Seibert v. Vic Regnier Builders, Inc.
856 P.2d 1332, 253 Kan. 540, 1993 Kan. LEXIS 130 (1993)
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Rule of Law:
A business owner's duty to provide security to protect patrons from the criminal acts of third parties arises when the totality of the circumstances, not just a history of prior similar incidents, indicates that the risk of harm is foreseeably high.
Facts:
- Vic Regnier Builders, Inc. owned the Ranch Mart Shopping Center, which included a subterranean parking garage.
- The shopping center did not have any security guards, video surveillance, or warning signs, and the lighting in the underground garage was allegedly dim due to numerous burned-out fluorescent tubes.
- Prior to the incident, there had been four crimes reported in the above-ground parking areas over several years: a car break-in, an armed robbery, an interrupted strong-armed robbery attempt, and a thwarted armed robbery.
- No prior crimes had been reported in the subterranean parking garage itself.
- On April 2, 1989, at approximately 3:00 p.m., Betsy Seibert and a friend parked in the shopping center's subterranean garage.
- As Seibert and her friend retrieved their purses from their vehicle, they were confronted by two unknown assailants.
- Seibert screamed and threw or dropped a can of cola at her assailant, who then shot her in the head.
Procedural Posture:
- Betsy Seibert sued Vic Regnier Builders, Inc. in a Kansas district court (trial court) alleging negligence.
- The defendant, Vic Regnier Builders, Inc., filed a motion for summary judgment, arguing the criminal attack was not foreseeable.
- The district court granted summary judgment in favor of the defendant, applying the 'prior similar incidents' rule of foreseeability.
- The plaintiff, Betsy Seibert, appealed the trial court's grant of summary judgment to the Supreme Court of Kansas.
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Issue:
Does a business owner's duty to protect patrons from third-party criminal acts arise only when there is a history of prior similar incidents on the premises, or should foreseeability be determined by the totality of the circumstances?
Opinions:
Majority - McFarland, J.
No. A business owner's duty to protect patrons from criminal acts does not arise only from prior similar incidents; rather, foreseeability must be determined under the totality of the circumstances. This approach is the better reasoned basis for determining foreseeability because the 'prior similar incidents' rule contravenes the policy of preventing future harm and invades the province of the jury. Under the totality of the circumstances test, courts must consider all relevant factors, including the location and character of the business, past experience with criminal conduct (which is a significant but not exclusive factor), and whether the property is in a high-crime area. The duty is to provide reasonable security measures under the circumstances, not to be an insurer of patrons' safety. Therefore, the case must be reconsidered using this broader test.
Analysis:
This decision marks a significant shift in Kansas premises liability law by formally adopting the 'totality of the circumstances' test for foreseeability of third-party criminal acts. It moves away from the more restrictive 'prior similar incidents' rule, thereby broadening the potential for business owner liability. This change makes it more likely for plaintiffs to survive summary judgment, as they can now introduce a wider range of evidence—such as crime rates in the surrounding area or the physical characteristics of the property—to establish that a duty existed. Consequently, business owners are now incentivized to conduct more comprehensive risk assessments that look beyond their own property's specific crime history.
