Leighton teaches trial lawyers “rules of the road” for premises security cases at annual convention

 

Because premises security and violent crime cases can be so complex, Leighton Law’s John Leighton regularly lectures and teaches lawyers on ways to approach this litigation.  Recently Mr. Leighton spoke at the American Association for Justice (AAJ) annual convention in Montreal, Canada on “Developing Rules of the Road for Security Cases.” Mr. Leighton’s speech included suggested strategies in trying cases to juries where the victim was injured or killed from a violent crime. Mr. Leighton is one of the most experienced negligent security lawyers practicing in the United States, and is the author of the leading book in this field.

Over 1500 attorneys attend the annual convention of trial lawyers from around the world.  Mr. Leighton chairs the association’s Inadequate Security Litigation Group and is past Chairman of the Association of Trial Lawyers of America’s Motor Vehicle, Highway and Premises Liability section.

 

 

Rules of the Road for Security and Violent Crime Cases

AAJ Annual Convention
Montreal, Canada
July 2015

John Elliott Leighton
Leighton Law, P.A.
1401 Brickell Ave., Suite 900
Miami, FL 33131
—
121 S. Orange Ave., Suite 1150
Orlando, FL 32801

888-395-0001
John@LeightonLaw.com
www.LeightonLaw.com

The Negligent Security Case: An Overview

When someone is injured because of a violent criminal act, it may be due to the negligence of a business or individual in failing to take reasonable measure to prevent or deter the crime. These most often occur at commercial premises such as malls, shopping centers, hotels, motels, office buildings, schools and parking garages.

Most inadequate security cases involve an action against the owner or manager of the premises or business. These are the entities that are in control of the location where the plaintiff was injured or by whom a duty is owed. It is important to explore which parties are in any position to control or prevent the incident from taking place and who has or should have knowledge of the risks on and around the subject premises.

The general common law principle is that there is no duty to protect against harm caused by the criminal act of a third party. The exception is that a duty is imposed to take reasonable measures where such criminal acts are foreseeable. Thus each of these cases initially turn on the issue of foreseeability.

The Restatement (2d) of Torts §344 provides that landowners are liable for failing to exercise reasonable care to (a) discover that such acts are being done, or (b) give adequate warning so visitors can avoid the harm. There is usually no duty unless the owner/occupier knows or has reason to know of the acts of third persons.

 

What are “Rules of the Road” for Security Cases?

The concept behind developing “rules of the road” is that most duties – and breaches of duty – can be simplified into clear, understandable concepts. Defendants seek to complicate and create lots of ambiguity. When they succeed in getting a juror confused about exactly what the standard of behavior is, they tend to win. If you can cut through that and simplify the duty, you have a better chance of winning.

Before taking premises security cases, screen and evaluate thoroughly to make sure that there existed a legal and practical duty to provide reasonable security or take other action that would have been reasonable under the circumstances. Inadequate premises security cases very expensive and investigation intensive. As such it is important to develop a sense for what elements must be present initially to make it worthwhile to take the next steps of developing foreseeability, negligence and causation.

There are several types of negligent security cases, including:

A. Inadequate/negligent security

B. Inadequate lighting

C. Inadequate security mechanisms, procedures, facility design

D. Inadequate key control (hotels/motels/apartments)

E. Inadequate/negligent supervision (children, incompetents)

F. Negligent Hiring/Retention

G. Terrorism

Creating and applying “Rules”

With premises security/violent crime cases, it is important to establish basic rules for the operation of the business or premises.

You need to show jurors that there are rules for property owners and businesses. These apply to everyone and exist to protect us all. They are rules that require people to take reasonable actions or to NOT do something they shouldn’t. They need to be something the defense can’t reasonably refute without losing their credibility.

Sometimes these rules are already established by codes, standards or ordinances. If so, you can craft these into easily understandable rules that the jury can understand and accept.

You must be able to show that the defendant violated these rules. Do not expect that the defendant will admit to any violation; it may be enough to get them to adopt the rules and then prove through witnesses and exhibits (and maybe later through the defendants’ own testimony) that they violated these rules. But not until you have established the rules. The rules need to be important enough that their violation would make a plaintiff’s verdict much more likely should you prove that.

Depending on the facts of a given premises security case, you might develop the following “rules” or some similar (the possibilities are endless depending on the type of case and facts):

Applied to a business:

1. Business owners must know about crime at their business to know what risks visitors are exposed to.
2. A business must ensure that its customers are not exposed to known dangers.
3. Crimes taking place on and around a business present a risk of injury and death to customers and visitors.
4. A business is in the best position to know of crimes taking place on its property
5. A business in is a better position to guard against crimes occurring on its property than a customer.
6. A business that ignores crimes on and near its property puts its customers at risk for injury and death.
7. Companies who profit from having customers come to their property have a responsibility to make their property safe from foreseeable crime.
8. Property owners are in the best position to employ reasonable security to protect customers.
9. Dark places are more dangerous than well lighted places.
10. Places where there is a lot of cash are more likely to be targets for crime.
11. Uniformed security guards are a deterrent to most crimes.
12. Most criminals do not want to be caught.

Applied to a property manager or security guard:

1. While managing this property, it is my responsibility to know what kinds of crime have taken place on and around the property.
2. I know that if I ignore crimes that have taken place on this property it is likely more crime will occur.
3. I know that if I do not place any visible security on the property, those who would commit crimes there will have no reason to puck another place.
4. When there is a violent crime on the premises, I need to do something to make sure another once does not take place again.
5. I know that if a violent crime takes place and I do nothing about changing security, it is likely another crime will occur.

Applied to an Apartment Complex:

1. An apartment owner has a responsibility to protect its tenants from foreseeable violent crime.
2. The safety of its tenants should be the primary concern for apartment owners and managers.
3. It is unreasonable to knowingly disregard the safety of tenants.
4. Apartment owners and managers should never hide risks from its tenants as to violent crime.
5. The safety of tenants and guests is more important than protecting the property of the apartment complex
6. Tenants should be told about risks of serious injury or crime at an apartment complex.
7. An apartment complex should never mislead a tenant about safety.
8. It is unreasonable for an apartment complex to keep instances of violent crime a secret from its tenants.
9. An apartment complex should never keep important information about its property from the police.
10. Criminals are less likely to commit a crime where they will be seen or recorded.
11. Dark places are more dangerous than well-lit places.
12. When lights are broken they need to be replaced promptly.
13. Uniformed security guards are an effective deterrent to opportunistic violent crime.

The above “rules” may utilized throughout the case. Some of the most important times are during the video deposition and trial cross examination of the defendants and their corporate representatives. You may use them in the deposition or courtroom on blow up enlargements or have them printed out to examine and sign for the jury’s benefit later. Typically when a managing agent or corporate representative is faced with the applicable “rules,” they must agree to them or risk looking foolish or losing credibility.

If you have developed rules and had witnesses – particular defendants – adopt the rules, you will want to craft trial themes around them. That is because they will fit into many of the jury instructions that will be given at the end of the case. You will be using the defendants’ own words against them and they will be easily understandable and very reasonable.

Other “Rules” for Premises Security Cases

Although not the “rules of the road,” there are certain rules of thumb in premises security cases to watch out for. Where you can prove certain facts in your case, they can help you win your case even when the other facts are working against you. These are issues upon which juries will often place great weight and which tend to obscure other facts. Some of these include:

1. When another property the defendant owns/controls/manages has security or service that the subject premises did not have;

2. When the security level and/or security budget is decreased;

3. When the size of the premises or square footage increases, but the security operations do not increase or do not increase in proportion;

4. When the crime rate significantly increases or when there are such serious and repeated crimes on the premises;

5. When there is a change in the nature of activity being conducted on the premises:

This can either be a change in the criminal acts (robberies instead of larcenies) or a change in the commercial facility (change in types of stores like from a slower shop to a tattoo parlor).

6. When there have been requests or demands for additional security or complaints about safety by employees, customers or citizens.

7. Where the defendant has violated a statute. This happens more often than you would think, everything from lighting statutes (many counties codify minimum lighting requirements) to landlord-tenant codes (Nixon v. Mr. Property Management, 690 S.W.2d 546 (Tex. 1985)[landlord allowed vacant apartment to fall into disrepair and remain unsecured, in violation of city ordinance, and could be held liable for sexual assault of a young girl in vacant unit]).

If you have some of these rules of thumb, incorporate them into your rules of the road in discovery.

Top 10 Rules For Evaluating Premises Security Cases:

1. LOOK at the facts from the perspective of a layman:

A. Do they make sense?

B. What would a reasonable juror think if you explained in 2 sentences?

C. What avenues of recovery are available?

D. Have others been victimized there before?

E. Victim aware of dangers?

F. Comparative negligence issues

G. Type of potential defendant: who, what type of business, knowledge?

H. Is duty delegable?

-Are there other parties to bring in; are they needed?

I. Coverage issues:

(1) Is there insurance?
(2) Are there any exclusions?
(e.g., intentional act/assault and battery exclusion)
2. LOOK OUT for domestic/acquaintance-related crimes

Avoid most cases where there was any relationship between the victim and the perpetrator. These are among the most difficult to prevent and most defensible. They generally conflict with many theories of deterring crimes of opportunity, and given a relationship, the crime could have easily have taken place elsewhere. You want to focus on WHY the crime took place at the location it did. That will be the thrust of your case and generally your legal burden.

There are some circumstances where domestic crimes can give rise to a good cause of action (special relationship, e.g., Tarasoff-type cases, known hazard, actual notice, contractual/special duty, etc.), but most are to be avoided.

3. LOOK OUT for clients involved in the crime which caused the injury.

If the client was or was likely involved in some criminal activity before, during or after the incident, avoid the case.

4. LOOK FOR representations or advertisements.

Did the owner/lessor hold this property out as “safe” or “secure”?

Were there advertisements in the general media or trade/specialty publications? Even those throw-away apartment rental real estate booklets at the supermarket can have ads by apartment complexes that create such a representation.

A. May give rise to fraud/misrepresentation claim

B. Many states have a deceptive and unfair trade practices law
5. LOOK FOR prior victims.

They are by far the best source of notice to the defendant. They have knowledge of prior incidents, perhaps some that you are unaware of. They are generally not in love with the defendant and are almost always willing to help out. They may even know of other prior victims. Similarly, prior employees of the Defendant can be great sources of information and testimony.

6. LOOK OUT for premises with an obvious security presence, but…look at the background, education, training, experience, supervision and responsibility of security personnel. What are their post orders? Do they know what they are supposed to be doing? Are they well deployed? Do they create a deterrent effect? Do they know what a deterrent effect is? Consider reverse surveillance. Is there too much ground to cover for the personnel?

7. LOOK for the Defendant’s own internal records. It is a wealth of information. And the absence of certain records speaks volumes as well.

8. LOOK FOR evidence of illegal activity on and near the premises.

Not just through reported crimes; canvass area–drug deals? Prostitution or gang activity? May be reported to owner by complaining neighbor or other businesses.

9. LOOK OUT for blaming the criminal on the verdict form.

Latest trend: blame the criminal and place them on the verdict form.

If this is already permissible in your jurisdiction, must combat it. If it is not, they may try to do so anyway.

10. LOOK OUT for non-deterrability (profiling)