There is persuasive case law in Hawaii that the existence of a defendant’s duty to keep places safe is not precluded by the defendant’s lack of control over the premises where the crime occurred. For example, if a mugging happens down the street from a ball park, the defendant may still be liable to the plaintiff even though the defendant does not own the area where the mugging happens. The issue is whether the crime would have occurred in area the defendant did not control, had the defendant provided security guards in the common areas.
A duty to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably foreseen. Foreseeability is a factor in evaluating the existence of duty. For example, a landlord may have a duty to take reasonable precautions to safeguard common areas like apartment lobbies against crimes which it had notice and which were likely to occur again if the common areas were not secure. Without foreseeability, an unfair burden would be placed on landowners and, forcing landowners to be insurers of public safety.
Foreseeability is based on the totality of the circumstances, including the nature, condition, and location of the premises. Random, violent crimes are endemic in society. The criminal mind, just like technology and science changes over time. Because no one really knows why people kill, no one knows what deterrence is adequate in any given situation. The scope of a defendant’s duty is based on balancing the foreseeability of injury against the burden, vagueness, and efficiency of the security measures.
Because the monetary cost of security is significant, a high degree of foreseeability is required in order to find that a landowner’s duty of care includes installing security measures. For there to be a duty imposed on a defendant to provide security, a plaintiff has to show that the presence of security measures could have prevented the criminal situation.
Often the legal aspects of premises liability cases require prepared a Hawaii personal injury attorney who understands landowner duties.