Posecai v. Wal-Mart Stores, Inc.

Court of Appeal of Louisiana, Fifth Circuit · 1999 · Torts

Tortspremises liabilitythird-party criminal actscomparative faultpremises liabilitybusiness owner dutyparking lot securityforeseeability

Facts

Plaintiff was robbed at gunpoint in Sam's parking lot after leaving the store at about 7:20 p.m., and the robber stole jewelry and a wallet. Sam's had a police officer on detail at the store, but his duty was to secure the cash office, not patrol the parking lot. Plaintiff's expert reviewed police data and concluded that Sam's was located in a high-crime area, that parking-lot armed robbery was foreseeable, and that monitoring the lot likely would have prevented the incident. Sam's had no policy or procedures aimed at patron safety in the parking lot, and after the robbery it added roving patrols and exterior surveillance cameras.

Issue

Did Sam's owe and breach a duty to protect plaintiff from the armed robbery in its parking lot, making it liable for her losses and mental anguish? If so, could fault properly be apportioned between Sam's negligence and the intentional criminal's armed robbery?

Rule

Under Louisiana duty-risk analysis, a proprietor generally must exercise reasonable care for the safety of persons on the premises and avoid exposing them to unreasonable risks of harm, but that duty does not extend to unforeseeable criminal acts of third persons. However, when the proprietor has assumed a duty to provide protection against criminal misconduct, liability may arise from negligent breach of that duty; additionally, if the place, character of the business, or past experience makes criminal conduct reasonably anticipatable, the proprietor may have a duty to take precautions. As to comparative fault, under Veazey the allocation of fault between a negligent defendant and an intentional criminal nonparty is determined case by case with attention to public policy, including whether the defendant's duty encompassed the precise risk, whether apportionment would reduce deterrence, and whether negligent and intentional fault can meaningfully be compared.

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Lakeside Bulk Market operates a membership warehouse in Baton Rouge. It employs a uniformed off-duty officer whose assignment is to stand near the store entrance and protect the cash room, but the store has no parking-lot patrols or customer-safety procedures; police data show several robberies and purse snatchings on or immediately adjacent to the property over the past few years. One evening, Dana Ruiz is robbed at knifepoint beside her car in the lot.

Under the majority opinion’s approach, is Lakeside Bulk Market most likely subject to liability for Dana’s losses?

Explanation. The majority applied duty-risk analysis and held that a proprietor is not liable for unforeseeable third-party crime, but liability may arise where the proprietor assumed a duty to protect against criminal misconduct and where the place, character of the business, or past experience made crime reasonably anticipatable. A visible security presence assigned only to internal cash protection, coupled with no patron-safety procedures and a pattern of nearby predatory crime, supports duty, breach, and scope. The opinion does not create automatic liability for all crime, nor does it make subjective reliance a stated prerequisite in the majority’s analysis. (Derived from Posecai v. Wal-Mart Stores, Inc. (n.d.).)