Some of the victims of the horrific mass shooting at a movie theater in Colorado last summer are suing the theater’s operators for having had no security guards on duty the night of the shootings and no plans for keeping people from sneaking in or out of the theater. This made me wonder, would the theater owner be liable under California law?
There are certain situations under which California law requires that property owners act affirmatively to protect visitors from the wrongful conduct of other visitors. See Ann M. v Pacific Plaza Shopping Ctr. (1993) 6 C4th 666, 674, 25 CR2d 137. Here’s the basic rule: property owners have a duty to secure their premises against foreseeable criminal acts that are likely to occur absent precautionary measures.
California courts have been reluctant to conclude that the criminal acts of a third person were foreseeable unless there are circumstances such as prior similar criminal acts. See Claxton v Atlantic Richfield Co. (2003) 108 CA4th 327, 133 CR2d 425 (test is prior similar incidents, not prior identical incidents).
But just because there haven’t been any prior criminal conduct doesn’t mean that the owner is free to ignore security. The owner nonetheless has to use ordinary care to prevent possible injury, and the relatively minor expense of making a repair that would make a criminal act more difficult to commit is a factor that may support liability when foreseeability is weak. See Vasquez v Residential Inv., Inc. (2004) 118 CA4th 269, 276, 12 CR3d 846 (simple replacement of glass pane near front door of apartment building would have made it more difficult for estranged boyfriend to enter and fatally stab victim).
And even when criminal conduct is foreseeable, there may be policy considerations and other factors that preclude imposing a duty or a finding of breach of duty. For example, in Kentucky Fried Chicken v Superior Court (1997) 14 C4th 814, 829, 59 CR2d 756, the court held that the business owner had no duty to comply with the armed robber’s unlawful demand for money even when the robber is threatening a patron.
Generally, it comes down to a balancing act: If the criminal act is very foreseeable, the owner is going to be held to a higher standard and may have a duty to provide expensive security; if the criminal act is not very foreseeable, the owner still has to take some basic precautions, like securing doors and windows.
Without all the facts, it’s impossible to make any comment on the Colorado case, but had it occurred in California, the legal issues involved would almost certainly center on whether there were prior similar criminal acts (foreseeability) and whether even basic security measures would have prevented the massacre. What other issues do you think would be raised under California law?
For in-depth coverage of the law on premises liability in California, turn to CEB’s California Tort Guide, chap 10.
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