The Totality of the Circumstances: a Proper Analysis of Foreseeability
| Publication year | 1995 |
| Pages | 1075 |
| Citation | Vol. 24 No. 5 Pg. 1075 |
1995, May, Pg. 1075. The Totality of the Circumstances: A Proper Analysis of Foreseeability
Foreseeability is a condition precedent to the establishment of a common law duty of care. A proper understanding of fore-seeability is essential to pleading and proving negligence claims. Nowhere is the analysis of foreseeability more fully developed than in those cases where a plaintiff has alleged that a defendant was negligent in failing to take steps to prevent the foreseeable criminal or wrongful acts of third parties. The foreseeability analysis developed in the third-party criminal context may be applied to prove foreseeability/duty in a wide variety of circumstances.
There are currently two divergent theories as to what constitutes foreseeability: (1) the prior similar incident analysis and (2) the totality of circumstances analysis. In Taco Bell Inc. v. Lannon,(fn1) the Colorado Supreme Court adopted the totality of circumstances analysis. The breadth of the totality of the circumstances foreseeability analysis makes the establishment of common law duties of care significantly less burdensome.
The prior similar incident analysis is extremely restrictive. In order for an act to be foreseeable, there must have been at least one prior substantially similar occurrence.(fn2) Prior similar incident cases have established the rule that in the absence of a prior similar incident, an owner of land is not bound to anticipate the criminal activities of third persons, particularly where the wrongdoer is a complete stranger to both the landowner and victim, and where the criminal activity leading to the injury came about precipitously.(fn3)
The narrowness of the prior similar incident rule leads to numerous public policy difficulties. The rule generally has the effect of discouraging landowners from taking adequate measures to protect premises they know may be dangerous.(fn4) Under the prior similar incident rule, the first victim of criminal activity always loses, while subsequent victims are permitted to recover. The prior similar incident cases are thus analogous to dog-bite cases. A landowner is allowed one free assault, in much the same way a dog owner is allowed one free bite.
There is likewise difficulty determining what types of evidence are required to prove prior similar incidents. How similar do the acts have to be? How close in time? How near in location? The prior similar incident analysis causes substantial uncertainty and arbitrariness from court to court and from case to case.
Difficulties with the prior similar incident analysis have led courts to adopt the broader foreseeability theory of the totality of circumstances. This foreseeability rule provides that when making a foreseeability...
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