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When Johnny Becomes Victim, Part 1: Liability on Premises

Wed, 26 Feb 2014
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Published in Articles

It is not uncommon for the victim of a violent crime to look for someone to blame. Litigation is an increasingly perfect instrument to reallocate blame. As a result, more and more landlords, commercial businesses, and other unsuspecting individuals find themselves acting as defendants in a lawsuit concerning the liability for the criminal conduct of others.

The violence, by its own nature, is very personal. It involves great trauma which affects the victim and everyone around them. Trauma and the stress of the event to those around the victim create a need and desire for repayment or restitution. They frequently need someone to blame. They may not know who committed the crime, so their focus is diverted to who else can be held responsible.

In general, a person has no legal duty to protect another from the criminal acts of a third party. However, the elements for liability arising out of the criminal acts of third parties are largely dependent upon the type of criminal activity alleged, and it depends on negligence. In a personal injury or wrongful death matter, an owner of leasee of a business has a duty to use care to keep the premises in his care and control and in a reasonably safe condition. Many states provide a cause of action for the exclusive benefit of any surviving immediate family members in wrongful death cases. This duty to keep the premises in a safe condition may create liability for negligence as follows:

The plaintiff was an invitee and:

  1. The defendant violated his duty to be close by
  2. The defendant had control by possession of the premises
  3. Condition or conditions on the premises posed an unreasonable risk
  4. The defendant had prior notice and ignored or did not adequately mitigate
  5. The defendant knew or reasonably should have known of a dangerous situation or condition
  6. The defendant breached a duty of ordinary care by:
    • Failing to adequately warn of the condition; and
    • Failing to adequately make the condition reasonably safe
    • In an assault situation the plaintiff must show that the defendant acted intentionally, knowingly, or carelessly when he or she made physical contact with the plaintiff; and the contact caused bodily harm.

The defense firm or the insurance company may employ the investigative efforts of their outside claims adjuster or an independent insurance adjuster to determine if the insured had a duty owed to the plaintiff, if that duty was breached and if the negligence was the proximate cause of the alleged injury. In a commercial establishment, lighting can be a conduit of allegation as well as the history of crime in the area where the crime occurred. If the defendant insured had a prior history, there may be a cause of action against him for inadequately protecting the invitee. Careful investigation into many factors can change the outcome of this type of claim.

Question:

Can a minor child of any age be liable for their own intentional or careless actions which result in bodily injury? The answer will be at the end of this article. In the workplace, the employer can be held liable for the intentional or willful act of assault by his employee if he or she authorized the act, either expressed or implied, especially by placing the employee in a situation which involved physical force. This could apply to a bouncer at a club or a security guard. Another area the employer could be held liable is if the employee had prior notice of aggressiveness or should have known. (See Part II on this topic)

Answer:

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are liable for their own intentional and careless actions. In some cases, courts have allowed judgments against the parents for the actions of their minor children. Their parents may have a duty also to protect the third party, especially if they had prior notice or had reason to have had prior knowledge of the violent nature of the minor child.

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