“We Can’t Control Crime” Defense: How Property Owners Try to Escape Liability

Educational information only, not legal advice. Oregon negligent security law is fact-specific and case-dependent. Verify details with applicable Oregon statutes, Oregon case law, and an attorney if you have a specific situation.

If you were hurt on someone else’s property because of a third person’s criminal act — an assault, a robbery, a shooting — and then you or your attorney tried to seek accountability from the property owner, the response you may hear is something like this:

“We can’t control what criminals do.”

That line — sometimes stated by the property owner, sometimes by an insurer, sometimes by defense counsel — is real. But in Oregon, it does not automatically resolve the legal question.

Oregon law does not automatically shield property owners from liability for criminal acts committed on or near their premises simply because crime is, in general, difficult to predict or prevent. The question is narrower: did this specific property owner’s failure to address known or foreseeable security risks meaningfully contribute to the harm?

This post walks through the “crime is uncontrollable” defense, the other arguments defense counsel raise in negligent security cases, and how Oregon courts respond to each one. For the broader negligence framework, see our Oregon personal injury law overview. For a property-specific example, see our post on apartment complex assault and landlord liability.

Oregon’s Negligence Framework: The Foreseeability Standard

Before examining defenses, it helps to understand the legal standard they respond to.

Oregon’s approach to negligence is distinctive. In 1987, the Oregon Supreme Court, in Fazzolari v. Portland School Dist. No. 1J, moved away from the traditional separate “duty” inquiry — the gatekeeping step that other states use to decide whether a defendant owes legal responsibility at all — and recast ordinary negligence around a unified foreseeability-based analysis.

Under Fazzolari, unless a special status, relationship, or statutory rule creates a specific duty, liability depends on whether the defendant’s conduct “unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” The court uses broad, generalized language: foreseeability is not about predicting the exact sequence of events, but about whether the general type of risk was reasonably anticipatable.

This framework matters in negligent security cases because it means property-owner liability turns on whether criminal harm was reasonably foreseeable to this particular defendant — not on whether Oregon recognizes a freestanding “duty to police” or “duty to protect from crime.”

Oregon courts have applied this framework across several property-owner contexts:

• Business invitees — The Oregon Supreme Court in Uihlein v. Albertson’s, Inc. (1978) held that a property owner holding premises open to the public for business purposes can be liable for physical harm caused by third-party criminal acts if the owner failed to exercise reasonable care to discover such acts or give adequate warning. The court adopted Restatement (Second) of Torts § 344 and comment f, which note that a possessor “is not an insurer of the visitor’s safety” but may have a duty to “take precautions” and provide “a reasonably sufficient number of servants to afford a reasonable protection” when criminal conduct is reasonably anticipatable from past experience or the character of the business.
• Tenants — The Oregon Court of Appeals in McPherson v. Oregon Dept. of Corrections (2007) held that landlords owe a common-law duty to protect tenants in common areas from reasonably foreseeable criminal acts by third persons.
• Hotel guests — The Oregon Supreme Court in Mickel v. Haines Enterprises, Inc. (1965) held that hotel proprietors must protect invitees from foreseeable dangers arising from the arrangement or use of the premises — a principle that extends to criminal risks when they are reasonably foreseeable.

In each of these settings, the underlying question is the same: was the criminal harm reasonably foreseeable, and did the property owner fail to take reasonable steps to address it?

The “Crime Is Uncontrollable” Defense: What It Is and How It Works

The argument that “the criminal is solely responsible, not the property owner” sounds commonsensical. It is also legally incomplete in Oregon.

Defense counsel raise this argument by relying on the idea of an intervening criminal act: the property owner’s alleged negligence (poor lighting, broken locks, absent security) merely created background conditions, but the actual force that produced the injury was the independent decision of a third-party criminal. Under this framing, the property owner’s conduct was too remote — too attenuated — to qualify as the “harm-producing force.”

The leading Oregon case that defense counsel cite is Buchler v. Oregon Corrections Div. (1993). In Buchler, a prison correctional officer left keys in a van, enabling a prisoner to escape. Two days later, the escapee committed crimes far from the original location. The Oregon Supreme Court held that the officer was not liable, reasoning that “mere facilitation of an unintended adverse result, where intervening intentional criminality of another person is the harm-producing force, does not cause the harm so as to support liability for it.”

That principle is real. But Oregon courts have also drawn firm limits around it.

In McPherson — the apartment complex case — the Court of Appeals explicitly distinguished Buchler. The landlord’s security deficiencies (broken locks, poor lighting, landscaping providing concealment) were not too attenuated from the harm. The criminal on the premises “took notice of circumstances resulting from defendants’ negligence, and it played a role in his decision to inflict harm.” The court found that a reasonable juror could conclude the landlord’s negligence meaningfully contributed to the risk.

Similarly, in Uihlein, the supermarket’s complete absence of security in a high-crime area could support liability because the foreseeability of criminal harm, combined with the failure to take any precaution, crossed the line from “mere facilitation” to actionable negligence.

The bottom line: the “crime is uncontrollable” defense can work in Oregon, but only when the connection between the defendant’s conduct and the criminal harm is genuinely remote — as in the Buchler scenario, where an escapee’s crimes occurred days later and far away. When the property owner’s negligence creates or enhances an opportunity for crime on the premises itself, Oregon courts have often declined to remove the issue from the jury.

Defense counsel may also cite Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP (2004) for the broader proposition that intervening forces — including criminal acts — can break the causal chain. But that case arose in an accounting-malpractice context, not in a negligent-security setting, so its application to premises liability is by analogy rather than direct authority.

Oregon Does Not Use “Superseding Cause”

A point of legal detail that matters: Oregon has not adopted “superseding cause” as a separate legal doctrine.

Several states, particularly California, use “superseding cause” language — the idea that an intervening criminal act is so independent and extraordinary that it breaks the chain of legal causation and shields even a negligent property owner from liability. Oregon does not.

Following Fazzolari and later Oregon Steel Mills, the Oregon Supreme Court has rejected “proximate cause” as a separate legal doctrine and subsumed what other jurisdictions treat as proximate-cause or superseding-cause limitations into the broader foreseeability analysis.

Practical consequence: if you read about negligent security cases from other states and encounter “superseding cause” language, that terminology does not map directly onto Oregon law. In Oregon, the same question — whether the criminal act was too remote to ground the property owner’s liability — is asked through the foreseeability lens. Defense counsel may still attempt to import superseding-cause language into jury arguments, but Oregon law does not support it as a separate defense.

The Foreseeability Battlefield: How Courts Decide Whether a Risk Was Anticipatable

Foreseeability is where negligent security cases are made or broken. And Oregon courts have a clear preference: they generally send foreseeability questions to a jury rather than resolving them at the summary judgment stage.

As the court in McPherson noted, foreseeability is “an element of fault, and fault, as the term is usually understood, is not associated with conduct which causes harm through the concatenation of highly unusual circumstances.” In other words, unless the connection between the defendant’s conduct and the criminal harm is truly extraordinary — something like Buchler — Oregon courts tend to let the jury decide whether the risk was foreseeable.

So what evidence can support foreseeability? Oregon uses a broad, totality-of-circumstances approach. Courts have recognized multiple categories of evidence that, alone or in combination, can show the criminal risk was reasonably anticipatable:

• Prior criminal activity on or near the premises. This does not require identical prior incidents — more on that below.
• The character and nature of the business. Twenty-four-hour establishments, bars, and convenience stores present different risk profiles than, say, daytime-only offices in a secured building.
• Geographically close violent crime statistics. Neighborhood crime patterns are relevant, not just incidents on the exact premises.
• The design and condition of the property. Poor lighting, hidden areas, broken locks, disabled gates, and landscaping that provides concealment can attract or enable criminal activity.
• The defendant’s own internal knowledge. Employee complaints, management safety concerns, and prior reports of threats or suspicious activity on the premises can establish that the defendant knew or should have known of the risk.

These categories are not a checklist that must be fully satisfied. They are factors that, in combination, can establish foreseeability even if no single one is decisive.

No “Prior Similar Incidents” Requirement in Oregon

One of the more common points of contention in Oregon negligent security cases — and one of the defense arguments Oregon courts most frequently push back against — is the claim that “nothing like this happened before on our property.”

Oregon does not require a prior identical incident to establish foreseeability.

The Fazzolari court made this clear: the concept of foreseeability refers to “generalized risks of the type of incidents and injuries that occurred, rather than predictability of the actual sequence of events.” Oregon’s standard is broader than the rigid “prior similar incidents” test used in some other jurisdictions.

The Uihlein case is particularly instructive. The supermarket defendant argued there were no prior recorded assaults in the store. The Oregon Supreme Court rejected that argument, pointing to employee testimony that the store was “the roughest store” where the employee had worked, that the employee “felt uneasy,” and that the employee had requested security protection. Those statements — not a formal logbook of prior assaults — were sufficient evidence of foreseeability on their own.

This is important. It means internal employee statements, management safety complaints, and informal or undocumented concerns about the property’s security can function as evidence that the defendant knew or should have known of a criminal risk, even in the absence of a clean record of prior on-premises incidents.

That said, defense counsel at trial may still rely heavily on the absence of documented prior on-premises incidents. How a particular jury weighs a neighborhood crime pattern against no documented history on the exact premises is unpredictable. The appellate standard is broad, but the jury-persuasion process is fact-specific.

In Chapman v. Mayfield (2015), the Oregon Supreme Court — in a dram shop case involving an intoxicated patron who left the bar and later shot someone off-premises — held that the bar’s conduct was insufficient to establish foreseeability of the shooting. The court focused on the attenuated connection between alcohol service and off-premises criminal harm, building on Moore v. Willis (1988). The case illustrates the boundary line: when the connection between the defendant’s conduct and the criminal harm is genuinely remote, foreseeability may fail as a matter of law. For more on alcohol-service liability, see our guide to Oregon dram shop law and assault liability.

”Open and Obvious” Danger: A Limited Defense in Criminal-Risk Cases

You may also encounter the argument that the dangerous condition — poor lighting, a broken lock, an unsecured gate — was “open and obvious,” meaning you should have noticed the risk and taken precautions.

This defense works differently in Oregon than in many other states, and it is particularly limited in negligent security cases.

Under Restatement (Second) of Torts § 343A, as applied in Oregon premises-liability cases, a property owner is generally not liable to an invitee for physical harm caused by a condition whose danger is known or obvious — unless the owner should anticipate the harm despite the obviousness. Oregon’s Supreme Court in Woolston v. Wells (1984) went further and held that it was error to instruct a jury that a landlord is not liable if the danger was known or obvious to the visitor, because such an instruction is inconsistent with Oregon’s comparative fault statute (ORS 31.600).

Two things follow from this:

1. “Open and obvious” is not a complete bar in Oregon. Even if a danger was apparent, the property owner may still face liability if they should anticipate that harm will occur despite the visitor’s awareness — for example, where distractions are likely or the risk is unreasonably dangerous.
2. In negligent security cases, the “open and obvious” doctrine is less applicable than in slip-and-fall cases. Criminal risk is typically not a visible physical condition on the ground — it is an unaddressed vulnerability in the property’s design, maintenance, or security posture. Poor lighting, broken locks, or absent security create conditions that are not “open and obvious” in the traditional physical-hazard sense. You might notice that a light bulb is out, but whether that creates a meaningful opportunity for criminal harm is a different question.

One area of openness: how Oregon courts would apply the open-and-obvious doctrine specifically to security vulnerabilities — as opposed to visible trip or slip hazards — in a negligent security case is not fully developed in Oregon appellate law. The doctrine is most settled for physical conditions. Its application to criminal-risk contexts remains underdeveloped and fact-dependent.

Comparative Fault: “You Were Partly Responsible, Too”

Oregon follows a modified comparative fault system under ORS 31.600. If your case reaches a jury, the jurors will apportion fault among you and the defendants, third-party defendants, settled parties, and other people the statute allows the jury to consider. Your recovery is reduced in proportion to the percentage of fault attributed to you. If your fault exceeds the combined fault of everyone else whose fault is considered — that is, 51% or more — you recover nothing.

This 51% bar is strict, and defense counsel actively try to build comparative-fault arguments in negligent security cases. Common lines of attack include:

• You ignored safety warnings posted on the premises.
• You chose to remain in a known dangerous area after becoming aware of threats.
• You behaved in a way that provoked or escalated the encounter.
• You failed to use available security measures, such as calling for help or using a panic button.

In Appleyard v. Port of Portland (2021), the Oregon Court of Appeals held that a plaintiff’s own negligent conduct can constitute comparative fault even when the plaintiff did not know of the specific dangerous condition that caused the injury — so long as the plaintiff’s conduct was itself a cause of the harm. This broadened scope means defense counsel may attempt to argue that a plaintiff’s careless behavior contributed to the attack, even where the plaintiff was unaware of the specific security deficiency.

Two important corrections to common misconceptions:

First, Oregon abolished implied assumption of risk under ORS 31.620. A defense argument that you “assumed the risk” by entering a high-crime area at night cannot operate as a complete bar to recovery. The Oregon Supreme Court in Thompson v. Weaver (1978) held that this abolition “cannot be circumvented by restating as an absence of duty what was previously implied assumption of risk.” That argument, if raised, shifts into the comparative-fault framework — it affects the percentage of recovery, not whether you can bring a claim at all.

Second, comparative fault allocation is a jury decision. How a jury apportions fault in a particular case depends on the facts, witnesses, and arguments presented. It is incorrect to assume that plaintiffs typically succeed or fail at the comparative-fault stage — the outcome depends on the specific evidence and how the jury evaluates each party’s conduct.

How Much Security Is “Reasonable”? The Jury Decides

Another defense argument: “No reasonable security measure would have prevented this crime.”

Oregon courts treat the reasonableness of security as a jury question — not a question that gets the case dismissed at the summary judgment stage.

The Uihlein case illustrates this. The court compared Albertson’s complete absence of security to competing supermarkets in the same geographic area that did have security measures. That comparison — industry practice and what neighboring businesses do — was relevant to the jury’s reasonableness assessment. The court did not require the defendant to implement every possible security measure, but it did recognize that a reasonable juror could find the failure to provide any security at all was unreasonable when the risk was foreseeable.

In McPherson, the court found that measures like improved lighting, working locks, and security patrols could be deemed reasonable by a jury when combined with evidence of foreseeable criminal risk.

One structural uncertainty: Oregon has no statewide statute or administrative regulation setting minimum commercial security standards — no prescribed lighting foot-candle levels, camera counts, security-guard ratios, or lock requirements for most property types. “Reasonableness” is determined case by case, usually through expert testimony. This creates both opportunity and uncertainty. Plaintiff experts can define a reasonableness standard that a jury finds credible, but there is no bright-line standard either party can rely on.

Where the Defense Can Succeed — Knowing the Limits

For credibility, it is worth acknowledging upfront where property-owner defenses have succeeded in Oregon.

Buchler itself shows a scenario where the defense worked: a prison employee’s negligence in leaving keys was held too remote from crimes committed by an escapee two days later. The “mere facilitation” limitation — the idea that some background conditions are too attenuated to support liability — is real, and Oregon courts have not drawn a clear bright line separating actionable premises-specific negligence from “mere facilitation.” The distinction remains fact-specific and jury-dependent.

Chapman v. Mayfield (2015) is another example. In that dram shop context, the Oregon Supreme Court held that alcohol service alone was insufficient to establish foreseeability of an off-premises shooting after the patron had departed. The attenuated connection between the defendant’s conduct and the off-premises harm meant foreseeability was not established as a matter of law — though the court emphasized that the ruling was tailored to those specific facts.

These cases illustrate that Oregon’s foreseeability standard is broad but not unlimited. When the connection between the defendant’s negligence and the criminal harm is genuinely remote, a defendant may succeed at summary judgment. But Oregon appellate courts regularly decline to dismiss negligent security claims at the pleading or summary judgment stage when there is arguable evidence of foreseeability — and the “we can’t control crime” defense operates more powerfully at the jury-persuasion level than at the dispositive-motion level.

What This Means for Property Types

The legal framework described above applies across the types of property settings where negligent security claims arise in Oregon — but the scope of a property owner’s duty and the evidence available can vary by setting.

Business invitees (customers at stores, restaurants, other public businesses) receive the highest protection among traditional premises-liability categories. The property owner must use reasonable care to discover conditions creating unreasonable risk of harm and either eliminate them or warn foreseeable invitees — including risks from third-party criminal conduct when reasonably foreseeable.

Tenants are protected by the landlord-tenant special relationship. As McPherson established, landlords owe a duty to protect tenants from foreseeable criminal acts in common areas. The scope of that duty inside individual tenant units — especially for intra-tenant criminal acts — remains less settled. For a deeper look at how these rules play out at apartment complexes, see our post on apartment complex assault and landlord liability.

Hotel guests are treated as business invitees. Oregon law requires hotel proprietors to protect guests from foreseeable dangers arising from the arrangement or use of the premises, including criminal risks when they are reasonably anticipatable from the nature and use of the hotel.

Additional property types — hotels, parking garages, convenience store parking lots, poorly lit stairwells or walkways, bar fight injury claims, and other commercial settings — present their own evidence patterns and duty questions. Security-contractor issues can add another layer when a third-party security company may share blame, and Oregon dram shop liability for overservice can create overlapping liability when alcohol service contributes to the circumstances.

If You’ve Been Hurt — What to Consider Next

The “we can’t control crime” argument does not automatically defeat a negligent security claim in Oregon — but Oregon negligent security cases are fact-specific and competitive at the jury level. How a case develops depends on the particular evidence: prior complaints and incidents, the nature of the property, the condition of security features at the time of the incident, internal knowledge held by the property owner or manager, and the conduct of all parties involved.

If you are considering whether you may have a negligent security claim, practical next steps include:

• Document everything as soon as possible. Notes about property conditions, lighting, security features, and any prior incidents or complaints you’re aware of — ideally with photographs if you are able to take them.
• Preserve evidence. Security-camera footage, maintenance records, incident reports, and neighborhood crime data can deteriorate or be lost quickly. If you believe records are at risk of being destroyed, consult with an attorney promptly about evidence preservation. Our guide to preserving evidence after an accident or incident explains the basic preservation issues in more detail.
• Keep records of communications. Any written complaints you made to the property owner, property manager, or landlord before the incident — emails, text messages, maintenance requests — may be critical to establishing foreseeability.
• Consult with an attorney. Oregon’s comparative fault system and the fact-specific nature of foreseeable-risk analysis mean that an early evaluation of your situation can help you understand the strengths and limitations of a potential claim.

This post is provided as educational information only and does not constitute legal advice. Oregon negligent security law is complex and fact-dependent. If you have a specific situation, consult with an Oregon-licensed attorney for guidance tailored to your circumstances.

Frequently Asked Questions

Can I sue a property owner if there was no prior crime exactly like mine on the premises?

Oregon does not require a prior identical incident. Foreseeability can be established through the totality of circumstances: neighborhood crime patterns, the nature of the business, property design and maintenance conditions, and the defendant’s own internal knowledge from employee statements or tenant complaints. The Oregon Supreme Court in Fazzolari described foreseeability as referring to “generalized risks of the type of incidents and injuries that occurred,” not the predictability of an exact sequence of events.

Does Oregon recognize a “superseding cause” defense for criminal acts?

No. Oregon does not recognize “superseding cause” and “proximate cause” as separate legal doctrines in the way some other states do. The question of whether an intervening criminal act is too remote to support the property owner’s liability is absorbed into the broader foreseeability analysis behind Fazzolari. Defense counsel may use the term in jury arguments, but it is not a standalone defense under Oregon law.

What if the property owner says I should have known the area was dangerous?

Oregon abolished implied assumption of risk under ORS 31.620. An argument that you “assumed the risk” by being in a certain area cannot operate as a complete bar to recovery. That argument, if raised, shifts into the comparative-fault framework — it may affect the percentage of your recovery, but not whether you can bring a claim unless your fault exceeds the combined fault of all other parties.

Can I still have a case if the dangerous condition — like poor lighting or a broken lock — was obvious?

“Open and obvious” is not a complete bar to recovery in Oregon. Under the Woolston decision and Oregon’s comparative fault statute, even an obvious condition can support liability if the property owner should anticipate that harm will occur despite the condition’s visibility. In negligent security cases, the “condition” is typically an unaddressed security vulnerability — not a visible physical trip hazard — so the open-and-obvious doctrine is less effective than in slip-and-fall claims. That said, how Oregon courts apply open-and-obvious specifically to security defects, as opposed to physical conditions, remains an area of ongoing development.

What if my own behavior contributed to the incident?

Oregon’s modified comparative fault system (ORS 31.600) reduces your recovery in proportion to the percentage of fault attributed to you. If your fault exceeds the combined fault of all other parties — 51% or more — you recover nothing. The 51% bar is strict, juries apportion fault based on the evidence, and how they weigh the conduct of all parties depends on the specifics of each case.

How is Oregon’s negligent security law different from other states?

Oregon uses a broader “totality of circumstances” foreseeability test, does not require prior similar incidents on the exact premises, does not recognize “superseding cause” as a separate defense, and abolished implied assumption of risk. These features can affect how negligent security claims are analyzed in Oregon, though outcomes remain fact-specific and jury-dependent.

Source Notes

The legal framework and case references in this post are drawn from the following Oregon appellate decisions and statutes:

• Fazzolari v. Portland School Dist. No. 1J, 303 Or. 1, 734 P.2d 1326 (1987) — Oregon Supreme Court decision establishing the foreseeability-based negligence framework. Available at Justia.
• Uihlein v. Albertson’s, Inc., 282 Or. 631, 580 P.2d 1014 (1978) — Oregon Supreme Court decision allowing a negligent-security claim against a supermarket to go to the jury and rejecting the “no prior assaults on these premises” defense.
• McPherson v. Oregon Dept. of Corrections, 210 Or. App. 602, 152 P.3d 918 (2007) — Oregon Court of Appeals decision establishing landlord duty to protect tenants in common areas from foreseeable criminal acts; distinguishing Buchler’s “mere facilitation” limitation.
• Buchler v. Oregon Corrections Div., 316 Or. 499, 853 P.2d 798 (1993) — Oregon Supreme Court decision articulating the “mere facilitation” limitation on liability for intervening criminal acts. Available at Justia.
• Oregon Steel Mills, Inc. v. Coopers & Lybrand, LLP, 336 Or. 329, 83 P.3d 322 (2004) — Oregon Supreme Court decision rejecting proximate cause as a separate inquiry in Oregon tort law. Available at Justia.
• Woolston v. Wells, 297 Or. 548, 687 P.2d 144 (1984) — Oregon Supreme Court decision holding that “open and obvious” is not a complete bar to recovery under Oregon’s comparative fault system.
• Chapman v. Mayfield, 356 Or. 662, 339 P.3d 476 (2015) — Oregon Supreme Court decision on foreseeability limits in a dram shop/off-premises shooting context. Case summary available through Willamette Law Online.
• Thompson v. Weaver, 282 Or. 327, 578 P.2d 594 (1978) — Oregon Supreme Court decision holding that Oregon’s abolition of implied assumption of risk cannot be circumvented by reframing it as an absence of duty.
• Appleyard v. Port of Portland, 311 Or. App. 498, 500 P.3d 232 (2021) — Oregon Court of Appeals decision addressing comparative-fault application. Available at Justia.
• Moore v. Willis, 307 Or. 254, 767 P.2d 62 (1988) — Oregon Supreme Court decision on pleading standards for “knew or should have known” allegations. Available at Justia.
• Mickel v. Haines Enterprises, Inc., 240 Or. 369, 400 P.2d 518 (1965) — Oregon Supreme Court decision on hotel proprietor duty.
• Restatement (Second) of Torts § 344, comment f — Duty to discover conditions creating unreasonable risk of harm from third-party criminal acts and the “duty to police premises.”
• ORS 31.600 — Oregon’s modified comparative fault statute. Available at oregonlaws.org.
• ORS 31.620 — Oregon statute abolishing implied assumption of risk. Available at oregonlaws.org.