McClung v. Delta Square Ltd. Partnership

OPINION

This case presents the question of the continued viability of Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975), in which this Court strictly limited the duty of care owed by owners and occupiers of business property to customers. Here, plaintiffs wife, a customer at a shopping center, was abducted from the parking lot, and later raped and murdered. Plaintiff sought recovery against defendants, owners, operators, and tenants, based on negligence for not providing security in their parking lot. The trial court granted summary judgment in favor of defendants and the Court of Appeals affirmed. We granted plaintiffs application for permission to appeal to review the standard for determining business owner liability for injuries occurring on the business premises and caused by the criminal acts of third parties.

I.

On September 7, 1990, thirty-seven year-old Dorothy McClung, plaintiffs wife, went shopping at Wal-Mart in the Delta Square Shopping Center in Memphis. As she was returning to her parked car around noon, *894 Mrs. McClung was abducted at gunpoint and forced into her car by Joseph Harper, a fugitive from Chattanooga. 1 Later, Harper raped Mrs. McClung and forced her into the trunk of her car where she suffocated. Her body was found by hunters in a field in Arkansas the day after the abduction. Harper confessed, and was convicted of kidnapping, rape, and murder. He committed suicide after being sentenced to life in prison.

Plaintiff filed suit against defendants on his own behalf and on behalf of his and Mrs. McClung’s three minor children. In his suit, he alleged that defendant Wal-Mart, the anchor tenant at the Delta Square Shopping Center, and defendant Delta Square, the owner and operator of the center, were negligent in failing to provide security measures for the parking lot and that their negligence was the proximate cause of Mrs. MeCIung’s death.

Feeling compelled to follow this Court’s decision in Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975), the trial court reluctantly granted defendants’ motions for summary judgment. The trial judge noted that he was “bothered by the view that the entrepreneur has no responsibility irrespective of the nature of the risk created outside of the place of business — the risk of criminal activity.” In affirming the grant of summary judgment, the Court of Appeals observed that “[a]l-though the Supreme Court may wish to adopt a broader rule of liability for shopping center owners, operators, and merchant tenants, we are constrained to follow the test established in Compropst” We granted review to determine whether the decision in Compropst should be retained as the rule for determining liability under circumstances in which injury occurring on business premises is caused by the criminal acts of third persons.

II.

A.

As is noted, this ease is before the Court on the trial court’s grant of summary judgment. Therefore, we must review the record without attaching any presumption of correctness to the trial court’s judgment to determine whether the absence of genuine issues of material facts entitle defendants to judgment as a matter of law. Carvell v. Bottoms, 900 S.W.2d 23 (Tenn.1995); Anderson v. Standard Register Co., 857 S.W.2d 555 (Tenn.1993); Byrd v. Hall, 847 S.W.2d 208 (Tenn.1993). In reviewing the record, we must view the evidence in the light most favorable to plaintiff and draw all inferences in plaintiff’s favor. If both the facts and conclusions to be drawn from the facts permit a reasonable person to reach only one conclusion, summary judgment should be granted. Carvell v. Bottoms, 900 S.W.2d at 26.

B.

To establish negligence, one must prove: (1) a duty of care owed by defendant to plaintiff; (2) conduct falling below the applicable standard of care that amounts to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate, or legal, cause. McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn.1995). Our focus here is primarily on the first element: the duty of care. That question — the duty which the defendant owed plaintiff — is a question of law to be determined by the court. Pittman v. Upjohn Co., 890 S.W.2d 425, 428 (Tenn.1994); Bradshaw v. Daniel, 854 S.W.2d 865, 869 (Tenn.1993).

We have defined duty of care to be the legal obligation owed by defendant to plaintiff to conform to a reasonable person standard of care for protection against unreasonable risks of harm. McCall v. Wilder, 913 S.W.2d at 153. The “imposition of a legal duty reflects society’s contemporary policies and social requirements concerning the right of individuals and the general public to be protected from another’s act or conduct.” Bradshaw v. Daniel, 854 S.W.2d at 870. “Indeed, it has been stated that *895 ‘duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.’ ” Id. (quoting W. Keeton, Prosser and Keeton on the Law of Torts § 53 at 358 (5th ed. 1984)); accord Craig v. A.A.R. Realty Corp., 576 A.2d 688, 692 (Del.Sup.1989) (duty is “frequently an expression by the court of evolving public policy”).

Assuming a duty is owed, it must be determined whether defendant has exercised reasonable care under the circumstances. McCall v. Wilder, 913 S.W.2d at 153. If defendant has not, the duty has been breached. Id. at 153-54. In this regard, we have observed that “[t]he term reasonable care must be given meaning in relation to the circumstances. Ordinary, or reasonable, care is to be estimated by the risk entailed through probable dangers attending the particular situation and is to be commensurate with the risk of injury.” Doe v. Linder Const. Co., Inc., 845 S.W.2d 173, 178 (Tenn.1992) (citations omitted).

The trial court and the Court of Appeals based the award of summary judgment in this case on Cornpropst v. Sloan, 528 S.W.2d 188 (Tenn.1975), in which this Court held that shop owners do not owe to customers a duty to protect them against criminal acts of third parties unless the owner knew or should have know the acts were occurring or about to occur. In that case, decided more than two decades ago, a female shopper, while walking to her car in a shopping center’s parking lot, was assaulted and narrowly escaped being kidnapped. She sued the shopping center’s owners, operators, and tenants for negligence in failing to provide adequate security measures to protect customers from reasonably foreseeable criminal conduct. She alleged that there were no security guards in the parking lot and that no other protective measures were used or installed. She claimed that, prior to her attack, other acts of violence had occurred either on the premises or in the immediate area of the shopping center. Cornpropst v. Sloan, 528 S.W.2d at 190-91. Thus, plaintiff contended that defendants were negligent in that they “knew, or in the exercise of reasonable care and ordinary care should have known ... that the Plaintiff invitee would be exposed to potential danger and personal harm, and unprotected against criminal acts_” Id. at 191.

The Court in Compropst began its analysis by observing that the common law imposed no duly on anyone, except the government, to protect others from criminal acts of unknown third persons, even though it did impose upon merchants a duty to exercise reasonable care to maintain their premises in a reasonably safe condition. Cornpropst v. Sloan, 528 S.W.2d at 191. The Court noted, however, that exceptions to the common law rule had developed in circumstances in which a “special relationship”, such as a common carrier and passenger or innkeeper and guest, existed between the parties, but refused to base liability on the relationship between the owner or occupier of business property and the customer. Id. at 191-93.

Choosing to follow the then-prevailing rule, the Compropst Court refused to impose a duty in the case which it characterized as involving “vague allegation[s] that various crimes, assaults and other acts of violence had been committed either on the premises or in the immediate area.” Id. at 193. The Court deemed it unfair to impose a duty upon the shopping center owner because the attacker “gave no notice by word, act, dress or deed prior to the commission of the attack that would have indicated to anyone an intention of purpose to commit an assault.” Id. at 197. In affirming the dismissal of the complaint, the Court adopted the following rule, which has become the analytical focal point in these types of cases:

There is no duty upon the owners or operators of a shopping center, individually or collectively, or upon merchants and shopkeepers generally, whose mode of operation of their premises does not attract or provide a climate for crime, to guard against the criminal acts of a third party, unless they know or have reason to know that acts are occurring or about to occur on the premises that pose imminent probability of harm to an invitee; whereupon a duty of reasonable care to protect against such act arises.

*896 Id. at 198 (emphasis added). Thus, Com-propst established the principle in Tennessee that businesses not attracting or providing a favorable environment for crime have no duty to protect customers, unless (1) the business knows or has reason to know that criminal acts are occurring or about to occur on the premises, which (2) pose an imminent probability of harm to a customer. In determining whether the business had reason to know, the Court concluded that “[c]onditions in the area [of the defendant business] are irrelevant.” Id. at 197.

The Court’s decision was not unanimous. In a dissent, Justice Henry opined that the standard “affords virtually no protection to shopping center invitees ... and virtually immunizes the owner against liability....” Id. at 200 (Henry, J., dissenting). He found the rule to be unduly restrictive and “not in the best interest of the consuming public” given the “modern phenomenon of merchandising and marketing through community shopping centers” that result in “enormous congregations of potential and actual shoppers in relatively compact areas_” Id. at 199-200 (Henry J., dissenting). Justice Henry advocated (as did the trial judge in this case) the adoption of the rule expressed in the Restatement (Second) of Torts, § 344 (1965). That rule provides:

A possessor of land who holds it open to the public for entry for ... 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.

Cornpropst v. Sloan, 528 S.W.2d at 201 (Henry, J., dissenting). Justice Henry relied specifically upon comment (f) to section 344 2 to suggest that a merchant might know or have reason to know of the likelihood of criminal conduct by unknown third persons based upon past experience. Therefore, he suggested that a duty of care should be present in such circumstances even though the merchant has no reason to expect criminal conduct by any particular person at a particular time. The Compropst majority labeled the Restatement approach as “patently unfair and unjust” because it was based on a “vague” duly. Id. at 195.

Although Cornpropst is the only case of its kind decided by this Court, the Court of Appeals has decided several similar cases. See, e.g., Lewter v. O’Connor Mgmt. Inc., 886 S.W.2d 253 (Tenn.App.1994), Gray v. McDonald’s Corp., 874 S.W.2d 44 (Tenn.App.1993); Page v. American Nat. Bank & Trust Co., 850 S.W.2d 133 (Tenn.App.1991). These decisions and others not reported have interpreted Compropst’s “imminent probability” requirement to require “actual notice of the imminent probability of the [criminal] act, as distinguished from the knowledge that other similar acts had occurred in the past and similar acts might occur in the future.” See, e.g., Lender v. O’Connor Mgmt. Inc., 886 S.W.2d at 258. An unreported case has construed Compropst’s imminent harm requirement to be present only if criminal acts were presently occurring or about to occur on defendant’s premises. The intermediate court has declined to deem past criminal acts as sufficient to give defendant notice and consistently has deemed conditions in the area surrounding defendant’s premises as irrelevant. See, e.g., Gray v. McDonald’s Corp., 874 S.W.2d at 45. No Tennessee case has found that facts similar to those in Com-propst or in the case before the Court im *897 posed a duty of care upon which liability could be based. 3

C.

The Compropst Court had little case law to guide its decision. See generally Annotation, Liability of Owner or Operator of Shopping Center, or Business Housed Therein, for Injury to Patron on Premises from Criminal Attack by Third Party, 93 A.L.R.3d 999 (1979). Since Compropst, however, numerous courts and commentators have considered a business owner’s duty to protect its customers from injuries caused by criminal acts of unknown third persons. 4 Not only has the subject received considerable attention in the legal literature, courts, as a result of the prevalence of violent crimes at commercial establishments, have reexamined the law. See Craig v. A.A.R. Realty Corp., 576 A.2d at 693 n. 4 (“As the means of merchandising has changed to shopping centers and malls with attendant private parking, the common law concerning the business property owner’s liability to customers for personal injury by criminal attacks ... in the parking lots has also been undergoing drastic change.”); Comment, Business Owners’ Duty to Protect Invitees from Third-Party Criminal Attacks, 54 Mo. L. Rev. 443, 455 (1989)(“The imposition of liability upon business owners for third-party criminal attacks upon their premises is quickly becoming a well recognized and viable theory of recovery.”); see also Comment, Business Inviters’ Duty to Protect Invitees From Criminal Acts, 134 U. Pa. L.Rev. 883, 886 (1986). Parking lots in particular have provided fertile ground for crime because customers usually possess money or recently purchased merchandise. Thus, the criminal “in search of valuables need not take a chance on the unknown assets of some passerby.” Id. at 886. Even so, while courts agree that businesses have a duty to exercise reasonable care in maintaining their premises in a reasonably safe condition, disagreement still exists on whether that duty encompasses taking any measures to protect customers from injuries caused by the criminal acts of unknown third persons. Id. at 888.

In the early cases, courts generally denied recovery to customer victims under the theory that the business had no duty to protect its patrons from criminal attacks. See, e.g., Davis v. Allied Supermarkets, Inc., 547 P.2d 963 (Okla.1976); Cook v. Safeway Stores, Inc., 354 A.2d 507 (D.C.Cir.1976); Nigido v. First Nat. Bank of Baltimore, 264 Md. 702, 288 A.2d 127 (1972); Radloff v. Nat. Food Stores, Inc., 20 Wis.2d 224, 121 N.W.2d 865 (1963); Goldberg v. Housing Auth. of Newark, 38 N.J. 578, 186 A.2d 291 (1962) 5 . The initial reluctance to impose a duty was attributed to several reasons, including general principles of fairness given the unpredictable *898 nature of criminal conduct, see, e.g., Goldberg v. Housing Auth. of Newark, 186 A.2d at 297 6 ; Davis v. Allied Supermarkets, Inc., 547 P.2d at 965; 7 fear of creating an undue economic burden upon commercial enterprise and the consuming public, see, e.g., Nappier v. Kincade, 666 S.W.2d 858, 860 (Mo.App.1984); belief that protecting citizens is a function of the government that should not be shifted to the private sector, see, e.g., id.; desire that merchants not become insurers of customer safety, see, e.g., Shaner v. Tucson Airport Auth., Inc., 117 Ariz. 444, 573 P.2d 518, 522 (App.1977); and the notion that the criminal’s act constituted a superseding, intervening cause sufficient to break the causa-tional chain of liability, see, e.g., Ford v. Monroe, 559 S.W.2d 759, 762 (Mo.App.1977). These justifications for not imposing a duty relied upon in Compropst, form the basis of defendants’ argument here.

Notwithstanding the reluctance to impose a duty on business owners, the majority of courts that have considered the issue have been unwilling to hold that a business never has a duty to protect customers from crimi- . nal acts. Instead, most have held that, while not insurers of their customers’ safety, businesses do have a duty to take reasonable precautions to protect customers from foreseeable criminal acts. Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46-47 (Colo.1987). This is the position taken in section 344 of the Restatement (Second), comment f, and followed by several states. See, e.g., Zueger v. Carlson, 542 N.W.2d 92, 96-97 (N.D.1996); Erichsen v. No-Frills Supermarkets, 246 Neb. 238, 518 N.W.2d 116, 118-19 (1994); Mundy v. Dept. of Health & Human Res., 620 So.2d 811, 813-14 (La.1993); Cotterhill v. Bafile, 177 Ariz. 76, 865 P.2d 120, 122-23 (App.1993); Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 864 P.2d 796, 799 (1993); Taco Bell, Inc. v. Lannon, 744 P.2d at 48; Madden v. C & K Barbecue Carryout, Inc., 758 S.W.2d 59, 62 (Mo.1988); Jardel Co., Inc. v. Hughes, 523 A.2d 518, 525 (Del.1987); Martinko v. H-N-W Associates, 393 N.W.2d 320, 321-22 (Iowa 1986); Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141, 1145-46 (1982); Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 281 S.E.2d 36, 38-39 (1981); Nallan v. Helmsley-Spear, Inc., 50 N.Y.2d 507, 429 N.Y.S.2d 606, 612-14, 407 N.E.2d 451, 457-58 (1980); Uihlein v. Albertson’s, Inc., 282 Or. 631, 580 P.2d 1014, 1018 (1978); see also Donnell v. Spring Sports, Inc., 920 S.W.2d 378, 383 (Tex.Civ.App.1996) (duty imposed when third party’s criminal conduct is a foreseeable result of premise’s owner’s negligence); Ann M. v. Pacific Plaza Shopping Center, 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 142, 863 P.2d 207, 212 (1993) (foreseeability is crucial factor in determining existence of duty to protect against criminal acts); Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 856 P.2d 1332, 1338 (1993) (duty to protect patrons exists when business “could reasonably foresee that its customers have a risk of peril above and beyond the ordinary and that appropriate security means should be taken.”); Shell Oil Co. v. Diehl, 205 Ga.App. 367, 422 S.E.2d 63, 64 (1992) (“The proprietor of a business has a duty, when he can reasonably apprehend danger to a customer from the misconduct of [others] to exercise ordinary care to protect the customer....”); Lucht v. Stage 2, Inc., 239 Ill.App.3d 679, 179 Ill.Dec. 918, 922, 606 N.E.2d 750, 754 (1992) (businesses owe customers a duty “to reasonably guard against *899 acts of third parties when such attacks are reasonably foreseeable”); Erickson v. Curtis Inv. Co., 447 N.W.2d 165, 168-69 (Minn.1989) (duty to protect patrons depends, in part, on foreseeability of risk involved); Bullard v. Ehrhardt, 283 S.C. 557, 324 S.E.2d 61, 62 (1984) (“The duty of a store owner to its invitees is to take reasonable care to protect them. This duty does not extend to protection from criminal attacks from third parties unless the store owner knew or had reason to know of the criminal attack.”).

Based on this analysis of the decisions of other jurisdictions, we must disavow the observation made in Compropst that “conditions in the area [of the defendant business] are irrelevant” in assessing the foreseeability of a criminal act. Cornpropst v. Sloan, 528 S.W.2d at 197. It makes little sense to ignore the frequency and nature of criminal activity in the immediate vicinity of the business, such as an adjacent parking lot, if the crucial inquiiy is the foreseeability of a criminal act occurring on defendant’s premises. Conditions in the immediate vicinity of defendant’s premises are relevant in making this determination. We also find that foreseeability of harm on which liability may be imposed is not limited to criminal acts of third parties that are known or should be known to pose an imminent probability of harm to customers. Id. at 198. Conditions other than those which pose an imminent threat to persons on the premises are relevant to the foreseeability of harm.

We, therefore, join those courts which generally impose a duty upon businesses to take reasonable measures to protect their customers from foreseeable criminal attacks. Because those courts do not universally agree on the meaning of “foreseeability,” further consideration is required. In determining foreseeability, some courts have utilized the so-called “prior incidents rule.” See, e.g., Polomie v. Golub Corp., — A.D.2d-, 640 N.Y.S.2d 700 (1996); Thiele v. Rieter, 838 S.W.2d 441 (Mo.Ct.App.1992); Galloway v. Bankers Trust Co., 420 N.W.2d 437 (Iowa 1988); Tolbert v. Captain Joe’s Seafood, Inc., 170 Ga.App. 26, 316 S.E.2d 11 (1984); Taylor v. Hocker, 101 Ill.App.3d 639, 57 Ill.Dec. 112, 428 N.E.2d 662 (1981). Under this rule, plaintiff must introduce evidence of prior incidents of crime on or near defendant’s premises in order to establish foreseeability. Courts vary, however, on whether the prior crimes must be of the same general type and nature as the present offense. See, e.g., Taylor v. Hocker, 57 Ill.Dec. at 114-15, 428 N.E.2d at 664-65 (holding that previous crimes against property were insufficient to give rise to a duty to protect customers from personal assaults); Polomie v. Golub Corp., 640 N.Y.S.2d at 701 (“[TJhere is no requirement that the past experience relied on to establish foreseeability be of the same type of criminal conduct to which plaintiff was subjected....”); Jardel Co., Inc. v. Hughes, 523 A.2d at 525 (limiting the foreseeability standard to the same crime as the one complained of is unrealistic because “[s]o called ‘property crimes,’ such as shoplifting, may turn violent if a chase ensues-”); Galloway v. Bankers Trust Co., 420 N.W.2d at 439 (same). The modern trend, however, does not deem foreseeability as necessarily dependent upon evidence of the same type of prior crimes occurring on or near defendant’s premises, Doud v. Las Vegas Hilton Corp., 864 P.2d at 799-800, but requires “inquiry [into] the location, nature and extent of previous criminal activities and their similarity, proximity or other relationship to the crime in question.” Polomie v. Golub Corp., 640 N.Y.S.2d at 701.

The prior incidents approach to foreseeability has been lauded as preventing businesses from effectively becoming insurers of public safety since “[i]t is difficult, if not impossible, to envision any locale open to the public where the occurrence of violent crime seems improbable.” Ann M. v. Pacific Plaza Shopping Center, 25 Cal.Rptr.2d at 144-46, 863 P.2d at 215-16. At the same time, the rule has been labeled “fatally flawed” in several respects:

First, the rule leads to results which are contrary to public policy. The rule has the effect of discouraging landowners from taking adequate measures to protect premises which they know are dangerous. This result contravenes the policy of preventing future harm. Moreover, under the rule, the first victim always loses, while subse *900 quent victims are permitted recovery. Such a result is not only unfair, but it is inimical to the important policy of compensating injured parties. Surely, a landowner should not get one free assault before he can be held liable for criminal acts which occur on his property.

Second, a rule which limits evidence of foreseeability to prior similar criminal acts leads to arbitrary results and distinctions. Under this rule, there is uncertainty as to how “similar” the prior incidents must be to satisfy the rule. The rule raises a number of other troubling questions. For example, how close in time do the prior incidents have to be? How near in location must they be? The rule invites different courts to enunciate different standards of foreseeability based on their resolution of these questions.

Third, the rule erroneously equates foreseeability of a particular act with previous occurrences of similar acts.... “[T]he fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts.”

Finally, the “prior similar incidents rule” improperly removes too many cases from the jury’s consideration. It is well-established that foreseeability is ordinarily a question of fact.

Isaacs v. Huntington Memorial Hosp., 38 Cal.3d 112, 211 Cal.Rptr. 356, 361-63, 695 P.2d 653, 658-59 (1985) (citations omitted).

Because of these criticisms, several courts have rejected the prior incidents rule in favor of a “totality of the circumstances” approach, in which the foreseeability of criminal conduct may be determined by considering all of the circumstances including the nature or character of the business, its location, and prior incidents of crime, if any. See, e.g., Doud v. Las Vegas Hilton Corp., 864 P.2d 796; Seibert v. Vic Regnier Builder’s Inc., 856 P.2d at 1332; Reitz v. May, 66 Ohio App.3d 188, 583 N.E.2d 1071 (1990); Isaacs v. Huntington Memorial Hosp., 211 Cal.Rptr. 356, 695 P.2d 653. The totality approach seeks to avoid determining foreseeability by the “rigid application of a mechanical” prior incidents rule, Isaacs v. Huntington Memorial Hosp.,