This
article briefly discusses the responsibility of commercial property owners for the
safety of tenants and building invitees in the event of a terrorist attack.
If
a person injured as a result of a terrorist attack at the owner’s property sues
the landlord, we expect that the Courts will rely
on the general body of “premises liability” case law to decide the lawsuit. The very general rule espoused by the
majority of Courts in the United States is that commercial property owners do
not have a duty to protect tenants and invitees from the criminal acts of third
parties. The general exception to the
rule is that if imminent harm is foreseeable to the owner, and the owner does
not take reasonable steps to warn or protect tenants and invitees of the harm,
the owner can be held liable.
These
general principles were espoused in the case of Jane Doe v. Dominion Bank of Washington (U.S. Court of Appeals for the District of
Columbia), where the Court stated as follows: “A commercial landlord must
exercise reasonable care to protect tenants from foreseeable criminal conduct
occurring in common areas under the landlord’s control”. The Court further
stated that: “D.C. law imposes a heightened standard of foreseeability on plaintiffs
seeking to hold a landlord liable for injuries resulting from a criminal
act.” In that case, a rape victim was
allowed to proceed with her case because the court found deficient building
security in a building where numerous assaults and crimes had taken place. Similarly,
in Thompson v. Skate America, the Supreme
Court of Virginia allowed the plaintiff to proceed with his case against the
owner of a skating rink based on the allegation that the owner failed to
protect invitees from the criminal acts of an individual that the owner knew
was a menace to patrons of the skating rink (and had been ejected from the rink
on prior occasions).
Given the
fact that large-scale terrorist attacks by their very nature are not
predictable, we do not expect that commercial property owners will be held
liable for injuries and property losses to tenants and invitees just because
the injuries/losses occur on the owner’s property (although every case is
different and will be decided on its own merits). Rather, individuals and families will need to
look to insurance companies, government funds and charitable organizations for
compensation, as was the case in the wake of the 9/11 attacks (See http://www.rand.org/pubs/research_briefs/RB9087/index1.html).
This raises
the question: What should commercial
property owners do to limit potential liability? The first thing the owner can
do is review its insurance policies to determine whether the owner is covered
from terrorist attacks. Many policies
specifically exclude terrorism. The
second thing the owner should do is review its emergency preparedness plan for
the building with its property managers and tenants. The plan should not
address terrorism specifically, but rather, should provide general guidance to
property managers and tenants regarding notification and evacuation in the
event of an emergency or other imminent harm to the building or its occupants
(including terrorist attacks). The existence of such a plan and the adherence
to the plan in the event of an emergency could improve the landlord’s position
if the landlord is sued for negligence following a terrorist attack. Finally, the landlord may want to consult
with a security firm regarding the building’s exposure to criminal activity and
determine whether simple measures could be installed to deter such activity
(such as installing cameras or additional locks).
In short, taking action to specifically prevent
terrorist acts may in many cases be counterproductive and is not required by
law, but planning for general emergencies (including terrorist acts) may limit
the property owner’s exposure to liability.
