The existence of a duty is a question of law determined by the court. Generally, a person does not have a duty to protect others from third-party criminal acts. However, one who controls the premises does have a duty to use ordinary care to protect invitees from criminal acts of third parties if he knows or has reason to know of an unreasonable and foreseeable risk of harm to the invitee. Foreseeability is established through evidence of specific previous crimes on or near the premises.
The decedent was shot and killed as he and his wife were leaving a movie theater at a mall. Respondents, who were the decedent’s mother, wife, and children, sued petitioner property manager, alleging that it negligently failed to provide adequate security at the mall. The jury awarded damages to respondents. The appellate court affirmed. The state supreme court reversed the judgment awarding damages.
Could petitioner property manager be held liable for negligence on account of a robbery committed inside the mall which resulted to the death of a customer?
The 10 prior violent crimes committed in the area were not sufficiently frequent and similar to the instant crime to give rise to a duty. Only four times in two years were robberies committed without a prior demand for property, and only three times in two years was a weapon used to commit a robbery. In those same two years no weapon had been used to harm someone, no victim had been seriously injured, and in only one case was a victim attacked prior to the accompanying theft. Even viewing the attack on the decedent as a robbery, the circumstances of the attack were extraordinary. Nothing about the prior robberies committed at the mall put petitioner manager on notice that a patron would be murdered as part of a robbery on its premises. The decedent's murder was not foreseeable and, therefore, petitioner did not have a duty to prevent the attack.