Premise liability lawsuits can range from litigation for injuries resulting from a purse snatching in a big box parking lot to the victimization of a high-profile individual at a very high-end hotel. Whatever the degree of seriousness, 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 regularly referred to as negligent or inadequate security lawsuits. Atlas Aegis LLC hopes this information will benefit security professionals and property managers in understanding the precedents involved.
This article is not intended to provide legal advice. The best source for legal advice on this subject is an attorney experienced in negligent 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 did not meet applicable standards of care.
- A causal connection existed between the breach of this duty and the plaintiff’s injury.
In the case of premises liability, whether an entity has a duty to provide another with security is often legally dependent on the foreseeability of an incident. For instance, whether the responsible party could or should have been able to see that their actions, or lack thereof, would likely result in the type of incident that occurred.
Foreseeability is most often shown by the presence or absence of prior incidents. Security experts spend a considerable amount of time using criminal analytics or analyzing previous reported crimes and security incidents to determine their relevance. Specific examples that can substantiate relevance are many; for instance, how important is the timeframe 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.
Existing Standard of Care
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 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 similar properties
- What other properties in the same class as the subject property are providing in the way of security
- Security practices are typically followed for a similar property in a general sense.
An adage that is always good to remember is that “security is an unwanted necessity.” In other words, industries generally do not engage in unnecessary security practices. They only respond with security policies, devices, staffing, 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, one would not expect to find the same security practices in place at a pharmaceutical research facility and a shopping center because of differing security concerns. 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 deters individuals from committing that particular type of crime? In many cases, access control is a crucial issue; of course, someone could not commit a crime on a property if they 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 been responded to appropriately and prudently.
- Are you following your procedures and policies? If someone thought it was important enough to write a policy about it, you would be well advised to follow it.
- 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 implement the recommendations of that assessment? If not, you should document the management decisions that resulted in the guidance not being followed and the alternative processes. (Carefully consider any decision not to follow a recommendation because it is not fiscally feasible!)
- Advise the security assessors of your budgetary constraints before the assessment is finalized and ask for alternative recommendations to any that you feel will be impossible to implement.
- Can we ever reduce the type of security currently being provided without raising our liability exposure? The most common way to reduce security in one area, such as staffing, is to increase security in another area, such as electronics. Or one could reduce the amount of fencing surrounding a property but increase the number of security patrols. Again, you should carefully document the decision and any data consulted.
How Atlas Aegis Can Help
No property manager or security professional can ever be certain that they will not be a party to an inadequate security lawsuit. However, some great prevention tools are awareness of the crime conditions both on and around your property, implementing good security practices based on informed decisions, and documentation of your decisions and procedures as if in preparation to defend your organization in a court of law. Atlas Aegis offers this assistance to large and small organizations. Give us a call for a free consult.