PREMISES LIABILITY: THE NEGLIGENT SECURITY CASE

Premises liability claims are frequently asserted against property owners or occupiers for negligent security. The typical factual scenario involves the victim of a crime who claims that the owner failed to take reasonable steps to provide for the security of persons on the property. One example is an apartment dwelling rape victim who claims that the apartment complex failed to take reasonable measures to protect the tenant from this type of crime. Another example would include a hotel guest who is attacked by a third party criminal.

This type of claim has presented a challenge to the courts in terms of establishing a test that strikes a fair balance between claims that are allowable versus claims where it would be unreasonable to impose liability on the landowner. One factor in these claims is that a landowner is being penalized for the criminal acts of a third party over whom the landowner has no control. Indeed, the third party is usually a trespasser with no relationship to the landowner. How then to distinguish which claims are allowable?

The first element to consider is the landowner's duty of care. (As with any negligence claim, a breach of duty must be shown by the claimant.) The landlord's duty is to exercise ordinary care to protect its guests from unreasonable risks of which the landowner has superior knowledge. (Sound familiar? This is the basic test used in slip and fall cases discussed previously.) If the landowner has reason to anticipate criminal acts, it has the duty to exercise ordinary care to guard against injury caused by dangerous characters. Ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. These basic rules sound fair enough, but exactly what type of evidence is required to show that a landowner has reason to anticipate criminal acts?

The courts have answered this question by indicating that it is forseeable that guests may be subject to attack, and liability may be imposed on the owner, if it can be demonstrated that the owner knew about prior substantially similar incidents. A number of cases have been litigated on evidentiary issues related to what is allowable or necessary to prove substantially similar occurrences. Historically, the Georgia courts required a very high degree of similarity between the prior occurrences and the event being litigated. For example, in a case involving an armed robbery the courts might have required evidence of prior armed robberies on the property in question. The Georgia appellate courts relaxed this standard somewhat in the 90's by indicating that substantially similar does not mean identical, and that what is required is that the prior incident be sufficiently similar to attract the landowner's attention to the dangerous condition which resulted in the injury being litigated. Thus, the courts are willing to consider evidence of various kinds of criminal activity on the property at issue and nearby properties in evaluating whether the landowner had sufficient knowledge that the crime at issue was reasonably foreseeable. Evidence in these cases thus requires evaluation of prior police reports and crimes for the area in question.

Negligent security cases are somewhat of a specialized niche practice for law firms. Consequently, a claimant should make sure that the law firm of his or her choosing has experience with this type of claim. Negligent security cases frequently involve the use of security experts, a substantial expense, so expect law firms to be choosy when considering whether to handle these types of cases.

Any successful negligent security case can be quite valuable, owing to the severity of injuries often inflicted in a criminal attack. In the author's experience, a meritorious negligence security case with significant injuries may resolve for a substantial six-figure amount.

Copyright 2004 by Schulten, Ward & Turner, LLP. All rights reserved.

Information provided in this article is for information purposes only and does not constitute legal advice. To obtain legal advice concerning a particular matter, contact legal counsel of your choosing.