While returning to her car after shopping at a Sam's Club (owned by Wal-Mart) in Kenner, Louisiana, the plaintiff, Ms. Posecai, was robbed at gunpoint in the store's parking lot. No security guard was patrolling the lot at the time, and the store generally did not maintain regular security patrols outside. The lot was large and open, with standard lighting. Ms. Posecai sued Wal-Mart, alleging that it negligently failed to provide reasonable security measures to protect invitees from foreseeable criminal attacks. In support, she relied on police data showing some criminal activity in the surrounding area and a handful of prior incidents associated with the premises, though there was little or no history of similar violent robberies in the parking lot itself. Wal-Mart responded that the attack was not sufficiently foreseeable to trigger a duty to employ costly measures such as security guards and that it was not an insurer of patrons' safety. The trial court found for the plaintiff, holding that the attack was foreseeable and that Wal-Mart had a duty to provide additional security; the intermediate appellate court largely agreed. Wal-Mart sought review in the Louisiana Supreme Court.
What duty, if any, does a business owner owe to protect patrons from criminal acts of third parties on the premises, and what is the proper test for determining when such a duty arises based on foreseeability?
A business owes a duty to exercise reasonable care for the safety of its patrons, including, in appropriate circumstances, protecting them from foreseeable criminal acts of third parties. Foreseeability and the gravity of the harm must be balanced against the burden of imposing a duty to protect against the risk. Under this balancing test, the scope of any duty varies with the level of foreseeability: minimal foreseeable risk warrants minimal precautions; only when criminal conduct is sufficiently foreseeable will the law impose a duty to undertake more burdensome protective measures, such as hiring security guards. Businesses are not insurers of their patrons' safety.
The court adopted a balancing test to determine the existence and scope of a business's duty to protect patrons from third-party criminal acts and held that, on these facts, the risk of the robbery was not sufficiently foreseeable to impose a duty on Wal-Mart to provide security guards or additional parking-lot security. The judgment for the plaintiff was reversed, and her claims were dismissed.
The court surveyed four approaches used by courts nationwide. First, the specific-harm rule imposes a duty only when a landowner knows of a specific, imminent threat; the court rejected it as too narrow because it would seldom allow preventive measures. Second, the prior-similar-incidents test looks to whether comparable crimes previously occurred on or near the premises; while useful, it can be too rigid and may ignore relevant contextual factors. Third, the totality-of-the-circumstances test considers all surrounding conditions, but the court found it risks imposing near-strict liability by allowing relatively modest evidence to trigger expensive security obligations. The court adopted the fourth approach—the balancing test—which weighs the foreseeability and gravity of the harm against the burden, costs, and practicality of security measures. This test aligns with the general negligence framework and the Restatement (Second) of Torts § 344 and its comments, which tie a possessor's duty to knowledge (actual or constructive) of likely criminal conduct and reasonable protective steps in light of the circumstances. The court emphasized that foreseeability is a sliding scale: the more foreseeable and serious the risk, the more a reasonable business must do; conversely, low foreseeability does not justify imposing heavy security measures like armed guards. Applying the test, the court examined evidence of prior criminal activity. While there was some crime in the broader area, the record reflected little history of similar violent crimes on the Sam's Club premises and no pattern indicating that armed robberies in the parking lot were likely. Because foreseeability of this type of attack was low, the law did not require Wal-Mart to incur the cost and administrative burden of deploying parking-lot security guards. Basic precautions (lighting, sightlines) were sufficient under the circumstances. The court concluded that imposing a duty to provide guards would effectively make retailers insurers against criminal acts—a policy the court rejected. Therefore, Wal-Mart owed no duty to undertake the additional security measures advocated by the plaintiff, requiring reversal.
Posecai is a cornerstone premises-liability case that clarifies duty for third-party criminal acts by adopting a structured balancing test. It teaches students to locate foreseeability at the duty stage and to analyze how the magnitude of risk interacts with the costs and feasibility of precautions. The opinion provides a clear taxonomy of approaches (specific harm, prior similar incidents, totality, and balancing) and shows how courts incorporate empirical evidence (crime data, incident patterns, site characteristics) without turning businesses into insurers. Posecai is widely cited in duty and premises-security litigation and is a staple for exam analysis involving third-party crimes.
Posecai v. Wal-Mart Stores reshaped Louisiana premises-liability law by adopting a foreseeability–burden balancing test for third-party criminal acts. The decision underscores that while businesses must act reasonably to protect invitees, they are not absolute guarantors of safety. Duty expands or contracts with the evidence-based probability and severity of harm.