Stalking Victims’ Duty to Warn Employees, Lovers, Visitors, and Others?

Say Donna is being targeted by a stalker. It would often be a jealous ex — whether one who is a menace directly to Donna or to her new lovers — but it could be a deranged fan, or perhaps someone who has political or religious reasons to attack Donna. Assume Donna is aware that the stalker is a threat, so that an attack by him is foreseeable. The stalker tries to attack Donna, but in the process injures Paul; or the stalker deliberately injures Paul because the stalker is jealous of Paul’s s real or perceived relationship with Donna.

Paul then sues Donna, claiming that Donna had a duty to warn him that she was being stalked, and that she was therefore dangerous to be around. Assume that Donna would normally have a duty to warn Paul of other sorts of dangers: Perhaps Paul is an employee at the office that Donna owns, or a plumber or gardener who is working at Donna’s house, or a customer of Donna’s hair salon: In such situations, Donna’s relationship with the person would require her to take reasonable steps to protect the person, including by warning them. Or perhaps Donna has a duty to warn Paul, stemming from the theory that the danger to Paul comes in part from Donna’s positive action rather than inaction — for instance, she got sexually involved with Paul, or invited Paul to a party at her house, or some such.

Should Donna be seen as having breached a duty to warn people that being around her is dangerous? What if Donna’s friend Emily decides to let Donna stay at Emily’s house, or go to work at Emily’s store — would Emily have a duty to warn people about the danger to those who are around Donna? (Note that Emily would even more clearly have engaged in action, rather than just inaction.)

Compare Jobe v. Smith (Ariz. Ct. App. 1988):

Plaintiff John Jobe was seriously injured while at the home of defendant Beth Smith by the assault of her estranged “gentleman friend” Rodney McMeans. Jobe was there at Smith’s request to repair her refrigerator. Contending that Smith knew of McMeans’ propensity for violence and of the risk that he would attack Jobe, Jobe brought suit against Smith for negligently failing to warn him of that risk….

Defendant admits that Jobe was a business visitor entitled to warnings about hidden perils on the premises. But, defendant asserts, that duty exists only if the peril is a condition of the property. When the peril is the criminal act of a third person, the argument continues, the duty of a landowner … does not include the business visitor on residential premises among the special relationships imposing a duty to exercise care to protect against harm from others ….

We believe that the distinction drawn by defendant is a wholly artificial one. We can see no reason to say that there is a duty to warn about a freshly waxed and slippery kitchen floor, see Nguyen, supra, but not about a homicidal maniac in the back bedroom.

with Faulkner v. Lopez, 2006 WL 2949070 (Conn. Super. Ct.):

On November 7, 2000, the defendant Tina Soucy obtained a Family Violence Restraining Order against the defendant Ramon Lopez, ordering Lopez to stay away from her and from her residence at 4 Collins Street, New Britain….[On] December 19, Soucy had invited the two plaintiffs to her home in advance of the three of them going out together. As the two plaintiffs waited in Soucy’s living room for Soucy to get ready to leave, Lopez, violating the restraining order, approached Soucy’s residence, shot off the front door lock, forced his way into the apartment, compelled the three to sit down, shot Perron in the face, and chased Faulkner through the kitchen to the locked back door, where Lopez caught up to him and shot him in the gut. Perron and Faulkner were badly injured but they survived.

In addition to suing Lopez, who is currently incarcerated, the plaintiffs … are … suing Soucy … for failing to warn them that Lopez was a violent person who had called her earlier in the day wanting to see her….

Under certain circumstances, one who is in control of a premises may owe a duty to use reasonable care to safeguard invitees from assault by third parties…. In determining whether to recognize a duty of care to third parties, the [Connecticut] Supreme Court has held that the court must consider whether recognition of the cause of action would require arbitrary limitations, whether the recognition would impose some additional economic burden on the general public, whether it would yield any significant social benefits, and whether it would create a substantial risk of double recovery….

[P]erhaps more important than the economic consequences are the social consequences of recognizing a duty in this case. The allegation is that the defendant is a woman who has met the test set forth in Conn. Gen.Stat. § 46b-15: she “has been subjected to a continuous threat of present physical pain or physical injury” by a male family member or boyfriend. To find that she has a duty to warn others of her victimhood is to doubly victimize her. This duty would have the effect of isolating her and endangering her further. This court cannot find that such a consequence is warranted under the common law….