There is an area of law under the general category of “Premises Liability Law” known as “Negligent Security Law.” The term “negligent security” describes a situation where you become the victim of a violent, criminal attack, such as an assault, shooting, rape or robbery, while on someone else’s property. These claims usually come up in the context of a customer being followed to their car in a shopping center and mugged before they can get in their car; a person being robbed or shot while removing money from an ATM machine; an assault inside a hotel room, or a robbery at a gas station while you are standing next to your car, filling up with gas; or an assault in the lobby of an apartment complex. The law imposes a duty on these commercial establishments to maintain their property in a reasonably safe condition.
That includes the obligation to be aware of what is going on around them in the community. If robberies, shootings, and/or other violent criminal activity have been going on within a reasonably close distance to the location where your incident occurred, the property owner has a duty to do something about it to protect you. For example, if a shopping center is constantly the subject of parking lot robberies, the shopping center has a duty to add more security guards, put up more video surveillance, add more lighting, eliminate some entrances and exits or to take other action that other shopping centers would or should take to protect against crime. If one shopping center is in an area that is targeted by criminals more than others, there may be a higher duty for that shopping center to provide much more security for its customers then the shopping center across town, where little criminal activity occurs.
I have seen many violent criminals go to jail for many years. This, unfortunately, does not help the victim’s financial situation when they are left with thousands of dollars of medical bills, permanent injuries and the loss of ability to earn money in the future.
If a property owner fails to take care of their property and you are hurt because of it, they are liable and you have the right to hold them responsible. Some examples of questions I look for answers to after someone becomes a victim of a violent crime on someone else’s property include:
- Was there any evidence of prior violent criminal activity at or near the area of the crime?
- Was there adequate lighting where the crime occurred?
- Was there any private security hired in areas where there may be a high crime rate?
- Were there functioning locks on doors?
- Was there a satisfactory alarm system or surveillance system in place?
Negligent security lawsuits are asserted by individuals who are attacked or victimized on someone else’s property. Premises liability law controls negligent security claims because they arise from the ownership or control of property or “premises.” Under premises liability law, a property owner or the party responsible for maintaining the property may be held liable for the injuries of another if the injuries were the result of a dangerous condition on the property. While there are several circumstances that create unsafe conditions, negligent security law traditionally has addressed those unsafe conditions created by third-party attacks, i.e., assailants.
If you were injured in an attack by a third party assailant on someone else’s premises, you should consult an experienced negligent security attorney as soon as possible about your available legal remedies.
Premises Liability Rules and Negligent Security Claims
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In most states, premises liability law places a duty on individuals or organizations that own or are in control of land or buildings to maintain their property in a safe condition and to warn people of any known or reasonably discovered hazards. To recover damages in a premises liability case, the injured party must prove that a dangerous condition existed on the property; the owner or possessor knew or should have known of the condition; the owner or possessor failed to take reasonable steps to eliminate or reduce the danger; and this failure was the proximate cause of the injury. A dangerous condition exists when something on the property presents an unreasonable risk to people on the property that may not be obvious to them.
Landowner Duty in Negligent Security Cases
Landowners have no general duty to protect people on their property from third-party attacks. Consequently, an injured person may only recover damages for injuries caused by attacks on another’s property if the landowner owed a special legal duty to them. Advertising claims, contractual provisions, state laws, city ordinances or the relationship of the injured person to the property owner may all serve to create the necessary duty. For example, if the injured person is invited onto the property as a social guest or for business reasons, many states impose a duty of care on property owners to take reasonable steps to protect invitees from known or reasonably known dangers on the property. Knowledge of prior crimes on the property or in the neighborhood may create a duty to warn of the risks of attack as well. If the possibility of criminal attack was foreseeable, most states impose a duty on property owners to take reasonable precautions to protect people on the premises from attack.
Foreseeability of Criminal Attacks
In the law, something is foreseeable if its occurrence can or should be reasonably anticipated, or if a person of ordinary cautiousness would expect it to occur or exist under the circumstances. Different states use different standards to answer the question of whether or not a criminal attack was foreseeable in negligent security cases. Generally, most states use some combination of the following factors to determine foreseeability:
- Imminent harm: Foreseeability determined by evidence that the property owner knew or should have known a particular crime was imminent based on prior incidences of the crime in the area or on the property
- Prior similar incidences: Foreseeability determined by evidence of comparable criminal acts during a specific time frame on or near the property
- Totality of the circumstances: Foreseeability determined by the location, condition and layout of the premises, and other relevant factors, including any prior criminal activity on or near the premises
Regardless of the approach, when an attack is deemed to have been foreseeable, courts will find that the property owner had a duty to use reasonable measures to protect people on the premises from third-party assaults. Reasonable security measures may include hiring a qualified and reliable security service, installing security systems and actively monitoring security cameras, creating a security plan, having working door locks, installing a buzzer/intercom system, developing building access control measures, having one-use hotel room key cards or installing ATM panic buttons.
Most courts use a balancing test to determine whether certain security measures should have been taken by the property owner. The test weights the likelihood of an attack and the potential for harm against the burden imposed on the property owner to prevent the incident with security measures. For example, in cases where there has been crime resulting in injury on or near the property and the costs of securing the property are low, the court is likely to find against the property owner.
While the availability of particular defenses varies by state, some of the common defenses asserted by property owners include:
- Absence of duty: the property owner did not owe a duty to the injured person
- Adequate security: the landowner provided reasonable security despite the occurrence of the attack
- Contributory negligence: while the landowner may share some of the responsibility for the attack, the plaintiff is partially responsible for the attack by failing to exercise reasonable care and/or assuming the risk
- Apportion fault: property owners will attribute some or all of the fault for the injury to the intentional criminal conduct of the assailant
- No available security measures: property owners may use criminal profiling to argue that there were no available security measures capable of deterring this particular type of criminal
In order to counter these defenses, an individual injured by an attack on someone else’s property should seek the assistance of a skilled personal injury attorney.
If you have been injured by an attack on someone else’s property, contact an attorney with experience in premises liability cases as soon as possible so as not to miss any filing deadlines. An experienced lawyer can evaluate your negligent security claim and help you prepare your case.
For questions about this article or any aspect of personal injury, please feel free to contact me directly or call 516-358-6900.