Are Landlords Liable for Criminal Attacks on a Tenant’s Employees?

One reason general liability insurance is so expensive is that landlords can be sued for money damages if an individual gets injured on their property. While there are lots of legal theories trial lawyers can rely on, the vast majority of personal injury cases against landlords involve one or more claims of negligence.

The basic rule: Landlords have a duty to use reasonable and ordinary care to keep the premises safe; if they don’t and somebody suffers personal or property damages as a result, they must pay the victim damages to compensate their losses. Thus, a landlord that knows there’s a loose tile in a mall walkway but doesn’t bother to repair it may be liable to a shopper who breaks her leg as a result of tripping over the tile.

But things get tricky when the harm a victim suffers is caused not by an accident but a deliberate criminal attack. Under negligence law, landlords normally don’t have a duty to protect a victim from the criminal acts of a third person. However, such a duty can arise as a result of a statute, lease, or a special relationship. Thus, tenants may seek to include lease language expressly requiring the landlord to take measures to protect their employees from criminal attacks on the property, especially since landlord-tenant isn’t recognized as a special relationship giving rise to a duty to protect against risk of criminal attack by a third party.

Even without special lease language, landlords may assume a duty to protect tenant employees and other people on the premises from criminal attack as a result of their actions and omissions. The extent of that duty depends on exactly where the attack occurs.  

Landlord Liability for Attacks in Common Area

Landlords typically control the parking lots, hallways, elevators, and other common areas of the property they lease. So, if a landlord knows, or should know, of criminal activity in the common areas, it must take reasonable measures, in view of the circumstances, to eliminate the conditions contributing to the criminal activity. Thus, for example, a New York court found that a residential landlord could be liable for the stabbing death of a tenant in the hallway when the security guards on duty simply allowed the assailants into the building without questioning them. Having recognized that posting security guards was a necessary safety measure, the landlord had a duty to ensure they were properly trained and did their job effectively [Kelly v. Norgate Bus. Assoc., 2009 NY Slip Op 51961U, 4].

Landlord Liability for Attacks in Leased Premises

Unlike the common areas, landlords don’t control the actual leased premises. Accordingly, they’re not generally held liable for attacks that happen there. But they’re not necessarily immune, either. Rule: A landlord may be liable for injuries within leased premises, if an uncorrected defect in the common area that the landlord knows or should know about “adversely affects” the occupants of the leased premises. That, of course, includes a tenant’s employees. Thus, for example, a California court found that a strip mall landlord was liable for the rape of an employee inside the tenant’s photography store by a man who got in by pretending to be a customer [Ann M. v. Pacific Plaza Shopping Ctr., 863 P.2d 207 (Cal. 1993)].

Takeaway

The landlord’s duty to guard against third-party criminal attack on leased property extends not only to visitors and other invitees but also to tenants and their employees. Or, in the words of one court, “the duties and liabilities of a landlord to persons on the leased premises by the invitation of the tenant are the same as those owed to the tenant” itself to the extent “such persons enter under the same title as the lessee, and not at the invitation express or implied of the landlord.”

Leasing-wise, there’s only so much you can do to manage your liability risks. That’s because lease provisions that purport to contract out of liability under negligence laws are generally unenforceable because they’re seen as violating public policy. Things you can do to protect yourself, both within and outside the leasing context, include:

• Requiring the tenant to meet or exceed all security laws that apply to the property, including but not limited to with regard to doors, lighting, windows, and surveillance cameras;
• Negotiating for authorization to charge tenants for extra security measures and upgrades;
• Regularly inspecting, monitoring, and maintaining the effectiveness of your security items and measures and repair defects and problems that you discover immediately;
• Making tenants and their employees aware of any crime problems in the neighborhood; and
• Providing a mechanism for tenants and their employees to report security incidents or concerns and immediately investigate and, where necessary, take actions to correct any problems you uncover.