Lots of Factors in Landowners Liabilty for Criminal Attacks

"Woman in mall parking lot stabbed 100 times"

"Cops search for North Side rapist"

"Boy, 16, charged in home invasion in Wrigleyville"

The headlines unfortunately often tell of attacks on people, often women alone, in apartment complexes, parking lots and private buildings where they are used to feeling a sense of security.

The attacks raise questions about the liability of landlords and other landowners for the criminal attacks of third parties.

The landowner’s duty to protect land users against criminal attacks is an unsettled area of premises liability law in Illinois.

Over the last three decades, courts have almost completely abandoned the common law rule of immunity, and it has been replaced by a broad legal duty to safeguard against reasonably foreseeable criminal acts.

Illinois courts recognize four "special relationships" that impose a legal duty to warn and protect a person from harm: carrier-passenger, innkeeper-guest, business properly owner-invitee, and voluntary custodian-protectee.

The nature of these relationships imposes upon the landowner an obligation of reasonable conduct for the benefit of the plaintiff.

Whether a duty exists on the part of the landowner is a question of law, but whether the attack is reasonably foreseeable is a question of fact.

Courts diverge in their interpretations of the foreseeability requirement. A number of tests have emerged in various states: a balancing test, an "imminent harm" rule, a "prior similar incidents rule" and a totality of the circumstances approach.

Illinois appears divided in interpreting the foreseeability requirement narrowly or broadly, and it has led to unpredictable results.

For instances, in Osborne v. Stages Music Hall, In., 312 Ill. App.3d 141, 726 N.E.2d 728 (1st Dist. 2000), when two women left a nightclub, two underaged, intoxicated men in front of the nightclub next door kicked the plaintiff in the face, breaking her jaw.

The court held that evidence existed to support a conclusion that the attack was reasonably foreseeable. The bouncers knew that the men were intoxicated, combative and angry. They had been in an altercation with the bouncers; and, after leaving, they showed no signs of settling down, nor were police contacted for help.

The court reversed and remanded defendant’s directed verdict.

Yet, in Hills vs. Bridgeview Little League Association, 195 Ill.2d 210, 745 N.E.2d 1166 (2000), a first base coach for a Little League baseball team was kicked, punched, and hit with a baseball bat. The attackers included several opposing assistant coaches, a manager, and one board member of the association. Board members were present and viewed the beating but made no attempt to restrain or stop the attack.

The Illinois Supreme Court, however, reversed the judgments of the trial and appellate courts and found that the Little League Association had no affirmative duty to protect plaintiff from the criminal attack of another coach.

Chief Justice Moses Harrison filed a strident dissent, stating that he would allow the jury’s verdict to stand on the foreseeability issue, which is a jury question and one not appropriate for the court to determine.

He went on to write that the agents of the Little League Association on the field had, at the very least, a duty to summon law enforcement officials.

"For all practical purposes, it is now open season on volunteer coaches. They should forget about watching the base runners or the catcher’s signals. From now on, they had better watch their backs." Id., at 256.

A more equitable approach may be that which more and more courts appear to be utilizing– the totality of the circumstances.

This provides a broader review of all the circumstances surrounding the incident. Siebert v. Vic Regnier Builders, Inc., 856 P.2d 1332, 1339 (Kan. 1993); Ann M. v. Pacific Plaza Shopping Center, 863 P.2d 207 (Cal. 1993).

Under the "totality of the circumstances" test, no single factor weighs any greater than another.

Instead, the courts examine all factors, such as the occurrence of previous crimes on the defendant’s property (even if they are different in nature and location), the nature of the property use, the level of security provided, the physical design of the property, the probability and gravity of the harm, the utility of the actor’s conduct, the feasibility and costs of alternative conduct, and whether the defendant’s actions facilitated the crime.

Such an approach does not make the landowner an insurer of the public’s safety. However, it does encourage landowners to take reasonable measures to enhance the safety of their patrons and tenants, rather than waiting for tragic attacks to occur. This is particularly important for new landowners who are taking safety considerations into account when building developments.

Also, since reasonable foreseeability is left to a jury to decide, it give the fact-finder greater latitude in determining liability based upon the particular circumstances of the case.

The law understands that these matters involve competing interests, but to develop the proper social policy, courts must be given the latitude to examine reasonable foreseeable risks in as broad a light as possible.