Premises liability lawsuits can range from litigation as pedestrian as a case resulting from a purse snatching in a big box parking lot to something as grave and high profile as the 1974 suit brought against a hotel after the rape of singer Connie Francis. Whatever the degree of seriousness, it is clear that premises liability lawsuits have evolved over the years in ways not anticipated by the average landowner, property manager, or even the security professional.
Although they fall under the broad umbrella of premises liability, these lawsuits are more frequently referred to as negligent or inadequate security lawsuits. Having provided expert security witness services in over 400 of these lawsuits across the nation, Risk Management Associates hopes that the following information will be of benefit to security professionals and property managers in understanding the precedents involved. This article, however, is not intended to provide legal advice. The best source for legal advice on the subject is an attorney experienced in inadequate security lawsuits.
Roughly, the basis of an inadequate security claim is that:
- a duty was owed by one entity to another to provide a particular level of security;
- the duty was breached because the security provided did not meet the applicable standard of care; and
- a causal connection existed between the breach of this duty and the plaintiff’s injury.
In the case of premises liability, whether or not an entity has a duty to provide another with security is often legally dependent on the foreseeability of an incident; that is, whether or not the responsible party could or should have been able to see that their actions, or lack of actions, would be likely to result in the type of incident that occurred. There do exist cases in which a legitimate argument can be made that a duty is not owed to the injured party due mainly to that party’s unique position. In our experience, however, those most often involve instances in which the injured party actually initiates the action that leads to an injury.
Foreseeability, on the other hand, is most often shown by the presence or absence of prior incidents. Security experts spend a considerable amount of time analyzing prior reported crime and security incidents to determine their relevance to particular cases. The possible subjects that can substantiate relevance are many; for instance, how important is the crime’s time of day/day of the week to the relevance? Are domestic violence-related crimes relevant to stranger-on-stranger crimes? To what degree should property crimes be considered when dealing with a crime of violence? How heavily should crime in the area around the property but not actually on the property be considered? The breadth of material developed regarding each of these issues makes them impossible to examine in any extensive manner here. For security professionals reading this, suffice it to say, if the crime would cause you concern, whether on or around your property, then it may well be relevant to the issue of foreseeability. It should also be noted that in many jurisdictions, if a “substantially similar” crime has already occurred on the property, a subsequent similar crime is considered foreseeable.
The second issue, that of the existing standard of care, also has many components. In inadequate security cases the standard of care is defined as the degree of security which would be exercised by a reasonable person under a similar set of facts and circumstances. Some of the factors considered are:
- Any laws that might apply to the situation, such as licensing of guards, fire codes, etc.
- Any security policies or procedures that might exist on the subject property or on similar properties
- What other properties in the same class as the subject property are providing in the way of security
- Security practices that are typically followed for a similar property in a general sense.
An old adage that is always good to remember is that “security is a response to conditions.” In other words, industries generally do not engage in unnecessary security practices, they only respond with security policies, devices, manpower, and physical conditions after events have shown us that such responses are necessary. Therefore, the applicable security standards will vary both by geographic location and type of facility involved. One would not expect to see the same level of security practiced in a high-crime inner city that is practiced in a low-crime, rural, agricultural area. By the same token, because of differing security concerns, one would not expect to find the same security practices in place at a pharmaceutical research facility and a shopping center. Again, these are all factors that the security expert must consider.
The third factor in our inadequate security case, causation, may again be a subjective determination based heavily on a security expert’s opinion. Did the lack of a security procedure, device, or guard cause the plaintiff’s injuries? Often these arguments center on the issue of deterrence. What evidence can the expert offer that the security in question actually deters individuals from committing that particular type of crime? In many cases access control is a key issue; of course someone could not commit a crime on a property if he or she could not obtain access to that property.
What are some areas of awareness for security professionals?
- How do you or your property managers remain aware of the type and level of crime on your property? Should you find yourself in court, would the method chosen be deemed adequate?
- If you have had previous incidents, have you responded appropriately to those incidents? We all know that we can’t prevent every crime. We must, however, respond to crimes committed on our property. It is reasonable to expect a successful defense of a second or third violent crime if the previous crimes had each been responded to in a reasonable and prudent manner.
- Are you following your own procedures and polices? If someone thought that it was important enough to write a policy about it, you would be well advised to follow the policy. If the policy is old, outdated or unreasonable after time, it may be advisable to conduct a documented study, develop a new alternative, and implement the new policy.
- Did you conduct a comprehensive security assessment of your property? Did you then implement the recommendations of that assessment? If not, you would be well advised to document the management decisions that resulted in the recommendations not being followed and what the alternative processes were. Give careful consideration to any decision not to follow a recommendation because it is not fiscally feasible! Advise the security assessors of your budgetary constraints prior to the assessment being conducted and ask for alternative recommendations to any that you feel will be impossible to implement.
- Can we ever reduce a type of security currently being provided without raising our liability exposure? Certainly. The most common way to reduce security in one area, such as manpower, is to increase security in another area, such as electronics. Or one could reduce the amount of fence surrounding a property but increase the number of security patrols. Again, you should carefully document the decision and any data consulted.
No property manager or security professional can ever be certain that they will not be a party to an inadequate security lawsuit. Some great prevention tools, however, are awareness of the crime conditions both on and around your property, implementation of good security practices based on informed decisions, and documentation of your decisions and practices.
Plan. Protect. Prosper.
Protus3 specializes in security system design, security consulting, corporate investigations and other investigative services. Partner with Protus3 and we will examine each situation to identify threats and develop solutions for your best outcome.