Premises Liability and Breach for Third Party Criminal Activity
Generally, the elements of a negligence claim under Nevada law are: (1) that defendant owed plaintiff a duty of care; (2) that defendant breached that duty of care; (3) the breach was the actual cause of plaintiff’s injury; (4) the breach was the proximate cause of plaintiff’s injury; and (5) that plaintiff suffered damages.
Duty of Care
In Nevada, a proprietor owes an invitee a duty to use reasonable care to keep the premises in a reasonably safe condition for use. However, the proprietor’s duty to protect an invited guest from injury caused by a third person is circumscribed by the reasonable foreseeability of the third person’s actions and the injuries resulting from the condition or circumstances which facilitated the harm. Therefore, under Nevada law, a proprietor’s duty to take affirmative action to reasonably attempt to prevent the wrongful acts of third persons arises only where there is reasonable cause to anticipate such acts and the probability of injury resulting therefrom.
The reason behind this rule is as follows: since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual.
The modern trend holds that foreseeability of a violent crime being perpetrated on a patron is not absolutely dependent upon notice of prior crimes of a similar nature occurring on or near the premises, but may also be determined from all of the circumstances present.
The location and character of a business, together with the past crimes committed on the premises, provides the requisite foreseeability to determine that the business had a duty to protect patrons from violent assaults in the business parking lot.
If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
The legal duty owed the injured party is summarized in the Restatement (Second) of Torts, Section 344, which states: “A possessor of land who holds it open to the public for entry for business purposes is subject to liability to members of the public while they are upon the land . . . for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons.” Invitees who claim the possessor negligently failed to protect them from criminal acts must prove the essential elements of negligence.
The invitor (the possessor who opens the property to the public for business purposes) is subject to liability if someone (an invitee) on the premises is physically harmed by a third person because of the invitor’s failure to exercise reasonable care to: (1) discover that such acts are being done or are likely to be done, or (2) give a warning adequate to enable visitors to avoid the harm or otherwise protect them.
Thus, the legal duty to protect an invitee begins when the circumstances indicate possible criminal activity on the property. The courts characterize the rule in terms of foreseeability. Business owners’ liability commences when criminal conduct is the foreseeable result of the owner’s negligence.
Therefore, the first element a victim must prove is that the criminal activity, in the totality of the circumstances,could be reasonably anticipated. In this regard, Texas courts examine the: (1) nature of the business activity and whether it is conducive to criminal activity, (2) location of the business, (3) owner’s observations regarding criminal activity, and (4) owner’s past experiences regarding criminal activity. Generally, Texas courts find most criminal conduct reasonably foreseeable. While this does not establish liability, it makes it difficult for the owners to get summary judgments.
Breach of that Duty
Proximate cause is that cause which, in natural and continuous sequence and unbroken by any efficient, intervening cause, produces the injury complained of and without which the result would not have occurred. Proximate cause, or legal cause, consists of two components, cause in fact and foreseeability. Cause in fact requires proof that the failure of a proprietor to provide adequate security was a substantial factor in bringing about a patron’s injury. The second component, foreseeability, is essentially a policy consideration that limits a proprietor’s liability to consequences that have a reasonably close connection with both the proprietor’s conduct and the harm that conduct originally created.
The victim must then prove the property owner failed to exercise reasonable care to protect the invitee from the foreseeable criminal attacks. The standard for protection is determined on a case-by-case basis. Several factors are used by the courts to evaluate this standard, including an owner’s: (1) efforts to ascertain the crime risk and history of the area so preventive security measures may be taken, contact with police regarding potential security measures, (2) internal procedures for security and compliance with the measures, (3) placing of signs or otherwise warning customers and tenants of potential crimes, and (4) response to negative information regarding security.