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Robert A. Gardner, CPP

Summary

Establishing liability in crime victimization cases can be a challenge. Often the issues involved center on questions of "duty to protect" and "adequacy of security measures." Obtaining a favorable settlement in these cases requires a demonstration that the crime risk was foreseeable and the negligent party did not act appropriately to mitigate the risk.

Research by security and crime prevention experts has demonstrated that crime can be reduced or prevented when crime deterrence features are designed into building projects. Studies have shown that by applying the concept of "Crime Prevention Through Environmental Design" to the planning of building projects, crime victimization rates can be significantly lowered.

As a result of these studies, many municipalities have adopted Building Security Ordinances. These ordinances require the incorporation of basic physical security features into all new building projects and most renovations. The existence of these ordinances and of the "Crime Prevention Through Environmental Design" concept provides considerable ammunition for attorneys litigating security negligence matters.

Security negligence cases can be a fertile field for the attorney who understands security and crime prevention theory and is familiar with any applicable security regulations.

Crime Prevention - A Brief History

Since the mid 1970's, experts in Security and Crime Prevention have been attempting to stem the growing crime rate through a variety of pro-active programs. Collectively identified under the umbrella title of "Crime Prevention", these programs take a two pronged approach. First, they identify the circumstances and conditions most likely to create an opportunity for crime to occur. Then, they try to remove that opportunity.

Crime Prevention programs are usually education oriented. Potential victims are taught to recognize and avoid environments and situations where crime is likely to happen. Teaching potential crime victims to avoid dangerous situations can be effective. But, it requires considerable effort on the part of the educators - typically the police - and active interest and participation on the part of the student. A major shortcoming of these programs is the fact that they rely on special training and knowledge to avoid criminal attack. Those not having the knowledge are still at risk.

There is growing acknowledgment by Security and Crime Prevention experts that requiring potential victims to recognize and avoid high crime risk situations is not entirely effective. A more productive and less labor intensive approach is to eliminate, as much as possible, crime prone environments. By designing crime resistance into an environment, a degree of passive protection is provided to everyone, not just those who happen to have the special knowledge needed for self protection.

"Crime Prevention Through Environmental Design" is a concept which blends psychology, architectural design, landscape and open space planning, physical security systems, lighting design, visual surveillance opportunities, access control, crime history, and general crime prevention theory to create an inherently crime free environment. Projects built - or remodeled - under this concept have security and crime resistance measures incorporated into their basic design. This approach is substantially more effective from both a performance and cost standpoint than addressing security concerns after project completion. The Environmental Design approach to crime prevention is applicable in virtually any residential, commercial or special use setting.

Security Ordinances

To ensure that security and crime prevention considerations are included in new construction and remodeling projects, a growing number of city and county governments have adopted minimum security standards as part of their local building codes. Generally where these standards exist, they are subjected to the same inspection and review process as any other building code requirement. Compliance must be shown before building permits can be obtained or certificates of occupancy issued. Although these codes are primarily applicable during the design and construction process, many also place requirements and restrictions on the continuing use of buildings and property after construction. Building Security Codes can apply to all building types and most land uses.

While specific wording may vary somewhat among jurisdictions, the requirements of these codes are generally similar. One reason for this similarity is the fact that many jurisdictions have adopted security ordinances based on Model Building Security Codes such as the one developed by the California Crime Prevention Officers Association (CCPOA). This organization was an early proponent of "Crime Prevention Through Environmental Design" and Building Security Codes. It is a pioneer in the crime prevention field and has, through its members, been instrumental in the development of many of the crime prevention programs in use today.

The Uniform Building Security Code, published by the International Conference of Building Officials, is another source of security standards for residential dwellings. This code, like the CCPOA Model Building Security Code, sets minimum standards for physical security and provides tests to ensure that the standards have been met.

Regardless of a security code's exact origin and form, if based on accepted security standards, it can be useful in supporting - or defending against - claims of negligence. Even where security codes are not in force, the basic theories of "Crime Prevention Through Environmental Design" and the existence of Building Security Codes in neighboring jurisdictions can often be used to demonstrate the need for, and reasonableness of, security measures.

Establishing liability depends in large part on the foreseeability of a specific kind of criminal attack and the amount of control the negligent party exercised over the circumstances and conditions under which the crime occurred. By citing the standards prescribed in Building Security Codes, it may be possible to demonstrate that a minimum level of security is always necessary. This is true even when no specific crime threat has been identified. The pervasive nature of crime in America presents an undeniable threat to virtually everyone. While the exact time and circumstances of criminal attacks cannot usually be predicted, it may be reasonable to forecast that a particular type of crime will occur at a given location within a definable time period.

Security Codes and Environmental Design Standards impose a duty on property developers, owners and managers to provide at least a minimum level of protection for those who enter and occupy their properties. The protective measures required will vary with the type and use of the property. But, in every instance, there will be basic preventative measures identified to address the kinds of crime that can be reasonably expected to occur. If adequate consideration has not been given to security, and/or applicable security codes have not been followed, then the stage is set for a claim of negligence should a criminal attack take place.

Settings for Negligence

Thousands of crimes occur every day, but only a very few ever result in legal action for negligence. Certainly, high profile crimes like the robbery, rape or murder of a hotel guest, for example, will always find their way into litigation. However, many other less sensational crimes will simply be written off by the victims - even when there is a clear duty to protect on the part of another party.

Possibly most overlooked are crimes which occur in residential settings. The typical home burglary, for instance, could conceivably be the basis for a claim of negligence on the part of the designer or builder. Minimum standards for security in residential dwellings are well established. Even in jurisdictions where security standards are not imposed by code, it is reasonable for the builder to provide at least a basic level of protection.

Multi - family housing, particularly rental housing, is another area where crime occurs frequently. In this setting there are often multiple levels of potential negligence. Not only can the designer and builder be expected to provide basic security measures; the owner and/or management company must also assume responsibility for the protection of tenants and guests.

Crime in public, semi-public and private business environments is extensive and varied. However, in virtually every case there is a clear responsibility for ensuring that employees customers, visitors and guests are protected. When someone is victimized in one of these settings, there is almost certainly a potential for a claim of negligence.

Where to Begin

When injury or damage occurs as a result of a crime, there are several levels of potential liability. Look first to the owner or manager of the property. They have the primary responsibility for providing a crime free environment. Then look to the designer and builder. The type of environment they create has a definite impact on the future crime rate within the property. In every instance where a negligence claim is being considered, there should be a careful study of the property design. Was the property designed and built in compliance with Building Security Codes? If no codes apply, should the designer have anticipated that certain types of crime often occur in similar properties? Did the designer take steps to mitigate the threat of these crimes? Have security codes been enacted since the project was built? Would retrofitting the project to comply with those codes have been reasonable? Had the project been retrofitted, could the crime have been prevented? These are just a few of the questions that should be explored.

If security services such as guard or alarm companies are involved, their actions should also be carefully scrutinized. The degree of competence and professionalism varies greatly among these services. It can often be found that security personnel are inadequately screened, insufficiently trained and ineffectively supervised. As a result, they may contribute to the security risk rather than eliminate it. Frequently, the actions, or in-actions, of security personnel are significant factors in security negligence claims. In many jurisdictions, security and alarm companies and security personnel such as guards are required to be licensed. Unlicensed practices and failure to comply with licensing requirements may be a litigation issue.

Conclusion

Crime is arguably this nation's greatest problem. Incidents of criminal attack on people and property are numerous. In many instances these crime may be the basis for a security negligence claim. Building Security Codes, the "Crime Prevention Through Environmental Design" concept and the advice of qualified security experts can be extremely useful tools in successfully pursuing those claims.

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Robert A. Gardner, CPP is a "Board Certified" Security Management Professional with multi - state security consultant, private patrol and private investigator "Qualified Manager" licenses. His background includes more than 40 years of training and "hands on" experience in evaluating, developing, and managing security and crime prevention programs.

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