The damage award -- $1.43 million -- was nothing out of the ordinary considering the chillingly brutal crime: A 22-year-old woman was abducted at gunpoint from the darkened parking lot of a National City, Calif., tavern, gang raped, then shot. She was left a quadriplegic.
But the defendant in the civil suit was not her assailant. It was the tavern owner, Harold Dodd. He was held liable for the injury because the incident began on his property. Although an appeal is being considered, the Dodd case, decided in March, stands as the most dramatic example of a growing trend in the field of premises-liability law, and it serves as a warning to business owners everywhere.
The idea that business owners may be held liable for injuries sustained on their premises is certainly not new. However, while negligence law has cast an ever-wider net, business owners have generally remained shielded from responsibility for injuries resulting from the criminal acts of third parties. The proprietor has been judged able to gauge the potential danger in an unstable pyramid of cans or a wet floor or a broken stair, and can act to eliminate those dangers. But who can foresee what harm a criminal might cause, or when it might occur, or to whom?
The courts are not at the point of requiring a business owner to keep a crystal ball tuned to the local criminal scene. But the trend of judicial decisions is eroding the notion that the criminal act eradicates the proprietor's liability.
In Hartford, for example, a woman was assaulted outside of her high-rise. Getting the assailant was police business; the woman went after the landlord, suing him on the basis that adequate security near his luxury apartment building would have prevented the crime. She won. Similar decisions have also emerged in Michigan, Arizona, Massachusetts, and Washington, D.C., among others.
Lawyers, however, seem short on advice for business owners who want to protect themselves against such legal assaults. According to Clark G. Leslie, the San Mateo, Calif., lawyer who won the $1.43-million judgment against Dodd, the business owner's best defensive posture is to be able to say "I did all I could do" -- and mean it. That is hardly a clear-cut guideline for action, but it may be the clearest one the business owner can get.
"The law still requires some degree of foreseeability," explains Louis N. Massery, a litigation lawyer with the Boston law firm of Burns & Levinson, "but jurors, particularly, are very sympathetic to the victims of criminal attacks. As citizens, they feel more threatened, more helpless, than perhaps they once did. As jurors, they see big damage awards to victims as a way of fighting back.
"I don't think that any store owner, for instance, is under obligation to provide armed guards if there's no reason whatsoever to suspect that they're needed," says Massery. "But as soon as there's any history of altercations on the premises, or violence in the neighborhood -- and I mean any history, however slight -- the owner ought to reconsider. Under the new cases, once a plaintiff can establish any history . . . the foreseeability factor weighs heavily against the defendant."
"A restaurant or a store, for instance -- particularly one that is located in a rough neighborhood or in an isolated area -- is going to start to look a lot more like a bank," predicts Leslie. "You're going to see a lot more guards, a lot more brilliant sodium lighting, better alarm systems."
But without clear guidelines, "the business owner who knows that he should do something won't necessarily know what it is that he should do," says Harvey Levine, a partner in the San Diego Law firm of Shernoff & Levine, who has dealt, both in the courtroom and in the classroom, with the issue of business owners' expanding liability.
The courts have tended to analyze cases like the Dodd suit by weighing the damages suffered by the plaintiff against the difficulty that the business owner would have faced in protecting against that injury. In the case against Dodd, the balance seemed to weigh overwhelmingly in the plaintiff's favor.
"If Dodd had the lights in his lot in 1978 that he's got there today, this incident probably wouldn't have happened," maintains Leslie. "If a security guard had been present, my client probably would have only been robbed.
"The risk [of liability] is there now," cautions Leslie, "and the business owners know it. They better know it, because I'm coming back."