By: Laure F. Masotto, Esq. (originally published Fall 2000)
The issue of liability for criminal acts occurring on both residential and commercial premises has been visited by the courts on numerous occasions in recent years. Homeowners associations overseeing private residential communities have, in the past, been analogized to landlords, which under California law have been held to have a duty to take reasonable steps to secure the common areas against the foreseeable risk of criminal acts in the areas under its control. Frances T. v. Village Green Owners Association (1986) 42 Cal. 3d 490, 229 Cal. Rptr. 456. The primary area of exploration by the courts in the last several years is the meaning of “foreseeable”. As one will see, the courts will often “balance” the burden of providing the requested security measures against the degree of foreseeability of the act in question, given the particular facts and circumstances of a case, when determining to impose liability on the party responsible for maintaining or overseeing the property.
In Pamela W. v. Millsom (1994) 25 Cal. App. 4th 950, an assailant who was a stalker entered a condominium unit and raped the tenant. There, the question posed was whether the association had a duty to make improvements for the physical security of the property to prevent a rape. The Court found that no duty to take security measures existed, absent prior similar incidents of violent crimes. No violent crimes had occurred on the premises, and the court was not convinced that random acts in the surrounding were enough make the crime in this particular complex foreseeable, since crime can occur anywhere. The court concluded a high degree of foreseeability was needed to justify imposing a requirement that the property be improved to increase the physical security, which was not met here, particularly due to the lack of similar incidences. Thus, the Association was not liable. The Court further noted that it was “wholly unclear what level of security, short of armed guards, could have been fully relied upon to prevent the crime”.
In deciding the Pamela W. case, the Court relied on the case of Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666, in which the plaintiff was raped when working at a store within a commercial shopping center, which she claims the presence of security guards would have prevented. No prior similar incidents had occurred. In that case, the court held that a landowner has a duty to exercise reasonable care to discover criminal acts are being or are likely to be committed on the property. However, there was no duty here to provide security guards, which would be a significant burden, unless a “high degree of foreseeability” existed with respect to the crime committed, which would have had to have been demonstrated by prior similar incidents. The court further noted that the greater the burden of preventing the harm (in this case, the burden and cost of providing security guards), the higher degree of foreseeability which would be needed to impose such a duty to provide such security measures.
In another case, Pamela B. v. Hayden (1994) 31 Cal. Rptr. 2d 147, a rape occurred in an apartment building parking garage, where more than half of the lights had been burned out for some time before the crime occurred, and the lights that were operating were not bright. The locks were broken such that someone could enter using a credit card. No violent crimes had occurred before in the building. Nevertheless, the court there found the landlord was negligent, due to the failure to properly maintain the lights and locks, and fact that the underground garage was easily accessible, making it more likely than not that a serious crime would eventually occur. Thus, the requisite foreseeability was met in this case, whereby the burden of protecting against the injury was minimal as balanced against the foreseeability of the injury, and the court found it proper to hold the landowner responsible.
In the case of Sharon P. v. Arman (1997)65 Cal. Rptr. 640, a plaintiff was raped in a commercial parking garage adjacent to the bank where she worked. The bank had been robbed nine times in the six years prior to the lawsuit. At the time, several lights in the garage, including the one over plaintiff’s parking space were not working, darkened storage areas existed where someone could hide, and security cameras were not working. The Court recognized that covered parking structures, whether underground or above ground, present “a special temptation and opportunity” for criminal acts. The Court relied on the rule of high degree of foreseeability, and found the condition and layout of the garage under these particular circumstances satisfied this standard, even though no prior similar violent acts in the garage had occurred. Since the garage was located on private property, and was not patrolled by the police, the Court stated that it “must be the responsibility of the owners/operators of commercial garages to make them reasonably safe for use by tenants and visitors.”
Although associations are private “residential” developments, and not commercial or apartment property, because they maintain or otherwise control and oversee the common areas, it is apparent that the same principles have been and will continue to be imposed against such entities which own or maintain residential property, which include homeowner associations. Liability will most likely be dictated by the degree of foreseeability of third party criminal acts, as balanced against the burden of security measures being requested by the harmed party. It seems that if the burden is minimal (i.e. maintaining lights or locks on the premises which is referred to in various cases as providing a “first line of defense” against intruders), a lesser degree of foreseeability will be used in determining to impose liability on the Association for failing to provide such minimal measures, whether or not prior similar acts have actually occurred.
Associations can work toward reducing exposure to potential liability as follows:
(1) adopt and follow regular inspection and maintenance programs, particularly focusing on items relating to “security”, such as lights, locks to buildings, fences and walls, and other items which may be viewed as having a “security” function;
(2) keep records of any complaints as to repairs and reports of any breach of security or dangerous or potentially dangerous persons, and promptly consult legal counsel as to how such incidents affect any need for implementing additional security measures so as to avoid potential liability;
(3) consider having a professional, such as a safety consultant, evaluate areas of potential risk, such as adequacy of lighting, and suggest how to reduce such risks. Often, local police can assist in this task;
(4) Once a security type measure is provided (lighting, guards, etc.), the association should consult legal counsel before discontinuing such services to assess potential liability;
(5) remind residents periodically in newsletters or similar communications that the mere presence of locked common area doors, garages, or restricted access gates at the entrance of the project does not eliminate individual residents’ responsibility to take steps on their own to secure and protect their person and individual property;
(6) Encourage residents to participate in community watch programs, typically sponsored by local police.