A Moving Target: Property Owners\u27 Duty to Prevent Criminal Acts on the Premises

When do a landowners owe a duty to protect an individual on their property from the criminal acts of a third party? The answer to this question usually turns on whether the type of criminal act that occurred was foreseeable. Courts determine whether an act was foreseeable either by examining the totality of the circumstances or by demanding evidence of prior similar acts or some method of analysis that borrows from both approaches. This article addresses a variety of duty-foreseeability cases from around the country, paying particular attention to the three major decisions issued by the California Supreme Court in 2004-05. Part I of the article traces the various pendulum swings of the California Supreme Court as it moves from a strongly pro-plaintiff to a moderately pro-defendant back to a moderately pro-plaintiff definition of duty in premises liability cases. The article particularly considers the impact of a shifting approach to duty, in which the legal analysis of foreseeability changes depending on whether the criminal assault is in the future, imminent or ongoing. The article then examines a number of “twists in the tale” that make it particularly difficult for courts to determine whether a particular criminal act was sufficiently foreseeable that landowners had a duty to the victim and may be liable for the resulting harm. Twist #1 is the tragically bizarre criminal act that causes injury. Twist #2 considers whether a landlord has a duty to prevent tenant-on-tenant crime, e.g., where both the attacker and victim were authorized to be on the premises. Twist #3 considers whether gang violence impacts the analysis of foreseeability in a different way than “random” crime. Taken together, these twists demonstrate that courts frequently find themselves in the untenable position of second guessing the reasonableness of property owners and their employees during an ongoing criminal act. Viewing the incidents in hindsight, judges tend to expand the landowners’ duty, to the detriment of certainty and fairness in the law