In the wake of the recent tragedy in Aurora, Colorado, retailers, restaurants and other establishments open to the public must be ever vigilant to the actions of “third-parties” to ensure, first and foremost, the safety of their patrons, as well as protect themselves from potential liability stemming from such actions.
In most states, New York included, businesses have a duty to maintain their premises in a reasonably safe condition, which includes taking minimal precautions to protect members of the public from the reasonably foreseeable criminal acts of third-persons. Often in cases a plaintiff will allege that the proprietor should have anticipated the criminal actions of a third-party due to some advanced notice, such as specific comments or threats made, a highly publicized event, the expectation of an excessive number of people attending an event, and so on. While many such lawsuits are typically broadly worded so as to “state a cause of action” and pass any initial dismissal challenges, few make it to a jury due to the difficult burden of establishing that a third-party’s criminal actions were or should have been anticipated.
With the horrible set of circumstances that are coming to light in Colorado, which seem too frequent lately, one must ask the question, will Courts eventually require proprietors to expect the unexpected? For now, it is wise for proprietors to take any information they perceive or receive seriously to prevent such tragedies and avoid the legal system.
