Industry News

Mall Not Liable for Attack

Facts: Darlene Olivarez was shopping with a friend, Cynthia Lopez, at a kitchen supply store in a mall. Olivarez was employed as a deputy sheriff but was off duty at the time and dressed in civilian clothes. Olivarez was standing in line at the check-out counter when two women approached her, pushed her and cut in front of her and then cursed at her and called her a lesbian. As the two women checked out and then left, they continued insulting Olivarez before threatening to fight her. While Olivarez paid for her items, Lopez left the store and was standing about three feet from the exit when she was jumped by the two women from the check-out line. The women began punching and kicking Lopez before Olivarez saw the fight and ran out to help her. When Olivarez shouted that she was a police officer and demanded that the women stop, they turned on her and began striking her as well. Olivarez was finally able to free herself and draw her gun before mall security arrived and the two women were arrested.

Olivarez and Lopez filed a lawsuit against the mall owner and the store alleging that the defendants negligently failed to provide adequate security for the protection of its patrons. The trial court granted the mall owner's motion for summary judgment on Olivarez's claims because she was an off-duty police officer who was injured while attempting to prevent a third-party crime from taking place. The trial court granted the kitchen store's motion for summary judgment on both Olivarez's and Lopez's claims.

Olivarez and Lopez appealed. The mall owner and the store argued that the “firefighter's rule” provided a complete defense to Olivarez's claims. Olivarez argued that the defendants could be held liable for her injuries under a state law exception to the firefighter's rule because they knew or should have known that she was a peace officer and should have taken greater care to protect her from harm's way.

Decision: Businesses have a duty to use reasonable care to protect their customers from the foreseeable criminal acts of third parties. The firefighter's rule stands for the general principal that a firefighter--or in this case an off-duty police officer--who suffers injuries while performing duties associated with his on-duty employment cannot recover damages because the risks associated with the conduct are the very dangers they are employed to confront.

Olivarez argued that this rule did not apply to her injuries because the premises owner knew or should have known that she was a police officer and should have called for security as soon as the verbal altercation took place in order to prevent further harm.

The court of appeal noted that Olivarez was dressed in plain clothing prior to the fight and found no evidence indicating that store or mall employees had any indication that Olivarez was a police officer before she drew her gun. The court of appeal determined that Olivarez was not entitled to recover for her injuries because she was harmed while attempting to prevent a crime which was a duty associated with her on-duty employment.

The court of appeal also held that the store employees could not have foreseen Lopez's injuries because Lopez was not the target of the aggression that took place in the store. The court of appeal therefore upheld the trial court's decision.

Implications: Though premises owners will not generally be held liable for a third-party's criminal conduct, employees and especially security guards should be trained to pay close attention to individuals on the premises and to alert the proper authorities about any signs of criminal or violent activities in order to prevent dangerous consequences that are often the result of escalating disputes. Source: Security Law Newsletter, published monthly by Strafford Publications, Atlanta, GA. www.straffordpub.com, phone: 800-926-7926 ext. 10 or email: custserv@straffordpub.com. Olivarez v. Craig Realty Group Citadel L.L.C., No. B208051 (California Court of Appeal Sept. 1 2009)

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