DITCH DIGGING: FINDING TREASURE IN THE MUDDY PIT OF DISCOVERY TO PROVE FORESEEABILITY
1999 American Association for Justice ANNUAL CONVENTION
INADEQUATE SECURITY LITIGATION GROUP
SAN FRANCISCO, CALIFORNIA - JULY 20, 1999
Steven C. Laird
1824 8th Avenue
Fort Worth, Texas 76110
Telephone: (817) 531-3000
Fax: (817) 923-2228
While the levels of some crimes have hit equilibrium, or even dropped, in the past few years, the level of truly violent, vicious crime has grown exponentially. This growth has been especially true regarding crimes to persons done for the sake of the criminal act itself with no prior interplay between the assailant and victim. This lends itself to the types of crimes to be discussed herein; namely, those crimes committed as a result of inadequate security. More so, this paper will address ways of establishing foreseeability on the part of a property owner for criminal acts occurring on their property.
Before making a determination as to foreseeability, you must first determine upon whose shoulders the burden of foreseeability rests.
I. RESPONSIBILITY FOR MAINTAINING SECURITY
In order to hold a party responsible for injury to your client, it is necessary to determine who the responsible party or parties should be. The mantle of responsibility potentially can fall on one of several groups, including:
(1) property owner;
(2) management company;
(3) security company;
(4) tenant (lessee [apartment] or owner [condominium]); or
(5) residential association.
In making a determination of responsibility, control is viewed as a major factor. For example, in Centeq v. Siegler, 899 S.W.2d 195 (Tex. 1995) the Texas Supreme Court stated: "The right to control the premises is one of the factors that determines whether a legal duty should be imposed on the owner or the possessor of the property." Id. at 197. The Centeq case turned directly on who had "specific control over the safety and security of the premises." Id. at 199.
In determining control, where the crime took place will have a major impact on liability. For example, a crime taking place within the confines of a specific dwelling, be it apartment or condominium, may absolve all parties, save and except the lessee or owner of the unit. Likewise, a security company hired to drive through a complex but not answer calls, may not be liable for an incident in a hidden common area (pool, recreational room, interior hallway, lobby, washateria, ect.). The question to be asked in making this determination is who was in a position, by law or fact, to either keep a crime from being committed or halt a crime in progress.
Some jurisdictions have extended the concept of control over the premises to include control over those within the complex. In Daly v. City of New York, 626 N.Y.S.2d 409 (Sup. 1995), the court held that when a defendant had the opportunity to evict a problem tenant but failed to do so, the landlord, in this case the New York City Housing Authority, should be held liable.
Other courts have refused to allow for recovery by those outside of the confines of the complex, even when a nexus can be shown between alleged security failures and the crime. In Rosenbaum v. Security Pacific Corp., 43 Cal. App. 4th 1084 (Cal. App. 1996) the court refused recovery where the plaintiff was injured off-site where, she claims, she had to park due to inadequate lighting in the complex itself.
A. Discovering Control
In the discovery process an initial question to be asked is who had control over the property at the time the incident occurred. While asking the ultimate question will most probably be responded to with the ultimate objection - calls for a legal conclusion - there are other ways to make a determination as to control.
1. Identifying Potential Parties and those with Relevant Knowledge
In the first set of discovery to the defendant, inquire as to the identity of all potential parties. Many jurisdictions have agreed that the inquiry into this cannot be objected to. See, e.g., Tex. R. Civ. P. 194; Fed. R. Civ. P., 26. Needless to say, the failure to timely respond to such investigative questioning carries with it the added bonus for sanctions for a defendant's failure to timely and adequately respond to such a request.
CAVEAT - If you are relying on discovery responses to identify potential parties, keep that in mind as the running of an applicable statute of limitations draws near. You do not want to put yourself in a situation where you do not have enough time to file your suit, have the other side drag its feet in responding and then the additional time to get a hearing on a potential motion to compel a proper response.
2. Deposition
See the caveat immediately above before relying on getting information identifying parties in a deposition. If you do however have the luxury of time, use the deposition to determine all those who make any decisions concerning the property and include each in your suit.
The issue is not only as to who controls the physical plant, but whose part may in any way bear upon your client's claim. This includes hiring and firing staff, leasing and obtaining evictions from units in a complex, maintenance, policy making decisions, or any other issues bearing on the upkeep of the property.
II. FORESEEABILITY
A. General Concerns
Once it is determined that a defendant is in control of some aspect of the property, the next issue is whether the criminal acts of a third person were reasonably foreseeable. While some states have left the concept of foreseeability as possible, others give a more clear definition as to what is necessary to prove reasonable foreseeability.
Some jurisdictions have completely abolished the idea of foreseeability. See, S.I. v. Cutler, 523 N.W.2d 242 (Neb. 1994) (As a general rule, such acts are not foreseeable). The Virginia Supreme Court has stated that criminal acts of third persons are never reasonably foreseeable. Therefore, the duty to a property owner only arises if a defendant's business attracts or provides a climate for assaultive behavior. Wright v. Webb, 362 S.E.2d 919, 921 (Va. 1987). In Missouri, the courts have recognized that there is only a duty to protect when a special relationship exists and a landlord-tenant relationship is not one to be protected. Some jurisdictions have modified this hard-line stance upon the showing of "special circumstances." They include intentional acts inflicted by a known assailant or frequent and recent acts of violent crime by an unknown assailant. Schelp v. Cohen-Esrey Estate Service, 889 S.W.2d 846, 851 (Mo. App. W.D. 1994).
For those jurisdictions where foreseeability is still an issue, different jurisdictions have relied upon various plans for determining whether a defendant had a duty to protect others on their property. The three different approaches generally used by the court are: "prior similar incidents" "totality of the circumstances" and a balancing of foreseeability with the burden of protection.
Of the three approaches to foreseeability, the one referred to most often is a review of prior similar acts. Polomie v. Golub, Corp., 226 A.2d 979, 640 N.Y.S.2d 700, 701 (1996). Problems with this approach arise however when attempting to determine the similarity of prior acts, both in physical proximity and time, to the assault made the basis for the case at issue. Jardel Co. v, Hughes, 523 A.2d 518, 525 (Del. Supr. 1987). Another issue arises as to whether adequate notice has been given to a property owner if the prior crimes are not of the same type as those in the present complaint, as well as the number of prior crimes necessary to give adequate notice. Vaughn v. Granite City Steel Div. of Nat'l Steel Corp., 576 N.E.2d 874, 877 (Ill. 1991). In Leslie G. v. Perry & Associates, 96 Cal. Op. Serv. 1731 (Cal. App. 1996), the court found that where a landlord failed to repair a security fence, a cause of action could not be maintained unless sufficient evidence was presented that the unknown assailant had, in fact, entered through the broken fence.
In Siebert v. Vic Regnier Builders, Inc., 856 P.2d 1332 (Kan. 1993), the Kansas Supreme Court rejected the concept of "prior similar incidents" as ground for determining foreseeability in favor of the "totality of the circumstances" rule. The court stated that there was foreseeability so long as the circumstances surrounding the incident are related to the harm incurred. Id. at 1339. The court recognized that a defendant need not have to wait until prior crimes are committed before being placed on notice of foreseeable future assaults.
The Wyoming Supreme Court, citing Siebert, supra, rejected both "prior similar incidents" and "totality of the circumstances" as determiners of foreseeability, preferring to take a more economical view of the foreseeability issue. In Krier v. Safeway Stores 46, Inc., 943 P.2d 405 (Wyo. 1997), the court moved to a balancing approach, weighing the foreseeability of the harm presented against the burden of the duty potentially imposed.
B. Establishing Foreseeability through Discovery
1. Policies
The policies of a defendant as to security concerns are one of the most fertile areas in which to attack the defendant. This is because a defendant may be just as liable for not following policy as not having a policy of any kind in place.
The first issue to be addressed is whether any policy even existed. Ask for a copy of the RELEVANT policy in your document requests. No, the previous sentence does not have a typo. The only policy - or at least the most relevant policy - is going to be the one in place at the time of the incident made the basis for suit. Defendants have a way of losing or misplacing relevant policies when discovery time comes. Be prepared to go toe to toe on this issue to avoid a relevancy objection at trial. In addition, if defendant continues to rely on their not being able to recover a copy of the relevant policy, the same may be a fertile ground for a claim of spoliation to not only remove the relevancy objection, but to get a favorable instruction upon submission to the jury.
Once information as to the existence of the policy has been determined, discovery in this area should be focused as to each provision of the policy.
Areas should include:
- Need for security
- What security measures are called for in the policy
- How security plans are implemented
- Who is responsible for implementation of the security plan
- Who was responsible for maintenance of the physical plant as it relates to security issues
- How security problems are to be addressed and, if necessary, corrected
Just as important as the contents of a defendant's security policies are who had access or knowledge of the policies. For example, if the defendant's policy is that all exterior lights are to be inspected each evening, but the maintenance office is never apprised of this policy, the policy is just as useless as if it did not exist at all. More over, the additional argument can them be made that the owner felt that it was important enough to include as part of its policy. To this end, questions should focus on how the policy gets from those who drafted the rules to those who will implement them. The individuals who made the policies, implemented the policies, and enforced them should all be questioned through written or oral discovery.
Many companies now bring in outside consultants to make a determination as to the need for security and level of security necessary. One of the main reasons for this is so those making policy, or any security decisions, can later testify that they left the need for security to an expert. Therefore, the security expert needs to identified as well as all information the expert supplied to the defendant.
1. Background Checks
a. Employee Background
Many companies now do extensive background checks on prospective employees as part of the hiring process. This may include not only a general criminal background check, but also a drug test and in some instances, a lie detector test as well. Again, issue number one will be whether any policy exists regarding hiring employees and if such a program exists, was the same properly followed according to the set policy.
b. Tenant Background
In addition to making a determination as to the type of employee a company is hiring, many companies also have a policy providing for a background check on tenants. In a commercial setting, the investigation may be more directly related to a prospective tenant's financial status, while in a residential setting, the background check may be for not only financial reasons, but to determine the type of resident being considered. A more in-depth discussion of this is to be found below. If the assailant in a negligent security case proves to be a tenant of the defendant, what the defendant knew or should have known becomes of paramount importance.
i. Residential History
The information garnered as to past rental history may fall under the category of "why ask if you don't plan to do anything with the information." In other words, if the landlord asks for past rental history, the landlord should shoulder the burden of checking with a prospective tenant's past landlords to make sure that the prospective tenant does not pose a risk to others in the complex. If such a follow-up with a past landlord has been done, a tenant's records should reflect as much.
ii. Criminal Background
A tenant's criminal background is going to generally be requested for several reasons. First, most credit bureaus are going to request a potential resident's criminal history prior to agreeing to take on a lease. As laws regarding eviction become more stringent, landlords are being more careful to make sure that a resident is going to continue to have the ability to pay rent over the extent of the lease.
A second reason for making a determination of criminal background relates to obtaining financially assisted housing. Federally assisted Section 8 and Section 64 housing provides that, as a precondition to being placed, that the potential resident have a criminal background check. 42 U.S.C.A. A7 1437f. Needless to say, some of these same housing units provide a fertile breeding ground for criminal activity. Determining the criminal background of not only the assailant, but that of others in a complex may provide the basis for criminal acts being reasonably foreseeable even without any prior acts having occurred.
2. Determination of Funding
As noted immediately above, certain federally funded housing programs carry with them certain burdens. These same programs carry certain benefits as well. Of particular relevance are security programs funded by, or subsidized by the government. 42 U.S.C.A. A7 1437f. These programs not only provide financial support for employing security personnel, they also provide funding for the installation of lighting, fences, locks and bolts, and the entire relandscaping of a facility to discourage crime. These programs further provide for the employment of investigators to investigate crimes. 24 CFR A7 961.10.
In a jurisdiction using the balancing test of foreseeability versus burden to ascribe duty, the scales may be tipped decidedly in favor of foreseeability where the government is picking up the tab for the burden. Therefore, during the discovery process, it is incumbent upon a plaintiff's attorney to make a determination as to exactly what type of facility the defendant is operating as well as what security measures have been made available and are, or are not, in place.
3. Maintenance Records
Through a request for documents, obtain all maintenance records for the site. These should include maintenance requests made to the facility (burned out lights, broken or unlocked doors, etc.) as well as the records as to how each maintenance request was resolved. Many property owners provide for some type of schedule as to site maintenance,, from when floors need to be swept to when lights and cameras are to be tested. If there is such a policy in place, but no records to support that the policy was followed, any claim of simply poor record keeping should be viewed with a jaundiced eye.
4. Knowledge of the Area
As noted in Siebert, supra, a property owner cannot rely simply on what is going on within the confines of the property owned and then claim a lack of foreseeability based solely on the history of the property. In making a determination as to foreseeability of criminal acts, the owner is also responsible for making a determination based on the area in general.
A deposition of the property owner should include questions as to the owner's knowledge of what is going on around the property throughout the day. While there is a general assumption that the biggest risk is always at night, some properties may, in fact, lend themselves to a higher risk during the day. The owner should know if the property is used as a cut-through for school children or those going to and from work. Is the property near someplace where people would loiter at odd hours, such as an unemployment office or day-hire office. The owner should also be aware as to the criminal history not only of the owner's property, but also of the area. In many areas of the country records are kept as to police and other emergency calls to a specific address or area, and these records are easily accessed. An inquiry should be done as to whether such simple steps were taken and, if so, where the records exist to provide proof that such and undertaking was accomplished.
5. Security Records
Property owners should keep track of security activities on the property. This includes not only a basic record of when a security check is accomplished, but also records of when any other activity has been taken, from the most mundane - loud music, excessive noise, etc. - to the most obvious - criminal acts. In addition to providing a record of what was or was not accomplished in providing security, records also provide evidence that an owner is not in touch with the risks existing at the property. As noted immediately above, night is not the only time that criminal activity is reasonably foreseeable, and a security presence is not necessarily reasonable only at night if greater dangers are present at other times.
6. Other Activities Used to Discourage Crime
Inquiry needs to be made as to what, if any, measures were taken to reduce crime. The presence of a security guard and lighting are some of the most obvious sign, however there are others. These include keeping only small amount of money on site (with a sign indicating the same) as well as signs providing warnings of other security precautions being taken such as videotape cameras. Other inexpensive security devices include such things as a measuring tape at the door which might identify a criminal and which might give a potential criminal pause.
Additional consideration should be given to whether conditions at a property attract or provide a climate for criminal activity. While large windows in a convenience store may discourage would-be criminals, covering these same windows with signs reduces or eliminates their effectiveness. The same might be said for hedges and other growth that has grown out of control. Many buildings have alarm exits that are supposed to give a warning when opened. Unfortunately however these are sometimes disabled when they become a nuisance, such as at the delivery entrance to a store. Questions to the owner should focus not only on what things were done to provide security, but also whether such security measures could be of any use at the time of the incident made the basis for suit.
CAVEAT - When obtaining information through discovery, make sure that the information is relevant to the time of the incident made the basis for suit and not to the present.
III. CONCLUSION
The defendant starts out with the most basic of defenses - "it wasn't our duty because we didn't know." But clearly a property owner's actions, or lack of action, speak many more volumes than their simple declarations. Therefore, it is incumbent upon us to make every determination as to what if any knowledge the defendant had, or should have had, regarding the prospect of an assault taking place on their property, or because of a lack of care being used on their property. As foreseeability is, in fact, the best defense, proving through discovery that such a defense does not exist may prove to be the best offense.
- Steven C. Laird, Laird & Cummings, P.C.,
1824 8th Avenue, Fort Worth, Texas 76110, 817-531-3000, www.texlawyers.com
