Acts of violence have become increasingly commonplace in our society. To protect themselves from liability for such acts, landlords and property owners must understand the duty owed to tenants and invitees. Recent changes in Indiana law have helped define when a landlord and property owner is responsible for third-party criminal attacks occurring on their premises — this duty being governed by a negligence analysis.
A landlord and property owner can be held liable for negligence when a tenant or invitee establishes (1) there was a duty owed by the landlord/property owner; (2) a breach of that duty occurred; and (3) an injury resulted which was proximately caused by the landlord/property owner’s breach of its duty. A court’s determination of a duty owed is the heart of negligence claims against landlords and property owners. However, the criminal act must be “reasonably foreseeable.”
In 1999, the Supreme Court of Indiana required a “totality of the circumstance” test to analyze whether a criminal act was reasonably foreseeable. L.W. v. W. Golf Ass’n, 712 N.E.2d 983, 985 (Ind. 1999). This test includes examination of an event’s nature, condition, location of the land, and prior similar incidents. In L.W. v. W. Golf Ass’n, L.W. was the recipient of a Purdue scholarship that required her and other recipients to live together in the same student residence. One night at the residence, L.W. was sexually assaulted by a fellow resident. L.W. sought damages against the owners of the building and the scholarship foundation on the grounds they “had a duty to provide for a safe living environment, that [they] breached this duty, and that the breach had proximately caused her injuries.”
The Supreme Court held that the landlord had no such duty, even though some of the male residents had a history of “childish pranks and actions” that made the property “sometimes untenable” for female residents. The Supreme Court’s ruling in this case was based on the lack of evidence as to prior violent acts and sexual assaults by the residents. The Court’s opinion at that time suggested landlords are free of liability for violent acts unless there is a history of similar acts on the property or in the area.
The Supreme Court of Indiana’s recent decision in Goodwin v. Yeakle’s Sports Bar & Grill, Inc., 62 N.E.3d 384 (Ind. 2016), however, stopped using the “totality of the circumstance” test because it “[f]ocuses on the particular facts of the case rather than a broader inquiry, [and] it is ill-suited to determine foreseeability in the context of duty.” Instead, the Court adopted a new approach for determining whether an act is foreseeable in the context of a duty by assessing “whether there is some probability or likelihood of harm that is serious enough to induce a reasonable person to take precautions to avoid it.”
Thus, in order for landlords and property owners to reduce their potential liability, they must observe their duty to protect tenants, patrons and invitees against criminal acts of which there is “some probability or likelihood of harm that is serious enough to induce a reasonable person to take precautions to avoid it.” While this may appear to be a low standard, landlords and property owners should remain aware of activity in and around their properties and take actions or implement safeguards when there is a foreseeable act of violence. In addition to other methods, this may include requiring tenants and patrons to report known actions and suspicious activities, as well as the landlord/property owner being aware of the type and frequency of crime in the surrounding area.
About the Author
Shannon S. Frank, a Partner at Kahn, Dees, Donovan & Kahn, LLP (KDDK), in Evansville, Indiana, has more than 25 years’ experience in the practice of business law, construction law, estate planning and probate administration, health care law, and real estate law. Shannon takes prides in giving exceptional service to her clients, recognizing that relationships with clients play a significant and essential role in providing tailored and comprehensive legal advice.