Frank - I hope this helps. If it's in NC, feel free to contact me for additional information
I spoke with an expert on these types of cases, and was advised that in any litigation expert witnesses can be found for both sides.
However, The general standard and framework in which cameras typically come up (i.e. criminal acts of third parties).
More specifically, the North Carolina Supreme Court has held that a business owner owes “an individual who enters the premises of [the business] as a customer during business hours ... [t]he general duty ... not to insure the safety of [such] customers, but to exercise ordinary care to maintain [the] premises in such a condition that they may be used safely by [customers] in the manner for which they were designed and intended.” Foster, 303 N.C. at 638, 281 S.E.2d at 38 (emphasis added). Accordingly, under North Carolina law, “[o]rdinarily [a business] owner is not liable for injuries to [customers] which result from the intentional, criminal acts of third persons.” Id. “Nevertheless, the [North Carolina Supreme Court has] recognized ... that where circumstances existed which gave the owner reason to know that there was a likelihood of conduct on the part of third persons which endangered the safety of his [customers], a duty to protect or warn [them] could be imposed.” Id. at 638–39, 281 S .E.2d at 38; see also id. at 640, 281 S.E.2d at 39 (quoting with approval statement in Restatement (Second) of Torts, Section 344, Comment f that, “[i]f the place or character of [a] business, or [the owner's] past experience, is such that [the owner] should reasonably anticipate ... criminal conduct on the part of the third persons, either generally or at some particular time, [the owner] may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection”).
Foreseeability Based on Prior Criminal Activity
Under North Carolina law, “[t]he most probative evidence on the question of whether a criminal act was foreseeable is evidence of similar prior criminal activity committed on the defendant's premises.” Purvis v. Bryson's Jewelers, Inc., 115 N.C.App. 146, 147, 443 S.E.2d 768, 769 (1994) (affirming entry of summary judgment for defendant-business by Beaty, J.); accord Dettlaff v. Holiday Inns, Inc., 10 Fed. Appx. 100, 102 (4th Cir.2001) (citing Connelly v. Family Inns of Am., Inc., 141 N.C.App. 583, 588, 540 S.E.2d 38, 41 (2000)). Additionally, “evidence of criminal acts occurring near the premises in question may be relevant to the question of foreseeability....” Murrow v. Daniels, 321 N.C. 494, 501, 364 S.E.2d 392, 397 (1988). Consistent with that authority, Plaintiff has argued that “the shooting was foreseeable by [the GGP Defendants and Defendant Gap because of] ... the past criminal activities that occurred at [FSTC].” (1:10CV423, Docket Entry 59 at 4; 1:10CV423, Docket Entry 60 at 4.)
*6 As evidence of such relevant “past criminal activities,” id., Plaintiff's summary judgment response identifies the following:
The [P]roperty [P]rofile, which was completed [by Defendant Mydatt] two months after the incident in question ... states that the busiest day at [FSTC] is Saturday. It also states that in between 2004 and 2006 there were nine robberies, one homicide, 11 burglaries, nine assaults, 71 instances of disorderly conduct and 336 larcenies on [FSTC] property. Additionally, the profile states that the day of the week that crime occurred the most in 2006 [sic] on Saturday and this crime mostly occurred in retail spaces. Plaintiff was shot on a Saturday in 2006. One month prior to this there was a murder in the parking lot of [FSTC].
(1:10CV423, Docket Entry 59 at 5 (emphasis added) (citing Docket Entry 60–2 at 3–5); 1:10CV423, Docket Entry 60 at 4–5 (emphasis added) (citing Docket Entry 60–2 at 3–5).)4 The Property Profile cited by Plaintiff also lists one “aggravated assault” separate from the nine “assaults” referenced in Plaintiff's above-quoted summary judgment brief. (See 1:10CV423, Docket Entry 60–2 at 4–5.)
The evidence of past criminal activity on which Plaintiff relies to establish the foreseeability of his shooting thus consists of 20 total crimes which by definition involve the use (or threatened use) of force against a person (i.e., nine robberies, nine assaults, one aggravated assault, and one homicide) in three years.5 In other words, the statistics Plaintiff has cited reflect that, before his shooting, crimes involving use (or threatened use) of force against persons (like his shooting) occurred six to seven times a year at FSTC, a shopping mall that (according to the Property Profile relied on by Plaintiff) catered to a population-base of 611,700 people and featured 1,141,000 square feet of interior retail space, as well as nearly 6,000 parking spaces (see 1:10CV423, Docket Entry 60–2 at 1).
Given the scale of FSTC (in terms of both physical area and customer numbers), such relatively infrequent prior instances of relevant criminal conduct cannot reasonably support Plaintiff's assertion that a “high volume of violent crimes ... occurred on [FSTC] property [sufficient to] put [the GGP Defendants] on ample notice that its invitees were in serious danger of being the victim of a crime by a third party (1:10CV423, Docket Entry 60 at 5 (emphasis added)) and/or that “sufficient criminal activity [occurred] to put [Defendant] Gap on notice that its store was located in a dangerous mall ” (1:10CV423, Docket Entry 59 at 5 (emphasis added)). By way of contrast, the two cases in which the North Carolina Supreme Court has found sufficient evidence to raise a fact-question as to the foreseeability to a business owner of third-party crime involved: 1) 100 criminal incidents deemed relevant at a commercial intersection in a four-and-a-half-year period before the crime at issue (i.e., approximately 20 per year), Murrow, 321 N.C. at 502, 364 S.E.2d at 397–98; and 2) 31 criminal incidents deemed relevant at a shopping mall in the year preceding the crime in question, Foster, 303 N.C. at 642, 281 S.E.2d at 40.6
*7 To permit a finding that the GGP Defendants and Defendant Gap had a duty to prevent third-party violence based on the substantially fewer (and less frequent) past relevant crimes in this record would work an injustice contrary to North Carolina law. As the North Carolina Court of Appeals observed over a quarter century ago, it is unlikely “there exists a community in this State which is entirely crime-free. In the broadest sense, all crimes anywhere are ‘foreseeable.’ ... [However,] to impose a duty [on a business to prevent crime] absent true foreseeability of criminal activity ... would be grossly unfair.” Sawyer v. Carter, 71 N.C.App. 556, 562, 322 S.E.2d 813, 817 (1984).7
Hayes v. GGP-Four Seasons, L.L.C., No. 1:10CV423, 2011 WL 6027443, at *5-7 (M.D.N.C. Dec. 5, 2011)