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3.9-28 Duty to Protect from Wrongful Conduct of
Third Persons
Revised to January 1, 2008
The plaintiff claims that the
defendant was negligent in failing to provide adequate security to prevent a
third person from committing crimes on the premises that were likely to
cause harm to persons such as the plaintiff.
You have already been instructed
on the duties owed to an invitee by one who controls the premises. In this
case, if you find that the plaintiff was an invitee and if you find that the
defendant was in control of the premises, the defendant owed a duty to take
reasonable steps to safeguard the plaintiff on the premises from the
criminal acts of third persons provided the plaintiff also proves 1) that
the defendant had notice of the risk and 2) that the defendant's conduct
placed the plaintiff within the scope of the risk.
Notice
The plaintiff must prove that the
defendant actually knew about, or, in the exercise of reasonable care,
should have known about crimes or conduct of the same general nature as that
befalling the plaintiff occurring on the premises or in its immediate
vicinity. If you find that the defendant a) knew or in the exercise of
reasonable care should have known of such crimes, and b) that such crimes or
conduct were of the same general nature as that befalling the plaintiff and
c) that such crimes had previously occurred on the premises or the immediate
vicinity, then the plaintiff has proved notice to the defendant. If you
find that the plaintiff has failed to prove any one of these elements, you
must find in favor of the defendant. If the plaintiff has proved all of
these, then the plaintiff has satisfied the requirement that such notice be
proved.
Scope of the Risk
The plaintiff must prove that it
was reasonably foreseeable to the defendant that the failure to take steps
reasonably necessary to safeguard the plaintiff would subject the plaintiff
to the type of harm of which the defendant had notice. Even if the
defendant had notice as I have defined it for you, the plaintiff must still
prove that the defendant could reasonably foresee that failure to take
action to warn or safeguard the plaintiff would subject the plaintiff to the
same general type of harm -- what the law calls placing the plaintiff
"within the scope of the risk."
If you find that the defendant
could not reasonably foresee that the failure to take reasonable steps to
safeguard the plaintiff was likely to subject the plaintiff to the same
general type of harm of which the defendant had notice, then the plaintiff
has failed to prove that the defendant's conduct placed the plaintiff within
the scope of the risk. If you find that the defendant could reasonably
foresee that the failure to take reasonable steps to safeguard the plaintiff
would likely subject the plaintiff to the same general type of harm of which
the defendant had notice, then the plaintiff has proved that the defendant's
conduct placed the plaintiff within the scope of the risk and this element
is satisfied.
If the plaintiff has proved the
status of an invitee -- that the defendant was in control of the premises,
that the defendant had notice of the risk, and that the defendant's conduct
placed the plaintiff within the scope of the risk -- the plaintiff has
proved the necessary elements of negligence and you must go on to consider
proximate cause.
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