While a business does not have an obligation to absolutely insure the safety of their customers, they do have an obligation to take reasonable precautions to protect them from criminal acts that are foreseeable.
The recent tragic events in Aurora, Colorado left me wondering how the gunman was able to purchase a ticket and enter the theater, then apparently leave the theater through an emergency exit, prop the door open, then change in the parking lot into full body armor, and then reenter the theater through this emergency exit with an arsenal of high powered weapons and start shooting.
Most emergency exits that I have seen at theaters have an alarm that will sound when such a door is opened, and I wonder why this theater in Colorado apparently didn’t have such an alarm. I suspect that the owners of this theater and their liability insurer are now wondering the same thing!
While the laws of every state are different, Indiana has adopted the legal principle which is set forth in a legal treatise called the Restatement (Second) of Torts § 344 regarding the obligations of a business owner to provide security for their guests. The basic rule is that business owner may be liable for the criminal acts of a third person if the owner failed to use reasonable care to protect their customers.
While a business does not have an obligation to absolutely insure the safety of their customers, they do have an obligation to take reasonable precautions to protect them from criminal acts that are foreseeable. The big question in such cases is what was foreseeable?
In considering this question, Indiana courts consider many factors such as the nature of the criminal act and whether there were prior similar incidents. However, the lack of a prior similar incident will not prevent a claim when the business owner knew or reasonably should have known that the criminal act was foreseeable.
In the Aurora, Colorado case, whether it was foreseeable that a criminal and/or mentally ill person might enter through an emergency exit and assault patrons of the theater is likely to be a hotly contested issue. In any event, such an act is foreseeable now. While the hiring of armed security guards at every theater might not be practical, “reasonable precautions” that a business owner should take may be as simple as making sure that locks and alarms are in working order.
What happened in Aurora, Colorado does make people wonder, “How often am I in a situation where there is a lack of reasonable security?” Probably more than one might think. Recently, I was traveling with my family on a vacation when we stopped to stay overnight at a roadside hotel that was part of a national chain. As I was carrying luggage into the rear of the hotel from a dimly lighted parking lot, I noticed that a back door to the hotel that was supposed to only open with a room key was standing open. In fact, the lock was broken and anyone could walk into the hotel from the rear parking lot.
When I went to the front desk of the hotel and told the clerk about this problem she replied that the hotel had known about the problem for a month, but just hadn’t gotten around to fixing it yet. At that point, I loaded my family back into our car and we went to another hotel.
In that situation, it was entirely foreseeable to the hotel owner that a criminal might enter the hotel through an unsecured back door in the late evening or early morning hours and rob or assault a guest, especially since there were many women and children at the hotel.
While most business owners and corporations are conscientious regarding the safety of their customers, it would appear that for others, only the threat of a lawsuit can provide the necessary motivation for them to act responsibly for the safety of their guests. No one can prevent criminals or mentally ill people from doing bad things all the time but reasonable precautions can make the doing of such awful things more difficult so that the event may never happen in the first place. As the old adage goes, “an ounce of prevention is worth a pound of cure any day.”
