One of the worst nightmares property owners can have when they become landlords is that of an unknown assailant entering their property and committing a crime against one of their tenants. An assault, a shooting, a rape or even murder? Could the victim or their family recover financially against the facility operator for the crime? Would the event entitle a recovery even if the criminal was not known to the facility operator?
This type of premises liability question has been addressed and debated by the courts for decades. Could a landlord be found liable for the injury or death of their customer based on a claim of negligent security on the premises? What would need to be shown for the facility operator to have any liability for the acts of an unknown third party who commits a crime without any involvement by the property owner?
There was a recent decision in the Georgia Supreme Court that may answer some of these ongoing questions. The Court in Georgia CVS Pharmacy, LLC v. Carmichael reaffirmed past decisions when it held that the landlord would owe no “duty” to its customers unless the crime that occurred was “reasonably foreseeable.” The Court did explain that, in order to determine whether a crime was “reasonably foreseeable”, they would need to establish “whether the totality of the circumstances relevant to the premises gave the proprietor sufficient reason to anticipate the criminal act giving rise to the plaintiff’s injuries on the premises.” In other words, what crimes, if any, had occurred previously on the premises to give the operator notice of the risk of those crimes happening again. And, as the court further examined, the crimes must be similar in nature to provide such notice of foreseeability.
Next the Court found that if the crime was “reasonably foreseeable” and the operator therefore had a “duty” to protect its customers from such crime, then the operator would only be liable if they “breached that duty” by failing to take or maintain sufficient security procedures to protect its customers. In other words, only if the plaintiff can present evidence that the operator violated the applicable standard of care for the known risk could there be a finding that the operator was liable.
In the Georgia CVS case, the Plaintiff James Carmichael was shot during an armed robbery that took place in the pharmacy’s parking lot. The jury found in favor of the victim and Plaintiff Carmichael and against CVS holding that the crime was “foreseeable”. Further, because it was foreseeable, the Court upheld the jury’s determination that CVS had not met the standard of care for security knowing that such crimes were foreseeable.
While self-storage facility operators, as landlords, owe a certain level of ordinary case to their customers, they are not otherwise “insurers of an invitee’s safety” while on the premises. This level of ordinary care increases when a risk is known and therefore foreseeable to an operator. The question then becomes whether the operator acted sufficiently to protect its customers once it had knowledge of that risk. In this case, the Court agreed with the lower court jury that CVS had not adequately protected its customers from the claimed foreseeable risk.
Such a holding is a warning to self-storage operators (and all landlords) that they must increase their security to protect their customers to manage known risks on their properties. Of course, there is a possibility that a court could find that an operator’s security measures were sufficient even once that duty of care has been determined, based on the recognition that not all risks can be removed from a situation.
How far must a landlord go to protect its tenants? As this case points out, the determination of whether a crime was foreseeable and whether the operator acted appropriately to protect and secure its tenants based on that knowledge may have far reaching impact on the future liability of landlords, including self-storage operators.
This article was originally published in Self Storage Legal Monthly Minute by Scott Zucker, August 2023
Scott Zucker is a founding partner in the Atlanta law firm of Weissmann Zucker Euster Morochnik & Garber P.C. and has been practicing law since 1987. Scott represents self-storage owners and managers throughout the country on legal matters including property development, facility construction, lease preparation, employment policies and tenant claims defense. He also provides, on a consulting basis, advice to self-storage companies in the areas of foreclosure and lien sales, premises liability and loss control safeguards. Scott can be reached at 404-364-4626 or by e-mail at Scott@wzlegal.com.