Why Criminal Assailants Are Not At “Fault” in a Business Premises Case

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.