Your liability for crime against your customers

Sep 1, 1997 12:00 PM, Dr. STEPHENIE SLAHOR

James R. Jones' experience as the field office supervisor for the Miller's Mutual Insurance Association-Illinois has shown him that civil courts are increasing the liability of premises owners and occupants for customers' injuries from criminal attack. But, he adds, there is much you can do to reduce your liability. Start with learning about the ways an owner or occupant can be held liable.

* Liability may stem from a crime committed by an employee against a customer.

* There may be a breach of the warranty of habitability in a lease-a type of liability most common with residential premises such as apartments and college dormitories.

* There may be liability because of failure to warn a tenant or occupant about crimes committed on the premises.

* Some states have laws in which specific security measures are required in settings such as apartments, ATMs or college campuses. Violation of such laws could lead to a verdict of negligence with liability on the business.

* There may be cases based on misrepresentation or violation of consumer protection statutes that impose liability. For example, your ad touting the efficiency of security on the premises could lead to liability if that security fails.

* Liability may be imposed for improper security such as when a criminal act leads to a customer's injury, or where there is a special relationship based on a higher duty of care (innkeeper, school, hospital, nursing home, common carrier), or where there is a voluntary assumption of the duty to provide security (a security guard tells someone to go to a specific area and the customer is later attacked there), or liability may be imposed for inadequate security.

It is those inadequate security cases that have proven to be the most controversial because of ambiguity and rapid changes in the case law, says Jones. Commonly, these cases are based on the foreseeability of crime and the failure to provide adequate security against the crime. Foreseeability is grounded in prior similar acts or the totality of the circumstances such as the prior similar acts in a neighborhood or setting combined with the type of business you operate. Failing to provide adequate security is arguable, of course, but the jury sees it as a situation in which no matter what precautions were actually taken, they were obviously inadequate because a victim suffered injury.

To prove a failure to provide adequate security, the plaintiff will present evidence on many factors such as lighting, locks, alarms, management security policies, warning signs, security cameras, security guards and other measures present or not present on the premises.

Jones says the types of businesses most often sued for liability from criminal acts are residential apartments (38% of cases), hotels/motels (25%), retail premises (8%) and restaurants (7%). Nearly 30% of assaults are committed in parking lots, pointing to the need for security beyond the building itself.

Management policies must be examined carefully, warns Jones. If there have been cutbacks in the security budget, they should not have been done solely for economic reasons. It is easy to imagine the jury's laugh at the defendant's expense when hearing that, despite the crime rate, the defendant cut back security because it was expensive.

Management must also establish a policy for proper employee security training, along with a schedule of communication with the local police regarding local crime trends and crime prevention planning. A policy of employee identification may be necessary for some larger businesses, but every business needs a policy for controlling and monitoring keys.

Finally, management must establish a standard operating procedure for accepting, recording and responding to complaints about inadequate security.

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© 2012 Penton Media Inc.

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