NCJ Number
133609
Journal
California Western Law Review Volume: 23 Issue: 2 Dated: (Spring 1987) Pages: 165-191
Date Published
1987
Length
27 pages
Annotation
In the prevailing era of victim rights awareness, the judiciary has increasingly recognized the potential civil liability of third persons for failing to protect a victim from the criminal conduct of another.
Abstract
This trend entails the use of traditional negligence standards in alleging that omissions of a third party caused injury. Compensation in third party suits depends on the victim's establishing a legal duty on the part of the third party to protect the victim and on proving that breach of duty resulted in injury. The task of determining whether an affirmative duty of protection exists frequently involves identifying a special relationship between the victim and the third party. Another approach adopted by courts is to balance competing policy considerations. This legal analysis argues, however, that decisions of California courts in this area of law are poorly reasoned. The analysis exposes the anomaly created when courts define protective duty primarily in terms of foreseeability and allow the jury to be the principal arbiter of a legal, not factual, determination. The author contends that the issue of third party liability for criminal violence requires legislative attention, since social and economic costs inflicted by the absence of a general definition of circumstances creating a legal duty of care are too great to ask citizens to pay. Legislative guidelines for determining the existence of an affirmative duty of security protection in this context should delineate criteria that explore the degree of power, control, submission, and dependence in a given relationship. Additionally, foreseeability should not be equated with mere likelihood and should only determine the scope of a pre-existing duty that is based on the nature and character of the relationship involved. 141 footnotes