Recently we’ve discussed how the foreseeability of the potential harm caused by a person’s actions can make them liable for negligence. Recent horrific events in Garland and Waco, Texas bring up a related question: can a business owner ever have a duty to protect his customers from the wrongful – even criminal – acts of another? The answer is yes – if those criminal acts are foreseeable.

Recently, the Twin Peaks restaurant in Waco, Texas became a hang-out for “outlaw” motorcycle clubs. The Twin Peaks management had encouraged the bikers to patronize the restaurant, going so far as to hold bike events for them. The Waco police repeatedly requested that the restaurant eject the bikers or stop allowing them to hold events on the premises, citing the strong likelihood of intergang violence; however, the managers refused.

Just a few days ago, the police warning proved prophetic as several biker gangs started a brawl that turned into a massive gunfight, leaving nine bikers dead, more wounded, and bullet-riddled cars throughout the parking lot. Luckily, no citizens or police officers were wounded – but if they had been, could they have held the Twin Peaks restaurant liable for their injuries, even though the injuries were actually caused by the bikers?

Yes, if the crime is foreseeable. Generally in Texas, a business owner is not liable for injuries caused by the criminal acts of a third party. However, the Texas Supreme Court has held that there is an exception when “the risk of a crime [is] sufficiently unreasonable and foreseeable to justify imposing a duty on [business owners] to protect [their customers] while they are on the [business owner’s] property.” Generally in Texas, the courts analyze previous acts of crime on the premises and weigh the proximity, publicity, recency, frequency, and similarity of the prior crimes to determine if the crime in question was foreseeable. In this case, there have been no reports of similar prior crimes in the past. However, according to the police the restaurant owners were warned of the possibility of a violent clash of biker gangs in advance. If a person were injured during the melee, they could have good reason to claim that the crime was foreseeable – and that the restaurant owners were liable for their injuries.

Tilting the Scales in Your Favor. So what should business owners do to prevent being held liable for the criminal acts of third parties on their premises? Luckily for them, it is generally difficult for a plaintiff to establish that criminal activity is foreseeable, and Texas appellate courts are quick to second guess juries’ determinations of foreseeability. Nevertheless, the prudent business owner should take reasonable steps to prevent criminal activity on their premises when it is routine or when the police give an express warning of future criminal acts.

Update! Not surprisingly, a lawsuit has already been filed as a result of the shootout in Waco. One of the Twin Peaks restaurant’s neighboring business sued the Twin Peaks management and national franchisor alleging that the management failed to “exercise ordinary care and operate its place of business in a reasonable and prudent manner.” The suit seeks damages including the profits lost while the neighboring restaurant was closed during the police investigation and for damage to its property. The suit also alleges that the franchisee management is the “agent” for the national franchisor, rendering the national franchisor liable to the same extent as the franchisee. Alleged negligent acts include the negligent hiring of the independent franchisor’s management, failing to heed warning from the police about motorcycle related violence, and failing to supervise and control patrons.

It will be interesting to follow the course of this litigation; the legal theories asserted by the plaintiff appear to be novel and in some cases contrary to existing Texas law. Typically, a business owner’s duty to prevent criminal acts is limited to its patrons; this case seeks to greatly expand that doctrine. Time will tell if the courts agree that these claims have merit.