Procedural History: Mrs. Posecai contends that Sam’s was negligent in failing to provide adequate security in the parking lot considering the high level of crime in the surrounding area. A judgment was rendered in favor of Posecai, awarding $18,968 for her lost jewelry and $10,000 in damages for her mental anguish. The court of appeals affirmed defendant’s liability but modified allocation of damages.
Facts: On July 20, 1995, Shirley Posecai went to Sam’s to make an exchange and do some shopping. She exited the store and returned to her parked car at approximately 7:20 pm while it was still light out. As she placed her purchases in the trunk, a man hiding under her car grabbed her ankle and pointed a gun at her. He instructed her to hand over her jewelry and her wallet. She did so while pleading for her life. She was wearing her most valuable jewelry after attending a downtown luncheon earlier that day. She lost a 2.5 carat diamond anniversary ring, a diamond and ruby bracelet and a diamond and gold watch, all valued at close to $19,000. When the robber released her, she ran back to the store for help and the Kenner Police Department was called. Two offers came to investigate the incident but the perpetrator was never apprehended and the woman never recovered her jewelry as it was never found at any nearby pawn shops. At the time of the robbery, a security guard was stationed inside the store to guard the cash office from 5pm to 8pm, when the store closed. He could not see outside and Sam’s did not have security guards patrolling the parking lot. Behind Sam’s in Lincoln Manor, it is generally considered a high crime area, but Sam’s itself is not usually considered a high crime location. In fact, in the previous 6 years, only 3 crimes had taken place on the premises. None of the other nearby businesses employed security guards at the time of the robbery.
Issue: Did Sam’s Club owe a duty to protect Mrs. Posecai from the criminal acts of third parties where the business was located in an area of high crime? Furthermore, was the crime foreseeable?
Four basic approaches:
- Specific harm (imminent harm) rule – If the store knew about the crime as it was happening or just before it took place, the business has a duty to protect or respond against 3rd party acts.
- Prior similar acts – There is only a duty if there is foreseeability of the crime. In this case, there were 3 crimes in the Sam’s parking lot in the last 6.5 years and only one was substantially similar (a mugging of a customer). There were 83 crimes if the area is expanded to 13 nearby, local businesses.
- Totality of the circumstances test – This is the most common test. This considers 2 or more locational factors, including other crimes. A business might be “on notice” of dangerous conditions.
- Balancing test – This test balances foreseeability of harm and potential harm against the burden of precautions. This sounds a lot like B < PL, but that is a test for negligence, or a breach of duty. But the court here is using the test to determine if there is a duty in the first place. Isn’t this usually what a jury is for? The judge decides before deciding for a jury trial.
Application: Because the burden of providing a security guard was too high in consideration of the low probability of a violent crime and the lack of foreseeability, there should be no duty.
Conclusion: Although businesses are not insurers of their patrons’ safety, they do have a duty to when those acts are foreseeable. There is generally no duty to protect others from the criminal activities of third persons. However, this duty arises under limited circumstances when the criminal act in question was reasonably foreseeable to the owner of the business.