State by State Liability Tests

Articles

State by State Liability Tests

By: James F. Pastor, PhD, JD
President of SecureLaw Ltd. and Associate Professor in Public Safety at Calumet College of St. Joseph

Introduction & Caveats

The table incorporated into this document includes three general categories: the state, the legal test, and the legal authority. When using the table for litigation or security purposes, please check with your legal advisor to assess the case authority and research the law of the state to assess its current legal standard. As such, the reader should review the table with some caution.

Before using this table, a few caveats are in order. First, the table lists tests applied in each state. While this information appears straightforward, the fact that some states have developed standards that are difficult to characterize in any definitive manner creates some ambiguity. For example, some states will use a defined test, such as prior similar incidents, but will differ in its application. In this way, a particular state may use a more liberal view versus others that may use a more conservative approach. Hence, even when the test is defined, the application of the test may vary based on a liberal or conservative bend or mind-set of the court.

Second, the chart lists tests that are sometimes adaptations from several different tests that are often also difficult to characterize in any defined way. For example, when one compares the actual or constructive test to the aggressor/imminent danger test, the distinctions are fine or slight. In the former, the test seems to combine knowledge of the offender and of a particular crime, while the latter focuses much more directly toward the particular offender who may commit a particular violent crime. This assessment also takes into account the temporal factor discussed previously. In fact, the distinctions between these tests may be so fine as to be legally and factually meaningless. Notwithstanding this assertion, the test articulated by the court is the one listed in the chart.

A third issue related to this caveat is that sometimes a particular state will not articulate a particular test or it will change from one test to another. Since legal standards are very fact specific, courts may tend to frame the legal analysis around the facts of a particular case. Hence, sometimes there is a “chicken and an egg” scenario. Stated another way, it is difficult to assess which is paramount, the legal standard or the facts. The interrelationship between the two sometimes makes it hard to distinguish which has first priority.

Despite these caveats, this table nevertheless remains a valuable tool. Indeed, the value of this table is that it attempts to define a difficult, often fluid, area of the law. To the best of my knowledge, no other author has developed a table of this type. Hopefully, the attempt to place clear distinctions between the varying state laws into an easily reviewable table can be a useful tool for those who need to get a sense of the law in a particular state, or of the broader concept of security law. While it may appear that the caveats mentioned above “swallow” the table, the reality is that the chart reflects the difficulty in assessing security law generally. That is, security standards, just like legal standards, are very fact specific. Sometimes facts are difficult to neatly categorize. As a result, security and legal standards are also hard to categorize. This is one of the reasons why this analysis is useful and necessary. Stated another way, the value of the table (and this document) are that they shed light on difficult and fluid subject matter.

State Legal Test Legal Authority

Alabama Actual or Constructive Knowledge Whataburger, Inc., v. Rockwell, 706 So. 2d 1220 (1997)
Broadus v. Chevron, 677 So. 2d 199 (1996)
Baptist Memorial Hospital v. Gosa, 686 So. 2d 1147 (1996)
E.H. v. Overlook Mountain Lodge, 638 So. 2d 781 (1994)

Alaska Known Aggressor/ Imminent Danger Hedrick v. Fraternal Order of Fishermen, 103 F. Supp. 582 (1952)

Arizona Totality of the Circumstances Gipson v. Kasey, 129 P. 3d 957 (2006)
McFarlin v. Hall, 619 P. 2d 729 (1980)

Arkansas Known Aggressor/ Imminent Danger Boren v. Worthen National Bank, 921 S.W. 2d 934 (1996)

California Prior Similar Incidents Wiener v. Southcoast Child Care, 88 P. 3d 517 (2004)
Mata v. Mata, 105 Cal. App. 4th 1121 (2003)
Delgado v. Trax Bar & Grill, 75 P. 3d 29 (2003)

Colorado Totality of the Circumstances Keller v. Koca, 111 P. 3d 445 (2005)
Taco Bell v. Lannon, 744 P. 2d 43 (1987)

Connecticut Totality of the Circumstances Monk v. Temple George Associates, 869 A. 2d 179 (2005)
Stewart v. Federated Dept. Stores, 662 A. 2d 753 (1995)
Antrum v Church’s Fried Chicken, 499 A. 2d 807 (1985)

Delaware Totality of the Circumstances Koutoufaris v. Dick, 604 A. 2d 390 (1992)
Hughes v. Jardel, 523 A. 2d 518 (1987)

District of Columbia Totality of the Circumstances Bailey v. District of Columbia, 668 A. 2d 817 (1995)
Doe v. Dominion Bank, 963 F. 2d 1552 (1992)
District of Columbia v. Doe, 524 A. 2d 30 (1987)
Kline v. 1500 Massachusetts Ave. Apts., 439 F. 2d 477 (1970)

Florida Actual or Constructive Knowledge T.W. v. Regal Trace Ltd., 908 So. 2d 499 (2005)
Menendez v. The Palms West Condo Assoc., 736 So. 2d 58 (1999)

Georgia Totality of the Circumstances Agnes Scott College, Inc. v Clark, 616 S.E. 2d 468 (2005)
Sturbridge Partners v. Walker, 482 S.E. 2d 339 (1997)
Wiggly Southern v. Snowden, 464 S.E. 2d 220 (1995)

Hawaii Totality of the Circumstances
w/ Special Relationship Doe Parents No. 1 v. State Depart., of Educ., 58 P. 3d 545 (2002)
Maguire v. Hilton Hotels, 899 P. 2d 393 (1995)
Doe v. Grosvenor Properties, 829 P. 2d 512 (1992)

Idaho Totality of the Circumstances Sharp v. W.H. Moore, 796 P. 2d 506 (1990)

Illinois Special Relationship/ Special Circumstances Salazar v. Crown Enterprises, Inc., 767 N.E. 2d 366 (2002)
Hills v. Bridgeview Little League, 745 N.E. 2d 1166 (2000)

Indiana Totality of the Circumstances Zambrana v. Armenta, 819 N.E. 2d 881 (2004)
Delta Tau Delta v. Johnson, 712 N.E. 2d 968 (1999)

Iowa Totality of the Circumstances Alexander v. Medical Associates Clinic, 646 N.W. 2d 74 (2002)
Tenney v. Atlantic Associates, 594 N.W. 2d 11 (1999)

Kansas Totality of the Circumstances Gardin v. Emporia Hotels, Inc., 61 P. 3d 732 (2003)
Seibert v. Vic Regnier Builders, 856 P. 2d 1332 (1993)

Kentucky Known Aggressor/ Imminent Danger Waldon v. Paducah Housing Authority, 854 S.W. 2d 777 (1991)
Heathcoate v. Bisig, 474 S.W. 2d 102 (1971)

Louisiana Balancing Test: Foreseeability w/ Burden Thompson v. Winn-Dixie, 812 So. 2d 829 (2002)
Posecai v. Wal-Mart, 752 So. 2d 762 (1999)

Maine Totality of the Circumstances Stanton v. Univ. of Maine, 773 A. 2d 1045 (2001)
Schlutz v. Gould Academy, 332 A. 2d 368 (1975)

Maryland Status or Special Relationship Hailman v. M.J.J. Production, 2 F. 3d 1149 (1993)
Tucker v. KFC National Management, 689 F. Supp. 560 (1988)

Massachusetts Totality of the Circumstances Luisi v. Foodmaster Supermarkets, 739 N.E. 2d 702 (2000)
Whittaker v. Saraceno, 635 N.E. 2d 1185 (1994)
Flood v. Southland Corp., 616 N.E. 2d 1068 (1993)

Michigan Special Relationship/ Special Circumstances Stanley v. Town Square Co-Op, 512 N.W. 2d 51 (1993)
Harkins v. Northwest Activity Center, 453 N.W. 2d 677 (1990)
Williams v. Cunningham Drug Stores, 418 N.W. 2d 381 (1988)

Minnesota Special Relationship/ Special Circumstances Errico v. Southland Corp., 509 N.W. 2d 585 (1993)
Anders v. Trester, 562 N.W. 2d 45 (1997)
Erickson v. Curtis Investment, 447 N.W. 2d 165 (1989)

Mississippi Actual or Constructive Knowledge Gatewood v. Sampson, 812 So. 2d 212 (2002)

Missouri Split Authority between:
special relationship/special circumstances and
prior similar incidents L.A.C. ex rel. D.C. v. Ward Parkway Shopping Center, 75 S.W. 3d 247 (2002)
Hudson v. Riverport Performance Arts, 37 S.W. 3d 261 (2000)
Richardson v. QuikTrip Corp., 81 S.W. 3d 54 (2002)

Montana Prior Similar Incidents Peschke v. Carroll College, 929 P. 2d 874 (1996)

Nebraska Totality of the Circumstances Doe v. Gunny’s Ltd., 593 N.W. 2d 284 (1999)

Nevada Totality of the Circumstances Doud v. Las Vegas Hilton Corp., 864 P. 2d 796 (1993)
Early v. N.L.V. Casino Corp., 678 P. 2d 683 (1984)

New Hampshire Blended four standards:
Special Relationship
Special Circumstances
Overriding Foreseeability
Assumed Duty Walls v. Oxford Management, 633 A. 2d 103 (1993)

New Jersey Totality of the Circumstances Saltsman v. Corazo, 721 A. 2d 1000 (1998)
Morris v. Krauszer’s Food Stores, Inc., 693 A. 2d 510 (1997)
Clohesy v. Food Circus Supermarkets, 694 A. 2d 1017 (1997)

New Mexico Prior Similar Incidents Wilson v. Wal-Mart, 117 F. 3d 1429 (1997)

New York Prior Similar Incidents/Actual or Constructive Knowledge Po W. Yuen v. 267 Canal Street Corp., 802 N.Y.S. 2d 306 (2005)
Moskal v. Fleet Bank, 694 N.Y.S. 2d 555 (1999)
Jacqueline S. v. City of New York, 598 N.Y.S. 2d 160 (1993)

North Carolina Balance between:
Totality of the Circumstances
andPrior Similar Incidents Vera v. Five Crow Promotions, Inc., 503 S.E. 2d 692 (1998)
Purvis v. Bryson’s Jewelers, 443 S.E. 2d 768 (1994)

North Dakota Balance between:
Totality of the Circumstances
andPrior Similar Incidents Zueger v. Carlson, 542 N.W. 2d 92 (1996)

Ohio Totality of the Circumstances Krause v. Spartan Stores, Inc., 815 N.E. 2d 696 (2004)
Collins v. Down River Specialties, 715 N.E. 2d 189 (1998)
Hickman v. Warehouse Beer Systems, 620 N.E. 2d 949 (1993)

Oregon Known Aggressor/ Imminent Danger Allstate Ins., v. Tenant Screening Services, 914 P. 2d 16 (1996)

Pennsylvania Actual or Constructive Knowledge Rabutino v. Freedom State Realty Co., Inc., 809 A. 2d 933 (2002)
Rosa v. 1220 Uncle’s Inc., 2001 WL 1113016 (2001)

Rhode Island Totality of the Circumstances Volpe v. Gallagher, 821 A. 2d 699 (2003)

South Carolina Totality of the Circumstances Jeffords v. Lesesne, 541 S.E. 2d 847 (2000)
Callen v. Cale Yarborough Enterprises, 442 S.E. 2d 216 (1994)

South Dakota Special Relationship/ Special Circumstances Smith ex rel. Ross v. Lagow Construction & Developing, 642 N.W. 2d 187 (2002)

Tennessee Balancing Test:
Foreseeability w/ Burden Patterson Khoury v. Wilson World Hotel-Cherry Road, Inc., 139 S.W. 3d 281 (2003)
McClung v. Delta Square Ltd., 937 S.W. 2d 891 (1996)

Texas Prior Similar Incidents Western Investments, Inc., v. Maria Urena, 162 S.W. 3d 547 (2005)
Timberwalk Apartments v. Cain, 972 S.W. 2d 749 (1998)
Nixon v. MR. Property Management, 690 S.W. 2d 546 (1985)

Utah Known Aggressor/ Imminent Danger Steffensen v. Smith’s Management Corp., 862 P. 2d 1342 (1993)

Vermont None

Virginia Blends:
Special Relationship/ Special Circumstances
w/Known Aggressor/Imminent Danger Yuzefousky v. St. John’s Wood Apartments, 540 S.E. 2d 134 (2001)
Gupton v. Quicke, 442 S.E. 2d 658 (1994)

Washington Special Relationship/ Special Circumstances Kim v. Budget Rent A Car Systems, 15 P. 3d 1283 (2001)
Nivens v. 7-11 Hoagy’s Corner, 943 P. 2d 286 (1997)

West Virginia Special Relationship/ Special Circumstances Doe v. Wal-Mart Stores, Inc., 479 S.E. 2d 610 (1996)
Miller v. Whitworth, 455 S.E. 2d 821 (1995)

Wisconsin Totality of the Circumstances Peters v. Holiday Inns, 278 N.W. 2d 208 (1979)

Wyoming Balancing Test:
Foreseeability w/Burden Krier v. Safeway Stores 46, Inc., 943 P.2d 405 (1997)

SecureLaw, Ltd. 65 West Jackson Blvd., #112, Chicago, IL 60604-3598 Phone: 312-423-6700 Fax: 312-692-2322 © James F. Pastor 2007