CHAPTER ONE (reprinted with permision)
Twenty-five years ago, few plaintiff attorneys would accept premises liability cases based solely on third-party criminal assault claims. Most lawyers lacked the experience and training to take on such cases. Issues of crime foreseeability and standard of care for adequate security on commercial properties were foreign concepts and often viewed as futile arguments by many courts.
Today, litigators and property owners have more awareness of premises liability cases, especially those involving inadequate security claims. There are many articles and books written about the subject and a substantial body of legal precedent. Those publications describe the litigation process, legal theories, and explain why victims prevail in some cases and not in others.
Books written by lawyers tend to focus on case law, legal analysis, and discovery practice pointers. These worthy treatises often lack the necessary practical discussion about how to investigate allegations of crime foreseeability and inadequate security claims.
In this book, nationally known security expert witness, Chris McGoey, describes the process he uses for evaluating the concepts, theories, and evidence necessary to develop a premises liability case for trial. The primary focus is the discussion of crime foreseeability and the adequacy of security evaluation. The methodology and concepts outlined in this book will help litigants maximize discovery, collect essential evidence, and formulate a solid basis for opinions about the negligence claims at issue that will ultimately contribute to a successful outcome of the case.
Premises owners, who open their land and business to the public, are generally unschooled about these legal theories, but nevertheless are being held accountable for the safety of their customers. Understandably, these business operators are frustrated by these arcane legal theories and the possibly of being held liable for criminal acts of others, while not knowing in advance what security measures will be deemed adequate should they be sued. Premises owners feel vulnerable and wish for clarification to the ambiguity of the litigation process. Business operators want clearly defined guidelines, short of regulation, that would instruct them how to conduct a risk assessment, how to prevent reasonably foreseeable assaults, and how to develop an adequate security plan likely to discharge their legal duty of care.
This book intends to offer tested expert guidance for evaluating crime risk of any business property and for evaluating the security plan developed to address that risk.
Premises Liability Law Overview
As a means of introduction for non-lawyers and attorneys unfamiliar with this practice area, here is an overview of basic premises liability law as it relates to inadequate security cases. The intent of this book is to offer a practical guide from a practicing security expert rather than a legal reference; therefore, the opinions offered here are those of the author unless otherwise cited. The author is not a lawyer and not attempting to render legal advice.
Premises liability litigation is a negligence claim filed in civil court against a property owner or business operator alleging failure to provide adequate security to prevent plaintiff’s injury. Laws vary by state, however to prevail in premises liability litigation five legal tests must generally be satisfied.
- The premises owner owed a legal duty of care to the victim (plaintiff).
- Assaultive crime was reasonably foreseeable on the premises.
- The premises owner failed (negligence) to conform to a reasonable standard of care (adequate security).
- That negligence was a proximate cause of the assault upon the victim.
- Negligence and breach of duty caused plaintiff’s damages (injury).
Proximate cause and breach of duty may exist independently, but a finding of both is generally required for a plaintiff (victim) to prevail. It is not sufficient for a plaintiff to show that a premises owner failed to take protective measures required by law if this failure had little to do with the actual crime (causation). Nor will it be sufficient for a plaintiff to show that the premises owner’s actions contributed to the crime if the property owner was under no duty to guard against it.
Usually, the question about the existence of legal duty in a
negligence action is a question of law for the court, whereas
the issue of proximate cause is a determination of fact for
the jury to decide.
The following fact patterns are examples of actual premises liability cases where attorneys retained the author to work as a security expert witness.
1) A thirteen year-old boy is abducted from a walkway, dragged
into a vacant apartment unit, and sexually assaulted inside.
2) A maintenance man rapes and murders a female guest inside a locked hotel room using a master key to gain entry.
3) A nightclub patron defends himself in a fight and bouncers eject both combatants. Once outside his assailant shoots the patron.
4) A customer strugglers with a robber during a convenience store holdup and is shot and killed.
5) An armed security guard goes on a rampage inside a busy shopping center and randomly shoots shoppers.
Organization of this Book
- The evaluation process that can determine why some premises liability litigants prevail and why some do not are set forth in this book.
- The first half of the book discusses the concept of crime foreseeability and the steps taken to perform a comprehensive crime risk analysis.
- The second half of the book delves into the steps taken to perform an adequacy of security evaluation compared to the crime risk.
- Premises liability litigation outcomes will differ depending on the quality of these evaluations and the evidence developed for trial.
Reprinted with permission from, Security Expert's Guide to Premises Liability Litigation, Aegis Books, Inc., Copyright © 2009
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Copyright © 2009 - Aegis Books, Inc.
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