Determining liability in a case where someone is injured on property belonging to someone else is usually based on negligence.
Property owners have general duties to protect those who visit their property, especially when commercial property is involved. Injuries may result from lack of maintenance of walkways or staircases, or dangerous conditions created by wet and slippery floors.
What if the injuries are caused by the intentional, criminal acts of a third party? Is there premises liability for criminal acts of a third party that causes someone injury?
State law determines liability
Like much of personal injury law, each state has its own rules regarding liability for injuries and damages resulting from negligence. When it comes to premises liability, a landowner typically does not have a duty to protect others from the criminal acts of a third party. However, there can be exceptions to that rule, and those exceptions are governed by each state’s laws on this issue.
The degree of liability will also depend on whether the person who was injured had any authority to be on the property at the time of the injury. Individuals are classified as either licensees, invitees, or trespassers. An invitee is someone who was invited onto the property, usually for a business reason, such as a customer, as a member of the public, like when visiting a public park. A licensee is someone who also has permission to be on the property from the owner, but is on the premises solely for his or her own purposes. A trespasser does not have permission to be on the premises at all.
The general rule regarding liability for a third party
In Missouri, for example, business owners may have a duty to protect their invitees from the criminal acts of unknown third persons depending upon the facts and circumstances of a given case. The determining factor is “foreseeability.” That is, were their circumstances in which there was a foreseeable likelihood that particular acts or omissions will cause harm or injury to the business owners’ customers. For example, liability can be found if:
the landowner knows, or has reason to know from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of visitors, even if the landowner has no reason to expect harmful conduct on the part of any particular individual.
This is generally the rule in most states, with some exceptions. The difficult tasks for attorneys then becomes, proving the element of “foreseeability.”
Methods of proving foreseeability
In Arkansas, the courts have three different tests for determining whether a property owner can be held liable for criminal acts of third parties based on the forseeability of the criminal act. They are referred to as (1) specific harm, (2) prior similar incidents, and (3) totality of circumstances.
Under the specific harm test, foreseeability is limited to situations where the property owner is actually aware of the “imminent probability of specific harm to its customer.” In other words, there is no duty to guard against criminal acts of a third party, unless the property owner knows or has reason to know that acts are occurring or are about to occur, on the premises that pose imminent probability of harm to a customer or other invitee.
The second test focuses on the existence of prior similar incidents to determine whether a particular crime was foreseeable. With this test, the similarity, frequency, location, and proximity in time of the prior incidents are the important elements considered by courts. The final test includes consideration of prior similar incidents, but also expands to consideration of all of the circumstances surrounding the event.
If you have questions regarding premises liability claims, or any other personal injury concerns, call the Cottrell Law Office at (888) 433-4861.
To learn more, please download our free liability for injuries to trespassers in Missouri here.
Wesley Cottrell
Wes Cottrell earned his B.A. from Pittsburg State University in 1981 and his J.D. from the Washburn University School of Law in Topeka, Kansas in 1985. He was admitted to practice law in Kansas in 1986, in Missouri in 1987, in Arkansas in 1989, and Oklahoma in 1993. He is licensed to practice law in the United States District Court for the District of Kansas, eastern Arkansas, western Arkansas, and western Missouri. He was Deputy Prosecuting Attorney in Crawford County, Kansas from 1987-1989.
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