The Law

A Matter of “Degree of Foreseeability” by Michael Blahy The public has an expectation of safety and security when visiting a shopping center, but what level of care does a shopping center have a duty to provide? Tayler L. Williams (Williams) is a drummer with a band. On the evening of March 31, 2012, the band performed at the Peacock Lounge, one of 16 retail stores at The Fremont Corners Shopping Center in Sunnyvale California (Freemont Corners). After the show, on April 1, 2012 around 1:30 AM, Williams, another band member and two friends went out to the parking lot. While returning to the Peacock Lounge, they spotted a man urinating by a planter. One of them called out “not cool”. The man got upset with Williams’ friend, Aaron Palmer (Palmer). After a group of men calmed the belligerent man, Williams and Palmer entered the Peacock Lounge while the friend remained outside. When the door was opened, Williams noticed his friend on the ground in the parking lot, being punched by the man who previously was urinating. Williams yelled for security and he and Palmer rushed to their friend’s defence. As Williams approached, he was hit in the head by someone, was knocked unconscious and fell dislocating his left knee and tearing several ligaments. Williams sued several defendants including the Fremont Corners Shopping Center for negligence and premises liability. He claimed that Fremont Corners owed a duty of care to the public by keeping the shopping center property reasonably safe. Because of “prior similar occurrences” and the nature of the bar, Freemont Corners should have had better protection from the reasonably foreseeable criminal acts of third parties. He alleged a lack of security to monitor the parking lot and inadequate lighting caused the dangerous conditions that lead to his injuries. Fremont Corners believed that Williams could not prove that the assault was reasonably foreseeable. The shopping center had lighting and security cameras, and were not aware of any prior similar incidents, so it moved for summary judgment. Williams proffered records showing at least three police reports for assaults resulting in serious injury over the past year. He argued that Fremont Corners had the duty to exercise reasonable care to discover unsafe conditions on the property, including the harmful acts of third parties that might injure patrons of the shopping center. Williams disputed the assertion that Fremont had insufficient knowledge of prior instances of criminal conduct, noting the undisputed evidence that its manager, Jay Murray, knew of two prior criminal incidents at the shopping center. The trial court analyzed previous California Supreme Court’s decisions which ruled that, a duty to take action to control the wrongful acts of a third party exists “ ‘only where such conduct can be reasonably anticipated’ ”, which for certain affirmative actions requires a “ ‘high degree of foreseeability . . .  ’”. It found that the evidence produced was insufficient. It also said that there was no proof that Fremont Corners had notice of these incidents. The trial court granted the motion for summary judgment. Williams appealed. The Appeals Court reviewed the trial records in a most favourable light for Williams as to whether and to what extent Williams was owed a duty by Fremont Corners to be protected from third parties. In this appeal, we consider only whether the trial court erred in finding that Fremont Corners did not owe a legal duty to protect Williams against the criminal conduct of a third party. The Appeals Court followed the well‑trodden path that has been established by the California Supreme Court in cases involving criminal conduct of third parties. There is a ‘general duty of each person to exercise, in his or her activities, reasonable care for the safety of others . . . otherwise potentially infinite liability which would follow from every negligent act . . . ’. Some landlords, under the “ ‘special relationship’ doctrine” do have the general duty “to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures”. The scope of the measures required to fulfill the “duty in such circumstances is determined by a balancing of ‘foreseeability’ of the criminal acts against the ‘burdensomeness, vagueness, and efficacy’ of the proposed security measures”. The standard that is followed by the Appeals Court in this case is that “imposition of a high burden requires heightened foreseeability, but a minimal burden may be imposed upon a showing of a lesser degree of foreseeability.” Williams used the deposition testimony of the manager and vice president of Fremont Corners, Jay Murray (Murray) to illustrate the lack of reasonable care. Murray testified that he would make regular visits, once or twice a week to Fremont Corners, and stroll from tenant to tenant and ask if “everything was okay”, but did not ask about criminal activity. At other times, the tenants were able to call him directly with any problems. Every two or three months Murray would check the lighting, and replace broken bulbs or fixtures. Murray mentioned that there were about 12 security cameras at the center. No one was monitoring the video, or periodically reviewed it. The service would keep the video for a month. There had been two definite and one possible occasion that police requested and were granted access to the video between 2008 and 2012. Murray was aware that the Peacock Lounge employed a bouncer who was “to keep things civil and noncriminal” among the patrons. The Appeals court summarized Williams complaint with Fremont Corners as: a failure to inquire about criminal activities reported to the police a failure to establish a policy or procedure to require tenants to report occurrences of criminal activities to Fremont Corners a failure to review security camera footage The Appeals Court could not disagree that the above measures might have increased the foreseeability of an assault occurring outside of the bar. But, . . . Williams has not asserted what measures Fremont Corners should have taken to prevent the harm that he endured, which is required to “ ‘defin[e] the scope of the duty under consideration.’”. Williams argue[d] that these measures would impose a minimal burden on Fremont Corners. The Appeals Court conceded that Fremont Corners could have had more structured procedures, but that alone would not have prevented what happened to Williams. The monitoring of security cameras would have been ineffective unless there were security guards on site to step in. The Appeals court concluded: In light of this precedent and the Supreme Court’s observation that the hiring of security guards imposes a significant cost for a “not well defined” deterrence benefit, we conclude that Williams’ proposed measures have even more of an attenuated relationship to preventing the type of harm that Williams suffered. Given that “[f]oreseeability and the extent of the burden to the defendant are ordinarily” considered the “crucial” considerations in evaluating legal duty . . . . In sum, absent admissible evidence of “prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults”, Williams has not carried his burden in opposing the motion for summary judgment to establish that Fremont Corners had a legal duty to implement additional measures to uncover incidents of criminal acts on the premises and to secure the premises against future, possible third‑party conduct. The judgment is affirmed. Fremont Corners is entitled to recover its costs on appeal. (Tayler L. Williams v Fremont Corners, Inc. (California Courts of Appeal, Docket: H043218 (Sixth Appellate District))) Decided: June, 2019 Published: July, 2019 Feature Articles If you have an opinion on the retailing or retail real estate industries, take this opportunity to share your thoughts. Articles should run between 400 and 800 words. Topics can, be general in nature, consumer observation or specific to retail concepts or practices. 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