The balancing test addresses the interests of both business proprietors and their customers by balancing the foreseeability of harm against the burden of imposing a duty to protect against the criminal acts of third persons. In determining the duty that exists, the foreseeability of harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against that harm. In cases in which there is a high degree of foreseeability of harm and the probable harm is great, the burden imposed upon defendant may be substantial. Alternatively, in cases in which a lesser degree of foreseeability is present or potential harm is slight, less onerous burdens may be imposed. Under this test, the high degree of foreseeability necessary to impose a duty to provide security, will rarely, if ever, be proven in the absence of prior similar incidents of crime on the property.
A woman was robbed in a Walmart parking lot. The woman sued Walmart, contending that Walmart was negligent in failing to provide adequate security in the parking lot considering the high level of crime in the surrounding area. The trial judge ruled that Walmart was 75 percent at fault and the unknown perpetrator was only 25 percent at fault. On appeal, the Court of Appeal found that the trial judge erred in apportioning fault between Walmart and the criminal perpetrator. It amended the judgment to find Walmart solely at fault for the damages suffered by the plaintiff. The case was elevated to the Supreme Court of Louisiana on a writ of certiorari.
Was Walmart liable?
The Court held that Walmart owed no duty to protect plaintiff from the criminal acts of third parties. The foreseeability was not present to impose a duty on defendant to provide a security guard in its parking lot. Thus, the decision was reversed.