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Negligent Security: Does the Public Need to Protect Police Officers?

July 7, 2015

In examining a property owner’s duty of care in the context of negligent security litigation, courts have generally required a property owner to exercise reasonable care to protect against foreseeable criminal conduct.[1]  However, the traditional standard of liability does not apply when a plaintiff police officer files a lawsuit against a property owner alleging negligent security related to an incident that occurred within the course and/or scope of the officer’s duties.  Neither New Jersey nor Pennsylvania courts have permitted a plaintiff police officer to recover for his/her injuries where the alleged negligent security was not accompanied by a defective and/or dangerous condition in the property.

The New Jersey Supreme Court has permitted police officers to recover for injuries sustained in the course and scope of their duties under certain conditions.  In Ruiz v. Mero, the New Jersey Supreme Court abolished the “fireman’s rule”,[2] and in Rowe v. Mazel Thirty, LLC, the New Jersey Supreme Court held that in most cases a police officer within the course and/or scope of his duties will be considered a licensee of a property and, as such, the property owner has a duty to warn the officer of any dangerous conditions of which the police officer may be unaware.[3]  In Ruiz, the Court held that pursuant to N.J.S.A. 2A:62A–21 a police officer has the ability to recover “for any injury that directly or indirectly is the result of the neglect of any person or entity.”[4]  The Court held that a police officer injured while responding to an emergency call for assistance was not automatically barred from recovery because of his status as a police officer. 

However, New Jersey courts have not specifically articulated a standard for negligent security suits involving a plaintiff police officer.[5]  In Foster v. Newark Housing Authority, a non-resident shot a police officer at a public housing complex.[6]  The police officer alleged the housing authority negligently allowed a dangerous condition to exist on its property and was further negligent in failing to provide adequate security.[7]  In Foster, the Superior Court concluded that a plaintiff police officer cannot recover under a theory of negligent security where the sole negligence alleged relates to the foreseeability of criminal activity at the property resulting from the acts of third parties.[8]  A property owner may only be found liable to a plaintiff police officer in the context of negligent security cases when an unreasonable risk of harm exists on the property as a result of the combination of a defect in the property and the acts of third parties.[9]  Without proof that a defect in the property contributed to the property owner’s negligence and caused the plaintiff police officer’s injuries, a New Jersey court will not find a property owner liable under a theory of negligent security.

Pennsylvania Courts have also been reluctant to allow plaintiff police officers to recover for injuries sustained due to negligent security.  In Holpp v. Fez, Inc., a police officer sued a restaurant for injuries sustained in an altercation involving several patrons.[10]  In addition, to the claims of negligent security, the police officer claimed the restaurant was negligent in violating the Dram Shop Act and permitting an unsafe condition to exist on the property.  In Holpp, the Superior Court ruled that under most circumstances, akin to New Jersey, a police officer will be considered a licensee when responding to a call for assistance on private property, and the property owner’s duty to a police officer is to warn him/her of any hidden dangerous conditions on property.[11]  The Court held that the plaintiff police officer “was aware of the potential for violence among patrons who had been consuming alcoholic beverages, and was conscious of the attendant risks.”[12]  In Juszczyszyn v. Taiwo, a nearly identical factual scenario to that of Holpp, the Superior Court placed greater limitations on a police officer’s ability to recover against a property owner related to allegations of negligent security arising out of third party crimes.  The Court held that a property owner satisfies his/her duty to warn the police officer, as a licensee, by simply calling the police and requesting assistance.[13]  With its ruling the Court has effectively barred a plaintiff police officer’s ability to recover under a theory of negligent security alone.

Although both Pennsylvania and New Jersey have abrogated the “fireman’s rule”, thereby permitting plaintiff police officer to recover for injuries sustained during the course and/or scope of their duties, both states have placed significant limitations on a police officer’s ability to recover.  From a public policy standpoint, lawsuits brought by police officers will continue to be scrutinized by Courts given a police officer’s fundamental duty to protect and serve the community.[14]  Every time a police officer is called to a property, he may encounter a dangerous situation; to shift the liability to the property owner to protect the police officer from that danger would open the floodgates for indiscriminant litigation.

Authored by: Matthew Taitelman, Esq.  Matt is an associate in the firm's defense group, with a focus on premises liability, trucking and motor carrier litigation and other areas of general liability.  


[1] Richards S. Ford, Negligent Security: When is Crime Your Problem, Federation of Defense and Corporate Counsel Winter Meeting, Feb. 26 - Mar. 5, 2015.  

[2] Ruiz v. Mero, 917 A.2d 239 (N.J. 2007).  The “fireman’s rule” precluded police officers/firemen from recovering damages for injuries sustained in the course of their employment from persons whose negligence might have caused or contributed to the injuries.

[3] Rowe v. Mazel Thirty, LLC, 34 A.3d 1248 (N.J. 2012).   

[4] Id. at 247 citing Roma v. United States, 344 F.3d 352, 360 (3d  Cir. 2003).

[5] Clohesy v. Food Circus Supermarkets, Inc., 694 A.2d 1017 (N.J. 1997).  With regard to non-police officers the New Jersey Supreme Court held that a property owner will only be held liable for negligent security if they breached their duty owed to the plaintiff and the attack on the plaintiff was foreseeable.

[6] Foster v. Newark Housing Authority, 911 A.2d 82 (N.J. Super. 2006).

[7] Id. at 84. 

[8] Id. at 87.

[9] Id. (emphasis added).  The police officer alleged that a combination of a broken exterior lock and inadequate security allowed the shooter to enter the premises and injure him.

[10] Holpp v. Fez, Inc., 656 A.2d 147 (Pa. Super. 1995).  The police officer alleged that the restaurant was negligent in serving intoxicated persons and permitting an unsafe condition to exist on its property.

[11] Id. at 149.

[12] Id.  The Court determined that police officer’s status as a licensee or invitee was not significant because in either case the property owner did not breach his duty to the police officer.

[13] See Juszczyszyn v. Taiwo, 113 A.3d 853 (Pa. Super. 2015).  The bar owner called the police requesting help because of an “unruly patron”, the police officer was later assaulted by this patron.

[14] Id. at 859.  Police officers choose to preserve the public peace and “prevent and detect crime” as part of their official duties as police officers.

 

 


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