D. Deone Powell, Esquire, presents at 2017 DRI Annual Personal Injury Potpourri Seminar
April 11, 2017
On April 6, 2017, D. Deone Powell co-presented with Susan Ayers, Esquire on the topic of “Pitfalls of a Negligent Security Case: A Defense and Plaintiff’s Perspective” at the 19th Annual Dispute Resolution Institute’s Personal Injury Potpourri CLE Program. A brief overview of the program follows:
The scenario: A man walks into the bar you recently opened in a hip, trendy neighborhood. Chances are, he came to enjoy the hospitality your business has to offer. However, beware! In the off? chance that while on your premises he acts to intentionally harm or commit a crime against another person, you could be liable for these wrongful acts--even where your business had no actual involvement in committing the act. What duty do you as a premises owner have to protect others from intentional acts of third parties?
Historically, common law prevented claims against most businesses for intentional or criminal acts committed on or near a commercial premises by an unknown person. Less than a decade ago, the number of so-called “negligent security” lawsuits was negligible. Today, they are among the fastest growing types of personal injury cases. By some estimates, such claims will pale only to general negligence/slips and falls as the most common lawsuit brought against premises owners.
Negligent security claims can arise in a myriad of locations both residential and commercial. Claims against hotels, colleges, day care centers, shopping malls and apartment complexes are becoming increasingly common. The cases typically fall into the following categories:
- Negligent security personnel;
- Poor lighting;
- Negligent supervision;
- Faulty security equipment; and
- Negligent or lack of proper security policies and procedures.
For our clients, it is increasingly important to establish policies for identifying potential security risk and to ensure that employees have been trained and the policies are enforced. In defending such claims, it is important that an investigation is conducted swiftly to ensure that all information possible is gathered concerning the incident. Information collected necessarily include interviews of employees on duty at the time of the incident along with their current address and contact phone number. This is especially important in the hospitality services industry as employee turn-over tends to be high and difficulties abound in trying to locate former employees as time passes. It is also key to gather copies of current safety and security policies together with any documentation showing that employees on duty received training on the policies. The duty to preserve any surveillance footage is also paramount. Even if the surveillance does not capture the incident, it may be useful in identifying potential witnesses. If a claim or lawsuit is filed, having information on file makes the defense of the claim immeasurably easier than having to conduct an investigation after-the-fact in cases that have the potential to “snow ball” if issues are not addressed head-on and in a timely manner.
In sum, effective defense counsel will analyze each negligent security case individually and on its own facts. First and foremost, determine whether the landowner knew, or should have known, that the criminal acts of a third-party were going to occur. If not then there exists no duty. If so, then one would be prudent to consider the security measures in effect by the premises and whether they were reasonable in light of the circumstances. If they were not, then liability will likely be unfavorable. The ultimate question is always "What could the premises owner have done to prevent the incident? If the premises owner has no reason to know the incident would occur or if the incident would've occurred irrespective of reasonable security measures then there is likely no liability.
Additional information can be found here http://adrdri.com/cle-events/