Adobe Stock
Imagine you get a call, and somebody has been assaulted or robbed on property you own, and you don’t even engage in activity at the property. Can you be held liable for damages to the victim?
Maybe.
Ordinarily, the criminal act of a third party is an intervening event that relieves a landowner of liability for the consequences of the criminal act. While you won’t have criminal liability, assuming you didn’t commit the crime, you may have civil liability.
Determining factors include the nature of the relationship with the victim (that is, if the victim is a trespasser, the duty is less than if the victim is an invitee); whether you control or can control the premises; and, most importantly, whether the crime is foreseeable.
Foreseeability is determined based on the nature and location of the property, history of activity there, and reasonable standards associated with ownership of property subject to certain known risks.
The first test to determine if one has liability is whether the landowner had a duty to the victim. A duty will only exist if the risk of criminal conduct on the property is so great as to be unreasonable and foreseeable.
Determining foreseeability turns on what the owner knows or should have known, including factors such as previous criminal activity and its frequency, use of the property, neighborhood conditions, and general safety features of your property such as lighting, fencing, or security.
If the owner has leased the property to a third party or the property is otherwise under the control of another party and the owner has little to zero control, then the owner likely would not have liability unless unusual circumstances exist.
Unoccupied or abandoned property may increase the landowner’s risk. In some cases, the U.S. Supreme Court has ruled that for a landowner to have liability for a crime, the crime must be sufficiently similar to previous ones in the area, reasonably putting the landowner on notice of the danger.
If ordinances are in place that affect premise safety, a landowner’s failure to comply may result in a finding of negligence and liability.
How do you protect yourself? Prudent landowners will:
- Ensure they have adequate commercial liability insurance coverage (be specific with your insurance broker about potential liability for third parties’ criminal acts)
- Assess physical condition of their property, general factors such as use of the property and conditions present in the neighborhood, and consider improving lighting, alarm systems, fencing, and other measures if you believe they’re beneficial and cost-efficient
- Discuss these and additional concerns with your attorney
You do not have an obligation to ensure your property is 100% safe against all risks. Absent foreseeability and other surrounding circumstances, prudent landowners should be able to adequately protect themselves from such claims.
Michael S. Goodrich is a shareholder, specializing in business law, in the full-service law firm of Decker Jones, P.C.