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Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 856 P.2d 1332 (1993).

This case addresses the following issue:

Does a business have an obligation to provide security after several criminal acts have been committed against its customers?

This case dealt with when the duty to warn and protect customers arises based on previous criminal acts on the premises of a business. Id. at 543-44. The court determined that when such a duty arises depends on “the frequency and severity of prior attacks.” Id. at 547. Likewise, the amount of security and exact measures that a business must take are dependent on the totality of the circumstances giving rise to the need to warn and/or protect. Id. at 550.

In this case, the plaintiff was a customer at a shopping center. Id. at 541. After parking in the mall’s parking structure, the plaintiff exited the vehicle and was getting her purse from the back of the Corvette she had been riding in. Id. At that point, both the plaintiff and the driver of the vehicle were robbed and assaulted. Id. at 542. Tragically, the plaintiff was shot in the head by the criminal actors and suffered severe injuries. Id. The area lacked security cameras, warnings, or adequate lighting. Id. Plaintiff offered evidence that criminal activities were reasonably foreseeable based upon other criminal acts that had happened in other parking areas of the mall. Id. However, the trial court found that these other criminal acts could not establish foreseeability because they occurred outside of the parking garage and were dissimilar to the armed robbery and shooting that injured plaintiff. Id. at 542-43. The plaintiff appealed this decision, ultimately finder her way to the Kansas Supreme Court. Id. at 543.

The court began by noting the confusion that had arisen between what were considered two distinct tests for determining if the need to warn or protect exists. Id. The first test was the “prior similar incidents rule,” which had been exclusivity relied upon by the trial court. Id. This test requires that the prior offense be of “the same type and nature as the offense complained of, [and] must have occurred with some frequency.” Id. at 544.

The second test is the “totality of circumstances test.” Id. This test looks at both prior acts, with a broader inclusion so far as type of crimes and frequency, as well as “the place and character of the business” itself. Id. The court noted that this test has become more favored, as it promotes the policy of protecting customers to a greater degree. Id.

After reviewing decisions of various states applying each test, the court determined that the “totality of the circumstances is the better reasoned basis for determining foreseeability.” Id. at 549. The court instructed that prior incidents would normally be the “most significant factor,” but the limited scope of that test should be expanded. Id. The court noted, however, that it would certainly be possible for liability to exist even without any prior criminal actions if the other circumstances create reasonable foreseeability. Id. The court also noted that the totality of the circumstances determines what security efforts a business owner may be taken. Id. at 550. One factor in this determination would be the cost of the efforts. Id. The court ultimately remanded this case to trial court for determinations regarding if the act was reasonably foreseeable based on the totality of the circumstances. Id. at 550-51.

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