Crime Foreseeability Premises Liability Book Chapter by Chris E. McGoey

(Chapter 2 reprinted with permission) *

Crime Foreseeability – Premises Liability Litigation

The concept of crime foreseeability has been subject to interpretation by courts in the United States. It is a confusing concept to those unfamiliar with the term. Part of the confusion comes from not knowing the criteria necessary to develop the data to evaluate if a crime was reasonably foreseeable or not.

Aside from legal reasoning, a logical analysis is necessary to fairly assess crime risk and render an opinion about crime foreseeability. Without established criteria, anyone could speculate whether a criminal assault was reasonably foreseeable or not without a sound basis for that opinion.

Crime Foreseeability is a Statistical Concept

For the purposes of premises liability litigation, crime foreseeability is defined here as a statistical concept. A statistical concept, in the broad sense, is an evaluation of potential that relies on experience and interpretation using both quantitative and qualitative methods. Such an evaluation usually requires numerical crime data and statistics, but it must also employ a balancing process that weighs other relevant criteria in a prescribed manner.

The purpose of describing this concept is to present a framework in which relevant data is recognized and assigned a weight in a crime foreseeability evaluation. The emphasis is not on presenting a complete discussion of foreseeability in every situation, but on developing a cohesive methodology that will result in a sound assessment of whether crime on a particular property or business was reasonably foreseeable.

First, a brief discussion of the definitions used for quantitative and qualitative methods of evaluation is in order.

Crime Foreseeability: Quantitative Analysis

Quantitative analysis involves the study of numerical statistics reporting the crime history of a site and surrounding neighborhood. While extremely valuable in assessing high rates of crime, this type of analysis can comment only on past reported and documented incidents.

Security experts recognize that a review of past criminal incident history is important to assessing future crime potential. However, experts also know that statistics alone can be insensitive to considerations such as changes in the use of a facility, new management, construction, and rapid changes in the character of the neighborhood; it thus may not provide a completely reliable picture of the current risk of crime.

Quantitative analysis requires a decision-making process for processing the raw crime statistics. Guidelines are needed to identify the type of crime to be evaluated, as well as the geographic limitations, and time period.

A widely read research paper was put forth as a standard many years ago stated flatly that the proper method for assessing crime foreseeability was to research all stranger-to-stranger crimes, within a one-mile radius of the subject property, within the last two-years.

As attractive as such a method is for its simplicity, crime foreseeability cannot always be evaluated by uniform time and distance criteria. In an urban area, a one-mile radius would generally be too large, losing the relevant data among useless statistics. A one-mile radius could extend past the boundaries of a city, county, or police reporting zone resulting in invalid data comparisons.

Similarly, crime committed four-blocks away from a site could be equally extraneous if a major physical or psychological barriers such as a freeway or railroad tracks geographically divided into two areas.

Time periods can suffer under the same relevance test. Some urban renewal neighborhoods can change significantly for the better within a year. By the same token, static neighborhoods may show decay after just a few years if the economic conditions change.

The point is that there is a danger inherent in using arbitrary and inflexible evaluation parameters. This is a practical circumstance where quantitative analysis is particularly vulnerable. This is why each property must be evaluated based on its own set of factors and conditions.

Crime Foreseeability: Qualitative Analysis

A qualitative evaluation is more subjective but offers the missing human component and physical perspective to numerical crime data. Among the considerations here are the physical attributes and condition of the property, the effect of adjacent businesses, zoning impact, land use, and traffic patterns. Cold crime statistics cannot provide this information. This type of evaluation is what provides ordinary people with the basis for their judgments about the relative safety of a location.

After studying the crime statistics, a security expert should survey the site and surrounding neighborhood using qualitative crime analysis. It is beneficial if the surveyor can interview business operators and tenants who have experience with the actual land use and traffic on the property. This type of hands-on survey will provide clues to the amount of unreported crime, and the general fear of crime in the neighborhood.

This type of survey is like viewing the property from the criminal perspective. It allows the security expert to recognize the crime potential and realistically evaluate what security solutions are reasonable, under the circumstances.

Crime Foreseeability: Evaluation Components

There are three easily distinguishable components of a commercial property, called factors here, to consider when assessing crime foreseeability. Certain elements exist within these factors that may or may not contribute to a finding of foreseeable crime.

The three crime foreseeability factors are:

1. Nature of the premises;
2. Crime demographics;
3. Location.

If the investigation into any one of these three factors reasonably points to crime risk, then it is impossible to escape the issue of foreseeability. However, to determine the level of foreseeability of certain types of crime then all three factors need to be considered.

For example, assume that a popular dance club serves alcoholic beverages to a packed-house of young people on weekend nights. The club has an isolated rear parking lot where prior assaults have occurred. The elements associated with the three factors of this nightclub tend to enhance rather than diminish assaultive crime potential on this property. In this example, it is probable that assaultive crime is foreseeable in the parking lot on weekend nights and warrants further investigation.

Crime Foreseeability: Conditions

Affecting the three factors are various conditions. Examples of mere conditions are burned out lights, overgrown bushes, frequent security patrols, an unlocked door, or a large hole in a fence. A condition may only aggravate or mitigate the tendency of a factor to increase or decrease crime potential and foreseeability level.

These conditions cannot in themselves prove or preclude crime foreseeability, but only serve to affect the overall impact of a given factor on the level of foreseeability. For example, overgrown shrubbery on the ground level of an apartment building is a condition that would not affect the foreseeability of a sexual assault inside of a third-floor unit.

Litigants on both sides of a dispute frequently overestimate the persuasive force of their crime foreseeability arguments by allowing the entire case to hinge on one or more of these conditions without pursuing a complete analysis presented here.

The most effective approach for assessing crime foreseeability is to evaluate the factors in the following order:

1.  Nature of the Premises;
2.  Crime Demographics;
3.  Location.

Here is a brief discussion about each of the three factors and their order of precedence. A complete discussion of each foreseeability factor will follow in subsequent chapters.

Crime Foreseeability: Nature of Premises Factor

It may seem logical to study the crime history of a property first when assessing crime foreseeability. However, it is essential to have a complete understanding of the nature of the premises beforehand to put the crime data into proper perspective.

Some elements involved in the nature of the premises that can affect the crime foreseeability factor are:

1. Land Use: Is it commercial office, retail business, or residence;
2.  Late-night hours of operation;
3.  Age and sex of the clientele
4.  Alcoholic beverages are served;
5.  Premises are semi-private for members only;
6.  Adjacent activity center;
7.  Unsafe services or products offered.

There is almost always a correlation between the premises type, property use, and the crime demographics.

• A small retail business that remains open to the public twenty-four hours a day will have different foreseeable crime types than a limited-hour office building that is semi-private.
• A quite mobile home park in a retirement community should anticipate fewer stranger-on-stranger assaults than a bustling apartment complex near a college campus simply due to the nature of the tenants and guests.
• Bars and nightclubs that provide alcoholic beverages, live entertainment, and cater to younger crowds can expect to have more conduct problems than a subdued establishment and older age group.

Following that logic, it seems reasonable to predict that certain types of crimes are foreseeable in certain settings because of the nature of the premises. For example, shopping mall parking lots should expect auto-related crimes (e.g., auto burglary, vandalism, auto theft). Whether these property crimes can be expected to escalate to personal assaults is another matter for debate.

A twenty-four-hour convenience store in an urban area with a single clerk on duty should anticipate that robbery is foreseeable. Various conditions discussed later will help us analyze what level of foreseeability exists for robbery and other violent crimes.

A judge went on the record to flatly state an opinion that convenience stores and urban parking lots, by their very nature, provide a special temptation to crime.1

Crime Foreseeability: Crime Demographics Factor

Crime demographic analysis is the most objective factor to research but suffers from the quality of the data available. To analyze the crime demographic factor, the surveyor must consider the elements involved. For example, crime classifications, data search radius, the time period to be analyzed, crime trends and patterns, crime arrest rate, the type and precision of data available, and an estimate of the proportion of crimes that are officially documented.

The analysis of above criteria is what I call crime demographics. It is a complete breakdown of available data that is more precise and informative than just viewing raw statistical printouts.

The absence of significant and relevant crime demographics can eliminate the possibility of a finding of crime foreseeability if the two other factors, nature and location of premises did not produce strong and compelling indicators to the contrary.

Crime Foreseeability: Location Factor

The concept of location as a factor in foreseeability causes us to focus on the where issue. All crime types are not foreseeable everywhere. For example, shoplifting crime inside a regional shopping mall offers little insight when evaluating the foreseeability of assaultive crime in the parking structure. A rapist who gains access to a fourth-floor exterior window of a high-rise apartment by using mountain climbing gear and superior skill would not be reasonably anticipated and therefore not normally foreseeable.

The major elements within this factor are the general location in the city, relationship to other businesses and residences, population density, economic demographics of the relevant area, and proximity to major traffic arteries. More site-specific elements include whether the incident location is on the ground floor or an upper floor, in a public common area or semiprivate area.

The location factor offers the least substantial determination of crime foreseeability of the three. Also, its relative importance is generally subject to what has been found through investigation of the other two factors, and it is the most likely to be influenced by conditions.

For example, if a convenience store chain opens a new 24-hour store in the center of the highest crime zone in the city, they should anticipate a variety of property and personal crimes because of its location alone. The level of crime foreseeability should be considered as potentially moderate to high from opening day due to the nature of the business and crime history at other similar locations.

Of course, its actual level of crime foreseeability will be determined later depending on how well the business is run and controls criminal activity through the use of a comprehensive security plan.

Crime Foreseeability: Conditions

Conditions are not factors and can be broken down into two main categories:

1. Physical conditions;
2. Procedures.

Physical conditions would include lighting, noise, security hardware (e.g., fences, locks, alarms, and video cameras), foliage, signage, visibility, and pedestrian and vehicle traffic flow.

Procedural conditions would include cash handling policies, a schedule for locking certain doors and turning on lights, a key control system, and security guard patrol methods, as well as procedures for reporting incidents and repairing property defects.

Mere conditions, even if present in great numbers, cannot be used to determine crime foreseeability alone. Even though certain conditions may seem to be directly connected to the actual commission of a crime, this in itself does not address the issue of crime foreseeability.

To avoid this problem, conditions should be considered not merely for their role in a particular crime, but for those attributes that affect crime foreseeability.

For example, lighting may be on or off, brightly illuminated or dim, located effectively or not; door locking hardware may be locked or unlocked; vehicular gates may be broken, and guard patrols may be scheduled only for six-hour shifts on weekends.

Frequently, in premises liability cases, a plaintiff will allege that the proximate cause of their assault was poor lighting or a lack of timely security patrol in a parking lot. Both lighting and frequency of security patrol issues are mere conditions, yet cases have been won and lost based solely on these issues.

Surely, there are thousands of parking lots with similar lighting and no security patrols that have operated safely for many years. Therefore, the effect of poor lighting or the absence of guard patrols alone cannot indicate that assaultive crime should have been foreseeable to the property owner just because an incident occurred.

However, when one applies the above issues to a parking lot of a business with a history of personal assaults then conditions of inadequate lighting and no security visible presence tend to aggravate the above foreseeability factors and may become relevant to supporting the negligence allegation of failing to provide adequate security.

Determining Levels of Crime Foreseeability

Merely to say that crime is foreseeable on a particular property is not enough. For property owners and business operators to function within the scope of their legal duty to protect land entrants, they must know what crimes types are reasonably foreseeable and at what frequency to know what reasonable steps to take to prevent the anticipated criminal incidents.

Actual crime demographics can be expected to differ in frequency, by crime type, time of day, and location within a property. It is, therefore, necessary to analyze the available crime data to make the necessary distinction between them.

The results of this analysis should enable a security expert to determine a relative level of crime foreseeability for each property surveyed. The analysis should further identify what crime types are more foreseeable than others; in what specific locations within the premises; and when a crime is more likely to occur.

Levels of Crime Foreseeability

A full analysis of the three crime foreseeability factors should allow a security expert to formulate an opinion about the potential for crime into one of four levels.

The four levels of crime foreseeability are:

1. Not foreseeable;
2. Low;
3. Moderate;
4. High.

These levels of crime foreseeability must have elastic values to allow the business community and/or trier-of-fact (jury) to have a range in which to categorize their understanding of the information at hand. It is conceivable that a particular crime rate could fall on the borderline between low and moderate or moderate and high.

Precise values for each level are not used because of variables such as accuracy of data, the uniqueness of the premises, and the fact that criminals cannot be counted on to act in a consistent manner.

However, the assessment of risk and vulnerability has always been validated by human experience. Some security experts are trained in litigation avoidance and have an advantage of having a basis of comparison from performing hundreds of previous security surveys and crime demographic studies. Some experts will have libraries of crime studies and local crime statistics of prior years to aid in their analysis.

A respected author on risk analysis wrote:

Several well-known authorities have concluded that order of magnitude expressions such as low, moderate and high to indicate relative degrees of risk are more than adequate for most risk control surveys.
The use of the terms low, moderate and high equate roughly with probability ranges (on a scale of 1 to 10) of 1-3, 4-6, and 7-10, respectively.2

Another well-known national crime data analysis firm utilizes a super-computer to analyze U.S. crime/census data and other public records. The data is crunched into a crime index that is claimed to predict vulnerability to crimes against persons and property (CAP) at a given site relative to the predicted average criminal vulnerability of its environment. This CAP Index number is then plotted on a chart and compared against national, state, and county averages, respectively.

The designers of this service defined the average CAP Index score as 100 denoting a predicted vulnerability equal to that of its environment. A CAP Index score of 500, for example, indicates a predicted vulnerability five-times greater than the national average, and a CAP Index score of 50 denotes predicted crime vulnerability at one-half of average.3

Product and service consultants like these realize that three separate levels of crime foreseeability are necessary to allow premises operators to gauge their security effectiveness relative to that of the outside environment and against commonly used security practices or industry guidelines.

What has been missing historically from these evaluations is the impact of existing on-site security measures on the external crime demographics. For example, a crime demographics survey of an apartment community may indicate a moderate-to-high assaultive crime rate in the surrounding area. However, due to superior security planning and management oversight, the actual crime experience of the property may be quite low by comparison.

So, what level of crime foreseeability does one assign? What level of security is required to meet the legal duty imposed by each level of foreseeability? These questions and more will be answered in the discussion that follows.

Not Foreseeable

The common expression that crime or dangerous conditions were not foreseeable is sometimes confusing. The term doesn’t imply that the occurrence of crime or dangerous circumstance, at issue, was not possible or beyond the imagination of the landowner or business operator. It simply means that the criminal act was not reasonably foreseeable, under the circumstances, at this location, or at this time.

Common reasons stated for not foreseeing dangerous criminal acts are 1) absence of prior similar incidents; 2) lack of knowledge or notice to the landowner; 3) or the crime was too sudden or bizarre to prevent.

A well-known case, where the crime was ruled to be not foreseeable to the landowner and business operator, involved a McDonald’s fast-food restaurant in Southern California.4 A gunman, armed with assault rifles, appeared at the restaurant and started to shoot customers at random. In the process, he killed or wounded thirty-two victims without provocation. The court ruled that the defendant restaurant had no duty to take steps to prevent an event that was inherently unforeseeable.

If a particular incident is ruled not foreseeable by the court, to the extent that it finds that no reasonable jury could find otherwise, then the issue becomes a matter-of-law, not fact, and the case can be dismissed by the court in response to a Motion for Summary Judgment.

The three remaining levels of foreseeability are designed to identify the relative amount of security that is required for the landowner or business operator to meet and discharge their legal duty of care.

Low Crime Foreseeability

Low crime foreseeability is defined as a level such that after considering the nature of the premises, crime demographics, and location, a reasonable and thoughtful person would not anticipate assaultive crime while on the property.

This opinion would be supported by the absence of any prior assaultive crimes during the past several years, and any crimes preceding that period would be too statistically remote in time.

Whole sections of a city can be said to be low in crime due primarily to their socioeconomic makeup and zoning. Moderate and high crime sections can have pockets of low crime within it, including individual properties that achieve a low crime foreseeability level by operating with an effective security plan in place.

As discussed earlier, certain business types could be assigned the level of low foreseeability prior to being open just by the nature of the premises and sometimes the location of the operation.

A low crime foreseeability level has an upward limit that will be tested as assaultive crime or attempts occur. If the quantitative and qualitative analysis supports a low probability of crime occurring, then existing levels of security are probably adequate. This opinion should be supported by a low fear of crime by the property inhabitants and the feeling of control over their environment.

Most properties in the United States enjoy a low crime foreseeability level, with the possible exception of large cities, and certain sections of urban and resort areas.

Moderate Crime Foreseeability

Moderate crime foreseeability is defined as a level such that after considering the nature of the premises, crime demographics, and location, a reasonable and thoughtful person would anticipate the possibility of assaultive crime while on the property.

This opinion should be supported by crime demographics on the site and surrounding area that indicates some prior assaultive crime over the past several years that do not fit any identifiable trend or pattern. Also, the few prior assaultive crimes are statistically uninformative to warrant any single radical response to prevent future occurrence.

However, a moderate level of crime foreseeability should generate a comprehensive of security plan designed to reasonably prevent future crimes of a similar nature. A moderate level of crime foreseeability should be evidenced by an average amount of awareness and fear of crime by the premises users.

The reasonable person will take advantage of available security measures and will use common sense to limit exposure to potential danger. For example, apartment and hotel tenants will keep accessible windows secured and use available door locking hardware and peephole. Retail customers will walk in lighted, populated areas during a reasonable time period or ask for an escort.

It is possible for a property manager to implement an effective security plan that will reduce exposure further down to the level of low crime foreseeability. Many urban properties function at this moderate level and attempt to maintain reasonable security precautions to reduce crime to a low and adequate level.

Unfortunately, the success of a comprehensive security plan can be reversed if management decides to cut back on the security budget. Some property owners, in an effort to save money, fall into this trap by believing that the former crime problems were solved.

Their foreseeable crime level can quickly go from a moderate to a high level due to shortsightedness and lack of care. When this occurs, customers and tenants may become angered by the cutback in security and apparent disregard for their personal safety. These victims make up the largest class of premises liability litigants.

High Crime Foreseeability

High crime foreseeability is defined as a level such that after considering the nature, crime demographics, and location, a reasonable person would actually anticipate that an assaultive crime might occur at any time.

This opinion would be supported by crime demographics that showed a pattern of assaultive and other crimes on the premises and in the surrounding area continuously for several years. The prior number of assaultive crimes would statistically suggest a high probability of continued assaults if radical security precautions are not implemented, or if the nature of the premises remains unmodified.

In many cases, the physical premises show signs of vandalism, burglary attempts, and general disrepair. The neighborhood often exhibits physical security precautions such as bars on the windows, alarm boxes, and perimeter fences. Inhabitants experience an elevated fear of crime, together with a feeling of losing control over their environment.

The premises will typically have a bad reputation in the eyes of the surrounding neighbors and with law enforcement officers. The premises operator may feel frustrated that the costs of security precautions are not affordable and would have little effect on crime anyway.

A continuing level of high crime foreseeability is unacceptable in our society because it is against public policy to allow a dangerous condition to exist on a property open to the public for the benefit of the property owner and business operator.

A business or residence in a high crime area can implement radical security precautions to reduce their incidence of assaultive crime. If successful, it is possible to reduce exposure to a moderate crime foreseeability level. However, the outside threat is ever-present, waiting for a break down in security.

It is difficult to make a property reasonably safe with a high crime foreseeability level, but not impossible. High-risk business types like some 24-hour convenience stores or fast-food restaurants are not appropriate in high crime neighborhoods.

A high-risk business owner in a high crime neighborhood may have to choose between relocation or consider changing the nature of the business (e.g., from a twenty-four-hour liquor store to a limited hour grocery store) in order to make it reasonably safe.

Variables in Crime Foreseeability

During premises liability litigation, a plaintiff will sometimes focus their negligence claim on a specific location within a property or on a mechanical defect in a security device. When this occurs, it becomes necessary to evaluate the crime foreseeability level for that specific fact such as the particular location, security device, type of crime, or time of day.

It is possible to have two or more different levels of crime foreseeability on the same property.

• A convenience store in a moderate crime location during the day can increase its crime foreseeability level to high between the hours 10:00 pm and 4:00 am when all surrounding businesses are closed and traffic counts are reduced
• Ground floor apartment units can have a high burglary history compared to a very-low crime experience on upper floors due to inaccessibility from the ground level.

Furthermore, it would be difficult to reasonably foresee, for example, a rape inside a third floor apartment unit of a security building when adequate door and window locks were provided, but not used; the possibility of a person firing an automatic weapon inside an office building at midday; or the accidental shooting of a customer in the parking lot of a shopping mall by rival gangs who do not frequent the area.

Any premises liability evaluation must be prepared to specify a level of crime foreseeability for the site, the surrounding area, and in particular locations within the property. In addition, the evaluation should draw attention to the crime types to be reasonably anticipated. Until this is achieved, an analysis of existing security measures cannot be made with any credibility.

The question is not whether the crime, at issue, could have been prevented or not, but rather if the security precautions in place were a reasonable fulfillment of the duty of care owed to the plaintiff.

Conclusion

Established criteria for determining a level of crime foreseeability must be utilized in order to provide a sound basis for opinion testimony. Otherwise, security expert opinion testimony will be based on uncertain predictions, speculation, and whim.

The criteria outlined here will allow for a complete analysis, which can be presented to a jury in an understandable fashion, and viewed with a high degree of credibility.

The results of the analysis will identify a level of crime foreseeability, which can be used to objectively evaluate the adequacy of an existing security plan on any property.

Endnotes

1.  Isaacs v. Huntington Memorial Hospital, 211 Cal. Rptr. 356 (Cal. 1985), 364-5.
2. James F. Broder, Risk Analysis and the Security Survey (Boston: Butterworth Publishers, 1984), 32-33.
3.  CAP Index Vulnerability Analysis. King of Prussia, PA.: CAP Index, Inc.
4. Toscano Lopez v. McDonald’s, 238 Cal. Rptr. 436 (Cal.App.4 Dist. 1987).

* Reprinted with permission from, Security Expert’s Guide to Premises Liability Litigation, Aegis Books, Inc., Copyright © 2009

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