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Apportionment of Fault in Inadequate Security Cases

Comparative-fault rulings may wrongly shift liability to an insolvent criminal when a property owner's negligence facilitates a crime.

Trial Magazine, December 2001

By Thomas Scolaro *

Leesfield & Partners - Miami, Florida

On the evening of October 18, 1997, 26-year-old John Wilson 1 drove into the parking lot of his local bank to use the ATM. Its location and design virtually hid John from traffic on the street as he walked across the dimly lit parking lot to the ATM vestibule. As he prepared to deposit his paycheck, he felt a gun in his back, and a man's voice told him to withdraw all his money. When John couldn't get the money out of his account, the man shot him in the neck. John survived the attack but will never walk again.

John sued the bank, which owned the premises, alleging that its security and safety measures were inadequate. Discovery revealed that several criminal assaults had occurred at this ATM, that the defendant had never obtained criminal incident records for the neighborhood before designing and installing the facility, and that the defendant had considered constructing a well-lit, drive-through ATM as early as 10 years before John was shot but decided it was too expensive. The defendant argued that the blame should fall solely on the criminal.

Who is right? The extent to which a premises owner will be liable when its negligence allows a crime to occur depends on the jurisdiction in which you practice. Apportionment of liability in inadequate security cases is one of the most bitterly debated issues in tort law.

Many jurisdictions hold that premises owners have a duty to take reasonable steps to protect the public from foreseeable criminal acts, and they hold owners liable when no harm would have befallen a plaintiff but for the owner's negligence. 2 These jurisdictions recognize that landowners benefit when people use their premises. These courts note that owners are in the best position to know of a property's risks-especially where a particular use of the property, such as an ATM, creates a "crime magnet"-and to guard against those risks most efficiently.

But more and more premises owners are minimizing their liability for negligence in providing security by shifting blame to the criminal. Because most criminals are judgment-proof, the unfortunate consequence is that injured plaintiffs are deprived of a just recovery. This article takes a closer look at the controversy over how to apportion blame between a criminal and a property owner whose negligence allows that criminal to act.

Before a negligent premises owner can shift blame to an intentional tortfeasor, three fundamental changes in tort principles must have occurred in the relevant jurisdiction. 3

The first is the abolition of joint and several liability. If it is available, apportionment of fault is largely irrelevant because a judgment that is fully collectable against any one defendant can be recovered from any other, including a negligent premises owner. This is true even when the owner is found responsible for a proportionately small degree of fault. Since the mid-1980s, however, many jurisdictions have either abolished joint and several liability or significantly limited its application. 4

Second, courts must permit defendants to list nonparties on the verdict form. Traditionally, a plaintiff chooses whom to sue. By suing only the property owner, a plaintiff can keep the issue of an intentional tortfeasor's share of fault from going to the jury, because the jury is generally allowed to consider only the fault of a party defendant. But in jurisdictions that permit nonparties to be listed on the verdict form, defendants argue that the nonparty tortfeasor is wholly or partially to blame for the plaintiff's injuries, and the jury is instructed that it can apportion fault between the party defendant, the plaintiff, and the nonparty. 5

Finally, several jurisdictions have recently interpreted comparative-fault laws to allow comparison of negligent and intentional conduct, allowing negligent premises owners to shift their liability to intentional tortfeasors. 6

In addition, some courts are rewriting time-tested definitions of proximate cause and even usurping the province of the jury in order to apportion liability. 7

Neglect versus intent

Inadequate security cases usually involve criminal assaults at commercial premises, including ATMs, parking lots, malls, hotels, apartments, parking garages, office buildings, and even school dormitories. The law governing these cases is derived from the general principle that those who own or possess property have a duty to protect users from accidental, negligent, and intentional acts of third parties. 8

The duties owed by owners and lessees of property may differ, and duties owed to different types of plaintiffs-such as tenants, visitors, or other invitees-may also vary. But the general elements of a claim against a premises owner alleging inadequate security are the same: The plaintiff must show that the owner owed a duty of care to the plaintiff, that the crime was reasonably foreseeable by the defendant, that the defendant was negligent in failing to act reasonably to prevent the harm in light of the foreseeability, and that this negligence caused the plaintiff's harm.

Even where an owner's negligence is proven, some jurisdictions allow that owner's liability to be reduced under comparative-fault statutes. Most states codified rules of comparative fault in the 1970s, but retained the common law distinction between negligent and intentional conduct. 9 This means that the two types of conduct cannot be compared, so when a plaintiff brings a claim against a premises owner for negligence, that owner is not allowed to shift blame to an intentional tortfeasor. As one court stated, "[I]ntentional torts are fundamentally different in nature than negligent torts. . . . [A] true comparison of fault based on an intentional act and fault based on negligence is, in many circumstances, not possible." 10

Many courts continue to uphold this distinction. Regrettably, others are interpreting comparative-fault statutes to allow comparison of negligent and intentional conduct, and are thus apportioning more blame to criminals, and less to negligent premises owners.

Cases allowing apportionment. The 1991 New Jersey case of Blazovic v. Andrich 11 involved a bar patron who was beaten in the parking lot by fellow patrons. The jury returned a verdict of $150,000, allocating 70 percent of the negligence to the bar owner and 30 percent to the plaintiff. But the trial court then took it upon itself to apportion the 70 percent liability among the bar owner and the assailants. The New Jersey Supreme Court affirmed the lower court's ruling, stating that for comparative-negligence purposes, intentional wrongdoing is different in degree, but not different in kind, from negligence or wanton and willful conduct, and thus "does not preclude comparison by the jury." 12

The courts in California have created a particularly hostile environment for victims of landowner negligence. For example, in Pamela B. v. Hayden, a young woman was raped by two men in the underground garage of the "secured" building where she lived. She presented expert testimony that the extremely poor lighting in the garage, together with a lack of adequate safety mechanisms and easy accessibility to the garage, led to the attack. 13

The jury found that the landowner's share of fault was 95 percent, but the appellate court overturned the award, stating, "[J]ust as Justice Potter Stewart knew hardcore pornography when he saw it, we know a blatantly unfair, inequitable, and unsupported apportionment of fault when we see it." 14

Cases rejecting apportionment. Other jurisdictions have expressly rejected the argument that negligent defendants should be able to minimize their liability by shifting blame to intentional tortfeasors. The Florida Supreme Court, for example, held that the criminal conduct of an assailant who shot a shopping-center patron in the parking lot could not be compared to the negligence of the center's owner because the state's comparative-fault statute did not permit comparison of intentional and negligent acts. 15

The Fifth Circuit reached a similar conclusion when analyzing Mississippi's comparative-fault statute. In affirming a lower court's ruling that the defendant could not apportion liability to a criminal who abducted a mother and her 12 year-old daughter from a parking lot and repeatedly raped the mother while forcing the daughter to watch, the Fifth Circuit held that the term "fault" in the statute does not include intentional torts. 16

Even where courts have interpreted comparative fault-statutes to encompass intentional torts, many have continued to properly recognize the liability of the premises owner. For instance, in a 1994 case involving a tenant who was raped in her apartment, a Louisiana court held that the term "fault" in the state's statute was broad enough to encompass both negligent and intentional conduct-yet it refused to reduce the property owner's liability. 17

The court stated that "[a]s a general rule, we find that negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent." 18 The court held that where the duty of a negligent tortfeasor clearly encompassed the risk of the occurrence that harmed the plaintiff, the intentional tortfeasor's conduct would not reduce the negligent tortfeasor's liability-and this determination, it said, must be made on a case-by-case basis. 19

Similarly, the Kansas Supreme Court found that "negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent." 20 The court conceded that in some circumstances it might be proper to compare intentional conduct with negligence, but not where the negligence was failure to protect the plaintiff, a mentally retarded six year old girl, from sexual molestation by a school bus driver.

Various other courts have agreed, finding that allocating fault to the intentional actor, where the intentional tort is the very risk that the negligent tortfeasor has a duty to prevent, serves as a direct disincentive for premises owners to act with due regard for the safety of people they invite onto the premises. 21

A comprehensive law review article makes this point clearly:

Not all cases involving the combination of negligence and intentional misconduct are alike. There may be exceptional circumstances where, by reason of the unique nature of the duty allegedly breached, it would be inappropriate to allocate fault between a party who negligently exposed another to injury from intentional harm and the intentional wrongdoer. One example would be the liability of an apartment owner for negligently failing to protect tenants from criminal trespassers, such as neglecting to provide sufficient lighting around the building or keeping entrances locked or guarded to discourage burglars or rapists. In that instance, the distinctive nature of the duty of care-to prevent precisely such intentional wrongdoing-is such that the negligent actor should not escape responsibility to the plaintiff by shifting the major share of the blame to the intentional wrongdoer. 22

Proximate cause

Property owners often argue that even if they breached their duty to protect a plaintiff from harm, their breach was not the proximate cause of the person's injury. Instead, they contend, the proximate cause was the intentional criminal act. This act, they argue, breaks the chain of causation and shields them from liability. Unfortunately, these arguments are sometimes successful.

For example, Pamela B., the appellate court recognized that the defendant owed a duty of care to the plaintiff and breached that duty, yet held that the breach was not the cause of the harm. 23 The court stated that "it is nonsense to suggest that defendant's failure to change some light bulbs and fix some locks was the cause of Pamela's injuries." 24

In substituting its unique version of "causation" for the jury's findings, the court found that the consequences of holding a landlord liable in such circumstances would theoretically allow liability to extend back to the "dawn of human events." In the court's reasoning, finding the premises owner liable for breaching its duty of care could somehow be carried so far as to " . . . single out the criminal's parents for not teaching him to obey the law; the schools for not teaching him a trade; the city for permitting degrading slum areas that breed crime; the police for not preventing crime...." 25

This argument wholly lacks merit. The criminal act is not an intervening cause when the act is foreseeable and the defendant's negligence permitted the criminal act to occur. 26 Rather, the criminal act flows directly from the premises owner's failure to protect the plaintiff. 27

For example, imagine a circus where a lion gets loose, leaps into the audience, and mauls some children. Assume that the evidence shows the tragedy could have been avoided had the circus owner installed fences and nets to protect the crowd, but that the owner chose not to do so because of the cost. There can be no doubt that the proximate cause of the harm to the children was the owner's failure to install safety devices.

As the Florida Supreme Court noted, "[A] negligent tortfeasor whose acts or omissions give rise to or permit an intentional tortfeasor's actions . . . [should not] as a matter of public policy . . . be permitted to reduce [its] liability by shifting it to another tortfeasor whose intentional criminal conduct was a foreseeable result of their negligence." 28

Arguing for accountability

The plaintiff in an inadequate security case faces the glaring disadvantage of having to explain to the jury that a passive entity-the premises owner-should be liable when a criminal's direct action has harmed the plaintiff, who has perhaps been shot, beaten, raped, or even murdered. The anger the jury feels toward the assailant and the repulsiveness of the crime may naturally lead the jury to allocate most of the blame to the perpetrator. But the practical effect of allowing property owners to lessen their liability by shifting blame to the criminal is that the victims cannot recover for their harm.

Counsel for premises owners argue that a criminal's insolvency shouldn't force property owners to pay more than their fair share. But this is a misguided argument that skirts true concepts of accountability. The proper question is: Who should bear the risk of the criminal's insolvency? Should it be the victim, or should it be the negligent premises owner, who is partially-and arguably wholly-at fault for the plaintiff's injuries? Plaintiff counsel should argue the absurdity of forcing an innocent victim to bear the risk when a landowner's negligence led to that victim's injuries.

Premises owners operate businesses and institutions to make a profit. They invite the public onto their premises, and the law recognizes a distinct relationship between such property owners and the public. This relationship imposes a duty on owners to protect members of the public from harm on their property, whether caused by negligence or by intentional acts.

Property owners often are in the best position to prevent harm from befalling users of their property. As one court noted, "It is neither unfair nor irrational for an innocent plaintiff to collect full damages from negligent defendants who knew, or should have known, that an injury would be intentionally inflicted, and failed in their duty to prevent it." 29

For example, if the circus lion that has attacked once does so again at a later performance, do we blame the lion, or do we conclude that the party profiting from the attendance of the injured child should pay for the loss? Of course, the circus owner-who had control over the premises, knew of the danger, and decided not to pay for nets and fences-should bear the burden of paying for the child's injuries. The premises owner who seeks and receives financial benefit from the invitee on his premises, and who could and should have foreseen and prevented the harm to the plaintiff, should be accountable.

Justice for the ends of safety

Premises owners are acutely aware that security is a cost, not a profit source, and given the choice between spending money and making it, they will probably choose the latter. Property owners change only when forced to do so, and inadequate security cases have begun to effect change. Security guards can now be found at malls, shopping centers, hotels, and apartment complexes. Hotels routinely employ better key controls, such as changing the code on key cards after each checkout and refraining from announcing guests' room numbers to the public. Commercial property owners consider security and environmental factors when developing and operating businesses. Holding property owners liable for negligent security is producing a safer society.

It is therefore vital that access to the courts remains open for plaintiffs in inadequate security cases. Defendants must not be allowed to block the path to justice and endanger the public by blaming others for injuries caused by their own negligence.

* Thomas Scolaro is a partner with Leesfield & Partners in Miami, Key West and South Beach, Florida.

1 The names of the parties, dates, jurisdiction, and court have been changed due to a confidentiality agreement reached as part of the settlement of this case.


3 See generally, "Fighting New Defenses in Inadequate Security Cases," TRIAL, Apr. 2000 at 20.

4 See, e.g., Whitehead v. Food Max, Inc., 163 F.3d 265, 281 (5th Cir. 1998).

5 A complete survey of apportionment of fault by state, including citations to cases and statutes, is available at www.Leesfield.com.

6 Id.

7 Pamela B. v. Hayden, 31 Cal. Rptr. 2d 147 (Ct. App.1994); Scott v. County of Los Angeles, 32 Cal. Rptr. 2d 643 (Ct. App. 1994).

8 See generally, RESTATEMENT (SECOND) OF TORTS §344 (1963).

9 See, e.g., Melendres v. Soales, 306 N.W.2d 399 (Mich. Ct. App.1981); Sieben v. Sieben, 646 P.2d 1036 (Kan. 1982).

10 Veazy v. Elmwood Plantation Assocs., Ltd., 650 So. 2d 712, 719-20 (La. 1994); See also, Burke v. 12 Rothschild's Liquor Mart, Inc., 593 N.E.2d 522, 532 (Ill. 1992).

11 590 A.2d 222 (N.J. 1991).

12 Id. at 231.

13 31 Cal. Rptr. 2d 147, 157.

14 Id. at 160.

15 Merrill Crossings Assocs. v. McDonald, 705 So. 2d 560 (Fla. 1997)

16 Whitehead, 163 F. 3d 265, 281.

17 Veazey, 650 So. 2d 712, 718.

18 Id. at 719.

19 Id. at 720.

20 Kansas State Bank & Trust Co. v. Specialized Transp. Servs., 819 P.2d 587, 606 (Kan. 1991).See also, Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997) (holding that an intentional criminal assault on a nurse by a mentally ill patient could not be compared with the negligence of the treating psychiatrist in failing to protect the staff from foreseeable violent acts).

21 See e.g., Turner, 957 S.W.2d 815; Whitehead, 163 F.3d 265. See also RESTATEMENT (SECOND) OF TORTS §449, and cmt. b (1963): "The happening of the very event the likelihood of which makes the actor's conduct negligent and so subjects the actor to liability cannot relieve him from liability. The duty to refrain from the act committed or to do the act omitted is imposed to protect the other from this very danger. To deny recovery because the other's exposure to the very risk from which it was the purpose of the duty to protect him resulted in harm to him, would be to deprive the other of all protection and to make the duty a nullity."

22 Gregory C. Sisk, "Interpretation of the Statutory Modification of Joint and Several Liability: Resisting the Deconstruction of Tort Reform", 16 U. PUGET SOUND L. REV. 1, 30-31 (1992).

23 31 Cal. Rptr. 2d. 147, 153.

24 Id. at 158.

25 Id.

26 See generally, Holley v. Mt. Zion Terrace Apartments, Inc., 382 So. 2d 98, 101 (Fla. Dist. Ct. App.1980).

27 See Merrill Crossings Assocs., 705 So. 2d 560; Kansas State Bank & Trust Co., 819 P.2d 587.

28 Merrill Crossings Assocs., Id. at 562.

29 Wal-Mart Stores, Inc. v. McDonald, 676 So. 2d 12, 22 (Fla. Dist. Ct. App. 1996).

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