One of the most commonly misunderstood areas of tort law, including within the legal community, is the issue of the fault of the assailant. When a plaintiff files a lawsuit alleging that the business failed to use reasonable care to protect a customer from foreseeable criminal conduct, at the surface level it seems logical that the criminal should share blame. But that is not the case.
To start, Washington’s Legislature defines “fault” in RCW 4.22.015 as, in relevant part, “acts or omissions, including misuse of a product, that are in any measure negligent or reckless toward the person or property of the actor or others.” There is, for lack of a better phrase coming to mind, a range of egregiousness in tort law, which starts with ordinary negligence, then goes to gross negligence, then recklessness, and then intentional acts. Washington’s comparative fault statute excludes intentional acts from the definition of “fault.”
But, how can the person most at fault, in a moral sense, not be at fault in the legal sense? To understand why, we first need to examine why the business has a duty to protect patrons in the first place.
In Nivens v. 7-11 Hoagy’s Corner, 133 Wn.2d 192, 195, 943 P.2d 286 (1997), Plaintiff Nivens parked his car and began entering a 7-11 in Tacoma, Washington. Before he could enter, a group of loitering youths asked him if he would buy them beer. Nivens refused. As he attempted to enter the store, the youths grabbed him from behind and assaulted him.
The Supreme Court acknowledged that it was confronted squarely with a major issue, and proceeded to resolve that issue:
We must decide if a business owes a duty to its invitees to protect them from criminal acts by third persons on the business premises. Because a business has a special relationship with them, it has a duty to take reasonable steps to protect invitees from imminent criminal harm or reasonably foreseeable criminal conduct by third persons.
Id. at 194. Nivens reasons, “As with physical hazards on the premises, the invitee entrusts himself or herself to the control of the business owner over the premises and to the conduct of others on the premises.” Id. Further, “We discern no reason not to extend the duty of business owners to invitees to keep their premises reasonably free of physically dangerous conditions in situations in which business invitees may be harmed by third persons.” Id. at 202-203.
As to the scope of the duty owed, Nivens expressly adopts the Restatement (Second) of Torts § 344 (1965):
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 of 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.
Id. at 203-204. The court recites the Comment for fuller clarification:
A public utility or other possessor of land who holds it open to the public for entry for his business purposes is not an insurer of the safety of such visitors against the acts of third persons, or the acts of animals. He is, however, under a duty to exercise reasonable care to give them protection. In many cases a warning is sufficient care if the possessor reasonably believes that it will be enough to enable the visitor to avoid the harm, or protect himself against it. There are, however, many situations in which the possessor cannot reasonably assume that a warning will be sufficient. He is then required to exercise reasonable care to use such means of protection as are available, or to provide such means in advance because of the likelihood that third persons, or animals, may conduct themselves in a manner which will endanger the safety of the visitor…. 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.
Id. at 204-205 (emphasis added, original emphasis omitted). The Nivens court concludes, “we hold a business owes a duty to its invitees to protect them from imminent criminal harm and reasonably foreseeable criminal conduct by third persons. The business owner must take reasonable steps to prevent such harm in order to satisfy the duty.” Id. at 205.
In short, a business has a special relationship with its customers because it attracts customers and benefits financially from their presence. It is only fair then, that if the business owner knows the business also attracts violent people, or there is otherwise a foreseeable risk of violence, he or she ought to take reasonable steps to prevent harm to the customers.
To put it another way, the law does not allow businesses to simply say, “criminals will be criminals.” Rather, when a business invites the customer into a foreseeable risk, the business has a responsibility to use reasonable care to prevent assault injuries.
In likening criminal assault to physical hazards on the premises, which is also a cause for premises liability, Washington’s Supreme Court essentially characterizes the criminal wrongdoer as a mechanism of injury in the negligence case against the business, rather than an at-fault party.
For that reason, any question as to the conduct of the assailant goes to causation, not fault. Did the business’s negligence allow (cause) the assault to occur, or would it have occurred anyway?
This issue was thoroughly examined and spelled out in Rollins v. King County Metro Transit, 148 Wn. App. 370, 199 P.3d 499 (Div. 1 2009). In Rollins, a bus passenger attacked by a number of assailants brought an action against the County for negligence in allowing the assault. The plaintiff did not name the tortfeasors as defendants. Id. at 374-76.
The court reported, “Metro proposed a jury instruction stating the plaintiffs must prove ‘the percentage of damages caused by negligent conduct and the percentage of damages caused by the assailants’ intentional conduct.” Metro requested a special verdict form requiring the jury to calculate such percentages pursuant to Tegman v. Accident & Medical Investigations, Inc., 150 Wn.2d 102, 75 P.3d 497 (2003). Id. at 376. Metro was wrong.
Rollins explains, “Tegman is about joint and several liability. Here, Metro is the only defendant and negligence is the plaintiffs’ only theory. To recover at all, plaintiffs had to prove their injuries were proximately caused by Metro’s negligence.” Id. at 379. Thus, liability is about the overlap between the negligence and the intentional conduct allowed by Defendants.
Rollins elaborates on the overlap between negligence and intentional harms:
The jury here was instructed that plaintiffs had to prove that Metro was negligent, that Metro’s negligence was a proximate cause of plaintiffs’ injury, that there may be more than one proximate cause of an injury, and that its verdict should be for Metro if it found the sole proximate cause of injury was a cause other than Metro’s negligence.
Id. at 379. The court declines to approve an instruction as to the percentage of damages caused by the defendant’s negligence and the percentage of damages caused by the intentional tortfeasor’s negligence because there is no segregation burden, especially where the intentional tortfeasor is not a party. Id. at 382.
The key in any case involving intentional harm is that there may be more than one proximate cause for an injury. That does not prevent an individual defendant from being 100% responsible if, for instance, the fact-finder determines that but for its failure to screen for weapons, the plaintiff would not have been shot. As WPI 15.04 states:
There may be more than one proximate cause of the same injury or event. If you find that the defendant was negligent and that such negligence was a proximate cause of injury or damage to the plaintiff, it is not a defense that the act of some other person who is not a party to this lawsuit may also have been a proximate cause.
In a successful claim for premises liability for criminal assault, both the business’s negligence and the assailant’s intentional acts caused the injuries. Causation is not apportioned–only fault is. Thus, there is no apportionment of anything to the assailant in a claim against a business for the negligent failure to protect customers.
Tenants in disputes with landlords are one of the most underserved populations in need of legal services. Landlords can afford to hire attorneys and attorneys are attracted to repeat clients. Tenants, on the other hand, are far less likely to need legal services again, and their claims are typically not large enough to entice lawyer involvement.
I have written about tenant rights, spoken to the media about claims against landlords, investigated suspicious fires that displaced tenants and destroyed their belongings, and discussed disputes with more than one hundred tenants throughout Western Washington. One point of confusion many tenants have is what relief they are entitled to (and is practically obtainable), and what they are not. It is impossible to address here every scenario, and the following is not intended to be legal advice, but rather, general principles often applicable to common landlord-tenant disputes. Nothing here should take the place of or be considered as actual legal advice applicable to your case and situation.
Remedies Available to Tenants
- Generally, if a landlord violates his or her duties under the Residential Landlord Tenant Act (RLTA), the most common relief available is for a tenant to move out before termination of the lease agreement. There are too many caveats and prerequisites to list here, but the points below elaborate on why moving out is the primary and most practical relief available.
- Even though it seems more practical than moving somewhere else, a tenant cannot always force a landlord to bring a rental up to par with your expectations under the lease, or even up to code. Sometimes landlords cannot afford it. Sometimes landlords do not care to rent the unit out. This does not mean, however, that the landlord can go rent the same unit, not up to code, to another tenant. There are significant penalties for landlords who rent a condemned dwelling.
- If monetary damages are available, they typically fall under one of these two categories: (1) moving expenses, and (2) deposit refund. If a tenant is forced to move out early or on short notice, he or she may be entitled to compensation for moving expenses and other increased costs. As for the deposit refund, the RLTA spells out very specific requirements for landlords demanding security deposits as the outset of the tenancy. Namely, the landlord must have the tenant fill out a move-in inspection form (identifying defects in the dwelling so the tenant cannot be held responsible for them later), and the landlord must mail the tenant, within 14 days of move-out, an itemized list of deductions from the deposit, and any refund. These issues are more complex than they sound, however, so you should consult with an attorney if you have concerns over your deposit. More on what a landlord can charge you for below.
- A tenant can make a claim for damage to his or her personal property resulting from the landlord’s breach of his or her duties under the RLTA. For instance, if a tenant reports to a landlord in writing the consistent spread of mold, and the landlord fails to reasonably begin remedying the problem within the time provided under the Act, the landlord can be liable to replace property damaged by the spread of mold, provided that the tenant also used reasonable care to prevent the mold from spreading. On that note, as an important caveat, generally the tenant is responsible for preventing mold from growing and spreading, unless there is something about the dwelling itself that is conducive to mold growth, e.g. insufficiently sealed windows, rotted drywall or wall studs.
- Under most circumstances, there are no punitive damages in Washington. This means a landlord generally cannot be punished by being forced to pay damages commensurate with the egregiousness of the conduct. Rather, Washington law primarily allows for compensatory damages for actual losses.
- In most cases, emotional distress and other “non-economic” damages–those for which there is no price tag–are not recoverable in landlord-tenant disputes.
What a Landlord Can Charge For
There is considerable confusion (and sometimes worse) regarding what a landlord can and cannot charge you for, often times for landlords and their lawyers. Here are some more general principles. Again, nothing below should replace actual legal advice applicable to your case and situation.
- A tenant cannot be charged for “reasonable wear and tear.” This term is difficult to define generally, but as an example, flattening or slight fraying of a carpet due to ordinary, repeated traveling on it. In contrast, accidentally burning a hole in carpet is typically not reasonable wear and tear. Generally, reasonable wear and tear refers to the natural aging of products through everyday use. Things that are not reasonable wear and tear generally result from one specific incident.
- One of the most commonly disputed facts is what property damage existed prior to move-in, and what did not. The move-in inspection form is supposed to reduce or eliminate such dispute, but it only works if tenants take it seriously and document all damage they see upon move-in.
- A landlord typically cannot charge you the cost of brand new carpet or a brand new appliance. More often, the landlord can only charge the cost to replace a similarly used carpet or stove. For instance, if a tenant ruins a carpet that is 9 years old with a 10 year expected life, the tenant will owe the landlord for the lost year, or 10% of the cost. Often times landlords attempt to get tenants to finance “new stuff” for the unit, a tactic not supported under Washington law. If a landlord’s property is damaged, he or she is entitled to be put in the same position he would have been in but for the damage, but not a better position, with the tenant paying for brand new carpet.
No blog post can advise you as to legal rights and steps to take in your specific situation because there are too many variables involved: the terms of the lease, the facts and evidence available, and the ordinances in any given municipality, which may be more restrictive than State law. Because everyone should consult with a lawyer, and yet finding a lawyer is so difficult for tenants, I’ve compiled a list of tenant resources below.
UW Student Legal Services (for active UW students)