CACI No. 1005. Business Proprietor’s Liability for the Negligent/Intentional/Criminal Conduct of Others

Judicial Council of California Civil Jury Instructions (2017 edition)

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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
• 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,
(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
1Levy 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

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