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Tests Employed By the Courts for Sexual Assaults in Bars

The Duty of Businesses to Shield Invitees From Harm

The law in torts holds that there is a duty on the part of businesses to shield their invitees from harm.  This duty requires that the business owner take reasonable measures to prevent foreseeable harm to its invitees.  Troxel v. Iguana Curtina, LLC, 29 AD3d at 1048 (MD 2011).

The scope of liability of landowners has been stated by the Restatement (Second) of Torts as follows:

“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 accidental, negligent, or intentionally harmful acts of third persons or animal, and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.”

If a possessor of land knows or has reason to know that there is a likelihood of conduct on the part of third persons which is likely to endanger the safety of the visitor, liability may attach.  The court will look at the place or character of the business and past experience of the business landowner when determining whether the owner should have reasonably anticipated criminal conduct. The determination may result in a duty on the part of the owner to take precautions against the criminal conduct and provide a reasonably suitable number of servants to provide reasonable protection to the visitor.

Tests Used to Determine Duty Owed

Pursuant to the potential for a duty owed to visitors, the courts will look at several tests to determine whether a duty lies. 

  1. The first is the imminent harm rule, which holds that the landowner owes no duty unless he/she is aware of a specific, imminent danger to patrons. 
  1. The second approach is the prior incidents test in which prior crimes on or near the premises is needed to establish a duty. 
  1. A third approach utilized by many courts is the totality of the circumstances test in which the courts will examine the closeness of the connection between the injury and the defendant’s conduct, the policy of preventing future harm, and the availability of insurance as well as the nature, condition and location of the land alongside prior similar incidents. Some courts utilize a balancing test that evaluates the foreseeability of the harm against the duty imposed.

The Court’s Balancing Approach

When addressing issues of sexual assault in a bar, the test used by the courts will have a significant impact on the outcome and determination of the case.  Under a balancing approach, the court will look at the magnitude of the harm to be prevented and most likely find against the bar.  A character of the business appeal will look at the possibility that a woman may be sexually assaulted while at the bar.  Using a reasonable analysis approach, the court will identify issues of failure and look at the burden of installing surveillance cameras, improving lighting, posting signs, etc. to reduce the risk of harm to customers vs. the magnitude of the harm to determine whether these measures could reasonably have been undertaken. In so doing, the court will most likely find in favor of the patron.

The first step that an insurer can take to protect itself and its insured is at the underwriting stage in which an underwriter can inspect the premises and effectuate necessary upgrades to the facility as a condition for insurance coverage.  However, in instances where the time to take preventative measure has passed, careful legal analysis of the approach that the court in the venue at issue will take is necessary in order to properly analyze the claim and potential defenses.

Always keep in mind that the court, in applying the standard testing of the venue, will look to the safety of the patron vs. the imposition upon the bar in a light most familiar to the victim with a result that most likely favors the victim.


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