Are you aware of premises liability?

As the bombing of the Alfred P. Murrah Federal Building in Oklahoma City illustrates, no one can predict where crime will occur, and no building can be made completely safe, whether it is a government building or a privately owned property.

Detailed information about constructing weapons, avoiding security and other crime-related topics is readily available. Moreover, anyone who can read can also find guides to such topics as making powerful bombs, cracking security systems, acquiring and duplicating keys and picking locks. Anyone with access to on-line computer services can find bulletin boards with the same information. Even people who cannot read can learn about these activities through video tapes. Simply put, anyone who desires to do so can learn how to inflict great financial or physical damage on anyone or any property.

Guns are a substantial part of the premises liability problem. The U.S. Justice Department recently reported that 1.3 million U.S. residents faced an assailant armed with a gun during 1993. In response to those kinds of statistics, almost every state in the nation has now enacted or is considering enacting a law legalizing concealed weapons with the intent of allowing private citizens to defend themselves. The fact that concealed weapons may be legally carried by individuals creates a new area of potential conflict. Do private property owners have the right to prohibit weapons on their properties? Can victims of crime sue property owners who banned weapons on their properties, with which the victims could have defended themselves?

Most security specialists and law enforcement officials acknowledge that no one can prevent crime. However, there are ways to deter crime. Therefore, property owners must examine every prospective area of trouble on their properties and then take reasonable steps to anticipate and deter crime. But even the most conscientious property ownes can find it difficult to determine the best safety measures for their properties. Are security guards necessary? How many guards are adequate? Are surveillance cameras needed? How can a retailer or hotel owner make shoppers and guests feel welcome yet secure? There is rarely an obvious answer, but there are several fundamental issues all property owners must consider.

Owners must remember that every kind of property is vulnerable to crime. Offices are tar gets of robberies, assaults and carjackings in parking lots. Shopping malls and strip centers are targets of; the same kind of parking lot crimes and violence within the mall. Multifamily complexes and hotels are especially vulnerable to armed robberies, sexual assaults and other crimes on parking lots and within individuals, rooms, apartments and facilities such as laundry rooms. Deranged former lovers or disgruntled employees can enter any business with the intent to kill those who rejected them. Even industrial properties are vulnerable to thefts that could lead to substantial losses for tenants or escalation of violence.

Across the country, the number of premises liability cases is rapidly increasing. Despite the fact that, in many cases, property owners may not be responsible for criminal acts of third parties occurring on their property, there are notable exceptions. Property owners may be liable for the injuries caused by a third party's criminal conduct if a plaintiff can establish that: 1) the crime was foreseeable, 2) the defendant did not exercise reasonable care, and 3) something the defendant did or did not do caused the crime.

The first basic test of premises liability is the degree to which a crime might have been foreseen. Should persons of ordinary intelligence and prudence anticipate the danger to others created by the criminal conduct of a third person? The traditional rule for establishing that a crime was foreseeable required the plaintiff to show some history of crime at the premises to indicate that another incident would occur. Under this approach, a lack of criminal incidents at the property would undermine the plaintiff's claim. Most courts have held that this approach is too restrictive for injured plaintiffs because it essentially allows defendants I one serious crime on their properties with impunity. Therefore, courts have expanded the analysis of a crime's "foreseeable" status to what is now called "totality of circumstances."

This approach considers not only previous crime on the property but also the nature of the premises. Were there problems that indicated the probability of a crime? Was there a fence or no fence? Were there problems with loitering? Was there inadequate lighting? Now, under the totality of circumstances approach, jurors can examine all these factors to determine whether the crime was foreseeable.

In one Iowa case, the victim of sexual assauk sued the owners of the mall where the attack occurred and claimed that the owner failed to foresee and prevent the crime. The mall filed a motion for summary judgment and claimed that there had been no prior sexual assaults at the mall, only shoplifting incidents. Therefore, the mall claimed that the sexual assault was not foreseeable. The court granted the motion. On appeal, the Iowa Supreme Court reversed the ruling saying that knowledge of any criminal activity should make defendants aware of the possibility of future crime. The court stated that it was not necessary for an identical crime to have occurred for defendants to foresee the possibility of such a crime.

If the crime was foreseeable, the property owner must then provide the degree of care that a person of ordinary prudence would have provided under the same or similar circumstances. Essentially, the property owner must employ reasonable security measures. Businesses owe a duty to those invited onto a property.

To prevail in a security case, the plain tiff must not only show that the crime was foreseeable and that the owner failed to employ reasonable security measures, but also that the owner's failure to act reasonably was the cause of the plaintiff's injuries. This is known as the "but for" test. This third element, causation, is perhaps the most difficult to analyze because it often asks the jury to guess what would or would not have prevented a particular criminal act.

Fulfilling owners, duty to their users can be expensive. But the cost of dealing with the results of crime in losses and in litigation can be even greater. Over the past decade, verdict amounts awarded in these cases climbed from an average of less than $1 million to more than $5 million.

To protect themselves, property owners must practice the most commonly accepted standards of care. They should know their properties and their areas, employ reasonable security measures, ensure that security measures are working and respond appropriately to criminal activity if it does occur. They should seek legal counsel to review all laws, ordinances and statutes that affect their properties; examine areas of potential trouble; and take reasonable steps to protect the safety of their tenants, customers and employees.

Mark Goodman is partner in the law firm David & Goodman, Dallas, where he specializes in litigation with numerous clients in the commercial real estate industry.

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