Some legal obligations of mall owners to patrons (mall-goers) for crimes occurring inside the mall
Despite malling being a national past-time, existing law and jurisprudence specifically on mall proprietors provide little comfort: as long as mall owners observe what is called “minimal precaution based on foreseeable harm”, patrons who are injured or who suffer damages arising from crimes committed inside the mall would have to show failure on the part of the mall-owner to prevent “foreseeable harm” based on reasonably predictable criminal activity inside the mall.
In the Philippines, we would have to rely on the general provisions of the Civil Code (Art. 2176). Despite increasing criminality inside shopping malls, there are no steps taken to require legal obligations on the part of mall owners for the safety of patrons from crimes (apart from, as I said, 2176, general; on the other hand, 2191 deals with obligations of proprietors for explosions from machinery, excessive smoke, emanations from sewers).
Mall owners would be a big lobby against any such steps, i imagine.
One principle in crime-prevention is visibility and effective presence of competent security personnel per hundred thousand square feet for example; in the case excerpted below however, the presence of one security guard for 765,000 square feet of building premises was deemed minimal precaution that met the minimum standard. Not good if you ask me, but I’m always rushing when i’m in a crowded mall anyway (aversion to large, mindless crowds) ; if you’re a mall rat and can’t help it, you could study the pattern of organized crime inside malls — do they occur on weekends? On the ground floor? – then try not to be there…I’m being facetious. Here’s the case:
Inger v PCK Dev. Co., LLC, 2012 NY Slip Op 05376 [97 AD3d 895], July 5, 2012
Appellate Division, Third Department, Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected August 22, 2012.
“Tragically, just after midnight on June 4, 2006, decedent was stabbed to death by one of her coworkers while finishing her shift as night manager at a Ground Round Restaurant located in leased space in defendant’s mall. Plaintiff—decedent’s daughter…—commenced this action against defendant alleging that its negligence in failing to safely maintain the mall premises and assure the absence of dangerous conditions thereon was the proximate cause of decedent’s injuries. xxx
“ Initially, we agree with defendant that it had no duty to police or supervise activity within the restaurant itself. “It is well settled that an out-of-possession landlord who relinquishes control of the premises and is not contractually obligated to repair unsafe conditions is not liable xxx Hence, unless a landlord retains control over leased premises, it owes no duty to third-party occupants for injuries they sustain as victims of criminal activity occurring on the premises xxxHere, it is undisputed that defendant did not have any control over the interior of the restaurant. Indeed, defendant’s security personnel did not have keys to access the restaurant after hours and plaintiff does not affirmatively argue that defendant had a duty to inspect or patrol the restaurant interior. Accordingly, defendant owed no duty to protect decedent from third parties, such as the coworker who attacked decedent, once present within the restaurant behind locked doors after hours xxx
“Defendant did retain a duty under its lease with the restaurant to maintain the mall and its exterior for the safety of defendant’s patrons, employees and tenants, and defendant’s security personnel were charged with securing all areas surrounding tenant spaces, including exterior walkways and parking lots. Plaintiff argues that defendant breached this duty by not providing cameras at the restaurant’s entrances. xxx Defendant’s duty in this regard, however, was only to take reasonable steps to prevent foreseeable harm, which requires evidence that the attack on decedent was reasonably predictable based on prior occurrences of the same or similar criminal activity at the mall xxx
“Here, defendant met its threshold burden of establishing that it took at least ” ‘minimal precautions to protect tenants from foreseeable harm,’ including a third party’s foreseeable criminal conduct” xxx A mall security officer patrolled the premises after hours and saw nothing to alarm her on the night of decedent’s attack. The affidavit of defendant’s then-security director established that decedent’s tragic death was not predictable or expected given that no similar assault had occurred in any of the tenant spaces leased at the mall, and that, apart from one shooting a year earlier in 2005, the criminal activity on the mall premises consisted of much less serious offenses, such as shoplifting, disorderly conduct and fist fights. Plaintiff relies heavily on the 2005 shooting, where an assailant carrying a semi-automatic assault rifle entered the mall through another leased tenant space in broad daylight on a Saturday afternoon and indiscriminately opened fire on people within the store and then in the common area of the mall. We find it unreasonable to suggest that this event was sufficient to put defendant on notice of a risk of an attack such as the one perpetrated against decedent. We hold, instead, that defendant did not owe a duty to decedent, as a matter of law, to protect her from her assailant under the circumstances presented by this case. xxx”
On President PNoy’s pronouncement that “the United States Navy be held answerable under Philippine laws for the damage caused by the grounding of a US 7th Fleet warship in Tubbataha Reefs”: Wake up, buttercup! The U.S. government legal position on this as articulated by USS Guardian spokesman Lt. Cdr. James Stockman last week (reported by GMA News Online and other media organizations), and which has not been contradicted by any of the USS Guardian officers, is: “Should a claim for damages be filed, it will be handled in accordance with the Foreign Claims Act.” (USS Guardian Spokesperson Lt. Cdr. Stockman).
Open your eyes. The U.S. does not recognize Philippine law and jurisdiction for any claims for damages caused to the Tubbataha Reef by the USS Guardian. The Foreign Claims Act is U.S. federal law, in particular, U.S. military law: it applies to injury, death, or property damage sustained by inhabitants of a foreign country due to noncombat activities of members of the U.S. armed forces overseas; it says “foreign country includes any place under the jurisdiction of the United States in a foreign country.”; the U.S Judge Advocate General’s Corps will adjudicate it; there is a ceiling of $100,000 for recoverable damages (or P4 million pesos at $1 to P40) and any damages in excess of that amount would have to be filed with the U.S. Treasury to be decided by that office.
“10 USC § 2734 – Property loss; personal injury or death: incident to noncombat activities of the armed forces; foreign countries
“(a) To promote and to maintain friendly relations through the prompt settlement of meritorious claims, the Secretary concerned, or an officer or employee designated by the Secretary, may appoint, under such regulations as the Secretary may prescribe, one or more claims commissions, each composed of one or more officers or employees or combination of officers or employees of the armed forces, to settle and pay in an amount not more than $100,000, a claim against the United States for—
“(1) damage to, or loss of, real property of any foreign country or of any political subdivision or inhabitant of a foreign country, including damage or loss incident to use and occupancy;
“(2) damage to, or loss of, personal property of any foreign country or of any political subdivision or inhabitant of a foreign country, including property bailed to the United States; or
“(3) personal injury to, or death of, any inhabitant of a foreign country;
“if the damage, loss, personal injury, or death occurs outside the United States, or the Commonwealths or possessions, and is caused by, or is otherwise incident to noncombat activities of, the armed forces under his jurisdiction, or is caused by a member thereof or by a civilian employee of the military department concerned or the Coast Guard, as the case may be. The claim of an insured, but not that of a subrogee, may be considered under this subsection. In this section, “foreign country” includes any place under the jurisdiction of the United States in a foreign country. An officer or employee may serve on a claims commission under the jurisdiction of another armed force only with the consent of the Secretary of his department, or his designee, but shall perform his duties under regulations of the department appointing the commission.
“(b) A claim may be allowed under subsection (a) only if—
“(1) it is presented within two years after it accrues;
“(2) in the case of a national of a country at war with the United States, or of any ally of that country, the claimant is determined by the commission or by the local military commander to be friendly to the United States; and
“(3) it did not arise from action by an enemy or result directly or indirectly from an act of the armed forces of the United States in combat, except that a claim may be allowed if it arises from an accident or malfunction incident to the operation of an aircraft of the armed forces of the United States, including its airborne ordnance, indirectly related to combat, and occurring while preparing for, going to, or returning from a combat mission.
“(c) The Secretary concerned may appoint any officer or employee under the jurisdiction of the Secretary to act as an approval authority for claims determined to be allowable under subsection (a) in an amount in excess of $10,000.
“(d) If the Secretary concerned considers that a claim in excess of $100,000 is meritorious, and the claim otherwise is payable under this section, the Secretary may pay the claimant $100,000 and report any meritorious amount in excess of $100,000 to the Secretary of the Treasury for payment under section 1304 of title 31.
“(e) Except as provided in subsection (d), no claim may be paid under this section unless the amount tendered is accepted by the claimant in full satisfaction.
“(f) Upon the request of the department concerned, a claim arising in that department and covered by subsection (a) may be settled and paid by a commission appointed under subsection (a) and composed of officers of an armed force under the jurisdiction of another department.
“(g) Payment of claims against the Coast Guard arising while it is operating as a service in the Department of Homeland Security shall be made out of the appropriation for the operating expenses of the Coast Guard.
“(h) The Secretary of Defense may designate any claims commission appointed under subsection (a) to settle and pay, as provided in this section, claims for damage caused by a civilian employee of the Department of Defense other than an employee of a military department. Payments of claims under this subsection shall be made from appropriations as provided in section 2732 of this title.”
