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Premises Liability & Negligent Security

By: James F. Pastor, Ph.D., J.D., CPP
Principal Expert/Managing Member
SecureLaw LLC, a Security & Legal Consultancy
Tel: (239) 327-9283
Email Dr. Pastor

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 include Negligent 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 a business, 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 question requires 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 chain of 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 owner responsible for the actions of a criminal.

Over the years, as crime became more commonplace, victims of crimes sought to be compensated 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 to craft exceptions to the notion that crime acted as a "superseding" cause in a negligent cause 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 causes of 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 a criminal 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 protect individuals who have been invited into the property, such as customers or tenants, or to warn them in advance of potential dangers. A key consideration relative to legal 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 crime prior 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 the particular 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 or around 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 criminal activity in relation to the "totality of the circumstances" within the environment where the crime 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 "Broken Windows" 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 is related 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 by providing 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.

Dr. James F. Pastor, PhD, JD, CPP, brings a unique and remarkable 40+ year career in SecurityPolicing, and Public Safety, starting as a tactical officer in Gang Crime Enforcement for the Chicago Police Department, one of the most active policing units in the country. Augmented with a doctorate in Public Policy Analysis, he understands that policies create incentives and drive human behavior. As these directly impact public safety and crime, few possess his experience, his unique insight and his security sense.

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