Kentucky Supreme Court Reinforces Standard for Premises Owner Liability for Third-Party Criminal Acts
Cincinnati, Ohio (March 1, 2023) – In Walmart, Inc., et al. v. Leigh Ann Reeves (Case No. 2021-SC-0288-DG), the Kentucky Supreme Court recently addressed a case involving third-party criminal acts and premises liability.
By way of background, the plaintiff, Ms. Reeves, walked out of a Walmart sometime after midnight. When she reached her vehicle, she sat down in the driver’s seat and was attacked by two unknown men attempting to rob her. She sued Walmart, claiming the company was negligent by not having a security presence outside the store to protect patrons from third-party criminal acts.
In general, negligence claims require proof that the defendant owed the plaintiff a duty, that the defendant breached that duty, and that the plaintiff suffered a harm that was proximately caused by the breach. In particular, for premises liability cases involving third-party criminal acts, the owner of a premises has a duty to protect patrons from third-party acts if he or she “knows of activities or conduct of other patrons or third-persons, which would lead a reasonably prudent person to believe or anticipate that injury to a patron might be caused,” (in other words, is foreseeable), and if he or she can reasonably safeguard against them.
In holding that Walmart owed no duty of care to prevent criminal activities of third parties, the Kentucky Supreme Court reasoned as follows:
Based on the evidence admitted, Wal-Mart could not have anticipated this third-party criminal act occurring against Reeves on its premises. Here, Reeves needed to provide evidence that a third-party criminal act involving attempted robbery and assault were reasonably foreseeable to Wal-Mart. Reeves provided only two examples of crimes of a similar nature to the one at issue in this case, one from 2001 and one from 2012. Both instances were purse snatchings occurring on the property. All other instances reported were either between parties known to each other and involved in a dispute, or between loss prevention staff and thieving customers, or were crimes that were initiated off Wal-Mart’s premises.
Reeves did not provide evidence that the two purse snatchings, one of which occurred over 15 years before her own incident, involved assaultive behavior. So, even to the extent that the instances were similar, they failed to truly compare to the crime at issue in this case. Additionally, because they occurred so distantly in time (both from each other and from Reeves’s incident), we cannot hold that they established a pattern that could lead Wal-Mart to anticipate this kind of crime.
The court further explained that landowners cannot control the actions of third parties on their property. Extending liability in this case would also “create an economically untenable reality for business owners and, ultimately, their customers.” A small business in a transitioning or high crime neighborhood should not have to bear the costs of an ever-present duty to protect patrons. According to the Kentucky Supreme Court, inevitably, such costs will be borne out in consumer prices, exacerbating economic inequalities already present throughout Kentucky.
In sum, to be foreseeable, the plaintiff needs to prove the exact crime involved is foreseeable and that the crime or something nearly identical has happened in the recent past on the same premises. This is an important analysis and a relatively difficult burden for plaintiffs to meet as more and more premises liability cases are filed against landlords, business owners, and property owners throughout the Commonwealth of Kentucky.
For more information on this case, contact the author of this alert. Visit our General Liability Practice page for additional alerts in this area.
Andrew L. Smith, Partner