This valuable whitepaper, presented by the Federation of Defense and Corporate Council Winter Meeting in March of 2011, is still timely today and shared with the SecurityHive.com community to provide a better understanding on how our companies could be liable for large jury verdicts
for not providing proper secure environments.

Written by Richards H. Ford of Wicker, Smith, O’hara, McCoy, and Ford, P.A., a Florida law firm, this whitepaper showcases what negligent security conditions can cost an organization via a lawsuit.

NOT reading this whitepaper could end up costing your company millions.

By Richards H. Ford

I. GENERAL OVERVIEW OF NEGLIGENT SECURITY ISSUES

Foreseeability is the traditional basis of liability. A landowner has a duty to exercise reasonable care to protect against reasonably foreseeable criminal conduct. This duty is applicable to all types of business where you have business invitees: retailers, condominium associations, apartments, hotels, restaurants, bars, malls, etc.

Defending foreseeability. Business owners must obtain and understand crime grids, which are local, state, and federal crime data.

If there is pre-incident crime on the premises, this will impact the determination of foreseeability. The location of the prior crime is an issue, as to whether it occurred on the property itself, on property adjacent to the business, or in geographic proximity to the business.

The type of crime is also important, with a distinction drawn between violent crimes versus property crimes, and whether the prior crimes were substantially similar to the crime at issue. Another element of foreseeability is the frequency of calls for security services or law enforcement. Another consideration is the proximity in terms of time to the crime at issue. Finally, issues of foreseeability also involve theoretical versus realistic prevention of crimes.

The Third Party Criminal. Although not a defense, a third party criminal does impact foreseeability, including whether that third party is a customer, an invitee, a resident, a trespasser, or a loiterer. The intervening criminal act is not a defense to liability for negligent security, as the business owner cannot simply just blame the criminal. Further, because of the intentional nature of the criminal act, the criminal does not go on the verdict form for consideration by the jury.

Another consideration is whether security measures would have deterred a particular crime. The defendant can develop information regarding the criminal past of the perpetrator, including a rap sheet, prior admissions, and the type of past crime. The circumstances of the crime at issue also impacts liability, as to whether this was a crime of opportunity, or impulse as opposed to a pre-meditated act, or part of a crime spree. The critical issue will be what the defendant did to prevent the criminal act.

Some states have statutory limitations on liability. For example, Florida Statutes ? 768.0705 creates a statutory presumption against liability for the criminal acts of a third person if the owner or operator a convenience business substantially implements the applicable securities measures listed in Florida Statutes ?? 812.173 and 812.174. Florida Statutes ? 812.173 provides that every convenience business shall be equipped with the following:

• security camera system;
• drop safe or cash management device;
• lighted parking lot;
• notice in the form of signage that the cash register contains less than $50;
• unobstructed window signage;
• height markers;
• a cash management policy;
• no window tinting; and
• a silent alarm.

Florida Statutes ? 812.174 provides for training of employees. Convenience businesses shall provide proper robbery deterrence and safety training by an approved curriculum to its retail employees within 60 days of employment.

The curriculum must be approved by the attorney general of the state, and reapproved by the attorney general every two years. Other states have similar statutory limitations on negligent security awards.

If the criminal is your employee, the general rule is that the employer is not liable for the intentional criminal acts of an employee because they are outside of the course and scope of the employment. However, the business owner must consider whether there is a basis for being sued for negligent hiring and/or negligent retention of the criminal employee.

The business owner has a duty to conduct a pre-employment background check on the employee, and a plaintiff will request the employer?s personnel file in order to secure this information.

Another pertinent consideration is the anticipated degree of contact that the criminal employee would have with the public when he or she was hired. If the contact was direct and frequent, the obligation to check on the background increases, whereas if the contact is merely incidental or infrequent, that duty diminishes.

A consideration involving the criminal employee is whether the employer was unreasonable to hire the employee in light of his background; for example, if there was anything unsuitable in his background that suggested that this employee was not an appropriate hire. Certain states establish standards for an employer?s inquiry about the criminal background of an employee, and if those standards are satisfied, there is a presumption that the employer did not negligently hire the employee.

For example, Florida Statutes ? 768.096 provides that in civil actions arising from an intentional tort by an employee, there is a presumption against negligent hiring if, prior to hiring the employee, the employer conducted a background investigation of the prospective employee, and the investigation did not reveal any information that reasonably demonstrated the unsuitability of the prospective employee for the particular work to be performed or for employment in general.

A background investigation of a prospective employee must include the following:

• a criminal background investigation of the prospective employee by the state department of law enforcement;
• a reasonable effort to contact references and former employers concerning suitability of the applicant;
• completion of a job application form that includes questions concerning whether the applicant has been convicted of a crime and if so details regarding that crime, as well as whether the prospective employee has ever been a defendant in a civil action arising out of an intentional tort, including the nature of the intentional tort and the disposition of the action;
• secure a driver?s license record check if relevant for prospective employees who will be required to drive as part of the job?s responsibility; and
• interview the prospective employee.

If the employer does not conduct an investigation, there is no presumption that the employer used reasonable care in hiring the employee.

A separate consideration is negligent retention of an employee, which addresses the timeframe after the employee has been hired. An employer who discovers an employee?s unsuitability after the employee is hired but before the criminal act is committed can be held liable for negligent retention of that employee. One consideration in a negligent retention claim is whether there was some prior complaint which was inadequately investigated or addressed by the employer. If so, foreseeability is likely going to be established.

The keys to negligent retention turn on the propensity for dangerous or criminal acts, including notice and foreseeability.

Once an employer receives actual or constructive notice of problems with an employee, it may be unreasonable not to investigate the prior complaint or to take corrective actions, such as discharge of the employee or reassignment of the employee to a job whose responsibilities will not tempt the employee to engage in criminal behavior.

In general, an employer cannot be held liable for the tortious or criminal acts of an employee unless those acts were committed during the course and scope of the employee?s employment, and the acts were to further a purpose of interests, however excessive or misguided, of the employer.

Otherwise, an employer will not be held vicariously liable for the criminal or intentional acts of its employee. There are certain specific facts to be considered in determining whether an employee?s conduct is within the course and scope of his or her employment, as follows:

• whether the conduct is the kind that the employee was employed to perform;
• whether the conduct occurs substantially within the time and space limitations authorized or required by the work to be performed; and
• whether the conduct is activated at least in part by a purpose to serve the employer.

There are a certain number of themes that are emerging in the prosecution of claims for negligent security. Plaintiffs go through specific prior crimes with defense witnesses and ask the following questions:

• Did you know about this crime?
• What did you do about it?
• What actions did you take?
• If you did not take any actions, why not?
• Do the prior crimes concern you?
• Did you make any effort to warn the public?
• Did you warn the plaintiff?

The plaintiff will try to depict the defendant as indifferent to the consequences of its lax security, and will combine this evidence with an argument that the defendant was engaging in profits over people designed to inflame the jury.

Specific claims of negligent and intentional misrepresentations by the business owner can lead to an award of punitive damages. Plaintiffs will focus on marketing literature, that a particular location is a safe place, and employee lies, such as that there has been no crime that we are aware of, to anger the jury. A corporate policy of evidence can become an inflammatory issue supporting both compensatory and punitive damages.

Common security problems that premises owners must confront include the following:

• security company;
• lighting;
• gates, fences, and other barriers;
• deferred maintenance;
• overgrown landscaping;
• video surveillance; and
• trespass, vandalism, and loitering.

The following is a checklist of items that should be included in any investigation of a negligent security claim:

• crime grids;
• marketing material;
• prior claims and suits;
• preservation of any surveillance video;
• representative photos of the area;
• internal communications both before and after the incident;
• security documents, including contracts, invoices, schedules, and correspondence;
• police reports;
• incident reports;
• prior insurance claims;
• lighting records, including invoices, contracts, and repair documentation;
• gate, fence, and wall records;
• security surveys, either private or through law enforcement;
• witness information, including statements, employee personnel files, and tenant files;
• community association meeting minutes;
• courtesy officer and meeting records;
• notices to tenants and/or the public regarding prior crimes;
• the policies and procedures manual, including hiring issues, reporting crimes, maintenance issues, safety and security;
• copies of budgets, both drafts and final budgets;
• management agreements;
• repair requests from tenants;
• prior expert reports from litigation;
• Code Enforcement notices or citations;
• affordable housing documents;
• personnel files;
• a security officer?s file or a contract with the security company;
• documentation concerning client-specific security measures, such as guard monitoring systems, a trespass program, drug testing, or premises inspections; and
• any documentation of recommendations concerning the use of off-duty police officers, and whether those recommendations were either followed or disregarded.

Negligent security in the landlord/tenant context presents its own unique set of security concerns. As part of any investigation, it is important to establish whether there is any evidence that the landlord or property management company failed to maintain residential premises by complying with building, housing, and health codes which proximately caused the criminal act to occur.

For example, issues such as whether there were missing screens, a defective lock, or exterior lights extinguished will play a significant role in the determination both of liability and the amount of damages.

The status of the victim is also a significant consideration in a negligent security context. The duty that is owed to the victim depends upon the victim?s status.

Any initial assessment of exposure should include a determination of whether the victim was a business invitee, a licensee, or a trespasser. An invitee is owed a duty of reasonably safe premises being maintained, and the invitee must use reasonable care for his or her own safety and must observe any open and obvious condition.

The duty owed to a licensee depends upon whether the licensee is invited or uninvited. An invited licensee is treated much the same as an invitee. An uninvited licensee is generally owed the same duty as a trespasser, which is to refrain from willful and wanton acts and to warn of any concealed peril.

Comparative negligence is a legitimate defense in a negligent security case, however its efficacy will vary based upon the facts and circumstances of each individual case.

A business owner must be very cautious before engaging in a trial strategy that includes blaming the victim, as this tactical approach could backfire, resulting in an exacerbated verdict. One approach is to test the victim?s familiarity with the geographic area and crime history of that area. If the plaintiff has knowledge of the prior crime history of the geographic area that is equal to that of the premises owner, this can be considered as an element of comparative fault.

As is often the case, expert witnesses play a vital role in defending negligent security cases. Both plaintiffs and defendants will have expert witnesses to render opinions regarding liability.

These opinions will be based on site inspections performed by the experts, as well as an evaluation of the crime grids and cap index information. The effectiveness of the expert witness can go a long way toward the successful defense of the negligent security claim.

II. SPECIFIC VERDICTS AND SETTLEMENTS FROM AROUND THE COUNTRY

Damage and security claims can arise in a variety of different contexts. It is often said that the three most important words in real estate are location, location, location. The same is true in a negligent security claim.

The location in which a criminal act occurs will have an impact on the exposure that a landowner faces, as well as the potential award. Not surprisingly, the most common location in which a criminal act occurs giving rise to a claim of negligent security is a parking lot. The following examples of negligent security cases will be divided up by the location in which the criminal act occurred, beginning with parking lot liability.

A. Parking Facilities

In Stamper v. Woods Petroleum, Inc., Duval County, Florida, Circuit Court, 2009, the plaintiff?s decedent was a lance corporal in the United States Marine Corp. who was fatally shot in the parking lot of an Amoco Gas Station as part of a drive-by shooting. The estate argued that the defendant had a new clerk working on the evening of the shooting who had not taken the security program offered by Amoco. The estate contended that the inexperienced clerk should not have been working alone. The clerk should have called the police when she saw a large crowd congregating at the gas station. Ten minutes prior to the shooting, two looting incidents took place at the store. The clerk should have immediately called police at that moment. The area was known to be dangerous, and yet the defendant did not have a security guard on duty or any security cameras. The jury awarded the estate $1,830,000.00.

In Nash v. Port Authority of New York and New Jersey, New York County Supreme Court, 2009, the plaintiff raised a negligent security claim arising out of the 1993 bombing of the World Trade Center. A plaintiff?s verdict was reached in 2009 in the amount of $5,360,000.00. This is one of several negligent security claims arising out of the 1993 World Trade Center bombing.

In Erickson v. Curtis Investment Company, 447 N.W. 2d 165 (Minn. 1989), the Minnesota Supreme Court held that the owner of a commercial parking facility owes a duty to customers to protect them against crime by third parties. The case involved a woman who was raped at approximately 5 p.m. in a 330 parking space facility located in downtown Minneapolis. The assailant forced his way into the plaintiff?s car as she was about to leave, and raped her. The property owner had contracted with a security company to provide guards to patrol the parking garage, who did so once per hour. Prior to this incident, there had not been any reports of any crimes against any persons, although there were numerous ?security incidents? during the four years prior to this rape. The Minnesota Supreme Court held that the owner or operator of a parking facility has a duty to use reasonable care to deter criminal activity on the premises, with the relevant circumstances to be considered including the location and construction of the garage, the practical feasibility and cost of various security measures, and the likelihood of harm to customers.

In Small v. McKennan Hospital, 437 N.W. 2d 194 (S.D. 1989), the South Dakota Supreme Court held that the owner of a parking facility owes a duty of reasonable care to keep the facility safe for invitees, and that a breach of this duty does not require a showing of prior criminal acts on the premises. A business invitee at the defendant hospital was abducted, raped, and murdered. The South Dakota Supreme Court held that it was proper for the trial court to submit to the jury the issue of whether the attack was foreseeable in spite of the lack of any similar incidents. Foreseeability depends upon a consideration of all of the circumstances, including the physical conditions of the parking facility, the defendant?s knowledge that the facility was used for the consumption of alcohol and illicit drugs, and the overall lack of adequate security.

In Southland Corporation v. Superior Court? 250 Cal. Rptr. 57 (Cal. App. 1988), a California intermediate appellate court held that a convenience store may be held liable for injuries sustained by patrons of the store who are assaulted by third parties in a vacant lot adjacent to the store?s parking lot. Even though the defendant store did not own the lot, the store?s lease permitted customers to use it as a parking lot. The appellate court determined that the store could be held liable if the plaintiffs could establish that the defendants had control over the vacant lot. This at least raised an issue of material fact that would preclude summary judgment in favor of the store.

In MacQuarrie v. Howard Johnson?s Company, 877 F.2d 126 (1st Cir. 1989), the First Circuit Court of Appeals, applying Delaware law, held that the jury?s finding that the hotel failed to provide adequate security for a guest who was shot in the hotel parking lot was supported by evidence of prior criminal acts, even though those prior crimes were non-violent, where there was expert testimony that the security at the hotel was inadequate. The appellate court ruled that the jury was entitled to find that the incident was foreseeable based upon evidence that 16 property crimes had occurred in the four years prior to the shooting, as well as based upon the expert testimony regarding the inadequate security. The expert testified that a violent crime was probable based upon the prior crimes, the proximity of the hotel to the highway, the heightened activity at the hotel at the time because of a football game, and the lack of security.

In Figueroa v. Evangelical Covenant Church, 879 F.2d 1427 (7th Cir. 1989), the Seventh Circuit, applying Illinois law, held that the owner of a parking lot could not be held liable to a woman who was abducted in the parking lot after using the parking lot to drop off her child at an adjacent daycare center. The parking lot owner employed a security officer to patrol the lot, and there were no prior instances of serious crimes in the parking lot. Under Illinois law, there is no duty to protect against criminal attacks by third parties unless the criminal attack was reasonably foreseeable and the parties had a special relationship. The court ruled that the incident was not reasonably foreseeable, and therefore the defendant could not be liable for negligently performing the duty that it had assumed. This is clearly the minority view.

In Ghiam v. Conte, Los Angeles County, California Superior Court, 1992, a 38-year-old electrician was assaulted in the parking lot of an apartment complex. A jury verdict was entered in favor of the defendant, as evidence was presented that the defendant land owner had purchased the property in 1989, and had since installed perimeter fencing and other improvements at a cost of approximately $750,000.00. The case was tried in Los Angeles County Superior Court in California.

In Guice v. Centeq Real Estate Services, Inc., Harris County, Texas District Court, 1992, a case was settled for $750,000.00 during trial. The case involved the rape and beating of a 34-year-old woman in the parking lot of her apartment building. Evidence was presented that when Centeq took over its management duties, it reduced the security officer force from three guards to two. The plaintiff, prior to this incident, asked to break her lease because of concerns about security, but Centeq rejected her request. In addition, Centeq was aware of a rape that had taken place in the apartment building next door, but did not take any steps to warn tenants on its own property.

In Weidenfeller v. Star & Garter, San Diego County, California Superior Court, 1989, a 28-year-old construction worker was shot while in the parking lot of an adult entertainment club in San Diego, California. The bar was located in a high crime area, with numerous prior violent incidents. In addition, the evidence showed that drug consumption on the premises was common, the only light in the parking lot was not working that night, the bar?s bouncers were not patrolling as much as they were supposed to be, and there were no operational surveillance cameras. Based upon this evidence, the jury awarded the plaintiff $372,500.00.

In Hubbard v. The Edward J. DeBartolo Corporation, Southern District of Florida, 1989, a 47-year-old woman was assaulted in the parking lot of a shopping mall. During the assault, her purse was taken, she was hit, and she was thrown to the ground. The plaintiff?s expert testified that the mall had been notified of serious crime problems in the past but failed to take appropriate precautions. Evidence showed that there were normally six guards on duty, however there were only two or three guards on duty on the date of this assault. The defendant?s security manager testified that security did not patrol that particular area, and then recanted that testimony. The South Florida jury awarded the plaintiff $420,000.00.

B. Stores

In Cruz v. Crazy Horse Restaurant, Los Angeles County, California Superior Court, 2010, the plaintiff was injured when he was tackled by a security guard during a fight at the restaurant. The restaurant hires and manages its own security guards. Mr. Cruz alleged that the security guards were unlicensed and improperly hired, trained, and retained. Mr. Cruz contended that there were crowd control techniques that could have been employed which would have prevented the plaintiff?s injuries had security personnel known how to deploy them. There was conflicting testimony as to whether there was surveillance video of the incident. The plaintiff sustained a right broken distal tibia and a laceration to the forehead. The jury awarded the plaintiff $1,176,063.00.

In Leahy v. Karola Corp., Collin County, Texas District Court, 2010, the plaintiff was a 50-year-old software sales consultant who was stabbed just outside of the entrance of the Bent Tree Grill, a bar and restaurant located in a strip mall in Dallas, Texas. The plaintiff argued there was a history of criminal activity on the premises and that the restaurant had notice of it. The history included a shooting on the dance floor of the restaurant 12 days prior to this incident, plus vandalism of vehicles and arguments inside the establishment. The plaintiff was stabbed in the jaw line, causing nerve damage, causing one side of his face to droop. He was also stabbed in the left arm, left side, and back, which caused a punctured lung. The plaintiff was stabbed a total of seven times. The jury awarded $830,950.00, which was then reduced by 50% for the plaintiff?s comparative fault.

In Murphy v. Corner Food Mart, Harris County, Texas District Court, 2010. the decedent, who was a 19-year-old student, was shot and killed outside of the Corner Food Mart convenience store in a case of mistaken identity. The student died at the scene. The estate claimed that a fight had broken out at the store and that one of the individuals had drawn a gun, however the store employees did not call the police. The estate contended that the store was negligent in failing to contact the authorities, in failing to warn customers of the potential danger, in failing to provide proper security, and in failing to provide a safe environment for its customers. The jury awarded $2,005,500.00.

In Makowski v. McDonald?s, Pasco County, Florida Circuit Court, 2009, the decedent, a 21-year-old college student, was strangled to death during an altercation with a fellow McDonald?s patron in the exit of the restaurant?s parking lot. The estate produced testimony that the shopping center where this McDonald?s was located had a history of violent or potentially violent crimes. In the four years preceding the incident, there were 700 calls to 911 originating from the shopping plaza.

The McDonald?s employees hesitated for approximately five minutes while the altercation was going on. Once 911 was called, the police arrived at the scene in less than one minute. One week prior to this incident, McDonald?s employees had placed an emergency call to the police when patrons had threatened to kill each other. There was conflicting testimony from the defendant regarding who was in charge of premises security. The defendant?s witnesses were not aware of the high volume of emergency calls that had been placed in the years leading up to the incident. The jury awarded $1,500,000.00, which was then reduced to $1,000,000.00 based upon the decedent?s comparative fault.

In Williams v. Cunningham Drug Stores, 418 N.W. 2d 381 (Mich. 1988), the Michigan Supreme Court held that a merchant does not have a duty to provide armed, visible security guards to protect invitees from the criminal acts of third parties. The plaintiff in Williams was a customer in a drug store located in a high crime area in Detroit. The store employed a plain-clothed security guard, who was out sick on the day of the robbery. A directed verdict in favor of the store was affirmed on appeal. The Supreme Court held that the store owner?s duty did not extend to providing armed, visible security guards to deter criminal conduct. As a general rule, one person is not obligated to protect another. An exception exists for a special relationship, but that exception does not apply to merchants, who do not have sufficient control over their customers, and who cannot be expected to control crime. The duty to provide security is a police function vested in the government, and as a matter of public policy, the responsibility for police protection should not be shifted to the private sector.

In Tucker v. KFC National Management Company, 689 F.Supp. 560 (D. Md. 1988), the Federal District Court of Maryland held that a fast food restaurant could not be held liable for failing to have a security guard on its premises. When an argument broke out between two customers, one of the combatants pulled a knife and injured the other. The district court held that a storekeeper?s duty to maintain its premises in a reasonably safe condition does not include a duty to provide a security guard.

In Garner v. McGinty, 771 S.W. 2d 242 (Tex. App. 1989), a Texas appellate court held that a business owner does have a duty to protect a customer from crimes by third parties if the owner knew that criminal acts were likely to occur. In Garner, the plaintiff was injured by a criminal during the robbery of a hair salon. A directed verdict was entered in favor of the defendant because the plaintiff could not produce sufficient evidence to show that the business owner either knew or had reason to know that criminal conduct was likely to occur. The evidence presented of prior criminal activity included one burglary and one break in that had occurred at night more than two years prior to the attack on the plaintiff, as well as a four month old burglary at the shopping center where the store was located, and missing, unaccounted for deposits at the hair salon. The court determined that this evidence was an indication that criminal activity might occur, not that criminal activity was likely to occur.

C. Schools and Colleges

In Clinch v. Miami-Dade County School Board, Miami-Dade County, Florida Circuit Court, 2010. a 12-year-old student fell into a wall at a middle school, which rendered her unconscious. She was found without a pulse, and administrators delayed approximately seven minutes before calling 911. The estate contended that the school?s critical incident response team was not called to the scene. CPR was not administered for approximately 15 minutes, and the school?s staff failed to use an automated external defibrillator even though one was available. The estate?s counsel argued that several hall monitors were absent on the date of the accident, and that no adult actually witnessed the accident. The case was settled for $700,000.00.

In Srb v. Johnson, Middlesex County, Connecticut Superior Court, 2010, the plaintiff argued that he had been sexually abused by his horseback riding instructor 20 years earlier. The plaintiff sued both the instructor and the instructor?s employer, alleging that it owed a duty to use reasonable care in supervising the instructor, and that it breached its duty to properly supervise the instructor and to provide proper security for its students. The plaintiff claimed that the employer?s failure to properly supervise its instructor was the proximate cause of his injuries and losses. The plaintiff testified that he was sexually assaulted multiple times by the instructor on the employer?s premises, and that he was a minor on each occasion that it happened. The jury awarded $1,265,104.00. The verdict was against both defendants, jointly and severally, with no allocation.

In Lesane v. Board of Education of the City of New York, New York County Supreme Court, 2010, a student sustained stab wounds to his abdomen, underwent emergency surgery, and was hospitalized for 10 days. The plaintiff met with friends after his day?s classes had ended, and the group began to walk to their homes. While walking home, they encountered three older boys, and a fight ensued. The plaintiff claimed that the students had encountered their assailants several hours earlier in the afternoon on the day of the incident, and that the earlier incident was reported to the school?s assistant principal and two of the school?s security guards, but that precautionary measures were not undertaken.

The plaintiff claimed that he had warned the school that a fight would occur after school, and that the security guards had witnessed the brewing of the after school incident, but they did not intervene, even after one of the assailants had produced a knife. The case was settled for $900,000.00.

In Jane C. v. New York City Board of Education, Queens County, New York Supreme Court, 2009, the plaintiff was a minor who was sexually assaulted. The plaintiff was a 16-year-old student who was sexually assaulted by three 18-year-old students in one of the school?s restrooms. The plaintiff argued that the school?s policy specified that seven guards would be stationed throughout the school to prevent after hours re-entry into the school of any students who did not have to attend an after school program, and that none of the assailants attended an after school program, but that they were able to enter the school after hours because the guards were all in a meeting.

The plaintiff?s counsel also argued that several janitors saw the assailants, but that they were not asked to leave. One of the assailants had a history of sexual violence against students and teachers, and that the school had received evaluations that indicated that the other two assailants were also potentially dangerous. After the first day of trial, the case was settled for $1,650,000.00.

In Bonner v. City of New York, 536 N.E. 2d 1147 (N.Y. 1989), the New York Court of Appeals held that a school could not be held liable for the injuries inflicted on a teacher by a third party who entered a playground through a broken fence. The court held that the school?s duty to provide security to protect teachers against criminal acts is a governmental function, and therefore the school may not be held liable unless a special duty arises.

However, in Logan v. Board of Education, New York Appellate Division, 1989, the appellate division of the State of New York held that a municipality may be held liable for negligently supervising a 12-year-old student who was directed to walk alone from one classroom to another while classes were in session, and was raped by three other students as she was walking alone. The plaintiff?s theory against the Board of Education was that the defendant was negligent in failing to provide adequate security, and that the defendant negligently supervised school children. After summary judgment was entered in favor of the School Board, the appellate court affirmed the summary judgment on the adequate security issue, but reversed with regard to the supervision of the school children.

In Nieswand v. Cornell University, 692 F.Supp. 1464 (N.D.N.Y. 1988), the District Court in the Northern District of New York held that the parents of a university student who was shot to death in a dormitory room can maintain a negligence and breach of contract action against the university for failing to provide adequate security. Under New York law, a land owner has a duty to provide security if he knows there is a likelihood of third party criminal activity. This duty may arise if harm from a particular assailant is foreseeable or if past criminal activity indicates that a criminal incident is a significant, foreseeable possibility. The decedent in this case was the roommate of a woman who had broken off a relationship with the assailant. In the years prior to this assault, there had been reports of four rapes, eight robberies, nine assaults, 42 other assaults, 19 sex offenses, 793 burglaries, and 2582 larcenies at the defendant university.

D. Hotels

In Kondratyuk v. Holiday Inn, Middlesex County, New Jersey Superior Court, 2010, a father sought damages after his son died of mechanical asphyxia by compression of his body and face. Expert testimony revealed that the decedent was in severe pain and in conscious fear of eminent death for approximately 15 minutes. Discovery revealed that the decedent had become intoxicated and unruly, and broke some light fixtures in the facility, after which he was chased by hotel employees where six people tackled him and climbed on top of him. The decedent?s estate maintained that the decedent was restrained for 20 minutes before police arrived, and that the manner of the restraints negligently caused his death. The case settled at mediation for $1,375,000.00.

In Eugene v. Latrun Realty, Miami-Dade County, Florida Circuit Court, 2009, the plaintiff was a security guard who was shot in the lobby of a hotel while he was on duty. The plaintiff sued the hotel?s franchisee, arguing that the defendant had a duty to provide adequate security measures. The plaintiff argued that the hotel was located in a high crime area that had experienced 12 armed robberies over the previous three years. The plaintiff also argued that the defendant had distracted the plaintiff by requiring him to perform other tasks including reception work and housekeeping while he was on duty. The case was settled for $5,250,000.00.

In Nebel v. Avichal Enterprises, Inc., 704 F.Supp. 579 (D.N.J. 1989), the Federal District Court in New Jersey held that the test to determine whether inadequate security at a hotel was the proximate cause of a third party?s criminal attack was whether the inadequate security increased the risk of harm to the victim and whether the increased risk was a substantial factor in producing the injury. Two assailants forced their way into the plaintiff?s room at a hotel in Atlantic City, New Jersey, and shot him in the thigh. The court granted the plaintiff a new trial after a defense verdict, determining that the jury should have been instructed that the alleged negligent security was a proximate cause of the injury if the negligent security was a substantial factor in increasing the risk of harm. To recover, the plaintiff would therefore have to show that if certain security devices or techniques had been implemented, they would have reduced the risk of harm. The plaintiff would not be required to demonstrate that the missing security precautions would have prevented the crime altogether.

In Fuentes v. Trump Marina Hotel & Casino, Camden County, New Jersey Superior Court, 2003, a 66-year-old man who was visiting the casino portion of the defendant?s facility was robbed and beaten on the casino?s outer walkway. The evidence showed that security was virtually non-existent in the area despite the fact that there had been three robberies within a quarter mile of the area within the preceding 11 months, although those three prior robberies did not take place on the defendant?s actual property, but rather adjacent to that property. The jury awarded the plaintiff $4,800,000.00.

In Stroot v. Days Inn, Southern District of Ohio, 1992, an 8-year-old girl was abducted from the hallway of a motel and sexually assaulted. The evidence developed through discovery revealed that the assailant had been to the motel before, he knew that the outside doors would be unlocked, and that there would be no security guards or cameras. One month prior to this incident, another 9-year-old girl was involved in an attempted sexual assault at the same hotel, which was reported, however there were no changes in the security procedures at the facility. The case was resolved for a $500,000.00 cash settlement.

In Gilbert v. Motor Hotel Management, Inc., Shelby County, Tennessee Circuit Court, 1988. a 47-year-old man was abducted from a hotel and murdered. The evidence showed that there was no fence around the parking lot, no closed circuit television, and no security guards from 8pm to 7am. In addition, there was evidence developed through discovery that the crime grid placed this hotel in a bad crime area. The case was ultimately resolved for $625,000.00.

E. Landlord/Tenant

In Gonzalez v. Parkchester South Condominium, Bronx County, New York Supreme Court, 2010. the plaintiff, Ms. Gonzales, was a 49-year-old unemployed woman who was raped and sodomized at gun point within a condominium complex owned by Park Chester South Condominium in the Bronx, New York. The victim was visiting her boyfriend at the time. The assailant who had committed the rape had followed the victim from a trip to the supermarket, and gained access to the apartment under the guise of helping her with her groceries. The assailant then proceeded to rob the plaintiff, stabbed the plaintiff?s boyfriend in the chest, and locked the boyfriend in with his mother in a separate room while he raped and sodomized the plaintiff.

The defendant was precluded by the court from introducing flyers that were put up to warn residents about a serial criminal at large committing push-in crimes because of the defendant?s failure to produce the flyers during discovery. The plaintiff introduced NYPD records showing that the precinct in which the apartment was located had developed a pattern on the assailant that involved similar components, including the description of the perpetrator, the elderly status of his victims, the use of a weapon, and similar locale and modus operandi.

The NYPD records indicated that between August of 2002 and March of 2003, the assailant had committed similar push-in crimes against the elderly, and that 10 out of the 12 crimes had occurred at this particular apartment complex. An NYPD detective testified that he had personally informed the defendant that the assailant had been known as the ?good guy bandit? for the way in which he assisted the elderly. The plaintiff argued that the defendant had failed to provide any advisory to residents and tenants that a serial criminal was at large committing push-in crimes against the elderly, and that this constituted a departure from minimal security precautions. After two weeks of trial, the case settled for $975,000.00.

In Garcia v. Wiener Wood Apartments, LLC, Miami-Dade County, Florida Circuit Court, 2008, Starsky Garcia was shot and killed by an unknown assailant in the parking lot of an apartment complex. The area in which the apartment was located had a history of violent or potentially violent crimes. The parameter fencing on the north and east side of the property was broken and had holes which allowed access from the adjacent properties. The fencing on the north side of the property had been damaged in the 2005 hurricane season, and had never been repaired. The assault took place on December 8, 2006.

The estate claimed that although the complex was advertised as a gated community, the access control gate and exit gate had a long history of frequent malfunction and problems resulting from vandalism. The gates did not function properly for days at a time, allowing uncontrolled access to the property. At least one of the gates was broken and in the open position at the time of the homicide. The estate also argued that lighting conditions were unreasonably hazardous at the time of the murder. The estate claimed that the defendants failed to provide reasonable and adequate security on the premises and that the defendants failed to perform any type of periodic security audit of the property.

The estate argued that the defendants had failed to follow internal protocols for reporting incidents on the property, and that it failed to budget adequate resources to provide reasonable security measures on the property. The estate argued that the murder was foreseeable and preventable, and that but for the defendants? failure to correct known conditions, Mr. Garcia would not have been killed.

Testimony was elicited at trial from the defendants? leasing consultant, the regional manager, and the assistant regional manager, that information regarding the complexes? conditions was forwarded to the defendants? corporate officers in New York, and that the former employees had recommended repairing the fencing, lighting, and gating, as well as adding additional security patrols, but that all of the recommendations were denied by the defendants based upon budgetary concerns. The jury rendered a verdict in favor of the plaintiff in the amount of $8,010,000.00.

In Bryant v. Brannen, 446 N.W. 2d 847 (Mich. App. 1989). a Michigan appellate court held that a landlord is not liable for an assault by one tenant on another. In this case, one tenant shot another tenant, and the victim sued the landlord, claiming that the landlord should have provided security guards.

A jury verdict in favor of the plaintiff was reversed, with the appellate court holding that because the victim was shot in his own apartment, the landlord was not liable because the landlord did not have any control over the area. Even if the shooting had occurred in a common area, the landlord would not have been liable because the landlord does not have a duty to hire a security guard to protect tenants from other tenants.

In Morton v. Kirkland, 558 A.2d 693 (D.C. App. 1989), the District of Columbia Court of Appeals likewise held that a tenant may not maintain an action against a landlord for failure to prevent an assault by a co-tenant. In this case, the plaintiff had notified the landlord that the assailant had threatened the plaintiff in the past. The appellate court held that there was insufficient evidence to show that the attack was foreseeable and could have been prevented by the landlord. There had been no prior violent acts, the two principal threats against the plaintiff had been made four years before the attack, and there was no showing that the landlord had the grounds to evict the assailant prior to the attack.

However, there are numerous examples of circumstances in which a landlord may be held liable for a third party?s assault on a tenant. In Aaron v. Havens, 758 S.W. 2d 446 (Mo. 1988), an intruder obtained access to a tenant?s apartment via the fire escape and sexually assaulted the tenant.

The building was located in a dangerous crime area. There was no lock on the rear window in spite of the fact that the plaintiff had repeatedly requested a lock to be put in place. Likewise, there was no lock on a door to a fence surrounding the back yard of the property, and there had been no precautions taken to prevent easy access to the fire escape. These allegations presented a jury question as to whether the landlord had breached his duty to use ordinary care to make the premises reasonably safe.

In Benser v. Johnson, 763 S.W.2d 446 (Tex. App. 1988), the landlord was held liable for negligent security by providing the tenant with ?screw type? locks that proved to be defective. An intruder entered through a window that had not been properly secured, and raped the plaintiff. The jury awarded $70,000.00 that was affirmed on appeal based upon the jury?s finding that the landlord?s negligence was the proximate cause of the tenant?s injuries.

In Czerwinski v. Sunrise Point Condominium, 540 So.2d 199 (Fla. App. 1989), a Florida appellate court held that a landlord could be held liable for a third party?s sexual assault on a tenant where the landlord was aware of two violent crimes and nine burglaries that had occurred in the same apartment complex during the five years preceding the attack on the tenant.

In Brewster v. Prince Apartments, Inc., Bronx County, New York Supreme Court, 1997, a 43-year-old nurse?s aide was assaulted while in the hallway of an apartment building. Two nights prior to the incident, an attacker had assaulted a neighbor in front of the building. Three prior burglaries had occurred at the building, two of which had occurred within one year prior to the attack. Based upon these facts, the jury awarded the plaintiff $1,000,000.00. This case was venued in the Bronx, New York.

In Nisonoff v. Glynn, Suffolk County, Massachusetts Superior Court, 1990, a 44-year-old woman was raped by an intruder in her apartment. The plaintiff prior to the assault had made several requests to have the defective lock on the window fixed.

In addition, prior to this incident, there had been a high number of break ins in the building, including an assault six months earlier in which the assailant had gained entry to the building in the same manner. The jury awarded $711,000.00, although the verdict was reduced pursuant to the jury?s finding that the plaintiff was eight percent comparatively at fault. The case ultimately settled for $950,000.00 prior to the trial of the plaintiff?s additional claim for violation of Massachusetts? Consumer Protection Statute.

III. NEGLIGENT SECURITY IN THE CONTEXT OF GOVERNMENT SUBSIDIZED HOUSING

One of the fastest growing areas of litigation in the United States today is the proliferation of negligent security claims arising out of personal injuries or wrongful deaths that occur in and around government subsidized apartment complexes. The reason for this increase is the combination of tax incentives to encourage investors to support low income housing, the limitations that are placed upon property owners in order to qualify for those tax incentives, and the sheer demographics associated with low income housing. This mixture results in fertile ground for litigation, in which both the numbers of claims and the value of each claim is steadily rising.

The Low Income Housing Tax Credit (?LIHTC?) is a product of the Tax Reform Act of 1986. In those amendments, changes were made to the Internal Revenue Code designed to encourage investment in low income housing. Dollar for dollar tax credits, as opposed to less advantageous tax deductions, were awarded to largely corporate investors who poured money into the development of low income housing, creating a rapid rise in the development of these properties.

The result was a welcome proliferation of property development to meet a housing need that had previously been largely ignored.

The specific requirements of the statutory provisions governing the entitlement to a LIHTC insures that the neediest portion of the population will be properly served with adequate housing options. In order to qualify, an investor must agree that 20% or more of the residential units will be rent-restricted and occupied by individuals whose income is 50% or less of the median gross income of the area.

At least 40% of the residential units in the development must be both rent-restricted and occupied by individuals whose income is 60% or less of the median gross income of the area. Low income tenants can only be charged a maximum rent of 30% of the maximum eligible income, which is 60% of the gross median income of the area. These restrictions guarantee that these property developments will be occupied by individuals from the low end of the economic spectrum.

These restrictions also guarantee that the resources available to provide services to the tenants of these properties will be limited. Because these properties are by statutory definition occupied by individuals at the lowest end of the economic spectrum, the properties are generally developed in urban settings close to other individuals who are in the same economic stratum.

Unfortunately, these areas also can be located in urban areas that experience a higher than average crime rate. With the development of these properties for low income individuals increasing the density of the population in sections of urban areas that already experience a high crime rate, coupled with the restrictions on the ability of property owners to raise rents result in a perfect recipe for civil litigation.

Throughout the United States, property owners are held to a certain standard of care in order to prevent personal injuries or death to people who are on those properties, whether those individuals are business invitees, residents, or even trespassers on the property.

Typically, a landowner is held to the standard of acting as a reasonable person would under like circumstances. This is also a non-delegable obligation on the part of the property owner, and so even hiring a security service does not immunize the property owner from liability exposure. In fact, experience shows that not hiring the right security service may actually exacerbate a property owner?s liability exposure. The issues that arise when a person is injured or killed on government subsidized property usually begin with an analysis of the crime grid for the area in which the property is located.

The higher the crime rate in a given area, the higher the obligation becomes for the property owner to retain an appropriate security service to meet that threat. The property owner can be held accountable for a personal injury or death on its property if it fails to retain a security service, and the property owner can be held liable if it does retain a security service that ends of committing a tort while performing its security services.

There are numerous arguments that a plaintiff will raise in support of the claim that a corporate defendant should be held liable for injuries or death that are the result of a crime committed on the defendant?s property. In addition to the general assertion that the defendant failed to provide adequate security, plaintiffs argue that the defendant failed to perform any type of periodic security audit to assess ongoing security issues.

If there is a history of violence on or near the property, plaintiffs will take the position that the defendant was aware of these prior violent incidents, and failed to take necessary action to prevent similar occurrences in the future. Such an argument may also take the form of an assertion that the crime committed was foreseeable and thus preventable.

A plaintiff may argue that the defendant failed to follow internal protocols for reporting incidents on the property, thereby simply ignoring the risk. In certain cases, a plaintiff will take the position that the defendant failed to budget adequate resources in order to provide reasonable security measures on the property.

There are a series of arguments that defendants raise in response that are designed to limit or completely eliminate the potential exposure to liability in the negligent security context. For example, defendant property owners will often take the position that they have no common law duty to prevent the intentional acts of third parties over whom they can exert no control. Under this theory, crime is not foreseeable, and therefore is not preventable.

Some defendants may try to limit liability by taking the position that the corporate entity that owns the property had no knowledge of any unsafe condition that existed on the property, although this argument may only insulate the corporate defendant from punitive damages, not compensatory.

If applicable, the defendant may argue that the prior crimes committed on the property or in the area were only minor offenses, and thus did not put the defendant on notice of the reasonable possibility of the commission of a major offense. The defendant can take the position, if warranted by the specific facts of the case, that the defendant took reasonable steps to limit access to the property, with fencing, an automated gate, or some other restriction.

Adequate lighting is often an issue in negligent security cases, and proper lighting can be used as a defense in the appropriate case. As more and more negligent security cases are being filed throughout the country, more and more experts are being used both to support and to defend against negligence security cases. These experts come from many different backgrounds, and not just from the field of providing security.

Lighting experts are often crucial in negligent security cases, in order to establish the adequacy of the lighting on property.

Criminology testimony often comes into play, in order to establish the criminal history of the area in which the property was located, and to opine on whether the steps that the defendant took to protect the residents, invitees, or even trespassers were reasonable under the circumstances.

Finally, psychiatric testimony is often employed in order to establish the damages in the case, by helping the jury to understand the impact that a crime has had on a victim or a victim?s family.

Damages can be significant in the negligent security context. In 2008, a Florida jury awarded more than $8,000,000.00 to the family of a decedent who was shot in an apartment complex parking lot at 3:30 a.m.

Examples from throughout the country abound that demonstrate the explosive nature of this type of litigation. Especially in cases of murder and rape, evidence of corporate indifference in the face of obvious signs of criminal activity in the area can lead to runaway jury verdicts.

In response to the pressures exerted by the Internal Revenue Code and the civil tort system in this country, property owners are turning to security providers that are less and less experienced in the field of protecting residents from the harm that can befall them in a high crime area. Unfortunately, in this line of work, inexperience does not necessarily translate into passive behavior; instead, inexperience often breeds overly aggressive behavior that can lead to serious bodily harm or death not only to criminal trespassers but to residents as well.

This type of litigation is rapidly growing due in large measure to the external pressures exerted by the Internal Revenue Code and the civil tort liability system. We anticipate that the numbers of this type of litigation will only continue to grow, as a poor economy forces more and more people into low income housing, while crime rates in economically deprived areas increase. Given the societal benefits of providing adequate housing to low income individuals, it is doubtful that we will see a reversal of this trend in the future.

About The Author:
Richards W. Ford Managing Partner Wicker, Smith, O?Hara, McCoy & Ford, P.A. Orlando, Florida Tel: (407) 317-2170 Fax: (407) 649-8118 Web: wickersmith.com [email protected]

Source: wickersmith.com