Is Landlord Liable for Third-Party Criminal Attacks that Occur on Tenant’s Leased Premises?

About every 30 seconds, somebody commits a violent crime in the U.S., according to the FBI. Crimes occur in stores, malls, office buildings, restaurants, bars, nightclubs, theaters, medical centers, parking garages, and countless other kinds of properties that are commercially leased. And when they do, victims are apt to sue the property owner for not doing enough to safeguard their security.

Premises liability law, 101: Landlords generally do have a duty to provide customers and other business invitees reasonably safe premises, including protection against third-party criminal attack. What’s less clear is the extent to which landlord liability risks extend not just to parking lots, hallways, and other common areas under their control but also to inside a tenant’s leased premises. Here’s a briefing on where the lines of liability are drawn based on a scenario that comes from an actual case.

THE LEASE

A landlord leases property to a strip club operator for use as an adult entertainment establishment. In exchange for lower rent, the tenant agrees to be responsible for maintaining the building and parking lot and paying the property taxes. The lease allows the landlord to enter the premises at all reasonable times to inspect the property or make repairs. It also requires the tenant to “comply with all governmental and quasi-governmental laws, ordinances, rules and regulations.”

The tenant hires a consultant and manager to run the club’s day-to-day operations and contracts out security services to an outside firm. Other than collecting the monthly rent check and visiting the property two or three times a year, the landlord has no involvement with the tenant or its business.

WHAT HAPPENED

After a night of drinking, an admittedly intoxicated Mr. G visits the strip club and stirs up trouble. First, he slaps one of the dancers on the buttocks. Then he proceeds to hit on a female patron. This doesn’t sit well with the woman’s companion. The men exchange words, punches fly, and the companion pulls out a gun and shoots Mr. G in the stomach. Mr. G survives. Two years later, he files a negligence lawsuit against the club and the landlord for failing to provide a reasonably safe premises for club patrons. The landlord denies owing Mr. G a duty of care because it has no control over the club’s operations. But the jury hands down a verdict in Mr. G’s favor. So, the landlord appeals.

YOU MAKE THE CALL

Does Mr. G have a valid negligence claim against the landlord? 

A.         Yes, because the landlord had a non-delegable duty of care to the club’s business invitees

B.         No, because the landlord had no control over the club’s operations

C.         Yes, because the landlord’s right to reenter to inspect and make repairs establishes its control for purposes of liability

D.         No, because Mr. G’s own conduct was partly to blame for the shooting

ANSWER

B. Mr. G doesn’t have a valid negligence claim because the landlord had no control over the club’s operations and thus no duty of care to its patrons.

EXPLANATION

This scenario comes from a recent case in which a Florida appeals court not only reversed a verdict in the shooting victim’s favor but also directed the verdict for the landlord. The key to the ruling is that, as in most states, under Florida law, “the duty to protect third persons from injuries on the premises rests not on legal ownership of the premises, but on the rights of possession, custody, and control of the premises.”

The court faulted the trial judge for finding that the landlord did, in fact, retain enough control to make it liable for injuries occurring to third parties on the premises. According to the court, there was no evidence of the landlord’s “control over the general operation of [the club’s] business practices” or involvement in the security arrangements. So, B is the correct answer [Johnson v. Garrett, 2024 Fla. App. LEXIS 2569].

WHY WRONG ANSWERS ARE WRONG

A is wrong although it’s an accurate statement of the trial court’s conclusion. Having decided that the landlord did have a duty to ensure the safety of third parties on the property, the lower court held that it couldn’t delegate that duty to the club.

The Ramada Case: Apples to Oranges

The lower court in the Garrett case cited another Florida case (U.S. Sec. Servs. Corp. v. Ramada Inn Inc., 665 So. 2d 268 (Fla. 3d DCA 1995)), where a hotel owner admitted to owing a duty to provide a guest who was criminally assaulted a reasonably safe premises but claimed it had met that duty by hiring an independent contractor to provide security. It didn’t work. The court ruled that the hotel’s duty was non-delegable.

But the appeals court in Garrett found that Ramada was an apples-to-oranges comparison since unlike the hotel owner, the landlord in this case never acknowledged having such a duty. Ramada is about what a property owner must do to meet its duty to ensure a business invitee’s safety, and this case was about whether a property owner had such a duty in the first place.

C is wrong because, according to the court, case law makes it clear that by itself, the right of a landlord under a lease to enter and make repairs “does not constitute control of the premises so as to impose on the landlord a duty to protect a tenant’s patrons from the criminal or even negligent acts of third parties on the premises.” Besides, the court added, the landlord’s right to inspect the property or make repairs “was completely unrelated to the injuries” Mr. G suffered in the shooting. The court also pooh-poohed the notion that the clause requiring the tenant to comply with applicable laws was evidence of the landlord’s control, noting that tenants are already obliged to obey the law regardless of what the lease says.

D is wrong although the issue of contributory negligence on the part of Mr. G would be relevant in determining whether the landlord committed negligence and, if so, how much in damages it would owe. However, those issues don’t arise unless and until it’s established that the landlord did have a duty to provide a club patron like Mr. G a reasonably safe premises. And since there was no such duty in this case, the question of whether Mr. G engaged in contributory negligence is irrelevant.

4 TAKEAWAYS

There are four key points to take away from the Garrett case and above analysis:

1.         Landlords may have a duty to take reasonable steps to ensure the safety of a tenant’s business invitees, including protection against third-party criminal attacks;

2.         Such a duty exists when the landlord either retains control over a tenant’s business operations on the premises or voluntarily accepts responsibility for business invitee safety within the premises under the lease;

3.         The mere right to reenter the premises to carry out inspections or repairs isn’t enough to establish control—although that could change if the reentry specifically relates to security measures or equipment that ultimately affect the injuries a business invitee suffers on the property; and

4.         To the extent that a landlord does owe tenants’ business invitees a duty to ensure safe premises and security from third-party criminal activity it may not delegate away its responsibility by hiring a security consultant or vendor or relying on the tenant to make adequate security arrangements.

HOW TO PROTECT YOURSELF FROM LIABILITY RISKS

As the landlord in Garrett learned, it’s not easy for commercial landlords who want to have as little involvement as possible with a property after leasing it to a tenant to completely wash their hands of residual liability to business invitees who suffer injuries as a result of allegedly negligent security on the premises. While the Garrett landlord ultimately prevailed, it might have been better served by including language in the lease expressly indicating that it wouldn’t exercise any control over the tenant’s business and making the tenant exclusively liable for providing adequate security and protecting business invitees from criminal attack. This kind of liability protection is especially advisable when dealing with strip clubs, nightclubs, liquor stores, late-night retail establishments, and other businesses associated with high risks of crime.

The flip side of the coin is the more common situation where a landlord does want to retain some modicum of control over how tenants use the premises. While it may be essential to preserve and maximize the value of the property, residual control also makes it significantly more difficult to avoid responsibility for providing invitees safe premises like the Garrett landlord did. Moreover, once you’re on the hook, there’s not much your lease can do to protect you. That’s because lease provisions that purport to contract out of liability under negligence laws are generally deemed to be in violation of public policy and thus unenforceable.

Accordingly, you may need to do the opposite of what the Garrett landlord did and take a greater involvement in security, not just in the common areas under your direct control but within the premises you lease to tenants. Things you can do to protect yourself include:

• Requiring tenants to meet or exceed all security laws and standards 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.