Washington and Lee Law Review Volume 57 | Issue 2 Article 9 Spring 3-1-2000 A Duty Not to Become a Victim: Assessing the Plaintiffs Fault in Negligent Security Actions Steven C. Minson Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Property Law and Real Estate Commons Recommended Citation Steven C. Minson, A Duty Not to Become a Victim: Assessing the Plaintiffs aF ult in Negligent Security Actions, 57 Wash. & Lee L. Rev. 611 (2000), https://scholarlycommons.law.wlu.edu/wlulr/vol57/ iss2/9 This Note is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. A Duty Not to Become a Victim: Assessing the Plaintiffs Fault in Negligent Security Actions Steven C. Minson* Table of Contents I. Introduction ....................................... 612 II. The Defendant's Duty in Negligent SecurityActions ........ 616 A. The Imminent Harm Test ......................... 618 B. The Prior Similar Incidents Test .................... 619 C. The Totality of the Circumstances Test ............... 619 D. The Balancing Test .............................. 621 III. Comparing the Fault of the Intentional Tortfeasor .......... 622 IV. Comparing the Plaintiff's Fault ........................ 627 A. Do Plaintiffs Have a Duty to Avoid Suffering an Intentional Tort? ..... 628 B. Reported Cases ................................. 630 C. Determining Plaintiffs Fault .................... 634 1. Whether Plaintiff Was at Least Partially at Fault .... 635 a. The Hand Formula ........................ 636 (1) Potential Loss ......................... 637 (2) Probability of Harm .................... 637 (3) Burdens of Precaution .................. 641 b. A Duty Not to Become a Victim .............. 646 2. Comparing Fault ............................ 649 V . Conclusion ....................................... 653 Appendix .......................................... 654 * I would like to thank my wife, Alice Mlinson, whose love made this Note possible. Thanks also to Professor in Phemister for supervising the writing of this Note and to Professor Brian Murchison for his encouragement and his helpful comments on an earlier draft. For James C. imnson. 57 WASH. &LEE L. REV 611 (2000) I. Introduction Janis Erichsen went shopping at her neighborhood No-Frills grocery store in Omaha at 6:00 a.m. on a Sunday in July.' She locked her car before enter- ing the store.2 When Ms. Erichsen returned, she put her groceries in the car, locked it again, and then took her shopping cart back to the store.' Returning from the store and otherwise alone in the parking lot, she noticed a man walking straight toward her Uncomfortable with his approach, she hurried to unlock her car door.' Before she could get in her car, the man sprayed her in the face with mace, took her purse, and walked backto an automobile atthe edge of the lot.6 He entered the car and placed Erichsen's purse between the two front seats. Erichsen pursued the man to his car and reached in it to reclaim her purse.' He sprayed her with mace a second time, and then he put the car in gear and drove away? Erichsen became entangled in the car's seatbelt strap, and her assailant dragged her for 1.6 miles." She lost both kneecaps and underwent at least a dozen surgeries." Nicholas DiVincenzo, a real estate broker, rented an office in a seven- story building at a south Florida office complex." The office building was in an area in which the crime rate was "unusually high."13 Also, the building management neither locked the doors ofthe building nor activated the security camera until 7:00 p.m. 4 One day, sometime after 6:00 p.m., DiVincenzo left his office unlocked and unattended and went across the hall to the bathroom. 5 1. See Erichsen v. No-Frills Supermarkets, Inc., 518 N.W.2d 116, 118 (Neb. 1994) (describing facts of attack); State v. Bennett, 508 N.W.2d 294, 296 (Neb. Ct. App. 1993) (describing facts of case in resulting criminal trial). 2. Bennett, 508 N.W.2d at 296. 3. Id. 4. Id. 5. Id. 6. Id. 7. Id. 8. Id. 9. Id. 10. Id. 11. Id. Erichsen eventually tried her case to a jury, and the jury returned a defense verdict. Telephone Interview with Brian Welch, attorney for No-Frills Supermarkets, Cassem, Tiemey, Adams, Gotsch & Douglas, Omaha (Feb. 9,1999). 12. See Green Cos. v. DiVincenzo, 432 So. 2d 86,87 (Fla. Dist Ct. App. 1983) (describ- ing facts of case). 13. Id. 14. Id. 15. Id. PLAIRTIFF'SFA ULTJN NEGLIGENTSECURITYACTIONS 613 When DiVincenzo returned to his office, an assailant attacked him, and he suffered substantial permanent injuries.16 Both of the individuals described in these accounts suffered terribly. Yet, juries found both at least partially responsible for their injuries in suits against the business owners of the property on which the criminal attacks occurred. The plaintiffs based their suits on a cause of action generally referred to as "premises security" or "negligent security."" Negligent security actions based on attacks such as those described above became more numerous during the 1970s.18 Although common carriers and innkeepers have long had a duty to protect passengers and guests from the intentional misconduct of others, in the 1970s states began to impose such a duty on possessors of other kinds of real20 property.19 Now, plaintiffs bring such suits against apartment complexes, shopping malls,2 ' hospitals,l grocery stores,' schools, 24 and other busi- nesses.' Indeed, with one authority reporting that the average jury award in a negligent security action involving a wrongful death is $2.1 million,26 it is 16. Id. The jury found DiVincenzo's own negligence contributed twenty-five percent to his injuries. Id. 17. SeeALANKAMi~sKYACo LeTGUETOPREMsSEc TRnYIfGA' ON3 (1995) (using term "premises security"); JosEPHA. PAGE, TH LAwoFPRmESLIAB]iTY § 11.3,at293 (2d ed. 1988) (using term "negligent-security"). The commentators use the terms interchange- ably, but for the sake of clarity, this Note will use the term "negligent security" throughout. 18. See RicARD S. KumAN, SAFEPLAcEs? SEcURirYPLANNINGANDLTIGATION § 1- 1, at 2 (1989) (describing expansion of tort liability for negligent security as result of increase in and frustration with crime). 19. See PAGE, supra note 17, § 11.3, at 291-92 (noting negligent security doctrine devel- oped during 1970s and 1980s and describing current doctrine in states as inconsistent); see also Mark P. Buell, Liabilityfor InadequateSecurity, 69 R. B.J. 58, 58 (1995) (identifying 1975 rape of singer Connie Francis at hotel, with $2.5 million verdict, as "mother if not grandmother" of all premises security cases); Robert J.Homant & Daniel B. Kennedy, LandholderResponsi- bilityfor ThirdPartyCrimes inMichigan: AnAnaysis of UnderlyingLegalValues, 27 U. TOL. L. REV. 115, 115 (1995) (identifying 1970 action against residential landlord as first successful example of negligent security action). 20. See Kline v. 1500 Mass. Ave. Apartment Corp., 439 F.2d 477, 478-80 (D.C. Cir. 1970) (describing criminal assault on tenant in common hallway of apartment building). 21. See Seibert v. Vie Regnier Builders, Inc., 856 P.2d 1332, 1334 (Kan. 1993) (describ- ing shooting in shopping center's subterranean parking garage). 22. See Isaacs v. Huntington Mem'l Hosp., Inc., 695 P.2d 653,662 (Cal. 1985) (describ- ing shooting in hospital parking lot). 23. See Clohesy v. Food Circus Supermarkets, Inc., 694 A.2d 1017, 1019 (N.J. 1997) (describing abduction from parking lot and subsequent murder of supermarket customer). 24. See Mullins v. Pine Manor College, 449 N.E.2d 331,333-34 (Mass. 1983) (describing rape in college dormitory room). 25. See Hardee v. Cunningham & Smith, Inc., 679 So. 2d 1316,1317 (Fla.Dist. Ct App. 1996) (describing stabbing, beating, and robbery of self-service cat wash patron). 26. KAMINSKY, supranote 17, at4. 57 WASH. &LEEL. REV 611 (2000) little wonder that such actions are becoming more common across the coun- try. The same authority reports that the average jury award in negligent security actions involving rape is $1.8 million.' With more than 4000 rapes reported in American parking lots and garages in 1995,2 it is clear that this theory of recovery exposes business possessors and their insurers to stagger- ing liability. To recover in a negligent security action, a plaintiff must show that the possessor of the property on which the criminal attack occurred owed a duty of care for the plaintiff's safety, that the possessor breached that duty, and that the breach was the proximate cause of the injuries criminally inflicted on the plaintiff.' In such actions, one can assign responsibility to any of three actors: the business owner or landlord (possessor), the criminal (intentional tortfeasor), or the victim (plaintiff). Thus, negligent security cases present unusual doctrinal problems. A plaintiff alleges that a possessor is at fault for failing to take sufficient precautions to prevent foreseeable criminal attacks; yet the occurrence of crime is notoriously difficult to predict and prevent. The intentional tortfeasor's fault is obvious. However, because most states pro- hibit the comparison of negligent and intentional fault, the possessor generally cannot join the intentional tortfeasor in order to reduce the possessor's expo- sure to liability. Finally, there is the fault of the plaintiff. In the criminal law, of course, any fault on the part of the victim is generally irrelevant to convic- tion and punishment of the wrongdoer." However, because the plaintiff in a negligent security action alleges that the possessor was negligent, no doctrinal bar exists to prevent the possessor from employing the defense of contributory or comparative negligence, requiring a jury to evaluate the reasonableness of the plaintiff's conduct with respect to the attack.