Property owners can be held liable for crimes

Randell Wallace is a partner at Lathrop & Gage in Springfield and is a member of the firm's real estate, financial institutions and corporate practice groups. Don Dagenais is a partner at Lathrop & Gage in Kansas City and practices real estate law.

Owners of commercial properties may be surprised to learn that in some situations they can be liable to victims of crimes that occur on their properties, even though the owners had nothing to do with perpetrating the crimes.

If you own a restaurant or shop, for example, and somebody is mugged in the parking lot, it is possible that you could be liable. If you own an apartment building and a burglar breaks into an apartment and victimizes a resident, you could be liable. If you own a business and an employee is assaulted while walking to her car after her shift ends, you could be liable.

Cases from Missouri and other states have established these principles over the past several years, and it is advisable for all commercial properties owners to be aware of this risk and to take some reasonable precautions against it.

The first notable Missouri case occurred 15 years ago when the owner of an apartment complex in St. Louis was held liable to a resident who was assaulted in her apartment, where a burglar entered the apartment through a window with a broken window latch, which was adjacent to a fire escape. She had previously reported the broken window latch to the landlord, but the landlord had failed to fix it.

The court noted a pattern of crimes in the apartment complex, including some in which burglars had used that very fire escape. The landlord's failure to fix the window latch and provide other simple security measures such as putting security bars on the windows and providing better security lighting was enough to render the landlord negligent, and thus liable to the injured resident.

In 1992, the owner of a St. Louis barbecue restaurant lost a case filed by a customer who was assaulted in the restaurant parking lot. Again, the court focused on the pattern of similar crimes occurring in the area, and decided that criminal activity was foreseeable by the restaurant and that the restaurant owner therefore had a duty to take some measures to protect its customers. These might have included more lighting and providing a security guard during evening hours.

In 2001, a court in New Jersey followed Missouri's lead, holding in favor of an employee of an Atlantic City casino who was accosted on a sidewalk outside the casino as she left her shift at 2 a.m. She was heading for the parking lot across the street, where she had left her car.

When she sued the casino for damages, the casino defended the case on the ground that it provided an employee parking lot elsewhere and had an employee shuttle service to take employees to and from the lot. However, the parking lot was several blocks away, the shuttle service did not have regular hours, and many employees parked across the street because it was more convenient. The court held that the inconvenience of the employee lot and shuttle service, coupled with the fact that similar crimes had occurred in the area of which the property owner should have been aware, led the property owner to have a duty to guard against such crimes, and therefore made it liable for the damages suffered by the employee in the assault.

What these decisions seem to indicate is a general trend toward looking at the foreseeability or predictability of crime as establishing a property owner's obligation to take steps to protect its customers or employees.

Where there is no predictability of a crime, the owner seems not to be liable. For example, in another St. Louis case decided in 1987, a victim was murdered when a car bomb exploded in a parking garage. The survivors sued the owner of the parking garage, but the court there held that a car bomb was not a foreseeable kind of criminal activity. No car bombs had ever exploded there before. The owner of the parking garage, the court held, was not liable for that kind of unforeseeable crime.

The prudent advice for any property owner, then, would be to keep abreast of the pattern of criminal conduct in the area of the property, and to take some reasonable steps to protect employees or customers against the likelihood of such crimes. If a crime occurs anyway, the owner's precautions should at least afford a good defense against a lawsuit for damages.