Personal InjuryPremises LiabilitySexual Assualt

Premise Liability for Violent Crime

Can a business, shopping center, or apartment complex be liable for failure to prevent violent crime on their premises?

Story Highlights
  • A property owner has a duty to protect against violent crime when there is a special relationship between the owner and the victim.
  • Businesses and shopping centers have a duty to protect their customers, apartment complexes their tenants, hotels their guests, colleges and universities their students, and facilities that care for persons who are impaired or disturbed their residents against foreseeable criminal acts on their premises.
  • The statute of limitations for personal injuries sustained in a violent crime is two years.
  • Damages paid in a premises liability lawsuit for violent crime fall into two categories, economic and noneconomic damages.

Can a business, shopping center, or apartment complex be liable for failure to prevent murder, rape, robbery, or aggravated assault on their premises?

The simple answer is yes.

According to the California Department of Justice, Criminal Justice Statistics Center, violent crime is defined as homicide, rape, robbery, and aggravated assault. According to the annual report of the California Department of Justice, Crime in California, there were 173,205 violent crimes in California in 2019 alone. Of these, 1,679 were homicides, 17,200 were rapes, 52,050 were robberies (i.e., armed robbery or by strong-arm tactics), and 104,756 were aggravated assaults. An alarming number of these violent crimes occur in businesses, big and small, shopping centers, and apartment complexes.

In California, any business, shopping center, or apartment complex owes a duty to keep its premises safe. Generally speaking, this concept in the law is referred to as “premise liability.” Premise liability is a form of negligence. The general rule in California is codified in California Civil Code Section 1714(a), which provides that a person (which includes business, shopping center, or apartment complex) is responsible for injuries caused by their lack of ordinary care in managing their property; this general rule has also blessed by the California Supreme Court in seminal cases like Kinsman v. Unocal Corp. (Kinsman involved an independent contractor’s employee suing Unocal for negligence for injuries sustained by his exposure to asbestos, which had been airborne and was concealed by Unocal.)

But what about a business, shopping center, or apartment complex’s failure to warn of or protect their customers and guests from violent crime while on their premises? Do they have a duty to warn or or protect their customers or guests from violent crime while on their premises?

Yes. Though generally the duty to warn of or protect against violent crime is imposed only where violent crime can reasonably be anticipated by the business, shopping center, or apartment complex. This concept is called “foreseeability” in the law.

Under California law, a property owner has a duty to protect against violent crime when there is a special relationship between the owner and the victim. This duty includes businesses and shopping centers protecting their customers, apartment complexes their tenants, hotels their guests, colleges and universities their students, and facilities that care for persons who are impaired or disturbed their residents against foreseeable criminal acts on their premises.

This means that businesses, shopping centers, and apartment complexes have one or more specific duties under California law to protect their customers and guests from violent crime while on their premises, including the following:

  • They must warn customers and guests of violent crime on their premises;
  • They must prevent against violent crime on their premises; and
  • They must respond to imminent or actual violent crime on their premises.

In case there is any doubt about this, in September 2003, the Judicial Council of California created Civil Jury Instruction (CACI) No. 1005, entitled “Business Proprietor’s or Property Owner’s Liability for the Criminal Conduct of Others.” This is the actual jury instruction or law that a judge reads to a jury before it deliberates. CACI No. 1005 was updated again in May 2018 and now reads as follows:

[An owner of a business that is open to the public/A landlord] must use reasonable care to protect [patrons/guests/tenants] from another person’s criminal conduct on [his/her/nonbinary pronoun/its] property if the [owner/landlord] can reasonably anticipate that conduct.

You must decide whether the steps taken by [name of defendant] to protect persons such as [name of plaintiff] were adequate and reasonable under the circumstances.

While these duties are the law in California, they have been challenged time and time again in lawsuits by businesses, shopping centers, and apartment complexes. Given their resources, these businesses, shopping centers, and apartment complexes often retain top defense attorneys and choose to fight the victim in court, rather than adequately compensating the victim for his or her injuries, forcing the victim to relive the violent crime a second time at trial.

These cases are often very difficult to litigate, because, even though the business, shopping center, or apartment complex may have had inadequate safety policies and procedures, put profits over people (and safety), and failed to prevent violent crime on their premises, many potential jurors believe that the criminal himself or herself should be the only one blamed for a victim’s injuries. Incredibly, there are even some prospective jurors who blame the victim for the criminal act and for his or her own injuries. (In psychology, this bias against a victim is called “attribution bias“.)

Because of this, these types of cases take strong trial attorneys, like the lawyers of Watson Law Group, APC, willing to stand up to big businesses, shopping centers, and apartment complexes and fight for the victim at trial. It starts in jury selection, where an experienced attorney can root out if any prospective jurors have any such biases in favor of the big business, shopping center, or apartment complex.

With a strong trial attorney as a trial guide, juries and judges have had the courage to put big businesses, shopping centers, and apartment complexes in their place and require that they protect their customers and guests from violent crime while on their premises.

Given that the criminal himself or herself is often arrested, convicted, and incarcerated for the underlying crime at a later date, and given that he or she usually files bankruptcy, it is important to understand whether a business, shopping center, or apartment complex can have liability for its failure to protect a customer and guests from murder, rape, robbery, and aggravated assault while on their premises. The following examples are worth reviewing to bring home this concept of the duties a business, shopping center, or apartment complex owes to their customers and guests to warn of or protect their customers and guests from violent crime while on their premises.

In Tan v. Arnel Mgmt. Co., a tenant, Yu Fang Tan, was shot in the neck in an attempted carjacking in an ungated portion of the common area of his apartment complex, Pheasant Ridge Apartments, in Rowland Heights. The shooting left Mr. Tan a quadriplegic. He sued the apartment complex in the Superior Court of Los Angeles for failure to take steps to properly secure their premises against foreseeable criminal acts of third parties. The apartment complex had known about three prior violent crimes against other tenants on their premises, but argued at trial that these three other violent crimes were not sufficiently similar crimes to Mr. Tan’s shooting as to impose any duty on it to protect Mr. Tan or any of its tenants, and that it was therefore not liable to Mr. Tan in any way.

The California Court of Appeal, Second District, ultimately did not buy this argument and ruled that the apartment complex did, in fact, owe Mr. Tan a duty, especially since the required protective measures were so small: All the apartment complex had to do to prevent the violent crime on its premises was move or install gates and close a gap in its fence.

In Barber v. Chang, Leroy Barber sued a small apartment complex in Anaheim, a fourplex, in the Superior Court of Orange County, after he was shot by a tenant of the apartment complex with a shotgun, while visiting. The tenant shot Mr. Barber in his leg with a shotgun, kicked out one of his teeth while he was on the ground, stomped his wounded leg, and then placed the shotgun in Mr. Barber’s “rectal area.” Mr. Barber jumped, and the tenant pulled the trigger again, shooting Mr. Barber a second time in his leg. The Anaheim police arrived and, after a standoff in which the tenant held the shotgun to Mr. Barber’s face, the tenant finally surrendered the shotgun, and the police subdued him. The apartment complex knew the tenant had threatened and harassed others on its premises while brandishing a shotgun, but argued at trial that “there was no reasonable security measure that should have been in place,” and that it therefore owed no duty or liability to Mr. Barber.

The California Court of Appeal, Fourth District, ultimately ruled that the apartment complex did owe Mr. Barber a duty to prevent violent crime on its premises and that simple measures like calling the police were not unduly burdensome.

Vasquez v. Residential Investments, Inc., was a wrongful death case in the Superior Court of San Diego, following the murder of Abigail Ramirez in her apartment in San Diego by her ex-boyfriend. Ms. Ramirez had lived in the apartment with her infant daughter and parents and had complained about a broken glass pane on the front door to their apartment, which was covered by cardboard and posed a security risk. Despite repeatedly asking the landlord to repair the glass pane, the repair of which was estimated to cost $15 at trial, the landlord chose to “repair” the pane with plywood. The ex-boyfriend testified that he was able to knock the plywood out with a “hard knock” and then simply reach in and open Ms. Ramirez apartment door. Ms. Ramirez and her mother positioned themselves in front of Ms. Ramirez’s infant daughter, while her ex-boyfriend brandished a knife. He threw Ms. Ramirez’s mother to the ground and then stabbed Ms. Ramirez to death. Before leaving, he cut the telephone lines. At trial, the landlord claimed that whether or not the ex-boyfriend was potentially violent was unforeseeable, and that it therefore did not owe Ms. Ramirez a duty.

However, the neighborhood surrounding the apartment building had experienced several violent crimes, including a rape in the apartment building (though, at trial, the apartment manager discounted these reports of rape). The California Court of Appeal, Fourth District, ultimately found that the apartment complex did owe a duty to Ms. Ramirez and held it liable for her murder, by depriving her of a vital first line of defense against intruders.

In Janice H. v. 696 North Robertson, LLC, Janice H. sued Here Lounge, a bar and club located in West Hollywood, in the Superior Court of Los Angeles for failing to use reasonable care to protect her from a sexual assault in one of the club’s unisex restroom stalls. The restrooms in Here Lounge were designed to have a common restroom area accessible to both men and women. Janice went into one of the unisex restroom stalls, and a man she had never seen before entered the stall. Based on DNA evidence, the man was later identified as an employee of Here Lounge. Janice stood up to adjust her clothing as he entered and tried to leave, but he grabbed her shoulders and pushed her against the wall, forced her to orally copulate him, and then forcibly had vaginal intercourse with her. The sexual assault ended with the Here Lounge’s employee ejaculating on Janice’s dress. Bleeding and shaken, she fled Here Lounge and contacted the police with the assistance of a stranger on the street. Although Here Lounge security found a large puddle of blood in the restroom, it failed to connect it to Janice’s sexual assault until days later. The employee’s DNA sample matched the sample of DNA taken from the semen on Janice’s dress at the rape treatment center, and she identified the employee as the rapist from a photo-lineup. At trial, Here Lounge argued that it did not owe Janice a duty to prevent violent crime on its premises, that her sexual assault was not foreseeable, and that it was not liable to her in any way.

But the California Court of Appeal, Second District, ultimately ruled against Here Lounge, saying that it did owe a duty to its customers to protect them from sexual assault in its restrooms, especially given that it promoted a sexually charged atmosphere (for example, it permitted its employees to wear nothing but his or her underwear), knew customers were intoxicated, knew sexual activity in the restrooms was an ongoing issue and that rape could easily occur.

What is a business, shopping center, or apartment complex’s duty to their customer or guest when a violent crime is imminent or in progress? 

When a murder, rape, battery, or aggravated assault is actually taking place or is about to begin in a business, shopping center, or apartment complex, “foreseeability” is no longer as critical under the law, because, crucially, the question shifts to what duty the business, shopping center, or apartment complex has to respond to the violent crime in progress on their premises.

Delgado v. Trax Bar & Grill, a California Supreme Court case, is instructive on many fronts. Delgado is one of many cases involving inadequate security heard in California Courts of Appeal and in the California Supreme Court.

Mr. Delgado subsequently sued the patron and Trax Bar & Grill in the Superior Court of Stanislaus County. As is common in many premise liability cases involving violent crime, the patron was later convicted of felony assault in his criminal case, filed for bankruptcy, and was dismissed out of the Delgado case, leaving Trax Bar & Grill. At trial, Trax Bar & Grill argued that it owed no duty to protect Mr. Delgado from his assault, that his assault was unforeseeable as matter of law, and therefore that they had no liability for Mr. Delgado’s injuries in any way. The California Supreme Court did not buy Trax Bar & Grill’s argument, however, and ultimately held them liable, saying that a restaurant or business is required to take steps to protect their customers from imminent or actual crime, such as, in the case of Trax Bar & Grill, trying to separate Mr. Delgado from other patrons threatening him, or confirming that the second guard was at his post in the parking lot.

What is the statute of limitations to sue a business, shopping center, or apartment complex for failure to warn of or protect their customers and guests from violent crime while on their premises?

For anyone victimized by a violent crime while in a business, shopping center, or apartment complex, it is imperative that he or she speak to a trial attorney experienced in prosecuting premises liability claims for violent crime. Under California Code of Civil Procedure Section 335.1, the statute of limitations for injuries sustained in a rape, robbery, or aggerated assault, including wrongful death, is only two years.

A wrongful death claim accrues on the date of death, however, not the date the violent crime occurred. If a victim initially sues for injuries sustained in a rape, robbery, or aggravated assault, but then dies, his or her heirs may bring a wrongful death action within two years.

What types of damages are paid in a premises liability lawsuit for violent crime?

Defense attorneys like to tell juries that damages are “awards,” and that “awards” should be limited in premises liability cases for violent crime.

But damages paid by a business, shopping center, or apartment complex for injuries sustained in a rape, robbery, or aggravated assault–or even murder–are not an “award.” The victim did not win the lottery when he or she was raped, robbed, or assaulted–or murdered. Damages are “just” compensation for a victim’s injuries based on an incidence of violent crime that was preventable, especially when the criminal act was foreseeable or the business, shopping center, or apartment complex had evidence of prior, similar crimes on their premises.

Typically, a victim’s damages fall into two categories called “economic damages” and “noneconomic damages”:

  • Economic damages. Specific items of economic damages include past and future medical expenses, past and future lost earnings, lost earning capacity, loss of ability to provide household services, and loss or destruction of and damage to personal property.
  • Noneconomic damages. Specific items of noneconomic damages, which are often very significant, include physical pain, mental suffering, and emotional distress, and loss of consortium (under California law, this is the loss of love, companionship, comfort, care, assistance, protection, affection, society, and moral support; and the loss of the enjoyment of sexual relations or the ability to have children).

Occasionally, punitive damages, attorney’s fees (in certain circumstances), and/or an injunction against the business, shopping center, or apartment complex can also be granted.

If you or a loved one have been victimized by a violent crime while in a business, shopping center, apartment complex, hotel, or college campus or university, please call us for a free case evaluation. You do not have to stand alone. Call us today at (888) 482-1851.

Watson Law Group, APC, prosecutes premise liability cases for violent crime in all cities in California, including all cities in Los Angeles, Orange, San Diego, Riverside, San Bernardino, Sacramento, Santa Clara, and San Francisco counties.

Source
Crime in California (Publications)Tan v. Arnel Mgmt. Co.Barber v. ChangVasquez v. Residential Investments, Inc.Janice H. v. 696 North Robertson, LLCDelgado v. Trax Bar & GrillCalifornia Code of Civil Procedure Section 335.1California Civil Code Section 1714(a)CACI No. 1005Attribution Bias
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