Generally, a person does not have a duty to act affirmatively to protect another person from harm by a third person. The exceptions to this general rule arise when a special relationship exists between the actor and the individual facing harm[i].
“One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a duty to take reasonable action to protect the other person from unreasonable risk of physical harm”[ii].
The following are the special relations giving rise to a duty to aid or protect:
- a common carrier is under a duty to its passengers to take reasonable action to protect them against unreasonable risk of physical harm, and to give them first aid when they are ill or injured, and to care for them until they can be cared for by others;
- an innkeeper is under a similar duty to his/her guests;
- a possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his/her invitation; and
- one who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his/her normal opportunities for protection is under a similar duty to the other[iii].
In cases where there is no indication that the third party is likely to cause harm, there will be no liability. A merchant is not liable to a customer whom some member of a crowd of usual size pushed through a slightly cracked plate glass window. Even though the company is negligent in not repairing the cracked glass, the condition of the glass was not the cause of the accident. The cause was the pushing, which was not foreseeable in a crowd of normal size[iv].
An owner or occupant of premises, not in a defective or dangerous condition, is not liable for injuries caused by acts of third persons, which were unauthorized, or which s/he had no reason to anticipate and of which s/he had no knowledge[v].
When a person goes upon the premises of another without invitation, but simply as a licensee, and the owner of the property passively acquiesces in his/her coming, if an injury is sustained by reason of a defect in the premises, the owner is not liable because the person has taken the risk upon himself[vi].
Additionally, an occupier of premises is not liable for an injury inflicted by an independent negligent or willful act of a third person who is not his/her employee and where s/he has no reason to anticipate such conduct. Generally in the absence of a statute or a special relationship or circumstances, an individual has no duty to protect another from a criminal assault or willful act of violence of a third person.
However, when a criminal attack upon an invitee by a third person is reasonably foreseeable to the premises owner, the law imposes on the premises owner a duty to take reasonable precautions to protect against it[vii].
[i] Lee v. Corregedore, 83 Haw. 154, 159 (Haw. 1996).
[iii] Restat 2d of Torts, § 314A.
[iv] Fenasci v. S. H. Kress & Co., 17 La. App. 170 (La.App. 1931).
[v] Mahoney v. Libbey, 123 Mass. 20, 22 (Mass. 1877).
[vi] Clapp v. La Grill, 103 Tenn. 164, 174 (Tenn. 1899).
[vii] Hail v. Regency Terrace Owners Ass’n, 782 So. 2d 1271, 1276 (Ala. 1999).