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Excerpt from
Tennessee Real Estate Law Letter
A monthly survey of employment law developments in Tennessee
C. Dewees Berry, IV, Editor
Vol. 14, No. 4
December 1996
Business must protect customers from foreseeable crime
In McClung v. Delta Square Limited Partnership, 21 TAM 45-1 (Tenn.,
Oct. 28, 1996), the Supreme Court announced a new rule for determining
when a business owner may be held liable for a criminal act occurring
on its premises. Liability will arise when the owner knows or should
know that crime may occur, yet fails to take reasonable steps to
protect its patrons.
The wife of the plaintiff in McClung was abducted from the parking lot
of a shopping center and was later raped and murdered. The plaintiff
sued the center's owners, operators, and tenants, alleging negligence
in not providing security. The trial court granted the defendants'
motion for summary judgment, relying on Cornpropst v. Sloan, 528
S.W.2d 188 (Tenn. 1975), and the Court of Appeals affirmed. On appeal
by permission, however, the Supreme Court found Cornpropst "obsolete,"
concluded that the plaintiff was entitled to present his case to a
jury, and reversed:
The trial court and the Court of Appeals based the award of summary
judgment in this case on Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.
1975), in which this Court held that shop owners owe [a very limited
duty] to customers . . . to protect them against criminal acts of
third parties. . . . . . . .
. . . Cornpropst established the principle in Tennessee that
businesses not attracting or providing a favorable environment for
crime have no duty to protect customers, unless (1) the business knows
or has reason to know that criminal acts are occurring or about to
occur on the premises, which (2) pose an imminent probability of harm
to a customer. In determining whether the business had reason to know,
the Court concluded that "[c]onditions in the area [of the defendant
business] are irrelevant." Id. at 197.
. . . .
After careful consideration of the jurisprudence of other
jurisdictions and our own, we adopt the following principles [in lieu
of the Cornpropst rules] to be used in determining the duty of care
owed by the owners and occupiers of business premises to customers to
protect them against the criminal acts of third parties: A business
ordinarily has no duty to protect customers from the criminal acts of
third parties which occur on its premises. The business is not to be
regarded as the insurer of the safety of its customers, and it has no
absolute duty to implement security measures for the protection of its
customers. However, a duty to take reasonable steps to protect
customers arises if the business knows, or has reason to know, either
from what has been or should have been observed or from past
experience, that criminal acts against its customers on its premises
are reasonably foreseeable, either generally or at some particular
time. In determining the duty that exists, the foreseeability of harm
and the gravity of harm must be balanced against the commensurate
burden imposed on the business to protect against that harm. In cases
in which there is a high degree of foreseeability of harm and the
probable harm is great, the burden imposed upon defendant may be
substantial. Alternatively, in cases in which a lesser degree of
foreseeability is present or the potential harm is slight, less
onerous burdens may be imposed. . . . The degree of foreseeability
needed to establish a duty of reasonable care is, therefore,
determined by considering both the magnitude of the burden on the
defendant in complying with the duty and magnitude of the foreseeable
harm. As a practical matter, the requisite degree of foreseeability
essential to establish a duty to protect against criminal acts will
almost always require that prior instances of crime have occurred on
or in the immediate vicinity of defendant's premises. Courts must
consider the location, nature, and extent of previous criminal
activities and their similarity, proximity, or other relationship to
the crime giving rise to the cause of action. To hold otherwise would
impose an undue burden upon merchants.
Comment:
* The test for holding a business owner liable for the criminal acts
of third parties is similar to the test for holding a landlord liable
to a tenant. A tenant must show that the landlord had notice of a
potential danger sufficient to cause a reasonably prudent person to
foresee the probability of harm and a failure thereafter to take
reasonable steps to correct the problem. See Tedder v. Raskin, 728
S.W.2d 343 (Tenn. App. 1987).
Copyright 1996 M. Lee Smith Publishers & Printers LLC
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