The criminal justice system exists for the purpose of holding accountable those who have broken our laws, especially when that results in harm to others. Meanwhile, the civil justice system allows for victims to seek financial compensation for the losses they have sustained. In many such cases, it’s worthwhile to look beyond the person who committed the crime to determine whether there are other entities (usually the owner of the property where the attack occurred) who breached a duty to take reasonable measures to prevent such such an attack where it was foreseeable.
But how could a property owner possibly know someone would independently commit a criminal act? After all, no one can legally be expected to have psychic powers. However, the foreseeability test takes into account whether the property owner could have reasonably foreseen the attack based on a history of past similar crimes at the same location. A good example of this was recently seen in the case of Jenkins v. C.R.E.S. Mgmt. LLC, before the U.S. Court of Appeals for the Fifth Circuit.
Plaintiff in this case worked for defendant, but he was also a resident. Defendant is a property management company that owns and controls an apartment complex in Houston, TX. Plaintiff was a “courtesy officer” for the site. He would respond to reports of criminal activity and call police if necessary. In exchange, he received free housing in the complex.
Around 3 a.m. one early morning, there was a knock on his front door. He suspected it was a resident in need of help. He opened it. Standing in the hallway were two men plaintiff didn’t recognize. Without a word or a warning, one of the suspects raised a gun. Plaintiff put his hands up over his face. He was shot in the elbow. The men never tried to get into his apartment, and instead immediately fled on foot. They were never caught.
Plaintiff sued the apartment complex.
Defense moved for summary judgment, arguing plaintiff failed to prove the attack against him was foreseeable in light of the evidence against him. The criminal activity that had occurred the year before included:
- 7 assaults
- 14 residential burglaries
- 7 motor vehicle burglaries
- 6 thefts
- 4 auto thefts
- 1 sexual assault
- 1 robbery-shooting
The judge overseeing the case sought to narrow the scope of the crimes that would be factored into the foreseeability test, and limited the review to only those prior crimes that involved violence. Based on that, the judge ruled, there wasn’t enough to support plaintiff’s foreseeability claim. Summary judgment was granted to defense.
The appeals court, however, reversed. The lower court judge had made a mistake in excluding residential burglaries from the analysis because prior case law has established that residential burglaries could be indicative of future personal crimes (in a way that, say, a vehicle theft would not).
Now, the case will continue to trial.
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Jenkins v. C.R.E.S. Mgmt. LLC, Jan. 26, 2016, U.S. Court of Appeals for the Fifth Circuit
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Ketler v. PFPA – Enforcing a Liability Waiver, Jan. 22, 2016, Orlando Premises Liability Lawyer Blog