Over the last two decades, the field of inadequate security litigation has grown explosively, particularly in Florida, a leading state both in terms of violent crime as well as in its development of case law in the field of premises liability. Homicides, sexual assaults and other violent crimes occur frequently in Florida, and all too often a property manager, owner or employer failed to provide adequate security.
It’s important that both the plaintiff and the defense side understand that security cases are serious matters. The damages need to be determined as being very significant because these are complex, expensive, time-consuming cases that may involve death and serious injuries. As litigators, we are almost always seeking to recover damages from a third party, although some cases may involve going after the perpetrator as well.
A strong premises security case typically involves a person who was victimized by a stranger in a crime of opportunity that took place on private property. Once it has been determined that those three key elements are present in a case, it is crucial to screen the case further. It is far better to turn down a bad case than to take one that may interfere with handling more productive matters.
The most effective way to screen is to work backward, by initially assessing the damages, ensuring that they will justify the investment of time and money. Additionally, try to obtain copies of the relevant insurance policies, since coverage can be a major issue in these cases. Once that has been evaluated, what I refer to as the “dry cleaner test” should be applied to ensure that the case makes sense – would you be able to explain to your dry cleaner what happened to your client in an understandable way? If not, that’s a sign you may need to rethink the case.
Other important factors in this stage include questioning whether the case is legally sustainable but practically implausible, being sure to know the law that applies to your case and always remembering that the facts are not always what they seem. Be sure to engage the services of experts in criminology and security, as well as a good investigator when relevant. Another key issue to consider in these types of cases is the concept of foreseeability. Could the property owner or manager reasonably foresee the occurrence of the crime? One of the ways to establish foreseeability is to review police reports, service calls and the “crime grid” surrounding the property.
At the core of these cases lies basic premises liability law and as in all tort cases, a duty must first be established as a threshold for liability. A property owner has a duty to maintain the premises in a reasonably safe condition and to provide warning of any concealed dangers that should be known to people who come on to the property.
Negligent premises security cases usually hinge on the facts specific to the case, and typically require an extensive pre-filing investigation. But a successful lawsuit can lead to an equitable compensation for clients, and also help to bring about positive changes in society. John Elliott Leighton