Seibert v. Vic Regnier Builders - 253 Kan. 540, 856 P.2d 1332 (1993)

Rule:

It is only where the frequency and severity of criminal conduct substantially exceed the norm or where the totality of the circumstances indicates the risk is foreseeably high that a duty should be placed upon the owner of the premises to provide security. The duty to provide security is determined under the reasonable person standard. Thus, the duty to provide security and the level of such security must be reasonable -- that includes the economic feasibility of the level of security. In some instances, the installation of better lighting or a fence or cutting down shrubbery might be cost effective and yet greatly reduce the risk to customers. The property owner is not under a duty to provide such security as will prevent attacks on the patrons -- such a duty would make the owner the insurer of his patrons' safety. Rather, if because of the totality of the circumstances the owner has a duty to take security precautions by virtue of the foreseeability of criminal conduct, such security measures must also be reasonable under the totality of the circumstances.

Facts:

Plaintiff Betsy Seibert was attacked in a parking lot by an unknown assailant. She filed suit against defendant shopping center owner on the basis of negligence in not providing security for the area. Plaintiff alleged that by virtue of past criminal activity in the shopping center's parking areas plus the nature of the underground parking area, including dim lighting by virtue of numerous burned-out fluorescent tubes, the defendant owed a duty to her as a business invitee to provide security. The shopping center had no security for its patrons -- no warning signs, video surveillance, or security guards. However, no evidence of prior crimes in the underground parking area was offered or suggested. The trial court, using the "prior similar incidents" rule of foreseeability, entered summary judgment for defendant. On appeal, plaintiff contended that under the "prior similar incidents" rule utilized by the district court, the court erred in holding that such prior incidents were insufficient to establish a duty owed. Alternatively, plaintiff contended the court erred in not applying the broader "totality of the circumstances" rule.

Issue:

Did the trial court err in using the "prior similar incidents" test for foreseeability in determining whether or not defendant owed a duty to plaintiff shooting victim? 

Answer:

Yes.

Conclusion:

On appeal, the court reversed and remanded for reconsideration under the totality of the circumstances test. The two rules were different methods for determining foreseeability in deciding whether or not there was a duty owed by a premises owner to a customer injured by the criminal conduct of a third party. While no evidence of prior crimes in the underground parking area, where the crime occurred, was offered, there was sketchy evidence of crimes in above-ground parking areas. The liability sought to be imposed was predicated upon the frequency and severity of prior attacks against different patrons by presumably different attackers in different areas of the lot, plus the totality of the circumstances, including allegedly poor lighting and a secluded location, making the attack foreseeable to defendant, who then had a duty to take appropriate security action.