Seibert v. Vic Regnier Builders, Inc.

856 P.2d 1332 (1993)

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Nature of the Case

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Facts

P was a passenger in an automobile owned and driven by her friend Michelle. At about 3:00 p.m., they drove to the Ranch Mart Shopping Center and parked in the subterranean parking garage. They got out of the automobile and reached into the back to retrieve their purses from the 'cubby' area of the Corvette. Assailants were upon them. P screamed and either dropped or threw a can of cola at her assailant, who then shot her in the head. The robbers fled. P sued D alleging that by virtue of past criminal activity in the shopping center's parking areas plus the nature of the underground parking area, including dim lighting by virtue of numerous burned-out fluorescent tubes, the defendant owed a duty to her as a business invitee to provide security. There was no security f-- no warning signs, video surveillance, or security guards. P offered expert testimony that the security, including the lighting, was inadequate and had appropriate security measures been in place, the attack upon her would probably not have occurred. There was no evidence of prior crimes in the underground parking. There were approximately 4 incidents in above ground parking in two years. Based on prior incidents, the court ruled that the attack was unforeseeable. Under the prior similar incidents rule, the court granted D summary judgment. P appealed. P contends the court erred in not applying the broader 'totality of the circumstances' rule.