California Civil Jury Instructions (CACI)

1005. Business Proprietor’s Liability for the Negligent/Intentional/Criminal Conduct of Others

[An owner of a business that is open to the public/A landlord] must use reasonable care to protect [patrons/guests/tenants] from another person’s harmful conduct on [his/her/its] property if the [owner/landlord] can reasonably anticipate such conduct.

New September 2003

Sources and Authority

  • “[O]nly when ‘heightened’ foreseeability of third party criminal activity on the premises exists—shown by prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location—does the scope of a business proprietor’s special-relationship-based duty include an obligation to provide guards to protect the safety of patrons.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 240 [30 Cal.Rptr.3d 145, 113 P.3d 1159], internal citations and footnote omitted, original italics.)
  • “Even when proprietors . . . have no duty . . . to provide a security guard or undertake other similarly burdensome preventative measures, the proprietor is not necessarily insulated from liability under the special relationship doctrine. A proprietor that has no duty . . . to hire a security guard or to undertake other similarly burdensome preventative measures still owes a duty of due care to a patron or invitee by virtue of the special relationship, and there are circumstances (apart from the failure to provide a security guard or undertake other similarly burdensome preventative measures) that may give rise to liability based upon the proprietor’s special relationship.” (Delgado, supra, 36 Cal.4th at pp. 240–241.)
  • A business proprietor is not an insurer of the safety of his invitees, “but he is required to exercise reasonable care for their safety and is liable for injuries resulting from a breach of this duty. The general duty includes not only the duty to inspect the premises in order to uncover dangerous conditions, but, as well, the duty to take affirmative action to control the wrongful acts of third persons which threaten invitees where the occupant has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.” (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121 [52 Cal.Rptr. 561, 416 P.2d 793], internal citations omitted.)

  • “Once a court finds that the defendant was under a duty to protect the plaintiff, it is for the factfinder to decide whether the security measures were reasonable under the circumstances. The jury must decide whether the security was adequate.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 131 [211 Cal.Rptr. 356, 695 P.2d 653], internal citation omitted.)
  • “[A]s frequently recognized, a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676 [25 Cal.Rptr.2d 137, 863 P.2d 207], internal citations omitted.)
  • “In the case of a landlord, this general duty of maintenance, which is owed to tenants and patrons, has been held to include the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” (Ann M., supra, 6 Cal.4th at p. 674, internal citation omitted; Frances T. v. Village Green Owners Assn. (1986) 42 Cal.3d 490, 499–501 [229 Cal.Rptr. 456, 723 P.2d 573].)
  • Restatement Second of Torts, section 344, provides:

    A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure to the possessor to exercise reasonable care to

    (a) discover that such acts are being done or are likely to be done, or

    (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.

  • Section 344 has been followed by California courts. (See Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 807 [205 Cal.Rptr. 842, 685 P.2d 1193]; Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 823 [59 Cal.Rptr.2d 756, 927 P.2d 1260].)
  • Comment (f) to section 344 further explains the section’s intent: “Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.”

Secondary Sources

6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1129–1149

1 Levy et al., California Torts, Ch. 15, General Premises Liability, § 15.06 (Matthew Bender)

6 California Real Estate Law and Practice, Ch. 170, The Premises: Duties and Liabilities, § 170.05 (Matthew Bender)

11 California Real Estate Law and Practice, Ch. 381, Tort Liability of Property Owners, § 381.21 (Matthew Bender)

29 California Forms of Pleading and Practice, Ch. 334, Landlord and Tenant: Claims for Damages, §§ 334.12, 334.23, 334.57 (Matthew Bender)

36 California Forms of Pleading and Practice, Ch. 421, Premises Liability, § 421.30 et seq. (Matthew Bender)

17 California Points and Authorities, Ch. 178, Premises Liability, § 178.60 et seq. (Matthew Bender)

1 California Practice: Torts (Thomson West) § 16:5