Make It Safe Premises Liability and Inadequate Security Litigation

Imagine this scenario... you are in charge of a residential property, as either a board member or a managing agent. One of your residents has just advised you that the lock on the front door of the building has been known to malfunction “from time to time.”

As a diligent professional, you have a member of your maintenance staff inspect the lock. The staff member reports that the lock did seem to stick occasionally, but has now been oiled and “seems okay.”

Three days later, the same tenant advises you that the same lock is still malfunctioning. The tenant goes on to say that she knows there has been a rash of robberies in the neighborhood recently, and she’s becoming fearful.

Again, you notify the maintenance staff. The maintenance personnel say that they are currently working on a flood emergency and will check the lock as soon as they’re finished. At the end of the long workday however, the crew decides they will check the lock tomorrow.

Later that evening, your tenant arrives home. Entering through the front door, she interrupts a criminal attempting to break into a first-floor apartment. The startled perpetrator now turns his attention from the apartment to your tenant, and she falls victim to a violent assault and robbery—and may be seriously or even permanently injured…or worse.

Grounds for Litigation

Whether you are a building owner, property manager or board member, in today’s litigious times, the issue of liability is paramount. Courts nationwide have determined that faulty maintenance, failure to warn residents of and correct unsafe or potentially hazardous situations within a residential building are grounds for litigation.

Successful litigation has been launched for a host of security-related reasons, including inadequate security, negligent hiring, negligent retention, failure to train, and failure to supervise. Any one of these serious mistakes can have catastrophic consequences, both for residents—in the form of personal loss or damage—and for boards and managers, in the form of large jury awards.

The national average for defending an action brought by a resident like the one above can well exceed $100,000, and the average cost for case settlement currently exceeds $500,000. Where cases have gone to a full trial, jury verdicts average an award of $2 million and have reached as high as $16 million. In addition to the monetary damages, the unquantifiable costs—things like damage to corporate reputation, decreased confidence from investors, low employee/tenant morale and the potential for reduced occupancy levels, just to name a few—can destroy a once prosperous and well respected organization.

Legal Parameters

When we consider premises liability from a protection standpoint, we must consider three legal parameters: Duty, Breach and Causation.

Duty: Did the building owner, board, or manager have a legal duty to protect the resident or guest? In the landmark case of Kline v. 1500 Mass Ave Apt Corp in 1970, the court ruled that the “Special Relationships Doctrine”—which once applied only to the relationship between innkeepers and their guests—also applies to the landlord/tenant relationship. The ruling mandates that the owner/agent must provide reasonable security precautions for all tenants and visitors.

That said, please keep in mind that this does not mean the owner/agent must guarantee security. The reasonable care standard requires the owner/agent to provide protection adequate to reasonably counter the existing criminal threat.

Breach: Did the owner/agent violate the duty to protect? Did the owner/agent know or should they have known there was a probability that a specific crime would occur? Was the criminal incident foreseeable? When we consider breach of duty and the foreseeability of crime, we must consider three factors: crime demographics, location of the premises, and organizational nature.

Crime Demographics: Have there been any criminal incidents within the building, on the property, or within the surrounding neighborhood? Has there been a pattern of a specific type of crime? Statistical analysis plays a vital role in predicting criminal incidents within a neighborhood. Local police agencies are, of course, the best source for reported crime throughout your area.

An additional source, are the local business establishments and residents in the neighborhood itself. Informal interviews and conversations with people who live in the immediate area can provide you with a feel for the neighborhood and may prove to be invaluable when considering unreported criminal incidents. Statistical analysis and neighbor interviews should be conducted on a regular basis and include an assessment of neighborhood disarray—things such as graffiti, dilapidated buildings, and so forth.

Location of Premises: The physical location of the premise also plays a vital role in determining the likelihood of criminal incidents. A location on a secluded street versus a heavily traveled thoroughfare affects the odds of a crime occurring. Another contributing factor is the range of economic demographics within the neighborhood. The U.S. Census Bureau can play a key role in providing this statistical analysis.

Persons in charge of individual units within a building must also consider these factors when evaluating security. Whether a unit is on the ground floor or an upper floor, or whether an area is accessible to the public, is semi-private, or is off-limits to all but building staff all contribute to the predictability of crime—and thus the most appropriate countermeasures.

Organizational Nature: It’s a fact that shopping center parking lots have a relatively high foreseeability for theft-related crimes. It’s simply a fact that a nightclub with a young clientele has an elevated foreseeability for assault related crime. It’s also a fact that at 3:00 AM, a convenience store with one clerk has an elevated foreseeability of a robbery occurring.

Certain premises, just by the nature of their business or demographics of their clientele, have the “automatic foreseeability” of certain crimes. Although your property may not contain one of these “automatic” premises, if it is within close proximity of one, you must address the probability of crime “spilling over” to your property and provide reasonable countermeasures.

Causation: Did the person suffer an injury or loss that was directly caused by the breach? Was the breach just a factor in the injury or loss? Courts have determined that either “cause in fact” (a direct cause) or “proximate cause” (a factor) are grounds for litigation.

A Final Word

As an owner or agent, if you had the duty to protect a resident, failed to reasonably protect them, and your failure was a cause of their injuries or loss, you may be held liable. As professionals within the real estate industry, you are charged with the protection of persons residing or otherwise conducting business within your premises. By providing reasonable protection measures for your properties, you will not only adhere to the requirements of law, but ensure your most valuable assets—your tenants—are kept safe from the criminal element of our society.

Tim O’Brien, CCP is president of Criminal Intelligence Administration, a security firm based in Astoria, Queens.

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