Landowners May Have Duty to Provide Security on Premises
by: David A. Melton and Michael J. Baytosh
ATTENTION LANDOWNERS: Do you provide adequate security on your premises? A recent California Court of Appeal decision extends the trend toward increased security measures where the burden of providing additional security is minimal. In Tan v. Arnel Management Co. (2009) 170 Cal.App.4th 1087, Plaintiff was rendered quadriplegic when a carjacker shot him in the neck in Defendant's parking lot. The Second District Court of Appeal (Los Angeles) found that Defendant, a property management company, had a duty to install security gates. Three prior incidents of sudden and unprovoked violent assaults within the ungated parking areas on the property put Defendant on notice that additional security was needed.
Prior to Tan, a landowner's duty to provide security was determined by balancing the foreseeability of harm against the burden of the duty to be imposed. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666. When applying this balancing test, the California Supreme Court placed emphasis on the cost or burden of the landowner providing security guards. In Tan, rather than asking for security guards, plaintiffs argued that the landowner should have installed a security gate - "a one-time expense that does not require extensive monitoring." The Court of Appeal held Defendant liable because installing a security gate that protected the parking area where Plaintiff was injured was not an undue burden.
California landowners must assess whether the current level of property security is commensurate with the existing foreseeability of harm. Landowners should take into account past criminal acts and the efficacy of security measures to prevent reoccurrence. For example, a prudent landowner with regular occurrences of parking lot theft may decide to install perimeter fencing that will impede criminal conduct. While the history of post-fencing criminal acts would be relevant to the reasonableness of the designed security measure, the landowner likely has fulfilled its duty.
Public entity landowners are not immune from application of the Tan analysis. Although liability for the dangerous condition of public property is statutory (See California Government Code Sections 830, 835), the courts look closely at physical defects in the property and the causal connection between condition of property and injury. Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112. For example, the failure to provide reasonable parking lot lighting, a security measure, foreseeably increasing the risk that members of the public will be attacked, has been recognized as a dangerous condition of public property. Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799. Third-party criminal conduct coupled with a physical defect of property can be evidence of an entity's failure to respond reasonably to a known danger. Security measures designed to impede criminal acts will be judged under the Section 835 analysis, with emphasis on any alleged physical defect in the property.
Each case must be evaluated on its own facts. The first step is recognizing the potential for harm, particularly when there is a history of third-party criminal conduct on the premises. Remediation of the potential for harm through reasonable security measures substantially reduces the likelihood of personal injury liability.