ment at gunpoint and ultimately raped and robbed of her possessions. The police were called and spent a few hours interviewing the victim and inves-tigating the crime scene. Now, what do you do with this information?
This article provides some guidance on the steps that must be taken immediately in these situations and explores some defense strategies for negligent security cases with an eye toward obtaining summary judgment and/or success at trial. We will also focus on the most recent appellate deci-sions, which concern the issues that arise when plaintiffs seek to recover from property owners for injuries sustained during violent crimes. Investigate Immediately and Preserve the Evidence!
The key to a successfully defended premises security case can be summed up in one word: Investigation. Like criminal cases, the best evidence is obtained in premises/negligent
security cases upon investiga-tion immediately after the com-mission of the crime or your first
n Lynn Roberson is a senior partner, and Valerie E. Pinkett a senior associate, in the law firm of Swift, Currie, McGhee & Hiers, LLP in Atlanta. Ms. Roberson focuses her practice on defending premises liability and insurance coverage matters. She is a past chair of the DRI Trial Tactics Commit-tee. Ms. Pinkett practices primarily in the areas of premises liability, extra-contrac-tual/bad faith, employment defense and automobile litigation.
Your company or your insured owns a
commer-cial property. You are notified that a female tenant at
your apartment complex reported being raped last
night in her apartment by an unidentified assailant.
As the tenant arrived home at 2:00 a.m., she was
assaulted by the perpetrator, forced into her
apart-Tips for Immediate Response/Trial
Defending
a Negligent
Security Case
By Lynn M. Roberson and Valerie E. Pinkett
at least a two year statute of limitation and plaintiffs often wait until the last minute to file suit. To guide your early investigation, we have included a comprehensive punch list for negligent security cases.
Document what was done by the property as soon as possible
Determine whether the property’s security policies and procedures were followed. Obtain all maintenance records and any requests for repairs that relate to the criminal’s method of entry (i.e., doors and windows on the apartment or room or entry way).
Obtain all available police investigation records on the crime itself
For example, get your hands on any photographs, witness lists and state-ments, reports indicating the perpetrator’s method of entry, reports iden-tifying the time of day and location of the crime, any written or recorded victim statements, perpetrator confessions, etc. This information can be very helpful because it is obtained closest to the time of the offense. Police investigation information can be very difficult to obtain if the crime is an open investigation, as the police and prosecutors are loath to make this information available if it may be used in a future criminal prosecution.
Obtain police records regarding general crime on the property and in the area for the past few years
Look for patterns such as the time of day, type of crime, lighting conditions, security conditions, stranger on stranger crime versus domestic disputes and gang or drug related crimes. Keep in mind, qualified security experts rarely deem domestic violence relevant to the analysis of forseeability in stranger on stranger crimes.
Also, make sure you get the full police incident reports, not just the com-puter index of crimes on the property. Many times a crime index will indi-cate a crime as occurring on a particular property, when in fact the full report simply indicates the crime was reported from that location. The full report may also indicate the “victim” recanted and admitted the crime did not occur at all.
Document the physical condition of the property
Things like shrubbery and trees are seasonal. Take photographs to ensure the best evidence is preserved. Improvements or repairs may be made to the property after the incident, which makes it impossible to demonstrate the conditions existing at the time of the event. Take photographs of a work-ing door lock or window latch within days rather than months/years of the occurrence to increase the likelihood it will be deemed admissible in the event of a trial.
Obtain witnesses
Interview nearby property residents about whether a method of entry worked and perhaps what the victim communicated to them. Residents are more likely to remember the intricate details of something that hap-pened that week rather than two or more years earlier. Get signed written statements from residents or customers with multiple contact references to ensure you won’t loose evidence or a potential defense before a plaintiff files suit. In addition, get written statements from any employees who can confirm policies and procedures were followed or who may know anything about the claimant or the crime. Many of these employees are in high turn-over jobs. They may be difficult to find and/or disgruntled when it comes time to use their testimony.
P r e m i s e s L i a b i L i t y
Preserve all surveillance records
Retain any and all videotapes from surveil-lance or security cameras—not just those you think are relevant. For example, an em-ployee of yours claims a co-worker raped her in the back storage room of your hotel dur-ing store business hours. No security tapes were retained because no cameras showed the back room or the entrance to the back room where the rape took place. However, when suit was filed and your outside defense counsel asked for videotapes monitoring the front desk because it could possibly show ei-ther the victim or the co-worker attending to customers at the time of the alleged as-sault, you realize the missed opportunity created by your employees making judg-ment calls rather than simply gathering and preserving the evidence.
Another reason to preserve all surveil-lance records is to avoid the consequences of spoliation. In many jurisdictions, the spo-liation of evidence rule may cause a judge to instruct the jury that if you destroyed or failed to maintain evidence, they are enti-tled to presume the contents of that evi-dence would have adversely affected your case. Thus, even if the evidence appears to show nothing relevant, we recommend you preserve it anyway so you can prove later that it contained nothing relevant.
Georgia’s Court of Appeals recently pro-vided an all too familiar example of this cir-cumstance in Bouve & Mohr, LLC v. Banks, 274 Ga. App. 758; 618 S.E.2d 650 (2005). In Banks, a tenant alleged she was robbed and raped by an unknown intruder who gained entry through her broken windowpane. She filed suit against the apartment com-plex owners and they denied the tenant was raped. During the course of litigation, the tenant learned that the rape kit taken from her was destroyed at the direction of the in-vestigating police officer, who also worked as a private security guard at the complex. As a result of the spoliation, the trial court found the complex guilty of spoliation and instructed the jury that they must assume that the tenant was in fact raped at the trial of the case. The Court of Appeals affirmed the trial court’s decision.
Document any conditions arguably involved in the incident
At the time of loss, you were renovating your property and your employees left
scaffolding near the vicinity of the vic-tim’s apartment. Photograph the scaffold-ing before it is moved so you can document that it was impossible for the perpetrator to use it to gain access to the victim’s apart-ment. Doing so could mean the difference between obtaining summary judgment and a hefty payout due to lack of evidence to support your defense.
The Georgia Court of Appeals provided an example of this circumstance in Doe v Briargate Apartments, Inc., 227 Ga. App. 408, 489 S.E.2d 170 (1997). In the Doe case, the plaintiff claimed (among other things) that the intruder may have gained access to her apartment using scaffolding and other tools left out by apartment staff when working on the property. Because the complex was able to present photo-graphic evidence to demonstrate the scaf-folding was no where near her window or apartment, the plaintiff’s claims based on a landlord’s failure to secure the scaffold-ing failed to survive summary judgment. (Some of plaintiff’s other claims did sur-vive summary judgment, however, and the case was tried. The jury returned a defense verdict, accepting the defense argument that the rape was a false allegation.)
Find out what similarly situated/ nearby properties do
Do similar properties perform background checks on employees, guards or tenants? Do other nearby hotels check identifica-tion upon check-in? Do similar properties provide similar training to its guards and other employees regarding security issues? Do similar properties have comparable practices for making incident reports and having a system for keeping track of any criminal incidents on the property?
What do similarly situated properties have in terms of physical security measures such as security cameras and CCTV? Is the
light adequate? What do similarly situated properties have in terms of access control measures? Do they have electronic gates? Do they have perimeter fencing? Do sim-ilarly situated properties have similar pol-icies and procedures for key control and lock changes after every move out? Do they have comparable types of keying and locks, alarms and security systems? The bottom line is: you do not want your property to be the least protected on the block.
Gather all “perishable” evidence
Check for surveillance tapes, ATM tapes, 911 call tapes, still photos and news coverage tapes. In cases involving rape or sexual as-sault, obtain the rape kit, medical evidence and hospital records as soon as possible. In all cases in which it is available, obtain the criminal trial transcript and physical ev-idence. If possible, research the criminal history of the perpetrator—whether the identity of the perpetrator is known or un-known. Other information that may be use-ful in profiling the perpetrator are as follows: (1) Point of entry (what degree of sophisti-cation does it demonstrate?); and (2) What precautionary measures did the perpetra-tor take? For example, did he use a condom, gloves or ski mask? Did he remove and dis-pose of the bed sheets or victim’s clothing or force the victim to shower?
Issues Arising from Various Attack Sites
Automated Teller Machines (ATMs)
A report a few years ago in the Atlanta Journal Constitution stated that since the installation of panic buttons on two banks in the Atlanta area, there had been no ATM robberies. Interestingly enough, there had yet to be any use of the panic buttons, as well. The report went on to advise that installing a panic button at an ATM cost about $1,295.00. The seller of the buttons claimed that in the past eighteen months, there had been no attacks at any ATM loca-tion that had a panic button. In light of this, many states have enacted mandatory secu-rity measures for ATMs.
In Jacksonville, Florida, a news source reported that in response to a gang related crime spree, one bank restricted night hours at certain ATM locations. Would you like to be the corporate counsel for a bank in that area that refused to take similar
pre-n
The bottom line is: you do not
want your property to be the
least protected on the block.
on the security measures taken by others in the industry and consider incurring mini-mal costs on the front end to ensure safety rather than paying the often high dollar price tag of a settlement or jury verdict after suit is filed for your failure to provide ade-quate security.
Hotels/motels
The types and availability of key control and locks are critical in these cases. Whether the locks are changed after each guest checks out is also important. Furthermore, it is critical to determine whether the hotel/mo-tel properly screened employees with access to master keys or other access to guests and their rooms. Keep in mind, however, that without evidence that the lapse in key con-trol or screening of employees led to the crime, a plaintiff’s case should fail and the evidence of lapses should be deemed inad-missible due to lack of relevance.
Parking lots/garages/malls
Access control and guarding are usually the most important issues. Lighting and prior crime history should also be on your radar.
Convenience stores and fast food restaurants
Armed robbery is a common problem in these types of establishments. The con-venience store industry has actually done some legitimate research on the effective-ness of certain security measures, such as surveillance cameras, lone employees versus two or more on duty during night shifts, drop boxes, time delay safes, closing procedures, etc. You should be thoroughly familiar with these studies to handle these cases effectively. You should also be famil-iar with the most recent OSHA regulations concerning late-night retail establishments, which are very detailed and arguably set a standard of care (although the regulations specifically deny that they establish a legal standard of care).
Apartments
Key control, access control and screening of employees who may have access to ten-ants’ apartments (i.e., maintenance per-sonnel) are critical. Maintenance is also key. As landlord, are you responsive and
relating to security and safety? Locks, key control, “Charlie” bars and windows are also common areas of issue. Research what apartment associations in your metropol-itan area have written on the subject. In Georgia, the Resident Shield published by the Atlanta Apartment Association argu-ably sets the standard in the state. Other states may have similar guidelines.
Condominiums
Many of the same issues arise in condo-minium cases as in those with apartments. However, since residents of condomini-ums are usually owners and not tenants with little bargaining power, it is possi-ble that waivers of liability may be upheld. The Georgia Court of Appeals provided an example of this concept in Bradford Square Condo Association, Inc. v. Miller, 258 Ga. App. 240, 573 S.E.2d 405 (2002).
In Miller, a condominium owner was shot and killed when attacked by three men in the parking lot of the complex. One of the victims filed a wrongful death action, alleging the condominium asso-ciation was negligent in the performance of its duty to secure the parking lot/com-mon element of the complex from third-party criminal acts. The association filed a motion for summary judgment, claiming it had no duty to provide security because the unit owners/members of the associa-tion contracted that the associaassocia-tion would not have a duty to provide security for the property and that such obligation would remain with the unit owners/members. The trial court denied the motion, but was later reversed on appeal because it viewed condominium instruments as analogous to express contracts.
A homeowners association may simi-larly limit its liability. In Hayes v. Lakeside Village Owners Ass’n, Case No. A06A2257 (Ga. App., Dec. 13, 2006), the plaintiff homeowner sued the homeowners associ-ation for injuries he sustained when a chair in a common area collapsed. The trial court granted the association’s motion for sum-mary judgment and found that the plaintiff homeowner was bound by a restrictive cov-enant assigning the homeowners a duty to inspect common facilities and to use them at their own risk. The court of appeals affirmed the judgment.
in Georgia and Beyond
The primary theory of liability pursued by plaintiffs is for failing to keep the prem-ises reasonably safe or for failure to provide adequate security.
Forseeability
In analyzing claims for negligent security, courts begin with the general premise that a landowner is not an insurer of an invi-tee’s safety. A landowner only has a duty to protect against the foreseeable criminal acts of third parties. See Sturbridge Part-ners, Ltd. v. Walker, 267 Ga. 785, 482 S.E.2d 339 (1997). The courts generally take one of three approaches to the issue of fore-seeability. Historically, courts held that the criminal act broke the chain of causa-tion so that a proprietor was not liable for the intervening intentional criminal act of another. Later courts sought to determine forseeability by examining whether there was a prior substantially similar crime on the property sufficient to put the propri-etor on notice of the risk. See Agnes Scott College, Inc. v Clark, 273 Ga. App. 619, 621, 616 S.E.2d 468, 470 (2005); Sturbridge Part-ners, Ltd. v. Walker, 267 Ga. 785, 482 S.E.2d 339 (1997). Another approach adopted by courts is to look at the “totality of the circumstances” surrounding the event to determine whether it was foreseeable that such a crime might occur and whether the proprietor should have taken steps to guard against it. See Lee v Walmart, Inc., 2003 U.S. Dist. LEXIS 3139 (D. Pa. 2003); Isaacs v. Huntington Memorial Hospital, 38 Cal.3d 112, 211 Cal. Rptr. 356, 695 P.2d 653 (1985).
In determining whether a given crime is substantially similar, a court must ana-lyze the “location, nature and extent of the prior criminal activities and their like-ness, proximity or other relationship to the crime in question.” See Sturbridge Part-ners, Ltd. v. Walker, 267 Ga. 785, 482 S.E.2d 339 (1997). The issue of forseeability was recently addressed by the Georgia Court of Appeals in Baker v. Simon Property Group, 273 Ga. App. 406, 614 S.E.2d 793 (2005).
In Baker, the court of appeals affirmed the trial court’s order granting summary judgment to mall management in a per-sonal injury suit arising from a shooting in a mall parking lot. Upon entering the
P r e m i s e s L i a b i L i t y
mall parking lot, the plaintiff was shot dur-ing a carjackdur-ing of his vehicle by unknown assailants. The plaintiff claimed the shoot-ing was foreseeable to the defendants based on an unauthenticated computer print-out listing crimes at the mall for the thirty months preceding his injury. The court held that not only was the index inadmis-sible, but even if admisinadmis-sible, the plaintiff failed to show that the defendants were aware of those reports made to the police. Thus, this evidence could not be used to support the plaintiff’s claim that his attack was foreseeable. The court reasoned that although the question of whether a crim-inal attack was reasonably foreseeable is generally a question for the jury, the prior property crimes in the mall’s parking lot were insufficient to create a factual issue on whether the defendants could reasonably anticipate a carjacking and shooting result-ing in personal injury might occur.
On a motion for reconsideration in the Baker case, the court of appeals disagreed with the plaintiff’s assertion that he did not need to show that the crime against him was foreseeable because the defendants had already undertaken a duty to provide secu-rity in a negligent manner. The fact that this particular crime was unforeseeable establishes that there was no duty to pro-tect against this specific attack. The court reiterated that the evidence that the plain-tiff presented regarding alleged deficiencies in the security system ignored the fact that there was no duty to protect against this type of attack. The court further held that undertaking measures to protect patrons does not heighten the standard of care and taking some measures does not ordinarily constitute evidence that further measures might be required.
Whether a risk of peril above and beyond the ordinary is reasonably foreseeable also may be determined based on the totality of the circumstances. See Storts v Hardee’s Food Sys., 2000 U.S. App. LEXIS 6307 (10th Cir. 2000).
The circumstances to be considered must “have a direct relationship to the harm incurred” and “must relate spe-cifically to the forseeability of the attack on the plaintiff” Id. at 1339, 1340. Prior incidents remain perhaps the most sig-nificant factor, but the precise area of the parking lot is not the only area which
must be considered. If the parking lot is located in a known high crime area, that factor should be considered.
Id. at 1339.
Breach of duty
Assuming a duty exists, a plaintiff must prove that the defendant breached its duty of care. A landowner is not an insurer of
invi-tee safety. See Lau’s Corp., Inc. v. Haskins, 261 Ga. 491, 492, 405 S.E.2d 474 (1991). Moreover, “undertaking measures to pro-tect patrons does not heighten the standard of care; and taking some measures does not ordinarily constitute evidence that fur-ther measures might be required.” Id. and Prosser, Law of Torts 4th ed., §56, p. 347. Thus, for a plaintiff to succeed on her neg-ligence claim, she must put forth evidence showing reasonable security measures that the defendant could have taken to protect the plaintiff from the subject attack that would have, in fact, prevented the attack. See generally Lau’s Corp, Inc., supra; Ritz Carlton Hotel Co. v. Revel, 216 Ga. App 300, 454 S.E.2d 183 (1995), cert. denied; Grand-ma’s Biscuits, Inc. v Baisden, 192 Ga. App 816, 386 S.E.2d 415 (1989).
In Brown, et al. v All-Tech Investment Group, Inc., 265 Ga. App 889, 595 S.E.2d 517 (2004), cert. denied, the Georgia Court of Appeals affirmed summary judgment granted by the trial court in several tort suits arising out of the July 29, 1999, shoot-ing spree by Mark Barton at the offices of two day-trading firms in the Buckhead business district of Atlanta, Georgia. The named defendants included two day-trad-ing firms and the company that provided security services at the offices under sep-arate contracts with the property manag-ers. The court affirmed summary judgment in favor of the trading firms because the
appellants failed to identify evidence that would support a conclusion that their dam-ages were a reasonably foreseeable outcome of the trading firms’ actions.
Causation
A plaintiff cannot recover under the negli-gence theory unless s/he can also prove that the negligence on the part of the defendant proximately caused the crime. There must be evidence to support a claim that, had the defendant had additional reasonable security measures in place, this offender would have been deterred from commit-ting this crime. For example, in Brown, et al. v. All-Tech Investment Group, Inc., 265 Ga. App 889, 595 S.E.2d 517 (2004), the Georgia Court of Appeals held that the issue of proximate causation was so “plain, palpable and indisputable” as to demand summary judgment for the defendants. But see James v. Flash Foods, Inc., 267 Ga. App. 210; 598 S.E.2d 919 (2004), in which the plaintiff was able to create a question of fact and overcome the premises own-er’s motion for summary judgment on the issue of robbery of the store and the shoot-ing of a plaintiff’s decedent included evi-dence that (1) the view from the outside of the store to the register was hindered or obstructed, (2) Flash Foods had not fol-lowed its own cash control policy on the night in issue or at the time of a previous armed robbery a month earlier which lim-ited cash on the premises to $50 after dark, and (3) Flash Foods had been lax in enforc-ing its security policies. “Under these cir-cumstances, the conclusion that a triable issue of fact exists as to breach of the duty of care is inescapable.”
Claims for failure to warn
Some plaintiffs seek to recover based upon a theory of negligent failure to warn of prior crimes in the area or on the theory that the premises are located in a high crime area. There is currently no duty in Geor-gia to warn of a generalized risk of crime. See Lau’s Corp., Inc. v. Haskins, 261 Ga. 491, 492, 405 S.E.2d 474 (1991); Roberts v. Forte Hotels, Inc., 227 Ga. App. 471, 489 S.E.2d 540 (1998). It appears many jurisdictions take the same approach on this issue. See generally Storts v. Hardee’s Food Sys., 2000 US. App. LEXIS 6307, 22–29 (10th Cir. 2000). n
Courts begin with the
general premise that a
landowner is not an insurer
of an invitee’s safety.
nA plaintiff may claim a right to recover from a landlord pursuant to the landlords’ duty to repair when there is some evidence that the criminal gained access to the vic-tim through some defective construction or through failure of the landlord timely and properly to repair an element of the construction, such as locks or windows. In Georgia, landlords are responsible for dam-ages arising from defective construction or for damages arising from the failure to keep the premises in repair. SeeMartin v. John-son-Lemon, 271 Ga. 120, 122, 516 S.E.2d 66, 68 (1999). An out-of-possession landlords’ tort liability to a third person who is injured on property that was relinquished by rental or under a lease is determined by O.C.G.A. §44-7-14, not general tort liability. Under the clear language of O.C.G.A. §44-7-14, an out of possession landlord cannot be held liable for damages in tort resulting from a third party’s actions, unless it is shown that the damages occurred due to the landlord’s failure to repair or due to defective con-struction of the premises.
Claims for fraud or misrepresentation
Plaintiffs sometimes seek to recover on a fraud claim based upon testimony that the plaintiff asked the people behind the front desk at the hotel or the leasing agent at the apartment complex whether they had any problems or whether they have security. In order for a plaintiff to recover on a fraud claim, she must prove the following: (1) the defendant made the representations, (2) at the time the defendant knew the represen-tations were false, (3) the defendant made the representations with the intention and purpose of deceiving the plaintiff, (4) the plaintiff reasonably relied upon the repre-sentations and (5) the plaintiff’s damages are the proximate result of the
representa-484 S.E.2d 498 (1997); Doe v. Prudential Bache/A.G. Spanos Realty Partners, 222 Ga. App. 169, 175, 474 S.E.2d 31 (1996).
Claim for nuisance
Plaintiffs sometimes seek to recover on a theory of nuisance. In order to state such a claim, a plaintiff must produce evidence that the defendant had knowledge of a rep-etitious and continuous condition of crime on the premises. See Carter v. Mayor of Alderman of City of Savannah, 200 Ga. App. 263, 407 S.E.2d 421 (1991); Whiddon v. O’Neal, 171 Ga. App. 636, 320 S.E.2d 601 (1984); Moreland v. Cheney, 267 Ga. 469, 479 S.E.2d 745 (1997).
For example, in Barnes v. St. Stephen’s Missionary Baptist Church, 260 Ga. App. 765, 580 S.E.2d 587 (2003), the court of appeals affirmed a decision granting sum-mary judgment to the property owner/ church when the plaintiff was assaulted as she passed the church on a sidewalk near the defendant’s abandoned but sealed church. The court of appeals found that the plaintiff produced no evidence establish-ing that her assailants were livestablish-ing on the church property or that the church build-ing was bebuild-ing used generally for criminal activity at the time of the attack. The court further held that the plaintiff failed on her nuisance claim because she failed to come forward with evidence, other than her own attack, that the building was currently and regularly being used for criminal activity of the kind that caused her injury.
Claims based on negligent hiring or retention
Property owners can face serious expo-sure where their own employees engage in criminal assaults on invitees on the prop-erty if the owner is on notice that such
mis-reasonable background check before giv-ing the employee access to their guests. Research regarding settlements and ver-dicts in premises security cases demon-strate that the dollars are much higher when the criminal is an employee of the defendant and not a stranger to the prop-erty. In TGM Ashley Lakes v. Jennings, 264 Ga. App. 456, 590 S.E.2d 807 (2003), a shockingly large multimillion dollar ver-dict against an apartment complex for the wrongful death of a young mother who was strangled in her apartment by a main-tenance worker employed by the complex was upheld by the court of appeals. Certio-rari was granted on the court of appeals’ decision because it sought to overrule long standing precedent that a claim of negli-gent hiring or retention was conceptually inapplicable when the employee committed a tort outside the scope of employment.
Several recent cases in Georgia have made it clear that, except in extraordinary circumstances, the employer will not be held liable for the sexual misconduct of an employee. In Munroe v. Universal Health Services, Inc., 277 Ga. 861, 596 S.E.2d 604 (2004), the Georgia Supreme Court held that the plaintiff who claimed that a men-tal health assistant employed by the health center raped her after incapacitating her with medication, could not recover from the center for negligent hiring/retention because the center submitted uncontro-verted evidence that it hired a professional investigation service to conduct a back-ground check on the employee. Dishonest information on the employer’s job applica-tion did not put the center on notice that the employee posed a risk of harm to others under those circumstances. See also Pied-mont Hosp, Inc. v. Palladino, 276 Ga. 612, 580 S.E.2d 215 (2003).
