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Negligent Security Seminar | March 2015

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    "Sex, Drugs & Violence" Negligent Premises Security Litigation Seminar Gives Insight to Tactics in Investigating and Trying Cases [Oct. 20, 2009]

    MIAMI, FL – October 20, 2009 – John Elliott Leighton presented today a seminar on Negligent Premises Security Litigation in Florida at Miami’s InterContinental Hotel. Entitled “Sex, Drugs & Violence: Negligent Premises Security Litigation,” his presentation covered strategies and tactics in investigating, litigating and trying premises security cases, as well as case law, relevant statutes, codes and ordinances.  The seminar was attended by more than 130 professionals. Mr. Leighton is the Managing Partner of Leighton Panoff Law, P.A., a personal injury law firm with offices in Miami and Orlando.

    “The field of inadequate security litigation has exploded in the last two decades,” said Mr. Leighton.  “Considered the product liability case of the new millennium,` premises security cases have increased in number and value.”

    Florida has been the number three state for inadequate security claims (behind Texas and New York but ahead of California). In 1994 Miami was the number one city for overall crime per 1000 residents, ahead of virtually all other metropolitan areas. Broward County ranked third in the country in crime, making crime – and inadequate security litigation – a growth industry. In 2008 there was one violent crime every 4 minutes and 11 seconds in Florida.

    According to a study by Liability Consultants Inc., the average settlement in a rape security case is $600,000, and the average verdict in the same type of case is $1.75 million.  The average verdict in an assault in a hotel or motel is $254,850, with 25% totaling $1 million or more.

    The Seminar was moderated by Matthew Seth Sarelson, Esq., of Sarelson Law Firm, P.A., and provided three General CLE credits, with two eligible toward Criminal or Civil Trial Certification.

    Mr. Leighton is Chairman of The Academy of Trial Advocacy, chairs the Inadequate Security Litigation Group of the American Association for Justice/Association of Trial Lawyers of America, and serves on the board of trustees of the National College of Advocacy. He is past Chairman of the Association of Trial Lawyers Motor Vehicle, Highway and Premises Liability Section.  He is the author of Litigating Premises Security Cases (Thomson West), a two volume text on handling negligent security cases.

    The seminar was summarized in a supplement to the Daily Business Review newspaper:

    Sex Drugs & Violence Seminar 8-page DBR Insert for Nov. 9, 2009

    SEX, DRUGS & VIOLENCE: Inadequate Premises Security Litigation in Florida

    October 2009

    Supplement to Miami Daily Business Review

    Editor’s Note: John Elliott Leighton is the managing partner of Leighton Panoff Law, P.A., a trial law firm with offices in Miami and Orlando. A board certified trial lawyer, Mr. Leighton`s practice is focused on personal injury and wrongful death, violent crime/negligent premises security, medical malpractice, Resort Torts, trucking and motor vehicle crash, aviation disaster, and consumer product liability. He is the author of the recent book published by Thomson West, Litigating Premises Security Cases, and a national lecturer on trial skills.

    Negligent premises security litigation is growing in Florida and around the nation. This is one of the newest and most sophisticated areas of torts. Because of Florida`s large resort and hospitality industry, the state has been in the forefront of many developments in this field.

    The following report will provide an overview of this emerging area of the law, along with some strategic ideas from Mr. Leighton, mostly from the plaintiff`s perspective. Defense attorneys and professionals in the hospitality or property management industry will also find this information highly relevant to their work.

    Most negligent premises security cases have sex, drugs and violence at their root cause. They often involve violent crimes – a huge issue in this country. Even though overall crime statistics are trending slightly down, violent crimes are still out of control, especially in Florida.

    While Texas pulled slightly ahead in property crimes, Florida leads the country in violent crime. In 2008 there was one violent crime every 4 minutes and 11 seconds in Florida. This means that crime – and inadequate security litigation – is a growth industry. In fact, Florida is a leading state for inadequate security claims along with Texas, New York, and California.

    The field of inadequate security litigation has exploded in the last two decades. Considered the “product liability case of the 1990`s,” premises security cases have increased in number and value. According to a 1994 study by Liability Consultants Inc., the average settlement in a rape security case is $600,000, and the average verdict in the same type of case is $1.75 million. The average verdict in an assault in a hotel or motel is $254,850, with 25 percent coming in at $1 million or more.

    As seen from the many cases that have gone to verdict and the cases that have been settled, there are very significant results that can be obtained in security cases. They tend to result in greater verdicts than other cases of similar injuries but more traditional` liability. Although there are many complexities inherent in inadequate security litigation, these cases have at their heart basic premises liability law.

    Why are security cases difficult?

    From a plaintiff`s attorney`s perspective, security cases are difficult matters because recovery is almost always sought from someone other than the criminal perpetrator. Generally speaking, the average criminal does not have the assets or the solvency to satisfy a judgment.

    When seeking to recover from a third party, jurors tend to be skeptical from the start. When told that hotel X is being sued because someone was raped there, nine out of 10 jurors would initially ask, “Why is the hotel responsible?”

    The first lesson in inadequate premises security litigation is to screen the case thoroughly; this is the most important element for success in a trial. These cases are very costly and time-intensive, and merit careful investigation and thought before being undertaken.

    Inadequate premises security litigation is more complex than a typical plaintiff`s suit. Top-notch investigators and expert witnesses are necessary; therefore, there must be enough potential damages to sustain the work it will take to try the case.

    An attorney should not accept a negligent premises security case unless s/he is prepared to take it to court; the cases that seem most likely to settle almost never do.

    In choosing a case, common sense should also prevail: Will a juror understand it by the end of the opening statement? Is the case legally sustainable but factually implausible? Does it make sense that the defendant in the case could have prevented a crime?

    The full insurance policy should be obtained before any filing, to ascertain what coverage is available, whether there are any exclusions, and whether there are any coverage defenses asserted by the carrier. Under Florida`s mandatory liability insurance disclosure statute, Fla. Stat. §627.4137, the defendant must turn over the insurance policy to the plaintiff, including details about exclusions. In recent years, the insurance industry has added numerous exclusions to avoid paying claims. Exclusions should be carefully analyzed to determine whether they apply to the facts in the case, and whether the insurer has a duty to defend the case, even if they don`t indemnify the insured.

    If a policy has sublimits, such as a $25,000 cap for assault and battery, sexual misconduct or abuse, the insurer may have a duty to defend and the insurer must be very careful to avoid committing bad faith. There also exists potential for errors and omission actions against insurance agents for failing to advise the insured of a coverage exclusion.

    Know the applicable law

    Inadequate premises security litigation is an outgrowth of premises liability law. Therefore, it is essential to understand the applicable law – particularly the concepts of “duty” and “foreseeability.”

    As in all tort cases, a duty must first be established as a threshold for liability. The nature and extent of that duty will generally depend on the nature of the premises, the foreseeable criminal activity on or near the premises, and the relationship of the parties. Here is a closer look at those issues, including significant cases:

    In general, a landowner breaches the duty to use reasonable care by failing to make diligent searches or inspections at reasonable intervals for dangerous conditions that might be created by invitees or third parties. Boatwright v. Sunlight Foods, 592 So.2d 261 (Fla.3d DCA 1992).

    A landowner has two basic duties: reasonable care to maintain the premises in reasonably safe condition, and to give warning of concealed perils which are or should be known and which are unknown to invitee. See Williams v. Madden, 588 So.2d 41 (Fla.1 DCA 1991).

    In fulfilling its duty to maintain its premises in a reasonably safe condition, a landowner must conduct inspections appropriate for the premises involved.” Yuniter v. A & A Edgewater of Florida, Inc., 707 So.2d 763 (Fla. 2d DCA 1998).

    A retailer`s general standard of care may include an obligation to protect a customer from a known ongoing attack. Butala v. Automated Petroleum and Energy Company, 656 So.2d 173 (Fla. 2d DCA 1995).

    A landlord has a duty to protect an invitee from a criminal attack that is reasonably foreseeable. Ameijeiras v. Metropolitan Dade County, 534 So.2d 812 (Fla. 3d DCA 1988).

    As a matter of law, a landlord of an apartment complex is obliged to protect its tenants from reasonably foreseeable criminal conduct. L.K. v. Water`s Edge Ass`n, 532 So.2d 1097 (Fla. 3d DCA 1988).

    The duty of care owed by a landowner to invitee with respect to protection from criminal acts is dependent upon foreseeability of such acts. Admiral`s Port Condominium Ass`n. v. Feldman, 426 So.2d 1054 (Fla. 3d DCA 1983); Accord: Medina v. 187th Street Apartments, 405 So.2d 485 (Fla. 3d DCA 1981).

    Standard of care in providing security will vary according to particular circumstances and location of the premises Orlando Executive Park v. P.D.R., 402 So.2d 442 (5th DCA 1981).

    Applying the law

    Once the relevant law is understood, its application to the particular set of facts in the case must be analyzed. For example, a non-security case involving a slippery substance on the floor of a supermarket should evoke the following evaluation: Did the store have a notice of this condition and, if so, for how long? Did it have a policy to inspect and clean? Did it take reasonable steps to clean it up? What caused the accident? Was it a young person running down the aisle, an adult who slipped or a grandmother in her walker?

    Also essential in applying the law, as well as in developing a case, are expert witnesses. They should be involved early on in the process to assist in determining whether the law and the facts work together. Experts might therefore affect not only how discovery requests are crafted, but also the general direction of the case development, as well as preparing to counter opposing experts.

    One of the legal issues to identify is duty – what was owed to the invitee, licensee or trespasser? A second is foreseeability. This is usually the crux of most inadequate security cases, because the extent of foreseeability defines the duty. The more foreseeable the crime is to a particular business and the more violent the crime, the higher the duty owed by the business.

    For example: If there has never been a violent crime at a certain hotel or in an area extending in a one-mile radius from the hotel, the duty the hotel owes to a crime victim would likely be less than if there had recently been a rape in the hotel and 25 violent assaults in the neighboring four blocks. The more foreseeable the crime, the greater the duty. It might be argued that the hotel needed nine security guards rather than four, or better fencing or access control. Each case will be unique and will require a detailed analysis.

    The question of negligence considers who was negligent, how, and the reasonable inference by a jury that negligence occurred. In most cases an expert witness will be needed to explain the issue of negligence. In many ways, these cases are similar to medical malpractice lawsuits, in that it must be shown that a standard of care has been breached.

    Expert witnesses can also establish causation – the connection between the negligence and the crime – and show that the crime could have been prevented if reasonable security measures had been taken. While Florida law has been progressive in recognizing the tort of inadequate security, the matter of causation is heavily defended. The defense will often argue that it was not a preventable crime, even if better security measures had been taken.

    Causation is more difficult to show in cases involving a serial killer or a targeted victim – someone who has been stalked by a criminal, or is known personally by the perpetrator. With some exceptions, these crimes are harder to deter than others; it may not matter where the crime occurs.

    Types of security cases

    Negligent security cases fall into several categories, each with its own nuances, including the following:

    Security personnel, who may not have been properly trained, or who took inappropriate action in a violent crime situation;

    Lighting, which may have been inadequate at the start or poorly maintained after installation;

    Security equipment, including access control, locking mechanisms and closed circuit television;

    Perimeter control, or limiting access to a property through fencing, landscaping or other means (CPTED or “crime prevention through environmental design”);

    Supervision, which may be inadequate in matters involving children in a preschool or school, adults in a nursing home or other long-term care facility;

    Policies and procedures: A business may not have security policies and procedures in place or the security personnel didn`t follow those procedures.

    Defendants may claim that although there is no assigned security guard on a premises, security is the responsibility of all employees. But when no person is ultimately responsible, it`s nobody`s job. If there is no designated person responsible for security, there is no security.

    In hotels, schools, dormitories and apartments, or any business that involves innkeeping, key control is a vital aspect of security. The goal of these systems is to prevent access by someone other than the owner or occupier. Otherwise, there is potential for abuse or crime, as well as misdeeds committed by employees with master key cards. There are legions of cases where the maintenance person at an apartment complex has used his/her access to keys to commit crimes.

    Another category of cases revolves around negligent hiring and retention practices. In some businesses, it is important to conduct polygraph testing, as well as standard background checks. At the very least, it`s a reasonable question to ask why someone has left their last job. Criminal records should always be checked. If anything raises a red flag, it should prompt further investigation. Applicants can be asked to sign a form providing authorization to review prior employment records and other personal documentation.

    Private security companies

    Negligent security litigation has caused a proliferation of private security companies and security guards protecting the public. Twenty years ago, businesses might have claimed that their lack of uniformed security guards was intentional, so as not to scare off customers. Today, uniformed security guards are commonplace and provide a feeling of safety. Statistics show that uniformed security does deter crime.

    The downside to this trend is that there is now a wide variety of companies providing security services, some with questionable qualifications. For example, some pay their employees only $8 an hour and bill out their services at $25 to $30 an hour. The employee could make a poor decision or not follow their “post orders.”

    In one case, a bank officer who was shot during a bank robbery sued the security company. The criminal entered the bank with a gun, approached the teller and said, “This is a stickup.” The bank guard pulled out his weapon and fired, missing the criminal but hitting the bank officer at his desk. The criminal surrendered, but the bank officer was seriously injured. This presented a strong case against the security company, whose own rules stated that armed guards are not to fire their weapons.

    Who has the duty?

    In cases involving innkeepers, providing security is a non-delegable duty. Such a business can hire a security guard or security company, but they are still legally responsible. The actual performance of security duties can be delegated, but not the legal performance.

    When choosing a security provider, it is imperative to hire a reputable company whose employees understand the law and their responsibilities. They should conduct security assessments and surveys in order to understand the property they are protecting. Experts can also conduct this type of security survey.

    In most cases, the duty of care is owed by the party in control of the property: As stated in Wal-Mart Stores v. McDonald, 676 So.2d 12, 15 (Fla. 1st DCA 1996), approved 705 So.2d 560 (Fla. 1997), “[t]he duty to protect third persons from injuries on the premises rests not on legal ownership of the premises, but on the rights of possession, custody, and control of the premises.”

    Among the duties owed by a landowner and business proprietor is the duty to guard against subjecting invitees to dangers that might have been reasonably foreseen, including a criminal assault by a third party. See Levitz v. Burger King, 526 So.2d 1048 (Fla. 3rd DCA 1988)(citing Fernandez v. Miami Jai Alai, 386 So.2d 4 [Fla. 3rd DCA 1984]).

    An owner or proprietor has more knowledge than the invitee about the property and its risks. If the dangers cannot be prevented, the owner or proprietor has a duty to warn the invitee. For instance, reasonable signage might warn the public of hazards about which they would be otherwise unaware.

    Another issue that may be a factor, especially in shopping centers, is the question of control. A landlord`s contract with tenants might stipulate that the owner has exclusive control of the common areas, such as the parking lot, stairwells and walkways. If an incident occurs in those locations, the tenant would usually not be responsible. However, other factors may come into play – for instance, if the tenant took some action to maintain that portion of the common area or treated it as its own.

    The issue of foreseeability

    Most negligent security cases will turn on the issue of foreseeability: Was the incident reasonably foreseeable by the owner or business?

    In the United States, there are two primary schools of foreseeability. In some states, the “prior similar” rule applies where a similar act must have occurred on the premises in the past for the subject to be foreseeable crime.

    In Florida, and many other states, the courts look at the “totality of the circumstances.” Evidence of prior crimes that occurred off the premises is relevant in Florida; a prior crime on the property is not necessary to prove foresee- ability. Other factors such as the nature of the premises and other variables are relevant to foreseeability.

    Therefore, it should be rare to see a summary judgment in Florida in an inadequate security case, particularly when a case is properly investigated, discovered, and includes a well-prepared expert. The questions of foreseeability and adequacy of security measures are questions of fact for the jury. The courts do not provide a time frame for prior crimes, but generally three to five years prior is acceptable and not too remote for foreseeability.

    One of the tools used to analyze foreseeability is the crime grid, which has been held admissible at trial. This involves asking a police agency for a record of the service calls for the area around the address, sometimes provided in a one-mile grid. Often there are no incident reports from some of the service calls, which might involve reports of a suspicious person or car, sound of gunshots, etc. But the crime grids provide a good starting point for an expert`s analysis.

    The grid might also be useful for pulling incident reports that are relevant to the crime and its location. Incident reports might be more accessible than detailed investigative reports, which may involve a crime that has not yet been solved. When seeking an investigative report, a request often must be made to the court to redact certain data in open cases.

    Selecting an investigator or expert

    Choosing the right investigators and experts is important to achieving success in negligent security cases. With an apartment-related case, for instance, an expert may be helpful for determining the standard of care relating to property management, while a security expert can discuss the foreseeability of criminal acts based on past incidents. Multiple experts are common because of the different specialties involved in these cases, and because an expert may be required to rebut each expert called by the opposition.

    For a plaintiff`s attorney in these cases, the investigator is essential for everything from examining photographs and videotapes of the premises, to identifying witnesses and prior victims, and working with law enforcement officers.

    Probing the case

    After sifting through the police reports, it can be helpful to talk to police detectives, the beat officer or merchants in the neighborhood. More detailed information is usually helpful. Police officers can provide information that does not show up on reports, such as a location where street gangs hang out. An officer might also identify that there were prior victims at the same premises. Or a witness might say, “That light at the store has been out for as long as I can remember.”

    In one shooting case that occurred at a shopping center, the brother-in-law of a prior victim produced a letter he had written to the managers two years prior to the incident. It basically said, “Dear Manager, My sister-in-law was assaulted here and the problems continue. When are you going to put in some security? Does someone have to be shot first?” That letter was devastating for the defense.

    Another good source of information is a business` internal records, which might reveal the crimes and incidents they were aware of – a key to the foreseeability aspect of a case. Comparing police incidence reports with the business records can then reveal incidents that don`t match up. When deposing a person from the business, it can then be asked, “Why didn`t you know about this incident that occurred on your property? Isn`t it your responsibility to find out from police about these crimes?”

    While probing the case, another useful technique is reverse surveillance. Before putting the defendant on notice, observe the premises: Do the lights come on? What security practices are being followed? Sometimes this can be irrelevant, but in other cases very helpful.

    Insurance claim records and reports are often discoverable and admissible. If a business has filed a report of claim, attorneys are entitled to review it, as are prior lawsuits. If the defendant has been sued before on a similar negligent security case, the records of the prior suit can be crucial in court.

    Finally, industry records and data relating to incidents can provide insights. For example, a security consultant to the hospitality, apartment or condominium industries may provide solid information on practices to avoid – which could have a bearing on the case. This information might be found online or through an expert at the relevant association. The company website might also be a good source of evidence. Representations of safety and security should be downloaded and preserved in case the web page changes in the time before trial.

    Each of these factors may or may not come into evidence, but they are important steps toward building a successful case.

    “Piata discovery”

    A case is won or lost in discovery, which therefore should be handled very carefully. After analyzing the case with an expert, a very clear written discovery request should be served. When the defense objects, the court needs to be involved and discovery needs to be produced. Depositions should not be taken until all written discovery is in hand. The person being deposed must be able to authenticate and explain them.

    In the past ten years, discovery rules have become clearer about what lawyers can and can`t do. For instance, they can`t coach a witness or confer with a witness who is being questioned.

    Depositions may be videotaped, which can often reveal that a witness displays a completely different character and attitude in the deposition than in the trial.

    Mr. Leighton coined the phrase, “piata discovery,” in the spirit of the persistence and tenacity required in order to release the prize. The opposition must give you the candy` – the documents and testimony that make your case, and so it is important to insist until they are produced. If they refuse, they face sanctions. In some cases, they would rather face the sanctions and settle the case for a premium, rather than have a jury decide the case at trial.

    Terrorism: The next wave?

    As crime continues to ravage Florida communities, violent attacks have become foreseeable and even predictable. Given the frequency and awareness of terrorist attacks, both foreign and domestic, these incidents should be part of any comprehensive security assessment.

    Recent terrorist attacks on hotels in the Middle East, in Islamabad, Mumbai, Peshawar and Jakarta, have included major American franchises and have resulted in many hotel guest deaths and injuries, as well as substantial property damage. It is unlikely that these attacks will be limited to incidents in foreign countries, since there were numerous overseas attacks that foreshadowed 9/11 here.

    Regardless of the future of violent crime, inadequate premises security cases will continue to play a major role in creating corporate and individual deterrence and creating an incentive for businesses to provide adequate security. These cases have also spurred the security industry to become much more sophisticated, and with the use of technology, deterrence has become much more affordable.

    Through skillful lawyering, thorough investigation, tough and tenacious litigation, and effective use of expert witnesses, inadequate security cases can be won even in situations that initially appear factually difficult.

    Facts that can be helpful to a plaintiff`s case

    When security has been decreased in force or budget.

    When a business property, such as a mall, increases in size without increasing security.

    If the defendant has another property with better security (quality or numbers).

    When the crime rate in the area increases.

    When the nature of the activity on the premises has been altered, such as an adult strip club moving into the same shopping center as a children`s gym (actually happened).

    If there have been prior complaints about safety on the premises.

    If the owner or business violated an ordinance, statute, rule, or its own procedures.



    Q. How can violent crime be prevented or deterred?

    A. The number one deterrent is private security, with a guard on the premises. Lighting is also a factor and most experts agree it plays a role in deterring crime. For hotels and resorts, good security procedures for handing over a guest`s room key and overall key control, for example, can make a difference in preventing crime. Limiting access to a master key card and implementing and monitoring closed circuit TV systems can also help deter crime. Limiting ingress and egress, as well as natural surveillance is also very helpful in many situations.

    Q. If an apartment complex hires an outside security contractor that does not manage its security personnel correctly, could the complex be held liable for the conduct of a security guard?

    A. The defense could argue that the guard is an independent contractor, but the plaintiff could argue that security should be a non-delegable duty for the apartment complex since security is a non-delegable duty for hotels. It can be strongly argued that their duty is non-delegable. Otherwise, anyone could hire the worst security company available and claim they`ve discharged their duty.

    Q. Who has the duty in a case where the perpetrator was invited by the victim to the premises, such as a hotel?

    A. This type of case is less clear cut and will depend on the specific facts of the incident. For example, the victim might have called the front desk for help and had no response.

    Q. How do you get around the $100,000 sovereign immunity cap on public institutions, such as a suit against a school district?

    A. You don`t, unless there is a third party that may be responsible. For example, a person who accesses the school campus and commits a crime might work for an outside vendor. Rarely the conduct by the public entity may rise to the level of a federal civil rights violation which would be exempt from sovereign immunity.

    Q. What if your investigation turns up confidential documents that could help the defense?

    A. Whatever you receive from the investigator is considered work product, and need not be disclosed. But even if the evidence weakens your case, it`s important to know the facts, so you can make informed decisions.

    Q. Does an employer have a duty to investigate the background of a new hire as a potential security risk?

    A. That largely depends on the nature of the job. It would certainly be the case for someone who works in child care, such as a nursery school, or an apartment maintenance manager who has access to tenants` units. If there is anything out of the ordinary that raises suspicion, an employer does have a duty to investigate. If employees have contact with the public, particularly in places outside of everyone`s view, there is a heightened duty.

    Q. If a crime grid around the premises shows nothing, how far out do you go?

    A. Consult with your expert for your particular case – it could be two blocks or two miles, depending on the property, neighborhood and type of business.

    Q. Can you canvass the neighbors and ask them if they`ve seen anything? What about starting a hotline for tips? Are there any pitfalls here?

    A. Canvassing is a great idea. We`ve done that with businesses in a shopping center. We`ve also put ads in newsletters, asking if anyone has knowledge of violent crimes on the premises. This information can be very helpful because it comes from independent witnesses.

    Q. What happens if the owner fixes the property after an accident or incident? What if they hire more security before the victim engages you in a lawsuit?

    A. In Florida, subsequent remedial measures are generally not admissible to prove negligence, but they can often be introduced for other purposes. For instance, if the defendant denies ownership or control of the premises, you can introduce evidence of lighting or security improvements they`ve made.

    Q. How can you obtain video security tapes if the defense claims that the camera was not on, not operable or didn`t exist?

    A. Usually the tapes are only retained for a limited period, such as a week or two. As soon as you are retained in a case, send a letter requesting the tapes. If the tape was not operating properly or has already been destroyed, this fact could influence the case. In depositions you might find that one person says they have no policy regarding videos, while another says the policy is to destroy them in two weeks. Some cases may merit seeking an emergency injunction to obtain or preserve the evidence.

    Q. Do you use video of defendants as direct examination in court?

    A. Yes. I edit the video in advance and put the other side on notice of the edited deposition portions I intend to use. Then the jury hears from the defense employees themselves.

    Q. In a shopping center case where the victim was attacked and robbed, is it possible to settle with the security company and proceed to trial with the owner?

    A. Depending on the case, it may be possible to settle with the security company. But if they were truly culpable, settling might not be the best option. In order to proceed to trial with the owner, it will be important for the security company to state that they did what they were asked to do, or that they made a recommendation and the owner chose not to follow through.

    Q. In the case of a mall that has two owners, each owning a physical half, would they both be sued in a premises case?

    A. If ownership is truly separate, with each owner owning separate halves of a property, you would only sue the owner of the premises relevant to the crime, unless you can show that other owner had some control over the other half.

    Q. Have you moved to strike experts` opinions based on speculation?

    A. Yes. Occasionally a defense expert will give a testimony that is not based on legal, factual or scientific knowledge. Florida law on expert testimony is generally liberal, but there are limits on what an expert can testify upon.

    Key Takeaways

    Don`t litigate a case unless there are serious injuries.

    Be careful of unwitnessed crimes. Be skeptical, ask questions and follow up.

    Engage one or more experts at an early stage of the case.

    Do a criminal record search on your client.

    Be tenacious during discovery and throughout the trial.


    John Elliott Leighton

    Board certified trial lawyer

     John Elliott Leighton is the Managing Partner of Leighton Panoff Law, P.A., with offices in Miami and Orlando, Florida. Mr. Leighton litigates and tries significant cases on behalf of individuals throughout Florida and the United States. He has been called upon to provide his trial skills to represent plaintiffs throughout the country, including New York, Texas, Indiana, Wisconsin, Georgia, Illinois and North Carolina.

    Mr. Leighton recently authored Litigating Premises Security Cases, a two-volume book published by Thomson West, which provides comprehensive guidance on investigating, preparing and trying inadequate security cases and representing crime victims. His trial in Jeffery v. Publix Super Markets, a landmark inadequate security case, was the subject of an entire chapter in the book, Persuasive Jury Communication: Case Studies from Successful Trials, Chapter 10 (Shepard`s/McGraw-Hill, 1995).

    Mr. Leighton received the Advocate of Justice Award from the National Crime Victim Bar Association for his work in representing violent crime victims against corporate defendants. He sits on the Advisory Board for the National Crime Victim Bar Association and the Board of Trustees of the National College of Advocacy. He is a frequent lecturer at national legal programs and has spoken and taught at seminars, colleges and conventions in over a dozen states. He has been Chair of the Inadequate Security Litigation Group of the Association of Trial Lawyers of America (ATLA/AAJ) since 1996 and is the Chairman of The Academy of Trial Advocacy.

    Many of Mr. Leighton`s cases are high profile or have wide-reaching social implications. Several cases have resulted in policy or procedure changes on the part of the businesses or governmental entities sued. He is often called upon by local and national media to comment on legal issues, including NBC`s Today Show, Inside Edition, and many other news programs.



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