Parking Lot Cases of Negligent Security/Supervision

August 5, 2009

By: David K. Jaffe

Totality of the Circumstances Rule

In a premises liability parking lot assault case, the Connecticut Supreme Court, in Monk v. Temple George Assocs., LLC, 273 Conn. 108 (2005), established a new rule for imposing a duty of care on a parking lot owner or operator. After extensive analysis, the Court concluded that a totality of the circumstances rule was the most consistent with the public policy goals of our legal system, as well as the general tenor of our jurisprudence. Id. at 121.[1]

The facts of the Monk case are as follows: The victim attended a nightclub and parked her car at the defendants'[2] parking lot for a fee. While in the nightclub, a former girlfriend of the victim's husband verbally confronted the victim. The victim left the nightclub. The former girlfriend then followed the victim and physically attacked[3] the victim in the parking lot. While the area surrounding the parking lot was known to have a high incidence of crime,[4] no attendant was supervising the parking lot.

The test for determining legal duty is a two-prong analysis that includes: (1) a determination of foreseeability; and (2) public policy analysis.[5] Duty is a legal conclusion about relationships between individuals, made after the fact, and imperative to a negligence cause of action. The ultimate test of the existence of the duty to use care is found in the foreseeability that harm may result if it is not exercise. In other words, would the ordinary person in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?[6]

In the Monk case, the defendants' lot was located in the nightclub area of New Haven, a major Connecticut city. The defendants conducted business during the evening hours, at a time when many people would be seeking parking for the purpose of attending the clubs in the surrounding area. Because it was a high crime area,[7] the Court found it to be quite foreseeable that, under those circumstances, an attack on a patron of the premises could occur, whether spontaneously or as precipitated by an argument at one of the neighboring nightclubs. Monk, at 115. The Court also found it probable that the presence of a parking attendant would have decreased the likelihood that such an attack would occur. Id.

Foreseeability notwithstanding, it is well established that Connecticut courts will not impose a duty of care on defendants if doing so would be inconsistent with public policy. The defendants, because of the nature of their relationship with the plaintiff, owed her a duty to exercise reasonable care, which is fundamentally different from an obligation to prevent harm from occurring on the premises. Presumably, the Monk court found, exercising reasonable care would serve as a deterrent to crime. The absolute prevention of crime on the premises, however, is not a necessary condition to satisfying a duty of care. Imposing a duty of care would not, therefore, be tantamount to imposing strict liability on a parking lot owner or operator for any injury occurring on its property no matter what the circumstances, because plaintiffs alleging negligence would still have to prove a breach of reasonable care in addition to causation. Monk at 118.

The Court considered four factors in evaluating whether public policy suggested the imposition of a duty: (1) the normal expectations of the participants in the activity under review; (2) the public policy of encouraging participation in the activity, while weighing the safety of the participants; (3) the avoidance of increased litigation; and (4) the decisions of other jurisdictions. Monk at 118.

Regarding the fourth factor, the Monk Court noted that there were multiple ways in which other jurisdictions handled the question of duty with respect to premises liability. Some jurisdictions required prior similar incidents to have occurred on or in the immediate vicinity of the premises for lot owners to be treated as having been on notice. Other jurisdictions followed a more expansive view of foreseeability, associating it with certain businesses that were, by their very nature, more conductive to crime. Still other jurisdictions adopted a scaled back version of a totality of the circumstances rule that looked beyond a particular premises to the surrounding area and balanced the foreseeability of harm against the burden of security measures. Monk at 120-121.

The Court noted, in adopting the totality of the circumstances rule, that it was more expansive than the approach adopted by many other jurisdictions. The Court went on to explain that, even if there was no evidence of a prior similar incident on the defendants' premises, although significant to foreseeability, was not dispositive. A plaintiff may still be able to demonstrate, as she did in Monk, ample evidence about crimes in the immediate vicinity to suggest that such a criminal attack in the defendants' lot was foreseeable. Monk at 121.

Stewart v. Federated Dep't Stores, 234 Conn. 597 (1995) is a similar case. The Stewart Court (1) affirmed a judgment against a parking garage owner on whose unattended premises a woman was murdered; and (2) expressly disavowed any intention to elevate the burden of proof in premises liability claims involving criminal or intentional acts beyond foreseeability.[8] In Steward, the estate administrator filed an action against a parking garage owner for the murder of a woman on its premises by a third party while the garage was unattended.[9]

The Monk case is distinguishable from Doe v. Manheimer, 212 Conn. 748 (1989).[10] In Manheimer, the Court held that a landowner could not be liable in tort for damages for the rape of a pedestrian by a third party behind overgrown brush on the landowner's property that shielded the area from view from the sidewalk. The Court concluded that the harm of rape could not be understood as being within the scope of risk created by the defendant's conduct in not maintaining overgrown brush because a prudent person who owns land abutting a public way would not infer from his ordinary experience the possibility that overgrown vegetation would prompt or catalyze a violent criminal act. Id. at 762.


[1] In dicta, the Monk Court stated: "We want to encourage parking lot owners and managers to exercise reasonable care in their dealings with customers immediately as a matter of sound public policy, instead of hiding behind a bright line rule and waiting for the first criminal act to occur on their premises. Although a bright line rule would promote judicial expediency, this concern is outweighed in the present instance by the policy interest in: (1) encouraging businesses to take reasonable measures for the safety of their customers; and (2) assigning liability as accurately as possible to those parties that reasonably may foresee harm on their premises. We do not consider attacks perpetrated in the vicinity of one's premises to be significantly different for the purposes of foreseeability than attacks committed directly on one's premises, other things being equal. By contrast, the extent to which a criminal act was reasonably foreseeable to a particular plaintiff in any given case is question of facts and circumstances." Monk v. Temple George Assocs., LLC, 273 Conn. 108, 122 (2005)

[2] The parking lot was owned by Temple George Associates, LLC and managed by Pro Park, Inc. (collectively defendants). Monk v. Temple George Assocs., LLC, 273 Conn. 108, 110 (2005).

[3] During the attack, the victim was slashed about the face, neck, chest and thigh. As a result, the victim suffered painful permanent injuries, including: shock to her nervous system; multiple lacerations; keloid and regular scarring; and skin fibrosis. Monk v. Temple George Assocs., LLC, 273 Conn. 108, 110 fn 2 (2005).

[4] The plaintiff's expert witness, Neil A. Sullivan, an expert in the field of security, prepared a report indicating that the area surrounding the parking lot was known to have a high incidence of crime. Monk v. Temple George Assocs., LLC, 273 Conn. 108, 110 (2005). According to Sullivan's report, "serious crimes had occurred in the vicinity prior to this incident and the defendants knew or should have known that such serious crimes occurred. The police department deployment for crowd control was another cue that should have alerted defendants to the risk of personal injury or property damage to patron's vehicles or persons. Moreover, although lighting in the lot appeared to be adequate at the time of inspection, the obscured site lines from the street created an opportunity for someone to commit an assault out of the view of the police who were posted nearby." Monk v. Temple George Assocs., LLC, 273 Conn. 108, 115 (2005).

[5] See Jaworski v. Kiernan, 241 Conn. 399, 406-407 (1997).

[6] See Jaworski v. Kiernan, 241 Conn. 399, 405 (1997).

[7] According to Sullivan's report, "serious crimes had occurred in the vicinity prior to this incident and the defendants knew or should have known that such serious crimes occurred. The police department deployment for crowd control was another cue that should have alerted defendants to the risk of personal injury or property damage to patron's vehicles or persons. Moreover, although lighting in the lot appeared to be adequate at the time of inspection, the obscured site lines from the street created an opportunity for someone to commit an assault out of the view of the police who were posted nearby." Monk v. Temple George Assocs., LLC, 273 Conn. 108, 115 (2005).

[8] The Stewart Court noted that the store and its garage were located in a neighborhood of Stamford that is reputed for its high crime rate. The crimes committed in the area spanned the spectrum of violence from larceny and robbery to rape and murder. Within the ten months prior to the victim's death, over 1000 serious crimes were committed within an area of two blocks from the garage, and the victim's murder was not the first crime (although it was the first murder) to occur in Bloomingdale's garage. Stewart v. Federated Dep't Stores, 234 Conn. 597, 601 (1995)

[9] The plaintiff's decedent had been shopping in Bloomingdale's department store. After finishing shopping, she returned to her car, which was parked on the ground floor of Bloomingdale's garage. As she placed her purchases in her trunk, a stranger approached her from behind to rob her. When she resisted, the stranger repeatedly stabbed her, leaving her to die on the garage floor. Before fleeing, the stranger took her purse and packages and her watch, which he ripped from her arm.

[10] Manheimer was overruled in part, Stewart v. Federated Dep't Stores, 234 Conn. 597, 608 (1995) (We stated in Manheimer that the application of § 442B of the Restatement " requires a fairly strong degree of certainty that a criminal or intentional intervening act is within the scope of the risk of a negligent actor's conduct." Such a heightened burden of proof is not required by the Restatement which merely requires proof by a preponderance of the evidence nor did we mean to imply in Manheimer that there is a higher secondary standard of proof required for § 442B. We have but