Why You Don’t Get Your First Murder Free
This article is for property owners, property management companies, company managers/owners, building supervisors, retailers, parking lot management companies, and of course, attorneys. I, however, am not an attorney, and nothing within this should be considered legal advise. I am an expert witness in security and have been in this field for over 40 years.
When a horrible crime happens on your property or on one that you control, most likely you will be sued. The general defense of the company is that we never had crime like this happen here so we have never needed (guards, cameras, controlled access….). I understand the reasoning but the courts want to understand what reasonable measures did you have in place based on criminal activity on the property (I use 3 years) and, in most jurisdictions, what violent crime activity has occurred “in the area”. (I use 1 mile for most cases) but there is no legal requirement on distance.). So the plaintiff’s expert witness will review all crime for both on and off the property for some period of time. The results of that analysis will provide the basis for the “notice” of crime the property had. There is no number that has to be reached to establish notice and there are other elements to be considered.
I’ve had apartment cases where over a three year period there were 5 murders yet the property management knew nothing of them. You can imagine what the other crimes looked like. This is the part that throws the company under the bus: failing to understand the criminal threat on the property and, even if they knew, did nothing about it. A history of murder is not necessary. A history of multiple violent crimes is not necessary. The plaintiff’s pleading will read that the defendant “knew or should have known” of the dangers presented by crime. That puts the defendant in a very tough position. How do we know they knew or should have known? That was the crime analysis. How do we know they did nothing? We have the actual reports from the police and the management has NO RECORDS of anything ever happening. The “anything” could be car/office/apartment burglaries, calls for shots fired, auto thefts, assaults, purse snatching, etc. Every crime committed on the property and every call to police will be considered to establish what is called foreseeability. The crime needs to be foreseeable for their to be a duty to protect employees, visitors, etc from crime.
The question then becomes a matter of Operations 101.
What type of plan did your company have to keep informed of criminal incidents and where is your documentation? Uh…we don’t keep reports of that stuff. Bad answer especially if your Operations Manual has a section with a report example and the routing of said reports. If your Ops Manual is 800 pages long, nobody has read it anyway. The plaintiff’s expert will.
What national standard is the defendant being compared to? Answer: none. There is no national standard because security is property-specific and is usually driven by incident history or specific company policy. If you don’t follow your own policies, you have violated the legal standard of “reasonable care”. It’s assumed the policies are supposed to be followed. No policy? Then the question is what would a person of average education do given the same set of circumstances over the same period of time.
Wait, how am I supposed to know what crime is occurring across the street? Great question with a confusing answer. The courts have consistently ruled that no business owner is required to independently seek out area crime stats. However, if the expert has done his homework, his crime analysis would show that violent crime in the area so high that it would be reasonable for the defendant company to know about it. How high is high? It’s indefinable because it is location specific. 10 robberies within a mile for 3 years in Houston is “nothing”. Those same ten in rural Arkansas may be off the chart.
The reason you don’t get off the hook for the first horrendous crime can be summed up in the “knew or should have known” and “failed to act in a reasonable manner in response to…” The plaintiff’s expert will explore hiring, training, record keeping, internal security measures including lighting, prior use of security guards and, of course, all of your policies and procedures. The law suit is not really about the crime you are being sued for. Once the plane crashes it’s not about the crash it is about cause. Eventually it’s about everything that you did or didn’t do given your own environment. All of that is in your paperwork and if you can’t find those documents, my stance is that they never existed.
Nothing is off the table when it comes to discovering causation. It’s another thing if the defense attorney actually produces the documents requested. That’s for the courts to work through. In the mean time you, the defendant, will undergo a lot of research, depositions, and soul searching. I would rather see a defendant walk in and say “Here’s our security plan…take your best shot”….instead of “Murders? What murders?”
Be safe out there.
You can find more articles on security management at http://lptoday.com/security-articles/.