Finding Treasure in the Muddy Pit of Discovery to Prove Foreseeability


1999 American Association for Justice ANNUAL CONVENTION

Steven C. Laird
1824 8th Avenue
Fort Worth, Texas 76110
Telephone: (817) 531-3000
Fax: (817) 923-2228

While the levels of some crimes have hit equilibrium, or even dropped, in the past few years, the level of truly violent, vicious crime has grown exponentially. This growth has been especially true regarding crimes to persons done for the sake of the criminal act itself with no prior interplay between the assailant and victim. This lends itself to the types of crimes to be discussed herein; namely, those crimes committed as a result of inadequate security. More so, this paper will address ways of establishing foreseeability on the part of a property owner for criminal acts occurring on their property.

Before making a determination as to foreseeability, you must first determine upon whose shoulders the burden of foreseeability rests.


In order to hold a party responsible for injury to your client, it is necessary to determine who the responsible party or parties should be. The mantle of responsibility potentially can fall on one of several groups, including:

(1) property owner;
(2) management company;
(3) security company;
(4) tenant (lessee [apartment] or owner [condominium]); or
(5) residential association.

In making a determination of responsibility, control is viewed as a major factor. For example, in Centeq v. Siegler, 899 S.W.2d 195 (Tex. 1995) the Texas Supreme Court stated: “The right to control the premises is one of the factors that determines whether a legal duty should be imposed on the owner or the possessor of the property.” Id. at 197. The Centeq case turned directly on who had “specific control over the safety and security of the premises.” Id. at 199.

In determining control, where the crime took place will have a major impact on liability. For example, a crime taking place within the confines of a specific dwelling, be it apartment or condominium, may absolve all parties, save and except the lessee or owner of the unit. Likewise, a security company hired to drive through a complex but not answer calls, may not be liable for an incident in a hidden common area (pool, recreational room, interior hallway, lobby, washateria, ect.). The question to be asked in making this determination is who was in a position, by law or fact, to either keep a crime from being committed or halt a crime in progress.

Some jurisdictions have extended the concept of control over the premises to include control over those within the complex. In Daly v. City of New York, 626 N.Y.S.2d 409 (Sup. 1995), the court held that when a defendant had the opportunity to evict a problem tenant but failed to do so, the landlord, in this case the New York City Housing Authority, should be held liable.

Other courts have refused to allow for recovery by those outside of the confines of the complex, even when a nexus can be shown between alleged security failures and the crime. In Rosenbaum v. Security Pacific Corp., 43 Cal. App. 4th 1084 (Cal. App. 1996) the court refused recovery where the plaintiff was injured off-site where, she claims, she had to park due to inadequate lighting in the complex itself.

A. Discovering Control

In the discovery process an initial question to be asked is who had control over the property at the time the incident occurred. While asking the ultimate question will most probably be responded to with the ultimate objection – calls for a legal conclusion – there are other ways to make a determination as to control.

1. Identifying Potential Parties and those with Relevant Knowledge

In the first set of discovery to the defendant, inquire as to the identity of all potential parties. Many jurisdictions have agreed that the inquiry into this cannot be objected to. See, e.g., Tex. R. Civ. P. 194; Fed. R. Civ. P., 26. Needless to say, the failure to timely respond to such investigative questioning carries with it the added bonus for sanctions for a defendant’s failure to timely and adequately respond to such a request.

CAVEAT – If you are relying on discovery responses to identify potential parties, keep that in mind as the running of an applicable statute of limitations draws near. You do not want to put yourself in a situation where you do not have enough time to file your suit, have the other side drag its feet in responding and then the additional time to get a hearing on a potential motion to compel a proper response.

2. Deposition

See the caveat immediately above before relying on getting information identifying parties in a deposition. If you do however have the luxury of time, use the deposition to determine all those who make any decisions concerning the property and include each in your suit.

The issue is not only as to who controls the physical plant, but whose part may in any way bear upon your client’s claim. This includes hiring and firing staff, leasing and obtaining evictions from units in a complex, maintenance, policy making decisions, or any other issues bearing on the upkeep of the property.


A. General Concerns

Once it is determined that a defendant is in control of some aspect of the property, the next issue is whether the criminal acts of a third person were reasonably foreseeable. While some states have left the concept of foreseeability as possible, others give a more clear definition as to what is necessary to prove reasonable foreseeability.

Some jurisdictions have completely abolished the idea of foreseeability. See, S.I. v. Cutler, 523 N.W.2d 242 (Neb. 1994) (As a general rule, such acts are not foreseeable). The Virginia Supreme Court has stated that criminal acts of third persons are never reasonably foreseeable. Therefore, the duty to a property owner only arises if a defendant’s business attracts or provides a climate for assaultive behavior. Wright v. Webb, 362 S.E.2d 919, 921 (Va. 1987). In Missouri, the courts have recognized that there is only a duty to protect when a special relationship exists and a landlord-tenant relationship is not one to be protected. Some jurisdictions have modified this hard-line stance upon the showing of “special circumstances.” They include intentional acts inflicted by a known assailant or frequent and recent acts of violent crime by an unknown assailant. Schelp v. Cohen-Esrey Estate Service, 889 S.W.2d 846, 851 (Mo. App. W.D. 1994).

For those jurisdictions where foreseeability is still an issue, different jurisdictions have relied upon various plans for determining whether a defendant had a duty to protect others on their property. The three different approaches generally used by the court are: “prior similar incidents” “totality of the circumstances” and a balancing of foreseeability with the burden of protection.

Of the three approaches to foreseeability, the one referred to most often is a review of prior similar acts. Polomie v. Golub, Corp., 226 A.2d 979, 640 N.Y.S.2d 700, 701 (1996). Problems with this approach arise however when attempting to determine the similarity of prior acts, both in physical proximity and time, to the assault made the basis for the case at issue. Jardel Co. v, Hughes, 523 A.2d 518, 525 (Del. Supr. 1987). Another issue arises as to whether adequate notice has been given to a property owner if the prior crimes are not of the same type as those in the present complaint, as well as the number of prior crimes necessary to give adequate notice. Vaughn v. Granite City Steel Div. of Nat’l Steel Corp., 576 N.E.2d 874, 877 (Ill. 1991). In Leslie G. v. Perry & Associates, 96 Cal. Op. Serv. 1731 (Cal. App. 1996), the court found that where a landlord failed to repair a security fence, a cause of action could not be maintained unless sufficient evidence was presented that the unknown assailant had, in fact, entered through the broken fence.

In Siebert v. Vic Regnier Builders, Inc., 856 P.2d 1332 (Kan. 1993), the Kansas Supreme Court rejected the concept of “prior similar incidents” as ground for determining foreseeability in favor of the “totality of the circumstances” rule. The court stated that there was foreseeability so long as the circumstances surrounding the incident are related to the harm incurred. Id. at 1339. The court recognized that a defendant need not have to wait until prior crimes are committed before being placed on notice of foreseeable future assaults.

The Wyoming Supreme Court, citing Siebert, supra, rejected both “prior similar incidents” and “totality of the circumstances” as determiners of foreseeability, preferring to take a more economical view of the foreseeability issue. In Krier v. Safeway Stores 46, Inc., 943 P.2d 405 (Wyo. 1997), the court moved to a balancing approach, weighing the foreseeability of the harm presented against the burden of the duty potentially imposed.