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DTCI: Premises liability for the criminal acts of others

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freybergerIndiana premises liability jurisprudence may be changing. If it does, being a business owner in Indiana will be increasingly risky. Not a risk premised on how good the business person may be, but premised on whether a crime will occur at the business and harm a customer, visitor or guest.

In March 2012, the Indiana Court of Appeals decided Santelli v. Rahmatulla, 966 N.E.2d 661 (Ind. Ct. App. 2012). There, it was held that a premises owner could be jointly liable for the intentional criminal acts of a third party. If a jury determined the premises owner did not provide reasonable security in a given situation, that business owner would be held responsible for the full verdict, despite the fact that a co-defendant committed the crime. Part of the court’s rationale supporting the decision was the insurability of the premises owner compared to the inability of a victim to collect from the perpetrator. Transfer has been granted in this case, and oral argument is scheduled for Feb. 14.

In July 2012, the Court of Appeals issued Alea London, Ltd v. Nagy, 970, N.E.2d 272 (Ind. Ct. App. 2012), in a memorandum decision. There, the court validated a provision in a bar owner’s commercial general liability policy excluding injuries sustained by assault and/or battery from coverage. While this decision is unpublished and sets no precedence, it undoubtedly implicates the prior Santelli decision. While the holding in Santelli was premised on insurability, the court in Alea London Ltd. gives the insurer the ability to exclude criminal acts of third parties from coverage. The likely consequence is that insurance companies will begin excluding coverage for the criminal acts of others from their commercial general liability policies.

The evolving trend in these cases is a weakening standard in judging whether the landowner owes a duty to protect the invitee from a criminal act by a third party. Indiana has long followed the Restatement (Second) of Torts (1965) § 344, which provides that a possessor of land who holds it open to the public owes a duty to discover that criminal acts are occurring, or are likely to occur, and to give a warning that is adequate to enable the visitors to protect against it. The existence of this duty is normally a question of law. Comment f to Section 344 states that the possessor of the land is not an insurer of the visitor’s safety and owes no duty to a visitor until he knows or has reason to know that the criminal acts are occurring or about to occur. Whether the landowner has such reason to know of the criminal act is determined by the “totality of the circumstances” test first enunciated in Delta Tau Delta v. Johnson, 712 N.E. 2d 968 (Ind. 1999).

The problem with this test is that it is a nebulous, fact-sensitive determination and leads to inconsistent results. For instance, in Santelli, a hotel maintenance worker walked off his job and stole a master key card. He returned thereafter and murdered a guest. The guest’s estate sued both the hotel owner and the former maintenance man who committed the murder. The jury found the owner was negligent in hiring the former maintenance man because he failed to conduct a background check, failed to retrieve a master key card from him when he quit, and generally failed to provide adequate security. Based on the decision, it appears that liability in Santelli was premised on the hotel owner’s failure to investigate his worker’s criminal history. Based on this rationale, and with the pervasiveness of crime today, it seems that every business owner should have reason to believe a crime could be committed on his property.

Business owners in Indiana will face the prospect of having to conduct criminal background checks on all prospective employees in order to prevent liability for the employee’s criminal acts on his premises. Every potential employee, visitor or patron will be suspect. Hiring convicted criminals will no longer be an option. Providing temporary housing for those on parole or probation will prescribe potential liability on the landowner in the event of on-premises recidivism. Ultimately, business owners and landowners will have no choice but to deny jobs, housing and services to anyone who has a criminal history, because to continue offering it would be to assume liability in the event that person commits another crime. While the owner’s liability for another’s crime is premised on insurability, there will ultimately be no such coverage due to valid exclusions.

Yes, it is risky to own a business in Indiana … now, more than ever.•

__________

Mr. Freyberger is a partner in the Evansville office of Kahn Dees Donovan & Kahn and is a director of the Defense Trial Counsel of Indiana. The opinions expressed in this article are those of the author.

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  1. Applause, applause, applause ..... but, is this duty to serve the constitutional order not much more incumbent upon the State, whose only aim is to be pure and unadulterated justice, than defense counsel, who is also charged with gaining a result for a client? I agree both are responsible, but it seems to me that the government attorneys bear a burden much heavier than defense counsel .... "“I note, much as we did in Mechling v. State, 16 N.E.3d 1015 (Ind. Ct. App. 2014), trans. denied, that the attorneys representing the State and the defendant are both officers of the court and have a responsibility to correct any obvious errors at the time they are committed."

  2. Do I have to hire an attorney to get co-guardianship of my brother? My father has guardianship and my older sister was his co-guardian until this Dec 2014 when she passed and my father was me to go on as the co-guardian, but funds are limit and we need to get this process taken care of quickly as our fathers health isn't the greatest. So please advise me if there is anyway to do this our self or if it requires a lawyer? Thank you

  3. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  4. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  5. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

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