Rodriguez v. Del Sol diminishes the impact of the targeted crime defense in premises liability cases

In its Del Sol decision, the New Mexico supreme court expressly endorsed the Restatement (Third) of Torts.

The decision supports jury trials in most premises liability cases — including cases raising the targeted crime defense.

In its Del Sol decision, the New Mexico supreme court expressly endorsed the Restatement (Third) of Torts, holding that foreseeability—the same foreseeability used to determine whether a duty exists in countless premises liability cases—has no business being used that way.

Foreseeability, the court held, is a fact-based question relevant only to the question of whether a duty was breached.

Foreseeability is a fact-intensive inquiry relevant only to breach of duty and legal cause considerations. What may not be foreseeable under one set of facts may be foreseeable under a slightly different set of facts. Therefore, foreseeability cannot be a policy argument because foreseeability is not susceptible to a categorical analysis.

While we all know (everyone, from babies to aliens) that foreseeability depends on the facts of a case, there has always existed a strange jurisprudential tension between this notion—and the practical reality that foreseeability is often decided by courts as a matter of law.

In Del Sol, New Mexico’s highest court said “that makes no sense.” (I’m paraphrasing). The court properly removed the question of foreseeability from judges’ hands, and placed it squarely with the jury.

Like all good cases bringing the duty issue to the fore, Del Sol involved a domino-style catastrophic set of facts that was so unbelievable it had to be real.  A driver suffered a seizure shortly after his vehicle started accelerating due to a mechanical issue.  In a series of tragic events, his truck traveled over a curb, missed a pillar, and crashed into the glass wall of a clinic located in the shopping center.  People were injured; some severely. And some died.

Victims sued the shopping center in which the tragedy occurred, alleging that the center should have done more to prevent what happened, including, for example, placing additional physical barriers that would have prevented the vehicle from making its way into the clinic’s glass wall.

In the lower courts, the primary question was viewed as one of whether a duty even existed—Was the course of events, they pondered, foreseeable to the shopping center? Was what happened so foreseeable that courts should impose a duty to have prevented it?

The meta-question raised (and which extends to all premises liability cases deciding foreseeability under the rubric of duty) is whether a judge should have that kind of power: the power to end a case at the outset based on the judge’s own view that a given outcome was unforeseeable to the defendant.

Naturally, this implicates all sorts of issues of justice, jurisprudential integrity, diversity of perspective, and, well . . . fairness.

The New Mexico supreme court decided to take the mic.

In a well-reasoned and intellectually honest opinion, the court acknowledged the tangles in the string of premises liability cases and it expressly declared that it would no longer be participatory.  Instead, the court made clear that it is time to decouple foreseeability from the question of duty.  See also Marshall v. Burger King Corp., 856 N.E.2d 1048 (Ill. 2006) (which the court cited as an example of another that “correctly resisted the effort to conflate a breach-of-duty analysis with the duty analysis.”).  It followed the Restatement (Third) of Torts and relegated the question of foreseeability to a different location—breach.

And it did so rightly.  Brenna Gaytan, The Palsgraf “Duty” Debate Resolved: Rodriguez v. Del Sol Moves to a Foreseeability Free Analysis, 45 New Mexico L. Rev. 753, 767 (2015).

Foreseeability cannot be other than a fact-based question. See Alani Golanski, A New Look at Duty in Tort Law: Rehabilitating Foreseeability and Related Themes, 9 Albany L. Rev. 227, 232 (2012). Inserting the question of foreseeability into the analysis of duty makes no sense because in premises liability cases, the existence of duty has already been determined.  Whether a duty exists on the part of owners and occupiers of land is a policy question—and the core answer, reflected in hundreds of years of case law, is yes.  These cases make clear that while there generally exists no duty to act in the aid of another, in owner and occupier of land cases the law is willing to impose just such a duty. The question is one of broad policy—not of individual example.

The duty is already there.

Yet, strangely, courts (presumably under Cardozo’s wise guidance) have engaged in a practice of weighing evidence, considering particular facts, and making individualized determinations as to the existence of duty in individual cases.  There can be no real denying that when a case comes down the galley in which a judge is reluctant to impose liability, these judges have declared it to be matter of law that the tragic outcome was unforeseeable.  The mechanism for disposing of these cases at the summary judgment stage—or even earlier—has been to pose the question of duty, tack on the precise facts that make this case more “special” than others, and then answer the question as though it were a new one.

By so doing, these courts have not been deciding laws. They have been dictating outcomes.

Powerfully, in Del Sol the court declared that no more would courts be permitted free reign to decide cases based on their own assessment of what was foreseeable. A judge’s own call on foreseeability goes against the rules.  As stated in Del Sol:

Courts should not engage in weighing evidence to determine whether a duty of care exists or should be expanded or contracted—weighing evidence is the providence of the jury.

When judges decide cases in this way, the law becomes a reflection of their own views instead of the community’s. As the court emphasized:

Foreseeability determinations are reserved for a jury because such determinations require the jury’s common sense, common experience, and its consideration of community behavioral norms.

The court tacitly acknowledged the importance to issues of diversity and inclusion of leaving jury questions to juries—and hinted at some of the societal implications of failing to do so in its discussion of breach and causation. The court elaborated on the proper mindset to be adopted in those rare instances in a verdict would be directed:

The determination requires judges to abandon their own personal thoughts regarding the merits of cases and to imagine the thoughts of twelve adult citizens from a variety of socioeconomic backgrounds—such as scientists, college faculty, laborers, uneducated, rich, poor, persons with different political persuasions—and what that diverse group might find regarding the merits of a case.

They then dropped the mic.

To the extent the Del Sol approach is adopted by other jurisdictions—which it should be—one implication is that the red herring that is the targeted-crime defense becomes weakened. Cf. Gaytan, supra at 777.  For violent crime victims in premises liability cases, under Del Sol it will no longer constitute a viable ‘out’ at the summary judgment stage for a proprietor to claim that an attack was a targeted one, and that it was, as such, ipso facto unforeseeable. Instead, Del Sol supports the view that without regard to whether a victim was targeted, the question of foreseeability, and the question of whether reasonable action was taken based thereon, remains squarely, always, a jury question.

In short, Del Sol supports the view that whether an attack was foreseeable remains a fact question for the jury—even in cases involving targeted crimes.

[W]e clarify and expressly hold that foreseeability is not a factor for courts to consider when determining the existence of a duty, or when deciding to limit or eliminate an existing duty in a particular class of cases.

L.B. v. Naked Truth: the naked truth about the so-called targeted-crime defense.

A woman was working the overnight shift as clerk at an adult video store…

At around 5:30am, a man entered the store.

After walking to the back of the store, the man returned to the front counter, pointed his gun at the woman, and ordered her to give him the money from the register.

He then raped her.

A woman was working the overnight shift as a clerk at an adult video store…

At around 5:30am, a man entered the store.

After walking to the back of the store, the man returned to the front counter, pointed his gun at the woman, and ordered her to give him the money from the register.

He then raped her.

The crime was investigated.  And, the store’s history with criminal violence came to light.

As it turns out, this was not the store’s first rodeo.  

The location had previously been the target of at least four successful armed robberies.  One of these had taken place only two months before the robbery in which the woman was raped.

The woman filed suit against the store, believing that what happened to her was foreseeable and could have been prevented.

The store was shocked by the suggestion.

At trial, they brought in an expert who declared that what happened to her, in fact, could not have been foreseen by them.  In the expert’s opinion, the store’s owner could not have possibly imagined this was going to happen.  This crime, they argued … well, this crime was special.

This, you see, was a victim-targeted crime.

The targeted crime defense, as it has been applied by some courts, is the notion that there is a subset of crimes that are special snowflakes.  Unlike regular crimes, the reasoning goes, these special crimes are not foreseeable and therefore cannot be prevented.


Because unlike regular crimes, these victims were hand-selected by the assailant.

And so, the argument goes, a store or business, or any other establishment that ordinarily would have had a duty to provide protection, is now off the hook. They can wash their hands of the entire matter. Not their problem.

Because this victim was targeted.

In the woman’s case, the assailant had been found. A man named Jose McCrary.

The woman did not know him.

But this fact – this undisputed fact that the woman did not know the man – was a minor insignificant detail, the store argued. A trifle.

Because the assailant “knew” her.

More specifically, the store introduced evidence from a co-worker at the store who said the assailant had come into the store a few days prior to the assault and had asked for the woman.


This, the store said, is proof that the woman had been specifically targeted, and so, what could the store have possibly done? How could they have possibly known?

The store won at trial.

On appeal, one of the issues the woman raised was what difference does it make that the assailant had already spotted me?

In response, the store maintained that they were entitled to win because, you know, targeted-crime defense.

Forget that the store had been the targeted for prior armed robberies.

Forget that this woman was working the overnight shift at their adult retail store.

Forget that the assailant had robbed the store before raping her.

Forget all of that, they argued, what matters is that the assailant had set his sights on the woman.

This means, they argued, that there was no possible way the store — an adult retail store— could have known that this woman was at risk for being raped.

The co-worker’s statement is proof, they argued, that the store could not have foreseen the rape.

And it is proof, they said, that there is nothing the store could have done to prevent it.

And the court agreed that the co-worker’s testimony could be proof of that.


From the decision L.B. v. Naked Truth III, 117 So.3d 1114 (2012), the co-worker’s testimony:

Yes. I mentioned a gentleman who actually—he stood out because he did something that normal customers don’t do. He walked into the Store. He stopped in front of the ATM machine. … He asked me, was [she] working, and I told him, “She doesn’t work this shift anymore,” and he made a face and turned around and walked out the door.

Why don’t college rape victims report what happened?

Some of the biggest issues keeping college students from reporting rape and sexual assault are fear of being blamed, shame, and being unsure whether what happened qualifies as “rape”…

What are the biggest issues keeping college female students from speaking up when they are victims of sexual assault or rape?

In my professional experience, the reasons why college students may be hesitant or fearful to report they were raped or sexually assaulted usually fall somewhere along the following lines:

  • 1. Fear of being blamed.

The number one reason I see college students hesitating before coming forward is they are worried that if they complain, the finger will be pointed squarely at them.

In both, incidents of acquaintance rape and stranger rape, students are fearful that the response from friends and officials will be that the victim is responsible – whether partly or entirely – for what happened.

Although we have presumably reached the point as a society that many understand that it is entirely irrelevant what it was she was wearing at the time, there certainly remains progress to be made.

  • 2. Shame

Feelings of culpability hold many college girls back from speaking up about their rape. Self-questioning and regret can cause students to become trapped in thoughts of I shouldn’t have gone there, I should have known, I should have been more careful, I should have

These thoughts cause many college victims to avoid discussing what happened.

Moreover, if the surrounding circumstances leading up to the incident were anything less than wholesome (which, come on – it’s college), a student may feel that telling any part of the story is not an option. What will my parents think of me?

  • 3. Unsure whether what happened qualifies as “rape”

College girls may be unsure whether what happened to them was, in fact, sexual assault or rape.

While any college student knows what rape is as a theoretical proposition, the reality of college rape -in particular, acquaintance rape – can often feel much blurrier.

  • 4. Thinking there are not many options

Once they become a victim, college girls are now faced with the pragmatic decision of what to do next.

In my experience, college students often engage in a practical weighing of their options and too often conclude that what happened is already in the past and nothing can be done about it now.

Students need to be educated as to the reality that much can be done after the fact.

And that doing something now may save another girl from experiencing the same.

  • 5. Not wanting to ruin his life

Whether she knew him well or not, many college girls would rather take on the burden of suffering silently, than reporting him and “spreading the suffering.”

This stems in part from a strong sense of compassion, and in part from the faulty utilitarian thinking that since not much will ultimately result from reporting him, there’s no point in damaging in his reputation.

  • 6. Worried they won’t be supported and/or that the matter will be publicized.

To many college girls, the idea of “everyone knowing” can be the most fearsome aspect of coming forward.

This fear that the matter will be made public, and that others will hate them, blame them, and judge them prevents many college victims from coming forward.

Students should know that the matter will be treated with the utmost confidentiality, on a need-to-know basis.

  • 7. Thinking that maybe it wasn’t that big a deal.

College students often engage in a silent inner battle in which they debate whether what happened was that big a deal.

Am I just overreacting? Maybe I’m just being dramatic…

Even though they may feel disgusted, traumatized, or violated, they may nonetheless question the validity of their own feelings.

  • 8. Thinking that they don’t have the strength or courage to fight.

College girls often have way more strength than they realize.

Read more about college rape.

Support us in our efforts to end violence against women.

College female rape & sexual assault by the numbers

The victim knew the offender in 81% of colleges rapes; touching or grabbing is the most frequently used tactic in college sexual assaults; other tactics used in sexual assaults include the victim being incapacitated, physical force, and threats of harm.

Support us in our efforts to end violence against women.

Data taken from the Bureau of Justice Statistics Research and Development Series Campus Climate Survey Validation Study Final Technical Report