When The Unthinkable Happens: Owner Liability For Homicide In Shopping Malls
In the wake of recent open mall shootings in New Jersey, Toronto, Michigan and Texas, many observers reacted by wondering how these incidents could have been prevented and who may share responsibility for them. The extent of a property owner or landlord’s liability may be surprising. For example, a July 2012 decision by a New York state appellate court (Inger v. PCK Development) spoke to the responsibility and liability of landlords and property owners by holding that landlords must offer “minimal precautions to protect tenants from foreseeable harm.”
A New York Law Journal article describing the Inger case stated that on the night a restaurant manager was brutally stabbed to death at the restaurant only one security guard was on duty for 765,000 square feet of building premises and its surrounding property (totaling approximately 72 acres). According to the article, there had been a shooting at the mall in 2005. Nonetheless, the Inger court held that the previous shooting was not sufficient to put the landlord on notice of the risk of the stabbing. The court cited evidence that the criminal activity on the mall premises consisted of much less serious offenses such as shop lifting, disorderly conduct and fist fights and concluded that the 2005 shooting, by itself, did not make the stabbing predictable or expected.
Although landlords may find some protection in the “minimal precautions” and “foreseeable harm” standards, a host of practical issues remain. When an unthinkable tragedy occurs on a tenant’s premises, what are the relative obligations of the landlord and tenant? Who is responsible if an incident occurs in the common area of a mall after a patron has left a tenant’s premises (such as someone drinking too much at a mall restaurant)? Do mall owners take on special responsibilities in a quasi-law enforcement capacity by employing security personnel and installing security equipment?
In a mall environment, the interactions and overlapping responsibilities of landlords, tenants, management companies and contractors are complex. Although the Inger case may have brought a degree of clarity to this web of responsibilities, owners, tenants and operators must remain vigilant in evaluating and adjusting their operations and contractual relationships to plan for these “unthinkable” scenarios.