by Matt Kahn
Two recent appellate court decisions highlight the hurdles plaintiffs must overcome when seeking to hold a landowner responsible for a criminal attack. As a threshold matter, a plaintiff must prove the landowner owed him or her a duty to prevent the attack. Even if such a duty is shown to exist, a plaintiff must establish that the landlord had reason to anticipate the criminal attack. Failure to prove these elements spells defeat, as these recent cases illustrate.
In Sandlowski v. Beacon Management Services Inc., the plaintiff was violently attacked on the sidewalk outside his condominium complex. The plaintiff sued the condominium association and its property manager for negligence and gross negligence, alleging that they issued him a defective key-fob which prevented him from gaining accessing the complex. Because he could not access the complex, he was forced to park on the street, where he was violently attacked. The trial court granted summary judgment to the defendant on the plaintiffs’ claims, finding that they owed no duty to protect him from criminal assault. The appellate court focused on the Condominium Association Declarations, under which: (a) the condominium association disclaimed any duty to provide security; and (b) the plaintiff agreed he was responsibile to protect himself and his property. These provisions negated the plaintiff’s allegation that the defendants owed him a duty to provide security, even notwithstanding their failure to provide him a functioning key-fob. The appellate court reasoned:
“[S]etting aside the question of whether a working key fob would have prevented the violent attack [on plaintiff], the HOA ‘had no duty under the express terms of the condominium instruments to execute such security measures,’ and the [property manager] had no such duty either. Instead, the to duty to provide for [plaintiff’s] security lay solely with [plaintiff] under the explicit terms of the condominium declarations”
Because plaintiff could not show that defendants owed him a duty to provide security or to protect him from violent attack, the appellate court affirmed summary judgment for the defendants.
In Bolton v. Golden Business Inc., the plaintiff sued a convenience store owner for the wrongful death of his mother, who was murdered outside of the convenience store. The plaintiff alleged that the convenience store failed to keep the premises safe, asserting claims for negligence and nuisance. As in Sandlowski, the trial court granted summary judgment for the defendant and the Court of Appeals affirmed.
The pivotal issue was whether the criminal attack was foreseeable to the convenience store owner. That is because, under Georgia law, “[a]n intervening criminal act by a third party ‘generally insulates the landowner from liability unless such criminal act was reasonably foreseeable.” As the appellate court observed, “the key question … is the landowner’s superior knowledge of the criminal activity.”
The plaintiff argued the criminal attack was foreseeable for three reasons, each of which the appellate court rejected. The first two reasons – that people often loitered outside the store and other violent crimes had occurred there – were not supported by the record evidence. The convenience store owner testified, without contradiction that “he did not know about any prior crimes in or around the store.” The third reason—that the “the store was located in a high-crime area”—the appellate court also rejected. Although the plaintiff presented evidence of police reports detailing criminal activity in the area, the appellate court held that “the existence of crime in the area—by itself—does not raise a genuine issue of material fact as to [the convenience store owner’s] knowledge.” Rather, a plaintiff must show that a landowner actually knew or had reason to know about “prior, similar criminal activity in the area,” which plaintiff could not do.