Galloway v. Bankers Trust Co.

• Decision Date: 16 March 1988
• Docket Number: No. 86-1879,86-1879
• Citation: 420 N.W.2d 437
• Parties: Bruce V. GALLOWAY, Appellant, v. BANKERS TRUST COMPANY, Trustee d/b/a Midlands Mall, Maenner Company, American Security Services, Inc., and First National Bank of Chicago, Appellees.
• Court: Iowa Supreme Court

Page 437

420 N.W.2d 437

Bruce V. GALLOWAY, Appellant, v. BANKERS TRUST COMPANY, Trustee d/b/a Midlands Mall, Maenner Company, American Security Services, Inc., and First National Bank of Chicago, Appellees.

No. 86-1879.

Supreme Court of Iowa.

March 16, 1988.

Thomas L. Spellman of Spellman, Spellman, Spellman, Spellman & Kealhofer, Perry, and Ronald J. Palagi, Omaha, Neb., for appellant.

Philip Willson of Smith, Peterson, Beckman & Willson, Council Bluffs, for appellee Maenner Co.

Milton A. Katskee of Katskee & Henatsch, Omaha, Neb., and David F. McCann of Dippel & McCann, Council Bluffs, for appellee American Sec. Services, Inc.

David M. Woodke of Gross, Welch, Vinardi, Kauffman & Day, P.C., Omaha, Neb., for appellees Bankers Trust Company d/b/a Midlands Mall and First Nat. Bank of Chicago.

Considered by HARRIS, P.J., and LARSON, SCHULTZ, LAVORATO and SNELL, JJ.

LARSON, Justice.

Bruce V. Galloway sued several parties involved in the ownership and management of the Midlands Mall, a shopping center in downtown Council Bluffs, as well as the company employed to provide security for it. (We will refer, in most instances, to the defendants collectively as "the mall.") Galloway's suit was based on the mall's alleged failure to protect him from a homosexual rape in a restroom in the mall. The district court sustained the mall's motion for summary judgment on the basis that the attack was not reasonably foreseeable, and Galloway appealed. We affirm in part, reverse in part, and remand.

I. Foreseeability.

Our analysis of the foreseeability question must begin with an examination of Martinko v. H-N-W Associates, 393 N.W.2d 320 (Iowa 1986). In Martinko, a young woman was murdered in her car in the parking lot of a new shopping mall in Cedar Rapids. The district court granted the shopping mall's motion for summary judgment, and the plaintiff appealed. We applied the Restatement rule of premises liability which provides:

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the ... intentionally harmful acts of third persons ... and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise protect them against it.

Restatement (Second) of Torts § 344, at 223-24 (1965).

A comment to section 344 discusses the case of an injury to a visitor caused by a third party:

Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

Restatement (Second) of Torts § 344 comment f, at 225-26 (emphasis added).

In Martinko, we noted two significant problems in the foreseeability aspect of the plaintiff's case. First, the mall was new, with no history of prior criminal activity of any kind. The plaintiff showed only that the defendants had had prior problems in other malls in which they had an interest. Furthermore, the plaintiff failed to show "that shopping malls are businesses characterized by a likelihood that third persons may endanger their patrons." Martinko, 393 N.W.2d at 322 (citing Restatement (Second) of Torts § 344 comments d, f ).

In contrast to Martinko, the plaintiff in the present case showed a past history of criminal activities at Midlands Mall and also produced the affidavit of an expert who said the danger of injury by a third party was significant.

The mall acknowledges that it has had some history of criminal activity, however, it focuses on a footnote in Martinko which says: "In the absence of a history of similar acts in the area in question, most jurisdictions have not allowed plaintiffs to present their claims to juries." 393 N.W.2d at 322 n. 3 (emphasis added). The mall argues that a record of some criminal activity is not sufficient to establish foreseeability; it must be a history of similar crimes. The district court agreed; the criminal activities which had occurred at the mall were not "similar" under the Martinko rule.

The security officers' incident reports in the present case show a variety of past criminal activity. As might be expected, most of them involved shoplifting. There was, however, a report of an "assault" on a young boy by a man in the mall; a person was apprehended with a gun in the Sears store in the mall; and a possible robbery of a patron was reported. Assaults between patrons and violence toward store property were also reported. A representative year, 1983, revealed these statistics:

                Shoplifting          29
                Trespass              4
                Beer in parking lot   3
                Vandalism             2
                Robbery               1
                Open door             1
                Medical emergency     1
                

With the possible exception of the report showing an assault on the young boy, there were no prior reports involving assaults of a sexual nature; in fact, there were not a large number of crimes of any kind directed toward persons. We do not believe, however, that crimes initially directed toward property are without any probative value on the question of foreseeability of injury. As one court has noted,

[c]riminal activity is not easily compartmentalized. So-called "property crimes," such as shoplifting, may turn violent if a chase ensues and, as the evidence in this case indicates, family quarrels may become violent with the risk that deadly weapons may be used. Moreover, the repetition of criminal activity, regardless of its mix, may be sufficient to place the property owners on notice of the likelihood that personal injury, not merely property loss, will result.

Jardel Co. v. Hughes, 523 A.2d 518, 525 (Del.1987) (citations omitted).

The evidence in the present case supports the observation in Jardel that even shoplifting cases can turn ugly. Midlands Mall security officers reported that one fleeing shoplifter was found to possess a gun, one slashed at a guard with a knife, and another tried to run down a guard with his car.

The court in Jardel concluded:

In view of the standard of foreseeability envisioned by § 344 of the Restatement, we cannot conclude that the crime statistics presented by the Dover Police [including property crimes] were misleading or irrelevant. As previously noted, crimes of whatever type and whenever occurring on the premises are part of the circumstantial setting in which security needs are measured.

Id. at 526.

Anthony Potter, the expert used by Galloway to establish his claim of foreseeability, presented impressive credentials. He was certified by the American Society for Industrial Security and had served nineteen years as security chief, consultant, and lecturer in the field of security. He had also served for fourteen years as a faculty member of the International Council of Shopping Centers Management Institute and had published over eighty articles in various professional and trade journals on the subject of security. He stated he had performed security audits of regional shopping centers throughout the United States and had testified as an expert in both federal and state courts.

Potter's affidavit stated that he had reviewed the pleadings, depositions, and incident reports in this case and concluded that the assault on Galloway was foreseeable by the defendants "due to the high incidents of criminal activity in public restrooms in regional shopping centers generally and previous incidents of crimes against persons including assaults on patrons at Midlands Mall."

While there are cases, like Martinko, in which evidence of foreseeability is held to be so speculative that a genuine issue of fact is not generated, questions of foreseeability are ordinarily for the fact finder. See, e.g., Isaacs v. Huntington Memorial Hosp., 38 Cal.3d 112, 126, 695 P.2d 653, 659, 211 Cal.Rptr. 356, 362 (1985) (foreseeability of assault of doctor in hospital parking lot). In general tort law, there is a "quite universal agreement that what is required to be foreseeable is only the 'general character' or 'general type' of the event or the harm, and not its 'precise' nature, details, or above all [the] manner of [its] occurrence." Prosser and Keaton on the Law of Torts § 43, at 299 (5th ed. 1984).

Other courts have held that prior, nonviolent, incidents may provide a basis for a finding of foreseeability of personal-confrontation crimes. See, e.g., Isaacs, 38 Cal.3d at 126, 695 P.2d at 658, 211 Cal.Rptr. at 361 (foreseeability of assault based in part on nonviolent incidents); Foster v. Winston-Salem Joint Venture, 303 N.C. 636, 281 S.E.2d 36, 40 (1981) (foreseeability based in part on history of nonviolent acts); Murphy v. Penn Fruit Co., 274 Pa.Super. 427, 418 A.2d 480, 483 (1980) (foreseeability of stabbing in parking lot...