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Print Page Whose Fault Is Assault?
by Ron Davis

A Texas woman has failed to prove her claim that a shopping center tenant is liable for a vicious assault she suffered moments after she left the tenant’s store.

The shopping center is Alamo Quarry Market in San Antonio, and the tenant store the woman had shopped at before the assault is operated by Bed, Bath & Beyond, Inc. The attack on the woman occurred on a sidewalk in the shopping center’s common area. So Bed, Bath & Beyond pointed out that since it neither owns nor occupies the sidewalk scene of the crime, the store’s management is not legally responsible.

In fact, the lease between the shopping center and Bed, Bath & Beyond states that “the landlord hereby undertakes and assumes all duties and responsibilities in regard to…security and control of all common areas,” including “any and all sidewalks.”

The attack victim argued, however, that the lease also states that “notwithstanding landlord’s obligation to provide security for the common areas, tenant acknowledges that the same is not to be construed as a warranty by landlord that no acts of vandalism or other criminal activity will occur.” Such a provision, the woman added, notifies Bed, Bath & Beyond that the shopping center is unable to protect against all criminal activity and that its customers face the threat of criminal assault.

Moreover, the woman added, because the sidewalk where the attack occurred provides a benefit to Bed, Bath & Beyond and its customers only, that sidewalk portion should not even fall under the definition of “common areas.”

In ruling in favor of Bed, Bath & Beyond, a Texas appellate court explained, “When read in its entirety, the lease is clear that the two parties intended that the landlord undertakes and assumes all duties and responsibilities in regard to security and control of all common areas…. And the lease agreement expressly and unequivocally defines ‘common areas’ to include ‘any and all sidewalks.” (Alarcon v. Bed, Bath & Beyond, Inc., 2004 WL 1453465 [Tex.App.—San Antonio])

Decision: July 2004
Published: August 2004

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