A CUSTOMER OR
EMPLOYEE IS ASSAULTED IN YOUR COIN LAUNDRY
A customer during the late evening hours is physically assaulted within
your premises. Or an attendant
employed by you to assist customers and keep your coin laundry clean is
assaulted. Is there an obligation upon you or your shopping center landlord to
provide a security guard to deter criminal misconduct?
The California Supreme Court provided some guidance on this subject in a
decision issued on December 16, 1993, regarding an incident which occurred on
June 17, 1985. As you can thus
observe, it sometimes takes a bit of time to obtain a review of a trial court
decision by the California Supreme Court.
On June 17, 1985, a woman identified in the opinion as "Ann M.", was
employed by a photo processing service located in the Pacific Plaza Shopping
Center, a strip mall in San Diego, California. The shopping center was generally
occupied by approximately 25 commercial tenants. According to the
opinion,
"At approximately 8 a.m. on June 17, Ann M. opened the photo store for
business. She was the only employee
with a 'drop gate' that was designed to prevent customer access behind the
counter but it had been broken for some period of time. Shortly after Ann M. opened the store, a
man she had never seen before walked in 'just like a customer'. Ann M. greeted the man, told him that
she would assist him shortly, and turned her back to the counter. The man, who was armed with a knife,
went behind the counter, raped Ann M., robbed the store, and fled. The rapist was not
apprehended."
Subsequently, Ann M. filed a civil complaint for damages alleging causes
of action against the owner and operator of the photo processing service, the
shopping center, and the company employed to manage the shopping center. She also filed a worker's compensation
claim against her employer for which she was awarded benefits. Worker's compensation was deemed to be
her exclusive remedy against her employer, and, as a result, the suit against
the owner and operator of the photo processing service was subsequently
dismissed.
The lease between the photo processing store and the shopping center
provided the owners of the shopping center with the exclusive right to control
the common areas. Although the
lease gave the shopping center the right to police the common areas, it did not
impose an obligation to either police the common areas or those areas under the
exclusive control and management of the tenants. If the shopping center had provided
walking patrols by security guards, the tenants would have borne the cost in the
form of additional rent. No
security guards were in fact hired by the shopping
center.
According to deposition testimony, tenants, through a merchants'
association, had complained about a lack of security in the shopping center and
the presence of transients. The
merchants' association took the step of hiring a security company to drive by
the area three or four times a day.
Ann M. essentially argued that the shopping center's failure to provide
walking security patrols in the common areas constituted
negligence.
The Supreme Court held that it would impose the duty to take affirmative
action to control criminal misconduct only in situations where such misconduct
is foreseeable i.e., where such conduct can be reasonably anticipated. The Supreme Court determined that in the
Ann M. case, "violent criminal assaults were not sufficiently foreseeable to
impose a duty upon Pacific Plaza to provide security guards in the common
areas." The Court
observed:
"While there
may be circumstances where the hiring of security guards will be required to
satisfy a landowner's duty of care, such action will rarely, if ever, be found
to be a 'minimal burden.' The monetary costs of security guards is not
insignificant. Moreover, the
obligation to provide patrols adequate to deter criminal conduct is not well
defined. 'No one really knows why
people commit crime, hence no one really knows what is 'adequate' deterrence in
any given situation' . . . . Finally, the social costs of imposing a duty on
landowners to hire private police forces are also not insignificant. . . . For these reasons, we conclude that a high degree of
foreseeability is required in order to find that the scope of a landlord's duty
of care includes the hiring of security guards. We further conclude that the requisite
degree of foreseeability rarely, if ever, can be proven in the absence of prior
similar incidents of violent crime on the landowner's premises. To hold otherwise would be to impose an
unfair burden upon landlords and, in effect, would force landlords to become the
insurers of public safety, contrary to well-established policy in this
state."
The Supreme Court, however, also noted that "it is possible that some
other circumstances such as immediate proximity to a substantially similar
business establishment that has experienced violent crime on its premises could
provide the requisite degree of foreseeability." Ann M. did not present any such
evidence, however. Since Ann M. was
unable to demonstrate that Pacific Plaza had knowledge of prior similar
incidents occurring on the premises, the court concluded that the physical
violence suffered by Ann M. was not sufficiently foreseeable to impose a duty
upon the landlord to provide security guards in the common areas, and upheld
judgment for the defendant shopping center.
So if physical assaults have been a regular occurrence at your coin
laundry, the courts will conclude that further assaults were foreseeable and
likely hold you responsible for the injuries of a customer. If your coin laundry is situated in a
shopping center, the shopping center landlord will have similar
liability.
As indicated above, workers’ compensation will be deemed to be the
exclusive remedy of an employee against you. If you think your premiums are high now,
watch your premiums take off like an unguided missile in the event you suffer
this type of claim!
Sometimes things don’t go right even if you have a security guard
protecting your business. In
another action, Oliver, a minor, and a friend walked to a McDonald’s restaurant
in Santa Barbara. Since kids,
panhandlers and others were generally to be seen milling about on the sidewalk
in the area, the management of the shopping center had a security guard on
duty.
As the two
young men approached the entrance to McDonald’s, one of a group of other kids
“hanging out” in front of McConnell’s Ice Cream shop near McDonald’s started a
dispute. A girl took a swing at
Oliver and a nearby security guard grabbed her and took her away to an area outside McDonald’s. Other kids starting hitting Oliver,
injuring him in the melee. The
security guard did not return until after the fight
ended.
In determining
that Oliver’s claim could proceed to trial, the court observed as
follows:
“Here, the
security guard saw the group of youths surround Oliver in McDonald’s. He was present when threats to Oliver
were made. Although he did remove
the girl who took a swing at Oliver, the security guard did not extricate Oliver
from the threatening situation, tell the threatening group to leave, immediately
call the police or return quickly to quell the disturbance. Whether the security guard acted
reasonably under the circumstances and whether his acts were a substantial
factor in causing Oliver’s injuries are questions of fact to be resolved by
trial.”
The moral of the story? Take
every step to prevent your coin laundry from being an inviting place for
violence. The alternative will
likely be higher insurance premiums and the additional cost of providing
security at your business!
