I recently defended a Seattle hotel against claims that the hotel had breached a duty to protect a guest from being criminally assaulted by another guest. I had not really looked at issues of this kind since the late 1980s when I defended a bank whose employee was hurt by a pipe bomb placed in the bank’s high-crime area parking facility. A lot has changed since then including a multitude of new cases in a myriad of factual contexts (e.g., crimes in bars/restaurants; schools; workplaces; outdoor concert venues; nursing homes; child care centers; bus depots to name a few.) This post concerns primarily Washington law on the subject.
The general rule is that one has no duty to protect another from a third-party’s criminal conduct. However, when a ‘special relationship’ exists between the defendant and either the third-party or the foreseeable victim of the third party’s conduct, a duty can arise. One such relationship is between a business owner and his or her clients/customers (the business invitee). In Washington, a business owner must take reasonable steps to prevent imminent criminal harm and reasonably foreseeable criminal conduct by third persons. However, criminal conduct is rarely foreseeable. See Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192 (1997). When there is no evidence that the business owner knew of the dangerous propensities of the individual responsible for the crime and there is no history of such crimes on the premises, criminal conduct may be unforeseeable as a matter of law. See Wilbert v. Metro. Park Dist. of Tacoma, 90 Wn.App. 304 (1998).
Typically, claims of this kind arise in the context of a celebration or gathering of some sort (large or small) where alcohol and people mix in an ultimately bad way. Plaintiffs often try to link via expert testimony what a defendant knew or should have known about the effects of alcohol upon behavior and that it caused the crime in question. However, these efforts are often unsuccessful. See e.g., Wilbert, supra; Margaret W. v. Kelley R., 139 Cal.App. 4th 141 (2006); Christen v. Lee, 113 Wn.2d 479 (1989). Many of the cases emphasize the point that foreseeability of criminal conduct is not measured by what the defendant could arguably conceive of or predict, but rather what the defendant actually knew.
Testifying experts citing studies linking drug or alcohol use to misconduct have difficulty establishing that a defendant knew about any predictors of behavior let alone that drug or alcohol use would make a crime more likely in any particular situation. Plaintiffs also often try to meet their burden of proof on the issue of foreseeability by pointing to evidence of lesser forms of misconduct that immediately preceded the injury causing event. For example, loud arguing and shoving preceding a fatal shooting or stabbing. However, in Washington, several cases have held that evidence of antisocial, unruly, or even hostile behavior is generally insufficient to establish that a defendant with a supervisory duty should reasonably have anticipated a more serious misdeed. See Wilbert supra; J.N. v. Bellingham Sch.Dist.No. 501, 74 Wn.App. 49 (1994); Raider v. Greyhound Lines, 94 Wn.App. 816 rev.den. 138 Wn.2d 1011 (1999).
Consequently, Washington case law presents some fairly high hurdles for plaintiffs in these cases. However, arguably in the favor of some plaintiffs, it also seems that ‘duty’ or the standard of care may shift higher depending upon the age and/or vulnerability of the victim. For instance, a suspected gang member who gets shot during a county sponsored street dance appears to receive less protection under the law than say a child or an elderly resident assaulted at school or in a nursing home. See Wilbert, supra and McLeod v. Grant County Sch.Dist. No.128, 42 Wn.2d 316 (1953); Niece v. Elmview Group Home, 131 Wn.2d 39 (1997). In comparison, courts in California have distinguished degrees of duty and foreseeability depending on situational factors. Where there are strong policy reasons for preventing harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. See Delgado v. Trax Bar & Grill, 36 Cal.4th 224 (2005). Duty in such circumstances is determined by a balancing of the foreseeability of the criminal acts against the burdensomeness, vagueness and efficacy of the proposed security measures. Id.
It is also important to note that plaintiffs prosecuting these kinds of cases do not typically include the criminal assailant as a party-defendant. In Washington, it is unlikely that a defendant naming the assailant as a ‘non-party at fault’ pursuant to Civil Rule 12 (i) would be able to reduce its percentage of fault in any comparative fault equation given an assailant’s intentional wrongdoing and the statutory definition of ‘fault’. See RCW 4.22.070 (“Percentage of fault — Determination — Exception — Limitations”) and 4.22.015 (‘”Fault” defined.’). See also Welch v. Southland Corp., 134 Wn.2d 629 (1998).