context means that security is proportionate to risk. In other words, just as the risk of crime may vary over time, so can the owner’s responsibility to provide reasonable security at the premises.
Breach of duty. A breach occurs when an owner doesn’t perform a duty that’s either imposed by law or assumed voluntarily. For example, if a local housing ordinance requires window locks, but management hasn’t installed them or kept them in working order, the owner has breached its duty of care to residents.
Damages. To be awarded money in a lawsuit against an owner, a claimant must have suffered damage of some sort—usually, obvious physical injuries. Sometimes a victim gets money for mental anguish resulting from the crime. Awards may also include compensation for damage to a victim’s property or for lost income.
Causation. A court will find an owner liable only if there was a link between the crime and the breach of the owner’s duty that harmed the resident. In other words, the breach was a substantial factor in causing the resident’s injury.
For example, an intruder gains access to a unit through a ground-floor window that had a broken lock, and the intruder sexually assaults a resident. Prior to the assault, the resident had told management that the window lock was broken. Consequently, management was in violation of the local housing ordinance. Management breached its duty of care, which contributed to the occurrence of the crime.
An owner might argue, however, that correcting the deficiency—for example, by installing locks on all windows or maintaining them in good working order—would not necessarily have prevented the crime. But the victim doesn’t have to prove that correcting the deficiency would have absolutely prevented the crime. A victim must show only that, more likely than not, management’s failure was a substantial contributing factor in the crime.
The site owner is held to a “reasonable person” standard. In other words, given the risk at the site where and when a crime occurred, could a reasonable person have anticipated that a crime would be committed? If the owner should have known of the risk, the crime is deemed “foreseeable.” Foreseeability is a judgment that depends on many factors, including the judge hearing the case, the composition of the jury, and state and local laws. Another complicating factor is that foreseeability is a concept that varies from state to state, depending on which of two common approaches is taken:
Prior similar crime. The first approach to foreseeability is the “prior similar crime” rule. It requires the victim to show that prior crimes at the site or in the area were similar to the one that prompted the lawsuit. For example, the victim of a robbery in a site’s parking lot would have to show that robberies had occurred previously in that same parking lot.
The main problem with the prior similar crime rule is the lack of guidance on what “similar” actually means. Factors such as how recent such similar crimes must be and how near they were geographically to the site of the current crime might determine whether they will be admissible as evidence.
Totality of circumstances. The other approach to foreseeability is the “totality of circumstances” test. The court may consider evidence of prior dissimilar crimes, particularly those in the immediate vicinity. This approach requires management to consider the following:
> Prior crime at the site. This category includes not only violent crime but also offenses against property, such as theft, vandalism, and burglary. Law enforcement studies have shown that where property crimes occur, frequently there is a higher risk of violent crime, such as assault and battery, robbery, rape, and murder.
> Prior crime elsewhere at site. A crime does not have to occur in the same place as a prior one did, for an owner to be found liable. If a crime occurs in another building at the same site, many courts may consider that it was foreseeable. In one case, a New York City resident was attacked in the stairway of her building, dragged up to the roof, and raped. She sued the owner, claiming that it had failed to take proper precautions against the foreseeable attack. The owner claimed that the attack wasn’t foreseeable because there had been no prior rapes in the building.
The court allowed the lawsuit to continue, saying the crime might have been foreseeable. There had been numerous rapes in other buildings at the site, and the presence of drug activity in the victim’s building put the owner on notice that it might be vulnerable to more serious crimes there [Jacqueline S. v. City of New York, May 1993].
> Crime in immediate vicinity of site. Even if units or buildings at your site have been free of crime, the presence of drug dealers or gangs in or around the site may put management on notice that crimes against residents are foreseeable.
> Prior crime in neighborhood. Even if no break-ins or attacks have occurred in units or buildings at your site or in the immediate vicinity, a court could still rule that a crime was foreseeable at your site if there had been occurrences in the surrounding neighborhood. Once physical boundaries are set, law enforcement can provide data for analysis by the type of crime and its frequency.
Generally, criminal activity in the neighborhood is not, in itself, sufficient to make crime at your site foreseeable. The crime rate in your neighborhood would have to be substantial enough that crime at your site would be more likely to occur than not. But courts vary in their view of neighborhood crime’s impact on a specific site.
In one premises liability case, residents sued the owners for a carjacking incident that took place at the site. But the owners successfully showed that a lack of crime in the neighborhood didn’t make the possibility of violent crime at the complex foreseeable. In two years before the carjacking, there was no violent crime at the site, save one domestic assault between relatives. And there was no evidence of any specific crimes of any nature in the immediate surroundings. In fact, the evidence showed that the census tract in which the site was located actually had a lower rate of violent personal crime than the city as a whole. The court concluded that the carjacking was unforeseeable to the owner and the manager; thus, they owed no duty, as a matter of law, to provide additional security to prevent the crime [Texas Real Estate Holdings, Inc. v. Quach, October 2002].
Crime in similar business establishments. Some crimes are foreseeable based on the nature of a business—for example, disorderly conduct and assaults often occur in bars and nightclubs; car thefts often happen in parking lots and garages; and robberies often take place in convenience stores and fast-food chains. Housing sites, which are affected primarily by burglary, robbery, rape, and assault and battery in units, buildings, and parking lots, are on notice that these crimes are foreseeable. And management has a duty to ensure that measures are taken to prevent them.
> Prior complaints. When residents complain about an unsafe condition, a problem neighbor, or suspect activity at the site, they are potentially forecasting a security premises liability problem for the owner. For example, a resident complained about heavy foot traffic going into and out of an adjacent apartment at all hours of the night. The neighbor met guests in the hallways, and visits were always brief. In this case, even if there have never been burglaries or physical assaults at your site, the presence of gangs or drug dealers may put you on notice that you’re at risk for crimes against your residents.
In one case, a resident who was injured in a gang-related shooting sued the owner for premises liability, alleging that the owner breached his duty to take reasonable steps to ensure the safety of the site’s residents. The trial court found that the resident failed to present evidence sufficient to establish that the owner had a duty to take additional security measures or that the owner’s alleged inaction had proximately caused the injuries.
The appeals court disagreed, finding that where indicators of a reasonably foreseeable risk of a violent gang assault existed, an owner had a duty to undertake precautions to protect residents from criminal activity attributable to a gang presence. Further, there were sufficient facts to establish that the gang shooting at issue was reasonably foreseeable. The owner knew that gang members were congregating in the area and that they had been congregating in the space from which the bullet that injured the resident was shot. The owner was also aware that gang-related crimes and other activity had occurred on and near the premises. That evidence included testimony from an expert on gangs and security that but for the lack of security and lighting, the shooting would not have occurred [Castaneda v. Olsher, September 2005].
> Knowledge of crime and acknowledgment of risk. “Acknowledgment” requires evidence that the defendant was aware of problems at the site. If the victim can show that the defendant took no action to eliminate the risk it had acknowledged, that can have a significant impact on the case.
The concern for a housing site is that by mentioning, in printed materials distributed to residents, specific crimes occurring at or near the site, the owner is acknowledging that those crimes may be committed against residents.