The Verdict Is In

Apr 1, 2005 12:00 PM

Property owners are not required to prevent all crime, nor are they liable for all crimes committed on their properties. A recent study shows that property owners frequently are not liable for criminal attacks, and when they are found liable, the verdict and settlement amounts are often relatively low.

The legal principles of premises security liability are quite detailed, but the basic rule is that property owners are required to maintain reasonably safe premises in proportion to the risk of crime. Based on the tort of negligence, premises security liability is a relatively fluid concept, meaning that the amount of security necessary at any particular property must be reasonable and proportionate to the risk of crime at that site. What constitutes “reasonable” is relative to the current risk of crime. As such, as crime risk increases, so should the security measures. Conversely, as the risk of crime decreases, so may the need for a given level of security.

A study entitled “Major Developments in Premises Security Liability III” involves the review and analysis of 1,176 cases that were voluntarily reported between 1992 and 2001 by trial attorneys in a number of national publications (mostly law journals and newsletters). Cases are recorded for the year they are reported, not necessarily the year the crime occurred.

Summary of findings

• Assault and battery accounted for more inadequate security lawsuits than sexual assault, wrongful death or robbery.

• Parking facilities were the leading location for all business categories where crimes committed on property led to a lawsuit, followed by inside stores and then outside.

• The majority of verdicts reported in 1992-2001 were in favor of defendants.

• Multi-unit residential properties (apartment and condominium complexes) were the type of business most often sued, followed by retail stores and bars.

• The highest percentage of plaintiff awards, including both verdicts and settlements, was less than $250,000.

• New York, Texas, Georgia, Louisiana, California and Florida were the states reporting the highest number of premises security liability cases.

Overall case outcomes

In 1,165 of the 1,176 cases where a verdict was reported during the 10-year period of the study, 52 percent resulted in verdicts favorable to property owners. The graph on page 34 shows other outcomes among cases in which the outcome was disclosed.

While the data is interesting for a number of reasons, it should be looked at cautiously, the report's author warns. The overall outcomes show a significant disparity between defendants' and plaintiffs' verdicts, with the former outdoing the latter by more than two to one. The author suggests the higher frequency of defendant verdicts may be a consequence of the fact that attorneys do not typically report losses, and more law journals currently provide opportunities for defense counsel to report case results. Also, the relatively low number of settlements (8 percent) is significant because it is well known that the vast majority of lawsuits, as much as 90 to 95 percent, are typically settled prior to trial. A possible explanation might be that more attorneys on both sides are increasingly willing to go to trial, or it could be simply that settled cases were not reported as frequently.

Patterns and trends

The most common basis for a claim of inadequate security is the lack of presence. The argument, simply stated, is that the property owner failed to maintain an adequate security presence in the area where the crime occurred.

The second most often claimed deficiency was for policies and procedures, which means that property owners either failed to follow their own procedures or that the policies and procedures were deficient because they failed to specify a particular course of action.

The diagram on this page highlights other issues raised by plaintiffs in their lawsuits and the basis for their allegations. “Access control” and “inadequate system” are both general assertions that the defendant failed somehow to either keep out the intruder/criminal or that there was an overall failure of the “security program” to prevent the crime.

Allegations of “lighting,” “locks,” “CCTV”, “alarms,” “fencing” and so forth are all categories of equipment failures. The basic claim by the crime victim is that either the specific piece of equipment failed to perform a task (e.g., the lock was broken) or that the property owner should have installed a particular piece of hardware (e.g., a deadbolt lock on a door).

About the study

Author of the study is Norman Bates, Esq., of Liability Consultants Inc., Sudbury, Mass. E-mail is liability@liabilityconsultants.com. Web site is www.liabilityconsultants.com. The study is available for $95 plus $5 for shipping and handling and $4.75 Massachusetts sales tax, if applicable.

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© 2008 Penton Media Inc.

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