LIABILITY OF BUSINESS OWNERS FOR INJURIES CAUSED BY THIRD PERSONS (REDUX)
(1999)

An issue covered frequently in this newsletter, and one that seems to appear in the newspapers almost on a daily basis, is the liability, if any, of a business owner where customers, window-shoppers, or even passers-by are injured on or near the premises of the business. We have previously noted a recent trend in California cases towards absolving the owner of the business from liability, unless the owner had some reason to believe, based on prior incidents of the same kind, that an injury of the kind suffered by the injured party was reasonably foreseeable. Liability rules in other states are very similar. For example, in a very recent New Jersey case, an appellate court found that the business owner could be liable even where the injuries resulted from "acts of God" and not from the criminal or negligent acts of third parties. (The court without discussion appeared to assume that God was not acting criminally or negligently in inflicting the injury.) The defendant in the New Jersey case owned a golf course, and the act of God was a lightning strike that caused injury to a golfer. The New Jersey appellate court found that business owners can be liable even for acts of God if they have taken steps to protect the business patron from the act of God and those precautionary measures "actually and foreseeably increase the likelihood of a potentially lethal natural phenomenon and enhance the risk of injury." (Although not articulated in the court's opinion, the implication is that, by adopting precautionary measures against lightning strikes, the golf course proprietor in effect admitted that injury from such lightning strikes was reasonably foreseeable.) (Van Maussnev v. Atlantic City Country Club, Inc., 1997 W.L. 155119 (N.J. Super 1997). The California Supreme Court has decided numerous cases in this regard over the last several years without establishing a bright line test upon which business owners can rely in order to determine when a duty arises to ensure the protection of invitees. But the Supreme Court has not yet decided a case in favor of the plaintiff where no similar prior act had occurred that would place the business owner on notice of the potential for injury to invitees.

The California court of appeal has now leapt into this breach. In the process, the Court has reversed the trend in the case-law away from a finding of liability and has potentially expanded the scope of liability to business proprietors. In Sharon P. v. Arman, Limited, 1997 W.L. 289868, the Second District Court of Appeal held that certain types of commercial property are so inherently dangerous that, even in the absence of prior similar incidents, the business owner has a duty of care to undertake reasonable steps to prevent injury to invitees from third parties. The business operation in the Sharon P. case was a covered parking garage. Sharon P. parked her car in the garage and was then assaulted and raped while exiting her automobile. Even though plaintiff presented no evidence that similar crimes had occurred in the garage, the court held that the garage owner had a duty to undertake reasonable security precautions to protect users of the garage from the criminal acts of third persons. It can be expected that defendant in the Sharon P. case will seek review by the California Supreme Court. In the interim, however, owners of covered parking garages -- and indeed owners of other businesses that can reasonably be seen to attract crime -- should beware: it is now entirely possible that no similar incidents need to have occurred in order for a judge to find a duty to protect business invitees or even passers-by from the criminal acts of third persons. Watch this newsletter for further developments.

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