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by Michael Ponce | April 20, 2023

Can a victim of crime sue a business for third-party criminal actions?

Yes, a business owes a duty of care to its patrons to provide reasonably safe premises. If the business knew or should have known of reasonably foreseeable third-party criminal actions and was negligent in failing to provide security, the business could be liable.  

The type of claim is rooted in negligence, that the business was at fault for not providing reasonable security measures to protect its patrons from known harms. For example, let’s say a person rents a room at a hotel. An intruder breaks through a faulty sliding glass door and assaults the patron. The hotel may well be liable for this third-party criminal attack, because it was negligent in not ensuring a secure sliding glass door.  

These types of claims have been brought against a variety of business owners, including hotels and motels, shopping malls, banks for attacks at ATMS, and countless others. 

What type of duty does a business owe to its patrons?

A business owes a duty to warn its patrons of impending danger and, in many circumstances, to also provide reasonable security measures to attempt to protect its patrons from foreseeable harm. Sometimes, a business has a so-called “special relationship” with its patrons. For example, innkeepers have a special relationship with those who pay money to sleep on their premises. Likewise, landlords have a special relationship with their tenants. 

Isn’t a third-party criminal attack a superseding cause?

Not necessarily. A third-party criminal attack may be reasonably foreseeable given that there has been criminal attack on the premises of the business recently or in the immediate vicinity of the business. For example, in McClung v. Delta Square Ltd Partnership, 937 S.W.2d 896 (Tenn. 1996), the Tennessee Supreme Court ruled that a shopping mall owed a reasonable duty of care when there was a significant amount of criminal activity at or near the shopping mall. The state high court explained that “a duty to take reasonable steps to protect customers arises if the business knows, or has reason to know, either from what has been or should have been observed or from past experience, that criminal acts against its customers on its premises are reasonably foreseeable, either generally or at some particular time.” 

Thus, if criminal acts are reasonably foreseeable then they likely are not a superseding cause. That’s because superseding causes are generally things like acts of God, which are by their very nature unforeseeable. 

When exactly is a third-party criminal attack foreseeable?

Good question. Some courts use what is called the “prior incidents” rule. Under this rule, there had to be an identical or very similar criminal attack on the premises previously for a subsequent criminal attack to foreseeable. This used to be the rule in Tennessee under the now-overruled decision of Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn. 1975). Other courts apply what they call the totality of the circumstances approach.  This approach takes into account all circumstances, including the nature and conduct of the business and prior incidents of crime. 

The Tennessee Supreme Court has taken a middle-of-the-road approach between the prior incidents rule and totality of the circumstances approach. This is called the balancing approach. Under this rule, the Tennessee Supreme Court explained in its McClung decision: “In determining the duty that exists, the foreseeability of harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against that harm. In cases in which there is a high degree of foreseeability of harm and the probable harm is great, the burden imposed upon defendant may be substantial. Alternatively, in cases in which a lesser degree of foreseeability is present or the potential harm is slight, less onerous burdens may be imposed.”

What types of security measures must a business take?

That is a difficult question to answer, but courts have found that businesses may have to engage in several measures designed to upgrade security on the premises. Examples include installing better lighting in certain areas to deter crime, hiring security guards to patrol the premises, installing cameras or security alarms on the premises, fixing doors or windows that might be problematic, and warning patrons of previous criminal activity. 

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