Premises Liability: Negligent Security

Posted in Premises Liability on June 1, 2008

Ericson v. Federal Express Corporation (2008) 162 Cal.App.4th 1291, 77 Cal.Rptr.3d 1

An independent contractor who was working late at night at a FedEx terminal was severely injured when he was assaulted in a dimly lit parking lot while returning to his car at the end of his shift. The man sued FedEx for premises liability, alleging that the assault was reasonably foreseeable because the defendant required him to park in an isolated area, and did not include the non-employee parking area in its security inspections. The plaintiff also alleged that the defendant had notice of transients living in nearby canyons and that it should have allowed contractor’s employees to park where its own employees parked.

The defendant moved for summary judgment, arguing that it owed no duty to prevent the assault because there were no prior assaults on the property. The trial court granted the motion and the court of appeal affirmed, holding that the security measures proposed by the plaintiff were minimally burdensome, but that the third-party assault was not foreseeable under the “regular reasonable foreseeabilty” test:

The supposed criminal activity in the parking lot was apparently trespassing by transients. In other words, the presence of transients and claimed criminal activity were one and the same. . . . [N]either Mark’s declaration nor deposition testimony indicates the transients he saw were aggressive or threatening. To the contrary, Mark testified he did not feel threatened by the one transient he saw in the parking lot. Further, Daniel’s declaration did not indicate the transients he saw were aggressive or threatening. Rather, it stated the transients he saw were “walking around the [f]acility grounds, including the parking lot.”
. . .
Ericson also points to thefts at FedEx, and asserts it was foreseeable that additional thefts would occur and be accompanied by assaults. Ericson asserts thefts occurred in the parking lot, but there is no evidence as to where they occurred on the FedEx property. . . . [A] violent assault was not reasonably foreseeable because there is no indication that any thefts involved force, weapons or even any type of intimidation. Moreover, one, if not both, of the thefts evidenced by police reports that occurred prior to Mark’s assault were by FedEx employees, and employees would not reasonably be expected to assault a coemployee or independent contractor for FedEx in conjunction with stealing. A FedEx internal memorandum stated that in February 2003, 60 cell phones were lost “due to weekend pilferage’s” (sic ), which also indicates employee crime. Further, the lone domestic incident was between coemployees and an acquaintance of one of the employees, and it would not foretell a violent third party assault by a transient.
. . .
To any extent the court erred by relying solely on a “heightened foreseeability” test, reversal is not warranted. This case boils down to a few sightings of nonthreatening transients on the FedEx property, and that does not satisfy even the “ ‘regular’ reasonably foreseeability” test.