Most Oregonians are blessed to live happy, enjoyable lives in relative safety. As a result of our hard work, we often find ourselves living and working in places where we feel comfortable and protected from the serious crime that threatens some locales around the state and the country. Sure, there are stories on the news about horrible crimes like assault, rape, and murder, but they seem like statistics occurring a million miles away. But sometimes, that bubble bursts.
Patrons of nice restaurants, residents in middle-class and upscale apartments, and customers in grocery store parking lots become crime victims. When the unthinkable happens, and a person is assaulted on the premises of a commercial establishment, can the business be held liable? And what about the criminal who committed the illegal act? In this article, we’ll answer those questions.
Assault and Other Intentional Torts
When someone intentionally assaults a person and causes harm, that person can be held liable for damages in civil court. This can sometimes be confusing because the same wrongful conduct can also provide grounds for criminal prosecution.
So, there are a few important differences to keep in mind. In a criminal prosecution, the government files and prosecutes the case. If a defendant is found guilty, penalties can include fines, incarceration, and probation. Also, the State has to prove beyond a reasonable doubt that the defendant is guilty.
In a civil case, on the other hand, the injured crime victim files the lawsuit and prosecutes the case as the plaintiff. Importantly, the burden of proof is easier to meet. The plaintiff only has to prove by a preponderance of the evidence that the defendant committed the tortious act that caused injuries to the plaintiff. As we all know, criminals often do not have assets to satisfy a civil judgment against them. But this isn’t always true. Therefore, the idea of recovery against the person that commits a crime should at least be investigated.
In Oregon premises liability law, a person visiting a business is called a “business invitee.” The owner or possessor of the business owes a duty to protect the customer from dangerous conditions that the owner knows about or should have known about. This includes a duty to warn of latent dangers. If the duty is breached and the breach is the proximate cause of injuries to the invitee, then the business owner is liable for the injuries to the invitee.
But what about criminal activity? Is a business owner liable to a business invitee when a third party commits a criminal act and injures the invitee? This question is sometimes difficult to answer, and in Piazza ex rel. Piazza v. Kellim, 271 Or. App. 490, 354 P.3d 698 (2015), the Oregon Court of Appeals admitted that even the courts have sometimes struggled with this issue. But the law is clear that under appropriate circumstances, the business owner can indeed be found liable.
The question revolves around the issue of foreseeability. The law states that the duty of care owed by a business owner includes the duty to take reasonable steps to protect customers from reasonably foreseeable criminal acts by third parties. Let’s take a look at a couple of examples to make the point.
Consider a restaurant that has had five customers robbed at gunpoint in its parking lot over the last two months. Nevertheless, the restaurant does not hire a guard and does nothing to warn customers of the danger. A new customer is robbed and shot. In evaluating this claim, the chance of future crime was clearly foreseeable to the restaurant. Moreover, no action was taken to protect customers.
Contrast that with a daycare establishment in a nice neighborhood that has never had a single crime on its premises. While a mother is inside picking up her child, a woman runs in, grabs the mother’s purse, and runs away. Depending on all the facts, one might reasonably argue that the criminal activity was not reasonably foreseeable to the business. Therefore, they were not required to take additional steps to prevent it.
Call a Lawyer
If you have been a victim of a crime at a commercial establishment, we would be happy to answer any questions you might have. Premises liability cases are fact-intensive when third-party crimes are at issue. The experienced premises liability lawyers at Nelson MacNeil Rayfield can help you investigate and find the answers.