You’ve often heard that crime doesn’t pay, but you should be aware that it can be quite costly when it occurs at your place of business.
According to the Federal Bureau of Investigation, approximately 1.5 million violent crimes occurred in the United States in 2007. Usually, it is the criminal justice system that metes out punishment to perpetrators, most often in the form of incarceration; occasionally, however, a victim may file a civil lawsuit to recover money damages from a perpetrator. In any event, it might seem that violent crimes generally involve only victims and assailants.
But that is not necessarily so. The dynamic may be significantly altered if the crime takes place on the premises of a food service establishment. Why? Because food service establishments, as possessors of land, owe a duty to their patrons to protect them from hazardous conditions, including the risk of suffering a criminal attack, on their premises. In fact, under certain circumstances, a food service establishment may be held liable to a victim of a crime that occurs at their establishment if it is determined that the establishment has failed to protect victims from perpetrator[s].
Notwithstanding jurisdictional variations, it is generally the case that a possessor of land who holds it open to the public for a business purpose may be held liable to those members of the public for physical harm that is caused by a third person’s intentional, harmful act when that act takes place while individuals are upon the land for a business purpose. In other words, a food service establishment may be held liable for harm that is inflicted on patrons during a crime that takes place on the establishment’s premises.
An establishment’s liability could be triggered when a patron suffers physical harm during a crime if the harm is caused by the failure of the food service establishment to exercise reasonable care:
- To discover that such harmful acts are being done or are likely to be done; or
- To give a warning adequate to enable the patrons to avoid the harm, or otherwise to protect them from it.
In interpreting this duty, courts have noted that since a possessor of land is not necessarily an insurer of its patrons’ safety, the possessor of land is ordinarily under no duty to exercise any care until it knows or has reason to know that the criminal acts of a third person are occurring or are about to occur. In other words, a possessor of land has a duty to take reasonable precautions to protect patrons from foreseeable criminal attacks. Whether or not a criminal attack is foreseeable often turns on the frequency with which crimes have occurred at an establishment.
One method of establishing foreseeability is to prove that the possessor of land had actual or constructive knowledge of a particular assailant’s inclination toward violence. Another method is to prove that the possessor had actual or constructive knowledge of a dangerous condition on the premises that was likely to cause harm to a patron. If the place or character of the business, or its experience with crime on the premises, is such that the establishment should reasonably anticipate criminal conduct on the part of third persons, either generally or at some particular time, the establishment may be under a duty to take precautions against it, and to provide reasonably sufficient personnel to afford reasonable protection to patrons. Simply put, if a criminal attack on a patron is foreseeable, then the food service establishment has a duty to protect its patrons.
It is also important to note that this duty to protect has often been extended to ensuring the safety of the parking area and to providing a safe and suitable means of ingress and egress. In appropriate circumstances, this duty may require the implementation of safety and security measures that include employing on-site security personnel, installing video surveillance equipment, and erecting a fence to protect the parking and the entrance areas. Whether an establishment’s protective measures are deemed “reasonable” will depend to a significant degree on the circumstances.
The statistics prove that anyone can be a victim of crime. Nevertheless, people often believe that it happens only to someone else. While this perception may provide some level of comfort as you go about your everyday life, such thinking does not reflect sound business judgment. In the event you fail to do everything in your power to mitigate patrons’ risk of being victims of crime on your premises, you may find that you have also been the victim of a crime – even though it really did happen to someone else.