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The Future of Negligent Security Cases in Arkansas

Published on Oct 4, 2018 at 12:32 pm in Negligent Security.

When a customer is attacked or assaulted and injured at a bar, shopping mall, or other public space they may have a case not only against the attacker, but also against the business owner or commercial real estate management company. Under Arkansas law, certain commercial property owners and businesses owners owe a customer a duty to protect them from reasonably foreseeable dangers, including criminal acts. These types of cases, commonly referred to as negligent security cases, can stem from fights, shootings, or even sexual assaults at places such as bars and restaurants, shopping malls, convenience stores, or strip shopping centers.  

Owners, business operators and their security contractors can be found at fault and responsible when the cause of a harmful event, such as an assault, stabbing or shooting, is foreseeable or avoidable with proper safety procedures. What makes a particular act foreseeable under Arkansas law depends on what other types of attacks, shootings, stabbings, or other criminal acts have occurred on or near the business or property before the customer suffers injury. Shopping malls and common areas in and around businesses are public spaces that people should be able to enjoy their shopping experience without suffering from violent attack. McMath Woods has handled these types of cases and understands how stressful these situations can be on families and how complex these cases can be legally.

McMath Woods expects Arkansas will eventually move away from current precedent and embrace the “totality of circumstances” test to determine if a commercial property owner or business operator can be liable for third party criminal acts. The trend in courts across the nation is to embrace this totality of the circumstances standard. A good example of this totality of the circumstances test comes from our bordering state Missouri.  In Richardson v. QuikTrip Corp., 81 S.W.3d 54, 63 (Mo. Ct. App. W.D. 2002), the Missouri Court of Appeals wrote:

[T]he modern trend holds that foreseeability of a violent crime being perpetrated … is not absolutely dependent upon notice of prior crimes of a similar nature occurring on or near the premises, but may also be determined from all of the circumstances present …  This general trend away from the simplistic and subjective prior criminal incidents approach is based upon the general perception that it is “fatally flawed” because (1) it leads to results contrary to public policy by discouraging landowners from taking adequate measures to protect premises known to be dangerous, (2) initial victims who are denied recovery are treated differently from subsequent victims even if the attacks are equally foreseeable, (3) limiting evidence of foreseeability to prior similar criminal acts leads to arbitrary results and distinctions, and (4) the rule erroneously equates foreseeability of a particular act with previous occurrences of similar acts (citations omitted)(emphasis added).

In Jardel Co. v. Hughes, 523 A.2d 518 (Del. 1987), the Supreme Court of Delaware affirmed a verdict for a mall tenant’s employee against a company providing security on the exterior of a mall after the employee was abducted in the mall parking lot, beaten, and raped:

We recognize that application of the principle of foreseeability to claims based on nonfeasance — here not anticipating acts of third parties — may prove difficult. See Prosser & Keeton, The Law of Torts, § 56 (5th ed. 1984); But see Id. at 374, n. 10; § 61 at 428, nn. 12-19.  To begin with, the primary responsibility for public safety lies with government, not the private sector, and the law should not create a cause of action against a private citizen based on governmental default.  Secondly, even the most alert and sophisticated police agencies cannot wholly prevent the infliction of violent acts on innocent citizens, as our crime statistics daily attest.  Yet large shopping malls are a commonplace part of modern commercial life.  Situated entirely on private property, and embracing a large number of diverse business establishments, they have become multipurposed commercial enclosures.  As is true in this case, since they are located entirely on private property, they do not enjoy the benefit of routine police protection, yet they attract the public at large, not all of whom are law abiding.…

We conclude that while a property owner is no more an insurer or guarantor of public safety than are police agencies, there is a residual obligation of reasonable care to protect business invitees from the acts of third persons.  We adopt the Restatement [§ 344] standard, which approves the concept that incidents of criminal activity provide a duty to foresee specific criminal conduct.  Whether the conduct of a particular property owner meets the standard of reasonable care is, of course, a matter for jury determination.  The extent of the security protection provided by Jardel in this case raised a factual issue and the jury was entitled to conclude that under the circumstances, that protection was an insufficient response to the known history of criminal activity.  Butler v. Acme Markets, Inc., N.J.Supr., 89 N.J. 270, 445 A.2d 1141, 1146 (1982).

Id. at 525-526.

Although McMath Woods believes Arkansas courts will move to the totality of the circumstances test, current Arkansas cases establish a stricter standard when a business or commercial property owner should be sued when a criminal act causes injury to a customer or business invitee.  Boren v. Worthen National Bank, 324 Ark. 416 (1996) involved the duty owed to two business invitees at a bank’s automatic teller machine held that the bank would have to have knowledge of prior similar incidents to be liable for a particular criminal act by a non-employee of the bank.

Similarly, in Willmon v. Wal-Mart Stores, Inc., 957 F. Supp. 1074 (E.D. Ark. 1997), where a shopper was abducted in a Wal-Mart parking lot in Searcy and driven off premises where she was raped and murdered, U.S. District Judge G. Thomas Eisele predicted that the Arkansas Supreme Court would not recognize a duty on the part of Mal-Mart Stores, Inc. to protect the shopper where there were only six reports of prior violent crimes, none involving weapons or serious bodily harm.  Id. at 1079.

Other cases, such as Park Plaza Mall CMBS, LLC v. Powell, 2018 Ark. App. 48 (Jan. 24, 2018) lay out that under current law, landlords do benefit from the favorable treatment concerning protection from liability from criminal acts. “Arkansas courts have long recognized that ‘it is unfair to impose such a high duty of protection on the landlord absentan agreement or statute.’”  Park Plaza Mall at *8-9 (citing Lacy, 366 Ark. at 369, andBartley v. Sweetser, 319 Ark. 117, at 121) (emphasis added).

However, “An expressagreement or assumption of duty can supersede the general rule that a landlord has no duty to protect tenants or guests from criminal acts of third parties.”  Park Plaza Mall at *11 (citing Lacy, 366 Ark. at 365) (emphasis added).

If you were injured or otherwise harmed in a violent crime that occured on the premises of a business or other public area and you have reason to believe that the establishment’s owner should have and could have done more to stop the crime, you may be eligible to file a claim against the business or property owner. To learn more, get in touch with our premises liability attorneys in Little Rock today.

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