62 East Pond Meadow Road Westbrook, Connecticut 06498 USA Phone: (860) 399-8545 Fax: (860) 399-4150 John@Kennish.com © 2000 John W. Kennish, CPP
Expert Advice: Premise Security Litigation __________________________
"It is necessary to remember that the primary purpose of a proactive security program is to deter crime before it occurs, and not to wait, and then react in a traditional reactive enforcement mode. What actions an owner takes, or fails to take, will directly result in an environment that either supports, or does not support, the opportunity the prospective criminal is seeking to act, given that he already has the motive, and means. It is my opinion, that while no single safeguard will build a total barrier against crime, reasonable protective efforts directed toward specific locations, environments, and risks, can in fact be very effective in deterring criminal acts. And likewise, a lack of a reasonable effort will result in a condition that will more likely than not, support future criminal activity."
Introduction A premise security civil lawsuit often involves a claim against the owner of a property. The plaintiff usually contends that security measures in place at the time of the incident were inadequate and, as a result, did not protect the plaintiff, who is usually classified as an invitee, or business invitee, from a criminal act and resulting injury or damage. Such litigation often follows a tragedy which may have been preventable, and seeks to hold accountable those parties who negligently failed to prevent it. Only too often this negligence represents an environment of opportunity, and a perfect scene for a crime. For example, this could involve a criminal attack against the customer of an automatic teller machine (ATM) that is on-premises, in a vestibule or foyer, or off-premise, or an attack on a night depository commercial customer. These are realistic, predictable, and inherent threats since criminals may identify ATM or night depository customer operations as a weak link in a bank's total security program. Similar inadequate security issues can be raised in many other environments such as shopping malls, college campuses, high schools, theme parks, medical centers, commercial buildings, parking lots, restaurants, taverns, apartment buildings, common or public carriers, convenience and other retail establishments, arcades, motels and hotels, and service stations. And while each environment is unique, the security principles are the same, whether representation if for the plaintiff, or defense. When evaluating a potential claim for inadequate security, there are numerous variables of premise security that need to be considered. Several of these variables can be explored by using ATM or night depository locations, and customers as examples. Litigation Principle In general, the owner of a property is responsible for any foreseeable event that involves third party conduct on the property. This scope of legal duty and responsibility to protect patrons has grown in recent years with an increased expectation on the part of the public for improved levels of security and safety, and for the accountability of property owners to provide adequate security for hazardous environments, and alter any attitude of indifference. Following a criminal act, a victim may be able to recover civil damages due to negligence if it can be shown that:
Foreseeability A critical element in assigning fault in such a suit involves the determination of foreseeability. Just how reasonable was it to expect that a crime of this nature could have occurred ? The principles of foreseeability vary considerably by state, community, and neighborhood depending on legal protocol, demographics and criminal intensity. Standards for care also vary by organization, but are similar for like organizations. For example, the standard of care for an armored car operation would be significantly different than the security standard among fast food restaurants, motels, apartment houses and night clubs. However, within each of those types of organizations, the appropriate standard of care should be consistent. In some instances, this standard may be defined by legislation, compliance mandate, corporate policy, industry association, or government agency. The appraisal of standard usually takes one of two directions. The first is to measure the probability of such a future occurrence based upon previous incidents in which the owner had specific knowledge about crimes of the same nature. In other states, the test more likely is based upon a statistical likelihood that such a crime could have occurred due to an evaluation of an expanded area. The trend in the courts is toward this second philosophy and increasingly measures the "totality" of the environment, and circumstances to include a radius into the neighborhood surrounding the crime location. This approach also increasingly charges owners with the responsibility for taking the initiative to learn about criminal activities in the area of their properties. Evaluation Data Data regarding past criminal acts can be obtained by analyzing records of calls for police service into specific geographical areas, or to specific addresses. It may also be available from other governmental agencies or private firms. Former employees of the defendant are also an excellent source, as are records of patrons' complaints, or suggestions. Such an analysis will establish patterns and, in turn, the foreseeability of future crime. With the objective of identifying a "window of expectation of crime," this data can be studied to establish the month, day of the week, time of day, location, intensity, and specific types of criminal events in relation to one another. The result can be used to compare the event in question with crime patterns to support, or deny, a contention of foreseeability. There is also a question of inherent risk, which might reasonably be expected to be present in a secluded stairwell, isolated parking garage, motel room, elevator, or a darkened college campus, below-level parking lot, or after-hours ATM or night depository location. Adequate Security Only a jury can define or determine what is reasonable or adequate for any set of circumstances. Given a different sets of facts for each case --- a unique jury, different lawyers, and the possibility of negative, or positive bias --- each test will turn out differently. However, if there is evidence to establish that the crime was reasonably foreseeable in nature, the owner of the property must be able to show what actions and steps were taken to reduce the risk and probability for similar future criminal acts to occur. An effective security program requires a systems approach. This means that while no one variable in and of itself may be sufficient, several can coordinate to attain the desired result. Generally, these efforts should include administrative controls, proper facility designs with security and customer safety issues as objectives, effective equipment combinations and applications, and the use of security personnel when warranted. All of these protective efforts should overlap and compliment one another. It is necessary to remember that the primary purpose of a proactive security program is to deter crime before it occurs, and not to wait, and then react in a traditional reactive enforcement mode. After-the-fact enforcement is a police function, while prevention is a security function.
Thank you for your interest. Please contact Mr. Kennish, by E-Mail, with your written request for the remainder of this educational article.
62 East Pond Meadow Road, Westbrook, Connecticut 06498 Phone: (860) 399-8545 Fax: (860) 399-4150 Kennish.com E-Mail John Kennish © 2000 John W. Kennish, CPP
Top of Page
John Kennish Home Page