SEMINARS IN PUBLIC SAFETY
SAN DIEGO, CALIFORNIA – MAY 28 – 29, 1998
Steven C. Laird, TX*
with assistance from Lorin Subar, TX
There was a time in the not so distant past that the purposes of a town hall, town square, and store or market were very distinct and clear. The town hall was for meeting to share opinions, the town square was for meeting to socialize and the store was to buy and sell goods and services. In the past ten years, with the growth of the large shopping centers, malls, and “mega-malls,” the distinction has blurred the three different meeting areas into one. The shopping center is now seen as a place not only to shop, but to socialize and express opinion. Moreover, shopping centers now openly welcome those with no interest in shopping at all by providing access for walking, jogging and exercise through the mall when stores are not even open, as well as providing elaborate food courts, child care centers and even amusement parks. Finally, the shopping center has replaced the soda shop and other teen hang-outs as the place to see and be seen. Even with shopping centers operating in all other respects as a city within a city, security, both in quality and quantity, many times lags behind even the smallest of villages and towns.
I. THE LAW
The central issue is whether and when a shopping center owner, and/or the tenants within the shopping center are liable for the criminal acts of third persons.
A. Control of the Premises
Before being able to make a claim for injuries due to inadequate security, we first need to determine which of the many entities to choose from is responsible for maintaining security. Among the potential parties are: the owners of the shopping center property, the shopping center owners and management companies, the individual stores, the security force, or countless other entities.
Some courts have held that where a tenant does not retain control of a particular area, the tenant is blameless as a matter of law. In Federated Dept. Stores, Inc. v. Doe, the court held that where the plaintiff was attacked in a shopping center garage maintained by the shopping center, it was the shopping center, not a department store in the shopping center, to be held liable for a criminal assault. Similarly, in St. Phillips v. O’Donnell, the court maintained that barring an agreement to the contrary, a shopping center is responsible for business invitees in the common areas of the shopping center. Some courts have gone so far as to hold that even if a particular tenant retains rights to provide for security over common areas, but does not exercise those rights, the shopping center retains full responsibility for an invitee’s safety.
As a general rule, the duty to take reasonable care for the safety of one’s patrons arises out of whether the risk of harm to patrons was, in fact, foreseeable. Some jurisdictions have raised the threshold of foreseeability so high as to make the burden of proving foreseeability virtually impossible. Other courts have severely tempered foreseeability by limiting the duty, except when there is specific foreseeability of a specific act.
Unless the need for security is immediately apparent, the courts have relied on prior similar occurrences to establish foreseeability. The need for prior acts is either general or specific with more courts moving toward the specific. These specifics not only are as to the type of crime, but the frequency of criminal activity. Some jurisdictions require that the past criminal acts must have been at the site of the present attack. Furthermore, the plaintiff must show that there was a causal connection between the foreseeable implement of harm and the actual attack. In the recent case of Leslie G. v. Perry & Associates, the court found that where a landlord failed to repair 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.
Another issue regarding foreseeability not yet specifically addressed by the courts is forseeability regarding a specific area of a shopping center. There are parts of a shopping center which, during construction or maintenance, may lend themselves to be potential hotbeds for criminal activity. Some are obvious, such as restrooms. Needless to say, these have there own unique problems with privacy which provide the shopping center with defenses to a lack of security; however, even these areas should be provided with panic buttons or similar devices to provide at least minimal protection. Other less obvious areas are back hallways, especially in enclosed multi-storied malls, which are accessible to the general public either by intention or design.
Rather than placing restrooms, shopping center offices and similar rooms directly adjacent to the open areas of the shopping centers, many times it is necessary to walk down back hallways to gain access to these areas. Without adequate security, these areas beg for attention by would-be criminals. The second set of hallways are those not intended for public access but which are not equipped to deny general access. Most shopping centers provide back hallways which connect the rear entrance of the stores of access for deliveries and store employees. At the end of the hallways are access doors into the mall. If these areas do not have any access control, either by code or keys, they are openly accessible to the public and, therefore,they may also need security protection – not to mention protection for the benefit of store employees from criminals gaining unfettered access.
2 Duty Owed
As noted in the introduction to this subject, the shopping center of the 1990’s is far from a place simply to but and sell goods and persons using the facilities do so for a multitude of reasons. The general duty owed to a person entering a business it that of an invitee and is based on the notion that the shopper will potentially provide a shop owner with a benefit; however, is person using the shopping center for some other reason such as exercise owed a lesser duty. While the issue has never apparently been addressed as to the owner of a shopping center, recent cases suggest that the mere fact that an assault occurs on the premises of a business does not make the victim a “business invitee.”
C. Liability of the Criminal
Several states have addressed how the actions of the third-party criminal might affect how liability is weighed against the shopping center owner or managing entity. Surprisingly, some jurisdictions are not willing to reduce fault against the shopping center by whatever amount of responsibility is borne by the criminal. In Kansas State Bank v. Specialized Transportation Services, Inc., the court stated the “negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another they had a duty to protect.” More recently, in Cortez v. University Mall Shopping Center, the federal court, following Utah law, found that the intentional actions of an unknown assailant are not viewed as a form of traditional tort conduct and therefore there is no weighing of fault as between a negligent ind intentional tortfeasor. Other courts have held to the contrary, finding that the intentionally criminal actors actions should weigh directly on the fault of those allegedly negligent for claimed injuries.
II. INADEQUATE SECURITY
Except under rare circumstances in limited areas of the country, there should not be an excuse for simply failing to provide any security whatsoever. The very nature of the modern shopping center/mall lends itself to areas of larger populations, and the nature of the structure itself leans towards divergent groups congregating together, making not only for a sometimes explosive mixture, but also making an inviting target for criminals looking for opportunity. Therefore, at least some security is always necessary.
A. Placement of Security
The existence of security at shopping centers many times does not track where the need for security is most prominent. Specifically, shopping centers should be doing a better job of placing security personnel and devices where the crimes are being committed; especially those involving crimes to persons. Crimes to persons (assaults, rapes, kidnaping) are difficult to attempt, let alone successfully accomplish in a busy mall. Furthermore, crimes involving property, as they relate to the shopping center itself, are negligible; the shopping center being generally responsible for the common areas but not for the individual tenants. Therefore, in deploying a security force, a lesser force is generally necessary for the interior, as opposed to the exterior.
Clearly the inside of a shopping center has the largest amount of people, as opposed the exterior and parking lots/garages. But it precisely due to the lack of large groups of people that make the parking lots the most inviting targets for crime. Even the shopping center industry recognizes now that the most dangerous part of a shopping center is the parking lot. Parking lots provide a criminal with the things they like most; the isolated victims, easy access and exits, and many times, poor visibility. In Willie v. American Casualty Co., the court supported a finding that the plaintiff was abducted and injured as a result of inadequate parking lot lighting. However, other courts have held to the contrary, finding that the plaintiff must show that inadequate lighting was a cause in fact to support a verdict of negligence due to inadequate lighting.
B. Type of Security
There are essentially two types of deterrent security. That which is used to deter passively and that used to deter by the possibility of force.
The purpose of security cameras is for both protecting property and persons. This is probably one of the most obvious intentional deterrents; especially in many stores and banks where the customers can see themselves in the monitors as they make their purchases. The idea is that if the customer actually is aware the camera is on him, there is less of a likelihood for crime as many of a potential criminal’s questions are answered (is it on; can it see me; is the picture clear; is it at the right angle). As the escalation of crimes caught on camera shows, while cameras hare helpful, they need to be used as part of a total security package. Cameras alone are almost never enough of a deterrent.
Again, if a criminal can be easily spotted, he is less likely to commit a crime. While those assaulted in broad daylight can attest that lighting alone is not perfect as a deterrent when used as part of a package of security features, lighting can reduce crime. The lighting must be adequate both for general safety (so you can see where you are going) as well as deterring crime. Unfortunately, many lighting systems have just the opposite effect. If light systems are not high and positioned appropriately, can not only temporarily blind a potential victim, but assist a criminal by increasing the number of blind spots around buildings and vehicles. This leads to people walking in to and out of shadows as they enter and exit their vehicles. The higher up the lighting fixtures are placed, the more blind areas are reduced.
Another aspect that goes into lighting is wattage. As the lighting is raised, its power is diffused. Therefore, in order to compensate, the wattage of lighting needs to be increased, or the number of lighting fixtures needs to be increased. If necessary, experts are available to provide testimony as to whether lighting was adequate for the space needing illumination.
There is also the need for maintenance. All the lighting in the world is irrelevant if the lights have not been maintained. In addition to the obvious – making sure the lights are in working order – are the less obvious.
The shopping center needs to take into account changes in season and daylight savings time and adjust light timers accordingly. In addition, attention must be paid to employee parking areas where tenants’ employees will be coming and leaving at times when the shopping center might not be otherwise accessible.
In addition to changing lights when necessary, the lights must also be maintained on a regular basis for things that might be obstructing the lights from illuminating at full power. This might be one of the biggest failings in a lighting system, as the problem may not be as obvious as the lights not being on or burned out. Among things potentially causing obstructions are birds’ nests, dead bugs, droppings, vegetation, and just a build-up of dirt. Failure to properly maintain lighting in good working order is as negligent as not having the system at all.
Unfortunately, the professional criminal will not be deterred by warnings, but if even one potential criminal is stopped by a sign from the sudden impulse to commit a criminal act, the very minor expense is worth it. Such signs include warnings that the premises are being guarded, applicable local regulations, and what the punishments might be for violating regulations and committing crimes.
4 Security Guards
Guard security at shopping centers has become such a big business that security companies now advertise on the Internet as to their prowess. While the need for security guards has not been lost on shopping centers, the numbers and ways that the guards are used may lend to a finding of negligence both on the part of the shopping center and the security companies themselves.
First, at noted above, while the presence of security guards inside a shopping center might provide a level of security for the shoppers and have some deterrent value to the casual criminal, the individual stores are generally responsible for their own security within their stores and, therefore, having a disproportionately large force within the shopping center may be doing a dangerous disservice to customers when they are entering or exiting the shopping center. In Winn-Dixie Stores, Inc. v. Johnstoneaux, the court came to that very conclusion, finding that a shopping center was negligent in not providing for a security guard in the parking lot when there was significant evidence of similar occurrences in the area and therefore an attack was foreseeable.
In fact, several cases have found that in addition to the need for some security.547 So.2d 1075 (La. Ct. App. 1st Cir. 1989) (subsequent history omitted). The security must also be adequate in terms of the number of officers deployed. As with most issues regarding security, the bottom line is what a reasonably prudent shopping center owner should do under the circumstances.
In addition to the number of security guards, at issue is the type of security provided. First, a well skilled security force should avoid routine. While the impulsive criminal does not care about a security guard’s routine, the professional will make it his business to see if a guard or unit operates on a set schedule. This may include such things as driving or walking through a particular lot at a set time or clocking in at various points within a specific area. This could be avoided both by varying schedules as well as by shifting guards who work at a different pace and are of different appearance.
The second issue regarding the type of guards goes directly to the quality of the guards. As a general rule, even though guards generally wear some type of fire arm only a small percentage actually have the right to use their weapon unless personally threatened. Off duty peace officers can use their weapons in the same manner as when on duty. In addition, an off duty peace officer will generally wear his police uniform while on duty even as a private security officer, giving the shopping center a much tighter look regarding security than having an entire force of private security officers.
The last issue is the quality of the officers. An example of inadequate security is McClure v. Allied Stores of Texas, Inc., 608 S.W.2d 901 (Tex. 1980). In McClure, the plaintiff was injured when she was knocked down by a fleeing shoplifting suspect. The suspect was being chased by security guards through the shopping mall when the accident occurred. The court noted that the chase was against store policy and procedure as being potentially dangerous to other customers. In Morgan v. Southland Associates the court found that where security guards acknowledged that a group of potential troublemakers were present and yet took no steps to evict the group, the plaintiff, injured in an attack by the group, stated a valid cause of action not only against the security guards for negligence, but also against the shopping center owner for failing to establish and implement security policy and failure to adequately train the guards.
III. PRE-LITIGATION CHECKLIST
If you feel you may have a viable negligent security case, it is of the utmost importance that investigation and pre-litigation work on the claim begin as soon as possible; especially since most of the information gathered will have already been reviewed by both police investigators as well as insurance investigators.
Below is a proposed checklist to assist you in making the proper turns and twists in getting a negligent security case up to speed and ready for trial:
(I) Interview With Client
A) Incident details
C) Statements and admissions of defendants (criminal and civil)
D) Pre-incident information including foreseeability and prior contact with attacker
E) Law enforcement/prosecutor contacts
F) Post-incident treatment (rape kit, other physical examinations, injuries, etc..)
G) Visit site with client if possible
(II) Interviews with others
A) Investigating officers
B) Crime scene personnel
E) Owners and operators
F) Prior victims
G) Other tenants
(III) Obtain documents
A) Police report
B) Prior police reports – police records check
C) Medical and psychiatric records
D) Coroner’s report
E) Prior suits – courthouse check
F) Newspaper and television reports
G) Rules and regulations of the property
H) Lease or other agreements
I) Relevant statutes
J) Prior criminal history of the area
(IV) Site investigation
A) Photograph everything
B) Diagram everything
2) Floor plan whether inside or out
3) Light fixtures including wattage and height
C) Conduct tests
1) Light meter
2) Sound meter
3) Visibility – especially from offices or security areas
(V) Hire experts
A) Types (not all-inclusive)
B) Timing – As soon as possible
(VI) Review the relevant law to incorporate into the facts
There is no question that, as lawmakers and courts tighten the noose around the trial lawyer’s neck, negligent security cases are fast becoming a thing of the recent past; however, with careful planning as well as the right set of facts, a negligent security case can still bring about a satisfactory outcome for both client and attorney.
– Steven C. Laird, Laird & Cummings, P.C.,
1824 8th Avenue, Fort Worth, Texas 76110, 817-531-3000, www.texlawyers.com