Louisiana Supreme Court - 752 So. 2d 762
The case involves a lawsuit against Sam's Wholesale Club for negligence in providing adequate security resulting in a customer's robbery and mental anguish. The court uses a duty-risk analysis to determine liability, and the plaintiff must prove that the defendant owed a duty of care, breached that duty, and the risk of harm was within the scope of protection afforded by the duty breached. The court has adopted a balancing test to determine if a business owes a duty of care to protect its customers from the criminal acts of third parties. The existence, frequency, and similarity of prior incidents of crime on the premises are the most important factors to be considered. A crime risk will not be sufficiently foreseeable for the imposition of a duty to provide security guards if there have not been previous instances of crime on the business' premises.
Under the 2nd Restatement of Torts § 344, merchants have a duty to prevent criminal acts by third parties on their premises. If a merchant's business and past experience suggest that criminal conduct is likely, they must take appropriate precautions and provide reasonable security measures to protect customers. Failure to do so may result in liability for any harm caused by criminal acts on the premises. In a case involving a high volume retail business located in a high crime area, the defendant was not considered unreasonable for failing to provide outside security guards and surveillance cameras during daylight hours since they had not experienced any criminal activity in the exterior area of the store for the past six years.
The totality of circumstances test is the appropriate approach for determining a business owner's duty to protect patrons from injuries caused by third parties. This test considers all factors of an incident, including prior similar incidents, physical characteristics of the premises, security measures, location, nature of business operation, and owner's observations of criminal activity. The balancing test, which considers the economic and social impact of requiring security in high crime areas, is flawed and only adopted by California and Tennessee. The lower court should use the totality of circumstances test to determine the duty between a business owner and an invitee.
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