FAUSTO ALVEREZ v. EDWARD SAAB TRUSTEE OF LES REALTY TRUST LOUISBERG SQUARE APARTMENTS LJS MANAGEMENT CORPORATION LES LIMITED PARTNERSHIP LES REALTY AND ABC INSURANCE CO (2022)

I would grant and docket this matter. Previously, this Court emphasized “that there is generally no duty to protect others from the criminal activities of third parties.” Posecai v. Wal-Mart Stores, Inc., 1999-1222 p. 5 (La. 11/30/99), 752 So. 2d 762, 765. This Court also stated the following:

Whether a duty is owed is a question of law. In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. The court may consider various moral, social, and economic factors, including the fairness of imposing liability; the economic impact on the defendant and on similarly situated parties; the need for an incentive to prevent future harm; the nature of defendant's activity; the potential for an unmanageable flow of litigation; the historical development of precedent; and the direction in which society and its institutions are evolving.

Id., p. 5, at 766 (Internal citations omitted).

In reversing the lower court rulings, and finding in favor of the premises owner, this Court stated that “[t]he most important factor to be considered is the existence, frequency and similarity of prior incidents of crime on the premises[.]” Id., p. 9, at 768. The Posecai Court further noted that “A very high degree of foreseeability is required to give rise to a duty to post security guards, but a lower degree of foreseeability may support a duty to implement lesser security measures such as using surveillance cameras, installing improved lighting or fencing, or trimming shrubbery. The plaintiff has the burden of establishing the duty the defendant owed under the circumstances.” Id.

More importantly, I would grant and docket this matter to reconsider the policy implications of imposing liability on commercial enterprises and businesses for the criminal acts of others in high crime areas. Imposition of liability in these cases discourages commercial development in the areas where it is most needed. Such commercial activity could provide hope and the ability to revive these areas. In support of this position, I point to this Court's observation:

The economic and social impact of requiring businesses to provide security on their premises is an important factor. Security is a significant monetary expense for any business and further increases the cost of doing business in high crime areas that are already economically depressed. Moreover, businesses are generally not responsible for the endemic crime that plagues our communities[.]

Id., p. 8, at 768 (Internal citations omitted)(Emphasis added).

This is especially true in a time of irrefutable proof of increasing criminal activity across the state. Thus, I would grant the writ and docket this matter to reevaluate the policy considerations, and this Court's prior jurisprudence as to the duty owed by business owners to patrons to protect them from third party crimes. We should not ignore the ever-increasing liability and costs that owners face in operating businesses that bring the prospect of economic development to disadvantaged communities, especially when those costs are incurred due to the criminal conduct of third parties who are wholly disassociated from the businesses themselves.

MCCALLUM, J., would grant and docket, and assigns reasons.