Biggs, Ingram & Solop PLLCBy STEPHEN STACK,
There has been much heated debate surrounding the recently enacted Landowners Protection Act (Senate Bill 2901). The Act is designed to limit the legal liability of a business owner when a person is injured by the actions of a third person unconnected to the operation of the premises. It is widely predicted that the Act will severely reduce the potential civil liability of the owner of a premises for criminal assault and other acts of violence perpetrated against patrons or other visitors of the business premises. In theory, this should in turn reduce the insurance premiums business owners pay for the protection of their business assets.
Other community organizations have argued that the recourse for victims of crime will be severely limited, and the law, as previously applied, was adequate and essential for the protection of the general public. These organizations have argued that the legislation will have a chilling effect on business owners’ incentives to bear the cost of providing security measures which are perceived to be essential in high-crime areas.
Notwithstanding healthy opposition with these opposing views, the Act was passed and signed into law by Governor Bryant on March 29. The effective date of the Act is July 1.
So what exactly does the Act do? Under current Mississippi law, there are two ways to establish legal causation, or foreseeability, in cases of assault by a third person. The requisite “cause to anticipate” the assault may arise from a business owner’s actual or constructive knowledge of the assailant’s violent nature, or actual or constructive knowledge that an atmosphere of violence exists on the premises. Evidence of the existence of an atmosphere of violence may include the overall pattern of criminal activity prior to the event in question that occurred in the general vicinity of the defendant’s business premises, as well as the frequency of criminal activity on the premises.
The Landowners Protection Act, in contrast, places liability on a property owner only when the injured party can prove by a preponderance of the evidence (meaning, more likely than not) that:
The conduct of said third party occurred on the property;
The conduct of the person who owns, leases, operates, maintains or manages the property actively and affirmatively, with a degree of conscious decision-making, impelled the conduct of said third party; and The third party’s conduct proximately caused the economic and noneconomic damages suffered by the injured party.
The Act likewise places limits on a plaintiff’s ability to demonstrate that an “atmosphere of violence” existed so as to make the property owner liable for an intentional act by a third party. Under the Act, an “atmosphere of violence” can only be established by similar violent conduct:
Which occurred three or more times within three years before the third party act at issue;
Took place only on the commercial or other real property where the acts of the third party occurred; and
Which are based upon three or more separate events or incidents that resulted in three or more arraignments of an individual for a felony involving an act of violence.
Furthermore, under the Act, civil liability can no longer be based on the prior violent nature of the third party whose acts or omissions proximately caused the claimed injury or damage unless the person who owns, operates, maintains or manages the property has actual, not constructive, knowledge of the prior violent nature of the third party.
Finally, the Act amends the definition of “fault” in a premises liability lawsuit when a jury (or judge in a bench trial) is assigning fault to those responsible for the injured person’s injuries. Under current Mississippi law, “fault” does not include any tort which results from an act or omission committed with a specific wrongful intent. This typically prohibits the factfinder in a premises liability suit from assigning any fault to the third party who intentionally injures the plaintiff on the landowner’s property. Now, the factfinder will be able to assign a percentage of fault to that third party for the injuries.
This provision was particularly problematic for many opponents of the Act, as many third parties who commit criminal acts lack financial or insuring resources to satisfy any judgment that might be entered against them. And, under the statute, a business owner is only responsible for that percentage of fault assigned to him or her by a jury or trier of fact.
While the degree to which a landowner’s liability ultimately is limited by the Act will have to play out in the courts of law around the state, there can be little doubt that it will have a drastic impact on what cases are now brought. The word “impel” is not defined in the Act, but Webster’s Dictionary defines it as, “to urge or drive forward or on by or as if by the exertion of strong moral pressure; to force.” One would think that in only the rarest of circumstances will an injured party be able to demonstrate that the landowner’s conscious decision-making “forced” a third party to commit intentional acts against him or her. And the Act’s restriction of an “atmosphere of violence” to properties where there have been three incidents resulting in three arraignments of an individual for a felony has been criticized as draconian. A business theoretically could have three unsolved assaults/murders in and around the subject property in less than a year with the assailants still at large, and a fourth injured party nonetheless would not be able to demonstrate an “atmosphere of violence” under the terms of the Act. Such a circumstance, and undoubtedly others, will test the limits of the Act and leave some questioning whether it goes too far in the protection of landowners.
C. Stephen Stack, Jr. practices in the litigation section of Biggs, Ingram & Solop, PLLC, in Jackson.