8/14/2019 Premises Liability & Negligent Security

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Premises Liability & Negligent Security

By: James F. Pastor, PhD, JD

President of SecureLaw Ltd. and Associate Professor in Public Safety at Calumet Collegeof St. Joseph

Premises Security Liability is a broad way to describe various legal theories related to the

intersection of criminal conduct and tort liability. The relevant legal theories includeNegligent Security, Premises Liability, Negligent Hiring, Negligent Supervision,

Negligent Entrustment, Negligent Retention, and the like. The common theme for these

causes of action is that a criminal act occurred on or around real property or within abusiness, and the property or business owner is sued by the victim of the crime.

To non-attorneys these causes of action seem counter-intuitive. Why should the property

or business owner be liable for the actions of a criminal? The answer to this questionrequires an understanding of the logic and the history of the American legal system.

Historically, crime was viewed as a "superseding" cause, which served to break the chainof causation between the negligent act and the damage caused by the victim. In essence,

the logic was that crime could not have been foreseen by the property or business owner.

With this viewpoint, it was deemed improper to hold a property or business ownerresponsible for the actions of a criminal.

Over the years, as crime became more commonplace, victims of crimes sought to becompensated for the damages caused by the criminal. Since most criminals had little or

no resources to attach by a lawsuit, the victim often went uncompensated. As the number

of uncompensated victims grew, and as violent crime rates increased, courts began tocraft exceptions to the notion that crime acted as a "superseding" cause in a negligentcause of action. If you desire to delve deeper into this subject, please refer to the ground

breaking books by Dr. James F. Pastor entitled The Privatization of Police in America

and Security Law and Methods.

Premises Security Liability (used as a broad term to describe the aforementioned causesof action) usually involves the plaintiff (victim or representative of the victim)

contending that the security measures in place at the time of the crime were inadequate to

prevent the crime or deter the criminal from committing the crime. In general terms, the

plaintiff alleges that the property or business owner is responsible for any foreseeable

crime that involves third party conduct within or around the property. Following acriminal act, the plaintiff may recover damages in various negligent based theories if four

separate elements can be shown:

Defendant had a legal duty to ensure a certain level of security to protectindividuals who have been invited into the property, such as customers or tenants,

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or to warn them in advance of potential dangers. A key consideration relative tolegal duty is the concept of foresee ability (see discussion below).

Defendant breached the duty to protect the plaintiff from criminal actions. The breach of the duty was the proximate cause of the plaintiff's injury. Stated in

another way, the breach of the duty was closely linked to the injury sustained by

the plaintiff (victim).

The victim suffered damages, or an injury, as a result of the inadequate security.Typically, the critical element that the plaintiff must show is that the defendant had a

legal duty to prevent the crime, or at least provide adequate warning of the risk of crimeprior to the incident. This element usually turns on the ability of the plaintiff to

demonstrate that the defendant knew or should have known, with a reasonable level of

diligence, that the crime was foreseeable. The principles of foreseeability vary by theparticular state law or jurisdiction. Most courts usually make this assessment based on the

level of crime in the community, the types of crimes previously committed within oraround the property, the type of property or business where the crime occurred, and the

standards of care within the industry related to the property or business.

The concept of foreseeability typically seeks to measure the probability of future criminalactivity in relation to the "totality of the circumstances" within the environment where thecrime occurred. This approach has its intellectual basis in certain criminological,

sociological, and environmental concepts, such as Situational Crime Prevention, Crime

Prevention through Environmental Design (CPTED), Order Maintenance, and "BrokenWindows" theories. Generally, the logic within these theories is that the physical and

social environment can be influenced or controlled in such a way as to prevent or greatly

diminish the incidence of crime. The connection of these theories to foreseeability isrelated to a judgment based on the particular facts and circumstances of the case. The

plaintiff must show that absent certain conditions or actions, the particular crime

committed against the plaintiff would not have occurred.

In order to prevent crime or deter the criminal from committing a crime, the typical

security methods require a systems approach. Security, in this sense, is accomplished byproviding various methods to accomplish a secure environment. Generally, this requires

administrative controls, proper facility and hardware designs, perimeter hardening

techniques, personnel policies and procedures, and various risk management principles.Each of these security methods should overlap and compliment each other in an overall

desire to secure the protected facility.