Getting Up to Speed on Parking Lot Safety

To what extent are commercial property owners responsible for safeguarding their customers and tenants from criminal conduct on their properties? In a recent flurry of cases, several state and federal courts have examined the issue and have leaned toward requiring increased security measures, especially for parking structures.

The Courts’ Tests
Commercial property owners generally have a duty to reasonably protect their customers and tenants from foreseeable on-premise third-party criminal acts.

Courts traditionally have determined whether criminal activity is foreseeable by applying a "prior similar acts" approach, in which a crime is not considered foreseeable unless a pattern of similar crimes has occurred at the specific site. Recently, however, courts have shifted to a "totality of the circumstances" approach, in which courts consider all criminal incidents occurring on the landowner’s property and adjacent properties, as well as other types of evidence such as the nature, location, condition, and architectural design of the property.

These two approaches yield dramatically different results for the property owner. For example, in the 1996 Georgia case Doe v. Prudential-Bache, 222 Ga.App. 169, 474 S.E.2d 31, the Georgia Court of Appeals applied the traditional prior similar acts test and found that a history of nine prior thefts and three prior acts of violence in an apartment building’s parking garage was insufficient to establish a foreseeable pattern.

On the other hand, in the New Jersey case of Clohesy v. Food Circus Supermarkets, Inc., 149 N.J. 496, 694 A.2d 1017 (1997), the New Jersey Supreme Court applied the new totality of circumstances approach to a case in which a customer at the defendant’s supermarket was abducted from the parking lot and later murdered. The supermarket owner argued that he could not have foreseen the incident because no similar criminal incidents had occurred in that parking lot within a reasonable time prior to the customer’s abduction and murder. Nevertheless, the court held that the supermarket owner should have foreseen the possibility of the crime and, therefore, had a duty to provide security. In applying this approach, the court considered all of the criminal acts that had occurred on the supermarket property and in close proximity. The court also took into account the property’s size and location, the absence of security, the absence of windows on the side of the building where the crime occurred, the size of the parking lot, the type of business involved, the nature and circumstances of nearby businesses, and the increasing level of crime in the neighborhood.

Security in Parking Structures
Other more recent cases have addressed particular security measures required for parking structures. Courts have noted that, unlike surface-level parking and retail and/or office space, parking structures present unique features conducive to criminal activity. The recent California case of Sharon P. v. Arman, Ltd., 56 Cal.App.4th 266 (1997), noted that underground parking structures offer numerous tempting aspects: cars and their contents are displayed for thieves; high walls, low ceilings, and the absence of car owners provide privacy and ample time for thieves or vandals to work; and "the deserted, labyrinthine nature of these structures, especially at night, makes them likely places for robbers and rapists to lie in wait."

The plaintiff in Sharon P. was attacked in the subterranean parking garage of the commercial office building in which she worked. At the time of the attack, the lights in the immediate area of her parking space were out, several darkened storage areas in the garage were accessible, the garage was not patrolled, the entry gate was open, the security cameras installed in the garage had not been working for months, and the garage was not regularly maintained. The California court held that the property owner had to provide reasonable security measures in the parking garage, finding that parking garages are inherently dangerous so that, even in the absence of prior similar incidents, a property owner’s duty of care includes the provision of security. Perhaps because of the significant degree to which this decision departed from prior decisions, the California Supreme Court has granted rehearing of this case and may uphold, modify, or reverse the decision.

Nevertheless, Sharon P. is instructive on the direction in which courts are heading. In particular, although the court in Sharon P. left to the jury the determination of what security measures should have been in place, the court did note that possible security measures include the use of security guards, parking attendants to patrol the premises, closed-circuit monitoring with signs to alert would-be criminals to the use of such monitoring, gates and secured doors, bright lighting, and motion-sensitive lights.

More recently, in Peterson v. Gibraltar, No. 97-725 La.App. 5th Cir. (February 20, 1998), the Louisiana Court of Appeals took up where the court in Sharon P. left off and addressed the question of whether the security measures taken by the property owner in that case were reasonable. In Peterson, the owner of a combined retail and business office mall with an adjacent six-story parking garage was sued by a customer of the nightclub located within the building. The customer was abducted in the parking garage, beaten, and sexually assaulted. The building’s security consisted of two guards patrolling the garage, one on foot and the other by vehicle, with a third guard remaining in a security hut in the rear of the garage on the first level. Additionally, the landlord had surveillance cameras installed in the structure, which the guard watched in the security hut. Yet the court held that the property owner breached his duty to the defendant by not providing adequate security.

Specifically, the court in Peterson agreed with the testimony of the defendant’s security expert that the security in place was inadequate for several reasons. First, the garage lacked an access-control system. This was considered especially necessary in light of the nightclub. Although the expert acknowledged that access control for the garage would impede the free flow of traffic, which is a concern for retail malls, the building here was distinguished because it contained office space in addition to retail space. Second, security guard training was minimal or nonexistent. Third, no written security plan established a reasonable standard of care for the facility. The property owner did not solicit input from the tenants, local law enforcement officers, and civil groups or establish a periodic review of a security plan by local law enforcement officers. Fourth, the property owners ignored the upsurge in pertinent criminal statistics in the area, failed to analyze the property’s security needs regularly, and failed to document an effective plan to deal with the growing need for an updated security system.

Given the trend toward increased security requirements, property owners would be well-advised to consider the security measures the courts have discussed in Sharon P. and Peterson.

Samuel H. Weissbard, JD, and Camellia K. Schuk, JD

Samuel H. Weissbard, JD, is senior counsel and Camellia K. Schuk, JD, is an associate in the Irvine, Calif., office of Cox, Castle, & Nicholson, LLP. Contact them at (949) 260-4600 or and discussion of legal issues in this column is for informational purposes only. Results may vary depending on state laws and individual circumstances.