The Law

Foreseeability Key by Ron Davis A kidnap-rape victim has failed to prove that the owners of the California shopping center where the abduction occurred were guilty of negligence. The shopping center is located in Inglewood and owned by Kmart Corp., and the woman had gone to the Kmart store there on the evening of the assault to make several purchases. As she drove into the parking lot and parked, she spotted two men standing nearby. She said because they were talking loudly, she felt she should report their behavior to a security guard, but did not see one either before entering or after leaving the store. As she was walking to her car with her purchases, the two men accosted her and forced her into her car. She said she struggled and screamed for help, attracting other shoppers in the parking lot, but was overcome by the two men before help could arrive. The men then drove her to a distant location, where she said they threatened and sexually assaulted her. After her several-hour ordeal, she escaped from her captors. Police later arrested both men, and they were tried, convicted, and sentenced to prison. The woman sued Kmart and its security firm, claiming that the attack would not have occurred if a security guard were present at the time. She added that Kmart had thus breached its duty to maintain its premises in a safe condition and inspect the parking lot to ensure safety. In response, Kmart argued that it had no duty to protect the woman because the attack against her was not reasonably foreseeable. The basis of that argument was police records showing crimes committed at the shopping center. Although the records reflected numerous offenses, the bulk of those offenses were shoplifting or other theft-related crimes against Kmart. There were no records of carjackings, sexual assaults, kidnappings, or similar crimes. The assault victim argued, however, that the issue of whether the incident was foreseeable was not relevant. The main issue, she added, was that Kmart and its security firm had failed in their assumed duty to patrol the parking lot. In support of her argument, the assault victim obtained statements from her abductors, who said they had gone to the shopping center on the evening of the assault to steal a car. And, they added, had they seen a security guard in the parking lot, they would have left. A California court dismissed the negligence charges against Kmart. The assault victim appealed. A state appellate court upheld the lower court decision, explaining, “The [victim’s] argument is erroneous. Foreseeability, not after-the-fact determinations of causation, is still the key component in determinations of duty.... Although the men in the parking lot were talking loudly (and possibly drinking), they were not engaging in any criminal conduct toward Kmart’s customers, nor did their activity present a threat of ‘imminent’ criminal conduct. There was nothing in the conduct of the men in the parking lot that would have foretold their violent assault on the woman.” (Maria S. v. Kmart Corporation, 2006 WL 52283 [Cal.App. 2 Dist.]) Decision: January 2006 Published: February 2006