The concept of premises liability for criminal acts of third parties has been the subject of great confusion for business operators around the country. For years they have been barraged with information of how businesses have been sued for millions of dollars because they failed to provide adequate security for their invitees. Because of this, most large companies who are open to the public, now incorporate a security plan into their operations manual. However, many companies have become frustrated in this regard because of the courts that have an ever-changing interpretation of the definition of crime foreseeability and legal duty.
How is a business to know what security measures will be deemed adequate should a violent crime occur? How is a business to know how to determine if assaultive crime is reasonably foreseeable? These questions, and others, will be discussed in this article in an effort to relieve the frustration and reduce confusion in this complex area.
Part of the confusion lies in a lack of understanding of the criteria required to develop the data necessary to determine crime foreseeability. These criteria, when applied, will give the business operator the tools necessary to develop a security plan that has a fighting chance of being deemed reasonable and adequate later on in a court of law.
Foreseeability is a Statistical Concept
For the purposes of this type of litigation, crime foreseeability can be described as a statistical concept. A statistical concept, in the broad sense used here, is an evaluation of potential, which relies on experience and interprets it using both quantitative and qualitative methods. Such an evaluation need not be based solely on numerical data and calculations, but it must employ a balancing process that weighs all relevant data in a prescribed manner. The purpose of this model is to present a framework in which relevant data can be recognized and assigned weight in a final evaluation. The emphasis is not on presenting a complete discussion of foreseeability in every situation but on developing a cohesive methodology, which, intelligently applied, will result in a sound assessment of whether crime in a particular situation is reasonably foreseeable.
First, a brief discussion of what is meant by quantitative and qualitative methods of evaluation in this context is in order. Quantitative evaluation involves the analysis of numerical data describing the crime history of a site and often the surrounding area. While extremely valuable in assessing high rates of foreseeability, this type of analysis can comment only on incidents that have been reported in the past. The weakness is that it can be insensitive to considerations such as changes in the use of a facility, new management, new construction, and rapid changes in the character of neighborhoods; it thus may not provide a completely reliable picture of the foreseeability of crime.
Quantitative analysis involves a decision making process for processing crime statistics. Criteria are established that limit the type of crimes to be evaluated, as well as the geographic area, class of assailants, and periods of time. A widely read paper, which has been put forth as a standard, states flatly that the proper method for assessing foreseeability is to research all stranger-to-stranger crimes, within a one mile radius of the crime site, within the last two years.
As attractive as such a method is for its simplicity, crime foreseeability cannot always be evaluated by uniform time and distance criteria. In an urban area, a one-mile radius would generally be too broad, losing the relevant data among useless statistics. One mile could extend past the boundaries of a city, county, or police-reporting zone, resulting in invalid data comparisons. Crimes committed eight blocks away from a site are of little use in relation to many premises, especially if major physical or psychological barriers exist, such as a freeway or railroad track between the two areas. Time periods suffer from the same decay factors. Neighborhoods and conditions can change drastically in less than a year. By the same token, static neighborhoods may reflect little change for five years or more. There is a danger inherent in the arbitrary determination of flexible parameters, and this is a problem to which quantitative analysis is especially vulnerable.
Qualitative evaluation essentially includes lifelong experience of land occupants, instinct, intuition, and physical observations of similar environments, which provide the basis for the ordinary estimates of a location's safety, that we routinely make. Among the considerations here are the physical attributes of a property and the reputation of the property and its surrounding area. Cold statistics cannot provide this information. Qualitative analysis is best conducted in person by a skilled security practitioner, who will survey the site and neighborhood and interview area inhabitants. This type of survey often provides clues to the type and amount of unreported crime and the level of fear regarding crime, as well as noting physical conditions at a site and surrounding areas. This type of evaluation best lends itself to the examination of a site from a criminal's point of view and enables one to realistically analyze the potential effects of various attributes of the site on the future behavior of criminals in the absence of a history of crime.
Components of a Crime Foreseeability Evaluation
There are three easily distinguishable components of a premises, called factors here, to consider when assessing crime foreseeability. Certain elements exist within these factors that may or may not contribute to foreseeable crime.
The three factors are (1) nature of the premises, (2) crime demographics, and (3) location.
If investigation of any one of these factors points to foreseeable crime, then it is impossible to escape the issue of foreseeability. However, to determine the level and type of crime foreseeability, all three factors must be considered. For example, assume that a popular nightclub catering to young people has a rear parking lot, where prior assaults have occurred. The elements associated with these three factors in this case serve to enhance rather than to diminish assaultive crime potential. In this example, it is probable that assaultive crime is foreseeable, and further investigation is thus warranted.
Affecting the three factors are various conditions. Examples of conditions are lighting, frequency of security patrols, an unlocked door, and a large hole in a fence. A condition may only aggravate or mitigate the tendency of an factor element to increase or decrease crime foreseeability. These conditions cannot in themselves prove or preclude crime foreseeability, but only serve to affect the overall impact of a given element on the level of foreseeability. For example, overgrown shrubbery on the ground level is a condition that would not normally affect the foreseeability of a sexual assault inside of a third floor apartment unit. Litigants on both sides of a dispute frequently overestimate the potential persuasive force of their crime foreseeability arguments by allowing the entire case to hinge on one or more of these conditions without pursuing the complete analysis presented here.
The most effective approach to assessing foreseeability is to first consider the nature of the premises, then crime demographics, and lastly location.
What follows is a brief discussion regarding each of the three component factors in the order in which they should be considered and an examination of a few of the main elements associated with them. A more complete discussion of each component factor and its associated elements will follow in subsequent chapters.
Nature of Premises
It is essential to the evaluation of crime demographics to first have a complete understanding of the elements associated with the nature of the premises. The premises type and usage will impact the probative value of different crime classifications to be considered during the analysis. For example, property crimes inside a shopping mall are often excluded when evaluating the foreseeability of an abduction and rape in the parking structure.
The major elements involved in the nature of the premises factor are whether the premises is a business or a residence, the hours of operation, the extent that the premises is open to public, type of clientele, and type of service or product available. A business that remains open to the public twenty-four hours a day will have foreseeable crime types different from a limited hour operation that is semiprivate. For example, an apartment complex in a retirement community should usually anticipate fewer assaults than a apartment complex near a college campus simply due to the nature of its tenants and guests. Bars and nightclubs that provide alcoholic beverages and live entertainment and that cater to younger crowds can be expected to have more crime problems than a subdued establishment and older age group.
A judge went on the record to flatly state that in his opinion convenience stores and urban parking lots, by their nature, provide a special temptation to crime.(1) Following that logic, it seems reasonable to predict that certain types of crimes are foreseeable simply by the mere nature of a premises. For example, shopping malls and parking lots should expect auto-related crimes (e.g., auto burglary, vandalism, auto theft). Whether this criminal activity on site escalates to personal assaults is another issue. A twenty-four hour convenience store with a single clerk on duty should anticipate that robbery is foreseeable. Various conditions, discussed later, will help determine what level of foreseeability exists for robbery and other violent crimes.
Elements involved in evaluating previous crime are a determination of which crime classifications are relevant, the relevant radius around the incident, the proper time frame, the type and precision of data available, and an estimate of the proportion of crimes that are officially documented. The consideration of above criteria into an analysis is called crime demographics. It is a complete breakdown of statistics that is more precise and informative than raw, whole numbers. In certain cases where the other two factors, nature and location of premises, do not produce strong and compelling indicators, the absence of significant and relevant crime demographics can eliminate the possibility of a finding of crime foreseeability.
The location of the premises is the factor that in of itself would give rise to the least substantial determination of crime foreseeability of the three. Also, its relative importance is generally subject to what has been found through investigation of the other two factors, and it is the most likely to be influenced by conditions.
The major elements within this factor are general location in the city, relationship to other businesses and residences, population density, economic demographics of the relevant area, and proximity to major traffic arteries. More specific elements include whether the incident location is on the ground floor or an upper floor, in a public common area or semiprivate area.
The concept of location as a major factor causes us to focus on the "where" issue in crime foreseeability. All crime types are not foreseeable everywhere. A rapist who gained access through a fourth floor exterior window of a high-rise apartment by using mountain climbing gear and superior skill would not be reasonably anticipated and therefore not normally foreseeable. However, a recently constructed 24-hour convenience store in the center of the highest crime zone in the city should anticipate a variety of property and personal crimes because of its location alone. Its level of crime foreseeability should be considered as potentially moderate to high from opening day. Its actual level and type of crime foreseeability will be modified later and affected by the actual nature of the business and its ability to control criminal activity though use of security techniques.
Conditions can be broken down into two main categories, physical conditions and procedures. Physical conditions would include lighting, noise, hardware (e.g., fences, locks, alarms, video cameras), foliage, signage, visibility, and pedestrian and vehicle traffic flow. Procedural conditions would include cash handling policies, a schedule for locking certain doors and turning on lights, a key control system, and security guard patrol methods, as well as procedures for reporting incidents and repairing any problems.
Mere conditions, even if present in great numbers, cannot be used to determine crime foreseeability alone. Even though certain conditions may seem to have had much to do with the actual commission of a crime, this in itself does not address the issue of crime foreseeability. To avoid this problem, conditions should be considered not merely for their role in a particular crime, but for those attributes that affect crime foreseeability. For example, lighting may be on or off, brightly illuminated or dim, located effectively or not; door locking hardware may be locked or unlocked; and guard patrols may be scheduled only for six hour shifts on weekends.
Frequently in premises liability cases, a plaintiff will allege that the proximate cause of a client's assault and injuries was poor lighting or a lack of uniformed security patrol in a parking lot. Both lighting and frequency of security patrol issues are mere conditions, yet cases have been won and lost based solely on these issues. Surely there are thousands of parking lots, with similar lighting and no security patrols, which have operated safely for many years. Therefore, the effect of poor lighting and guard patrols alone cannot indicate that assaultive crime was foreseeable just because a single incident occurred. However, when one applies the above issues to a parking lot in a high crime location, whose adjacent business nature attracts young people to a site where crime demographics show a history of personal assaults involving young people, then conditions of inadequate lighting and infrequent security patrols aggravate the above factors and become relevant in supporting an allegation of inadequate security.
Determining Levels of Crime Foreseeability
Merely to say that crime is foreseeable on a particular premises is not enough. For property owners and business operators to function within the scope of their legal duty to protect their land entrants, they must know what crimes types are reasonably foreseeable, at what expected frequency, and what steps can be taken that will later be deemed adequate should a criminal incident occur.
Actual crime demographics can be expected to differ in frequency and crime type for each premises and location within a premises; it is therefore necessary to analyze the statistics to distinguish between them. The results of this analysis should enable a security expert to determine a relative level of crime foreseeability for each premises surveyed. The analysis should further identify what crime types are more foreseeable than others and in what specific locations within the premises is crime likely to occur.
Levels of Crime Foreseeability
The analysis of the three crime foreseeability factors should generate an opinion that will assign the potential for crime into one of four levels.
Crime potential will be (1) not foreseeable, (2) low, (3) moderate, or (4) high.
These levels of foreseeability must have elastic values to allow the business community and/or trier of fact (jury) to have a range in which to categorize their understanding of the information at hand. It is conceivable that a particular crime type could fall on the borderline between low and moderate or moderate and high.
The level of "not foreseeable," however, is not as flexible, by design. If a particular crime on a premises is believed to be not foreseeable by the court, to the extent that it finds that no reasonable jury could find otherwise, then the issue becomes a matter of law, not fact, and can be dismissed by the court in response to a motion for summary judgment.
The three remaining levels of foreseeability are designed to identify that amount of security that is required for the premises owner or operator to meet and discharge their legal duty of care. Precise values for each level are not used because of variables such as accuracy of data, uniqueness of the premises, and the fact that criminals cannot be counted on to act in a consistent manner. However, the assessment of risk and vulnerability has always been validated by human experience. Security experts trained in the litigation avoidance field have an advantage of having a basis of comparison from performing thousands of previous security surveys and crime demographic studies. Some experts will have libraries of previous studies and local crime statistics to aid in their analysis.
A respected author on risk analysis wrote:
"Several well-known authorities have concluded that order of magnitude expressions such as low, moderate and high to indicate relative degrees of risk are more than adequate for most risk control surveys. The use of the terms low, moderate and high equate roughly with probability ranges (on a scale of 1 to 10) of 1-3, 4-6, and 7-10, respectively."(2)
Another well-known national security consulting firm utilizes a super computer to analyze U.S. crime/census data and other public records and scores a site survey questionnaire completed by the premises operator. The information is developed into a crime index that is claimed to predict the crimes against persons (CAP) vulnerability at a given site relative to the predicted average criminal vulnerability of its environment. This crime index number is then plotted on a graph and compared against a three level range labeled as "L", "M", and "H", respectively. The authors of this program define the middle graph point as "M," denoting a predicted vulnerability equal to that of its environment. The upper graph point "H" indicates a predicted vulnerability five times greater than the local average, and the lower graph point "L" denotes a predicted vulnerability five times less than the environment average.(3)
These consultants and others realize that three separate levels of crime foreseeability are necessary to allow premises operators to gauge their security effectiveness relative to that of the outside environment and against commonly used security practices or industry guidelines. What has been missing historically from these evaluations is the impact of existing security measures on the external crime demographics. For example, a crime demographics survey of an apartment complex may indicate a moderate to high assaultive crime rate in the surrounding area. However, due to superior security measures in place, the actual crime history of the premises may be quite low by comparison.
What level of crime foreseeability does one assign? What level of security is required to meet the legal duty imposed by each level of foreseeability? These questions and more will be answered in the discussion that follows.
Low Crime Foreseeability
Low crime foreseeability is defined as a level such that after considering the nature, location, and crime demographics, a reasonable and thoughtful person would not anticipate assaultive crime while on the premises. This opinion would be supported by the absence of any previous assaultive crimes during the past several years; any crimes preceding that period would be too statistically remote in time.
Whole regions in a city can be considered low crime areas due primarily to their socioeconomic makeup and zoning. Moderate and high crime regions can have pockets of low crime areas, and even individual businesses can obtain a low crime foreseeability level by operating with effective security controls in place. As discussed earlier, certain premises could be assigned the level of low foreseeability prior to being open just by the nature and sometimes the location of the property.
A low crime foreseeability level has an upward limit that will be tested as assaultive crime occurs. If the quantitative and qualitative data still support a low probability of crime reoccurring, then current levels of security could still be deemed adequate. This data should be supported by an absence of fear of crime by the premises inhabitants and the presence of feelings of control over their environment. Most premises in the United States fall into the low crime foreseeability level, with the possible exception of certain sections
Moderate Crime Foreseeability
Moderate crime foreseeability is defined as a level such that after considering the nature, location, and crime demographics, a reasonable and thoughtful person would anticipate the possibility of assaultive crime while on the premises. This opinion should be supported by crime demographics on the site and surrounding area that indicate some previous assaultive crimes over the past several years but that do not fit any identifiable pattern or trend. The number of assaultive crimes is still too statistically uninformative to warrant any single radical response to prevent future occurrence. However, a moderate level of crime foreseeability should have originally generated a combination of security precautions to prevent future crimes of a similar nature or location from reoccurring. A moderate level of crime foreseeability should be evidenced by an average amount of awareness and fear of crime while on the premises. The reasonable person will take advantage of available security measures and will use common sense to limit exposure to potential danger.
It is possible for a premises to implement effective security precautions that will reduce exposure to the level of low crime foreseeability. Many urban premises are at this moderate level, and operators attempt to maintain security precautions to reduce crime to its lowest possible level. Unfortunately, the success of a sound security plan can backfire if one decides to cut back on security expense or fails to maintain the existing level of security precautions believing the problem to be solved. When this occurs, patrons and tenants sometimes become angered by the cutback in security and apparent disregard for their personal safety. In my experience, these victims make up the largest class of premises liability litigants.
High Crime Foreseeability
High crime foreseeability is defined as a level such that after considering the nature, location, and crime demographics, a reasonable person would actually anticipate that an assaultive crime might occur at any time. This opinion would be supported by crime demographics that showed a pattern of assaultive and other crimes on the premises and in the surrounding area continuously for several years. The prior number of assaultive crimes would statistically suggest a high probability of continued assaults if radical security precautions are not implemented, or if the nature of the premises remains unmodified. The physical premises usually show signs of vandalism, burglary attempts, and general disrepair. The neighborhood exhibits physical security precautions such as bars on the windows, alarm boxes, and perimeter fences. Inhabitants experience an elevated fear of crime, together with a feeling of losing control over their environment. The premises will typically have a bad reputation in the eyes of the surrounding neighbors and law enforcement personnel. The premises operator may feel that the costs of security precautions are not affordable and would have little effect on crime anyway.
A continuing level of high crime foreseeability is unacceptable in our society because it is against public policy to allow a dangerous condition to exist in premises accessed by the public for the benefit of the premises owner and operator. A business or residence in a high crime area can implement radical security precautions to control their incidence of assaultive crime. If successful, it is possible to reduce exposure to a moderate crime foreseeability level. However, the outside threat will continue, waiting for a break down in security. A premises owner may have no choice but to consider changing the nature of the business or relocating.
Variables in Crime Foreseeability
Often, premises liability litigation will focus on a specific location within a property and alleged inadequate security based on a design or mechanical defect in a security device. When this occurs, it becomes necessary to evaluate the crime foreseeability level for a specific factor such as a particular location, type of crime, or time of day. It is possible to have two or more different levels of crime foreseeability on the same property. For example, a convenience store in a moderate crime location during the day can increase its crime foreseeability level to high between the hours 10:00 PM and 2:00 AM when all surrounding businesses are closed and traffic counts are reduced; ground floor apartments in a building can have a high burglary history compared to a very low crime experience on upper floors, due primarily to accessibility.
Additionally, it would be difficult to reasonably foresee, for example: a rape inside a third floor apartment of a security building when adequate door and window locks were provided but not used; the possibility of a person firing an automatic weapon inside a convenience store at midday with several customers inside; or the accidental shooting of customer in the parking lot of a shopping mall by rival gangs who do not frequent the area.
Any premises liability evaluation must be prepared to specify a level of crime foreseeability for the site, the surrounding area, and in particular locations within the property. In addition, the evaluation should draw attention to the crime types to be anticipated. Once this is achieved, an analysis of existing security measures can be made. The question is not whether the crime at issue could have been prevented or not, but rather if the security precautions in place were adequate to prevent the type of crime that should have been reasonably anticipated.
Established criteria for determining a level of crime foreseeability must be utilized in order to provide a sound basis for your security plan. Otherwise, your security plan may be based on guesswork, uncertain predictions, and whim.
The criteria outlined here will allow for a complete analysis, which can be presented to a jury in an understandable fashion, and which should be viewed with a high degree of credibility. The results of your analysis will demonstrate that your security plan is based on a sound assessment, which can then be used to show that your security measures were designed to reasonable and adequate, under normal foreseeable circumstances.
1. Isaacs v. Huntington Memorial Hospital, 211 Cal.Rptr. 356 ( Cal. 1985), 364-5.
2. James F. Broder, Risk Analysis and the Security Survey (Boston: Butterworth Publishers, 1984), 32-33.
3. CAP Index Vulnerability Analysis. King of Prussia, Pa.: CAP Index, Inc.
Reprinted, with permission from, Security: Adequate...or Not? The Complete Guide to Premises Liability Litigation, Aegis Books, Inc., Copyright © 1990