An ounce of prevention: proving shopping center liability for third-party crime.

Proving shopping center liability for third-party crime

In recent years, Americans have been spending more and more of their time in shopping centers. Not only do we shop, but we also dine, drink, meet, socialize, exercise, organize, and protest there. Movies, bars, health clubs, playgrounds, and other facilities complement shops and department stores as shopping center attractions.

Along with this community center lifestyle comes crime. Many courts are responding by holding that business owners and management companies may have a duty to take reasonable measures to protect patrons where criminal acts on the premises are foreseeable. This article discusses techniques for developing cases against the most common size shopping centers where your client may have been the victim of violent crime.

The retail real estate environment has every configuration of space imaginable. Aggregates of retail stores are commonly called shopping centers. The most recognizable ones are regional and neighborhood centers.

Regional shopping centers are those that generally have very well-known names and 300,000 to 1 million or more square feet of rentable space with two or more anchor stores--large, well-known stores that attract many shoppers to the mall. These malls are usually configured around enclosed pedestrian walkways.(1) Often, they include "out parcel" properties--unattached buildings, usually in the parking lot, that are considered part of the shopping center. Super regional shopping centers are larger versions of regional malls. Both regional and super regional malls almost always have security programs.

Neighborhood shopping centers, usually unnamed, generally have 30,000 to 100,000 rentable square feet and are anchored by a major supermarket chain and a drug store. The stores are unenclosed strip stores laid out in a straight line or in a C-, L-, T, or U-shape surrounding a parking area.(2) Out parcels are also often included. Under prevailing practice, these shopping centers usually have no security programs. These centers are the most common types in the United States and therefore the focus of this article. Outlet malls are generally similar in size and configuration to neighborhood malls and are analogous for purposes of this article because most do not have formal security programs.

Neighborhood shopping centers are managed by owners and/or professional property managers. The managers are usually unaware of the history of criminal activity on the premises. Where professional property managers have been contracted, they are proper defendants in addition to owners in these liability cases. If managers are joined, the case becomes a professional property management malpractice case.

Real estate management is a discipline recognized in higher education curricula and in the real estate field. Several certifications are available, including C.P.M. (certified property manager) and C.S.M. (certified shopping center manager).

Today, managers are professionals who should be held to the standards of their industry. In analyzing your case, you should measure the conduct of these managers as you would the behavior of any other professionals.

Analyzing the case

Negligent security cases are difficult to evaluate according to the usual negligence principles. Concepts of duty, breach, and consequent damages are not well suited for analysis of violent crime third-party liability. The duty and negligence amounting to a breach are usually less difficult issues for the plaintiffs case.

Proximate causation, however, is more difficult because it includes both foreseeability and preventability concepts. Most cases where no security program existed turn on these issues. A better way to analyze these cases is to view the facts from the perspective of just two issues: Was the incident foreseeable? Was it preventable? You cannot win without carrying the burden of persuasion on both these crucial questions.

Generally, the more foreseeability evidence you have, the less preventability evidence you need. If the crime that injured your client was highly foreseeable, less compelling evidence of preventability is needed. On the other hand, if your foreseeability evidence is weak, you may still have a good case if simple, effective, and practical methods were available to the defendant that, if used, probably would have prevented the crime.

The Supreme Court of California adopted this balancing test in Ann M. v. Pacific Plaza Shopping Center, holding a court must determine whether a premises possessor has a duty to protect invitees from criminal attack by balancing the foreseeability of the attack against the financial or other burden of effective preventive measures. The greater the financial, social, or other burden, the greater the degree of foreseeability required to trigger the duty to provide those measures.(3)

The court reasoned that the provision of security guards, for example, is usually a costly or burdensome measure, so a premises possessor would have a duty to provide them only if crime on the premises was highly foreseeable. The Supreme Court of Tennessee, following Ann M., recently adopted a similar balancing test.(4)

Other courts have focused on preventability rather than on foreseeability. These courts have generally taken the approach that crime is endemic and not preventable, so that imposing a duty on private business owners to deter it is unfair or unreasonably burdensome.

The Supreme Court of Michigan, for example, has held that a business owner has no duty to provide security guards to deter criminal attacks on its customers.(5) The court reasoned that crimes can be committed anywhere and at any time, so that merchants cannot control them. The court believed that imposing a duty would unfairly require business owners to provide invitees with a safer environment than they experience in the community at large.

Other courts severely limit the scope of that duty by construing foreseeability to refer only to the foreseeability of attack by a specific assailant at a specific time. Under this specific harm test, courts will impose a duty of protection only where the business owner knows or has reason to know that a specific individual or a specific group poses an imminent threat of harm to invitees, or where the mode of operation of the business itself attracts or provides a climate for crime.(6)

The Restatement (Second) of Torts [sections] 344 adopts a different view, construing foreseeability to include the foreseeability of crime in general.(7) Courts adopting the restatement view acknowledge that a premises possessor has a duty to take reasonable measures to protect invitees if the possessor can foresee the likelihood of third-party criminal attack. The possessor need not foresee that any particular individual or group poses a threat to invitees at any particular time.

Courts adopting the restatement do not agree, however, on the type and nature of the evidence required to establish foreseeability. Some require evidence of prior similar crimes on the premises,(8) while others will accept evidence of prior crimes on other property nearby.(9)

Acceptance of a prior similar crimes test does not resolve all issues regarding the scope of the possessor's duty. Some courts insist that the only relevant prior crimes are those similar in nature or severity to the crime committed against the plaintiff.(10) Thus, prior crimes against property on the premises, such as shoplifting or theft from parked automobiles, will not be relevant in determining the foreseeability of an assault on the premises.

Other courts will accept evidence of prior crimes on the premises in general, regardless of their nature or severity, as relevant evidence of foreseeability.

The court in Jardel Co. v. Hughes, for example, noted that even misdemeanor property crimes such as shoplifting can lead to violence if the criminal is confronted.(11) The court held that "the repetition of criminal activity, regardless of its mix," may suffice to put a premises owner on notice of the risk of further crime in general on the premises, including crimes injuring persons.(12) Some courts are critical of this test because it creates a form of one-bite rule, in which the possessor may wait until someone is actually victimized before taking any security measures.

An alternative is the totality-of-the-circumstances test. Under this test, evidence of prior crimes on or near the premises, while still significant, is only one of several types of evidence bearing on the foreseeability of future crimes.(13)

Relevant evidence of foreseeability other than prior crime evidence may include evidence of the character, location, and layout of the business or direct evidence of employee or management concern about security needs.(14) The totality-of-the-circumstances test makes expert testimony even more important than it otherwise is because the test greatly expands the factors the jury may consider in assessing liability. Many courts have not yet accepted this test.

In light of the various approaches taken by courts across the nation, you would be well advised to research the law in your own jurisdiction before undertaking a case.

Regardless of which test your state has adopted (as long as the state allows claims for third-party criminal acts), the foreseeability/preventability analysis is useful for evaluating the case's potential. If you can win both these issues, you are highly likely to obtain a plaintiffs verdict. If you lose either, you almost certainly will not.

Proving foreseeability

Computer grid summaries. Today, virtually every law enforcement agency has computer-generated data concerning its criminal investigations. Typically, a "grid" is a one-square-mile geographic area tabulation of police investigations listing at least the date, time, address, and description of the crime. The grid also lists whether a written report was made and, if so, the report number. Depending on the police department, other information may also be included.

Although grid reports themselves can and often should be offered into evidence, obtaining them is only a preliminary investigative step. Early in the case, you should secure the grids for a three-to-five-year period before your client's injury. Note that the terminology used to describe the crime is not uniform. Different investigators use different language--"robbery," "holdup," "strong arm," and so on. Identify reports with relevant facts that appear similar to the circumstances surrounding your client's incident.

The grid printouts should also be used to look for trends. Do the incidents occur mostly at night, after school, or on weekends? Graphs and charts are particularly effective to summarize this type of evidence and to give it impact.

Many security experts quantify crimes for a neighborhood or specific property from grid reports and then compare that data to community, state, or national statistics. Computer services that compare crimes by zip code to FBI statistics are also available.

There is no uniform method for making these comparisons, and just as the plaintiffs expert will use this data to show foreseeability, defense experts will try to use it to show lack of foreseeability. Security science does not recognize specific comparative standards for crime data interpretation. Both plaintiffs and defendants can develop and present their own methodologies. You must develop carefully drafted interrogatories or elicit deposition testimony to discover your opponent's method of crime statistic analysis. Then, you can try to rebut that method by showing it is based on fallacious statistical comparisons.

Incident reports. After you have identified the grid reports with facts that are similar to your client's incident, you will want to order the corresponding incident reports. Often they are disappointing because they vary considerably from what the grid led you to expect.

If you find reports you believe will be helpful in proving foreseeability, do not stop here. Contact the victims and witnesses identified. Often, some will say they notified shopping center management or individual tenants about the crime that victimized them. Interview these people. Many will prove to be effective witnesses. Unexpected actual notice trails come up more often than you would expect.

If the criminal was caught and prosecuted, the court file may contain additional information that imputes knowledge to shopping center management about prior incidents. Frequently, there will be useful deposition testimony, sworn affidavits, and background information on the criminal perpetrators.

Management inaction. Nationwide, a small number of firms predominate as shopping center managers. Often, you will find that these professionals are focused on leasing, future development and expansion, and tenant relations, and are blind to security needs.

You may be able to show that management almost never took steps to investigate or maintain current information on the criminal history of the property or neighborhood. In almost every case, you can show it would have been just as easy for the property managers as it was for you to have discovered the property's criminal history by reviewing the grids and the incident reports regularly.

Many private commercial security companies will conduct a security survey, audit, or evaluation without charge with a view toward developing a future security services contract. Most all police departments now have public liaison officers who provide free security assessment and evaluation reviews and recommendations on request. These services usually include criminal history research. The standard of care for real estate managers requires using these resources.

Organizations such as the International Council of Shopping Centers, the Institute for Real Estate Management, and the Building Owners and Management Association publish course materials, textbooks, and other periodicals that include information on security. These materials can be used to show that evaluation of security needs is an integral part of every shopping center manager's job. The resources available, when contrasted with the inaction of most of these managers with respect to security measures, constitute persuasive evidence of negligence. Failure of management to have discovered the foreseeability of the crime against your client amounts to negligence because the real estate management industry has promulgated standards for proactive security planning and security measures.

Property analysis. Foreseeability evidence can also be found by analyzing the specific shopping center. Indeed, the location and neighborhood, without more, can constitute evidence of foreseeability of crime or suggest obvious security needs. Centers near schools, retirement communities, and ghetto areas have special recognizable needs based on their locations.

Special features of the property also give rise to specific inferences concerning security needs. For example, walls, trees, hills, parking lot lines of sight, corridors between buildings, lighting, highway access, and paths of ingress and egress can all be relevant evidence bearing on foreseeability.

The tenant mix and tenant use of the property are also important considerations for foreseeing security needs. For example, some centers have an unusually high percentage of restaurants. If, out of 25 stores, the center has a deli, a pizzeria, a doughnut shop, an ice cream parlor, and a fast food franchise on the out parcel, this suggests distinguishable foreseeability considerations. Commonly, restaurant hours extend into the evening. Centers with a significant number of restaurants may have a foreseeable need for nighttime security, while daytime measures may be unnecessary.

Banks and anchor tenants usually have their own security programs, which often include guards. Bars and lounges create special security problems. Jewelry stores attract more crime than dry cleaners. Careful analysis with your expert of the property and its unique features may yield valuable evidence.

Proving preventability

If you have carried the burden of persuasion on the foreseeability issue, the rest of the liability case calls for proof of prevent-ability. That is to say, were there reasonable measures that, if timely undertaken, would more likely than not have prevented the crime?

In a typical neighborhood-mall-crime case where no security programs or guards were in place, you should focus on the generally prevailing view that security programs prevent crime through deterrence. Numerous studies support this view.(15) Your expert should testify that security science is based on deterrence and that high visibility measures, such as public address announcements and the presence of guards, signs, and cameras, are effective deterrents to violent crime at malls.

Except in the rarest of cases, never attempt to prove that interventionist conduct by security personnel would have thwarted, frustrated, or apprehended the criminal without injuring your client. This is a high-risk approach difficult to prove and fraught with problems. Many security guards are elderly, few are required to meet fitness standards, and most receive little training. Whether intervention is effective or not, clearly, escalating the violence poses great risks to innocent customers. Convincing the jury that the defendant's guard should have intervened will be difficult in most cases and impossible in many. Plaintiffs almost always deal best with the preventability issues by emphasizing deterrence as the central concept of their recommended security program.

Most often, the crime causing injury to your client is robbery. Remember that a robbery is the attempted or actual taking of property by force or the threat of force. Thus, every purse snatching is a robbery. Robbery is a serious crime in all jurisdictions. Do not let anyone get away with watering down the violence of this crime by calling it "a simple purse snatching."

Virtually all research establishes that robbery is predominantly a crime of opportunity. The criminal makes a judgment on a risk-reward basis. Since most common robbers are motivated to rob by relatively small sums of money, the decision to rob is a risk assessment that dictates where, when, and whom the robber will victimize. Victim vulnerability depends on the individual and the environment. Environmental vulnerability depends on management.

Numerous studies on the crime of robbery and the theory and effectiveness of security measures and deterrence support this behavioral explanation of robbery victim selection. You should explain to the jury how the security plan you say should have been in place would have deterred the criminal from victimizing your client.(16)

In almost every case, the defense argues not only that the measures taken were reasonable under the circumstances but also that additional security measures would not have been effective in preventing the crime. Defense verdicts in these cases often reflect jurors' acceptance of this argument.

You will face the widely held belief that crime is rampant, uncontrollable even by law enforcement, and an unfortunate reality of modern urban life. The defense will argue that society simply must accept a certain level of violent crime as the price we pay to live in an open, free, and technologically advanced culture. You must address this argument in voir dire, in opening statement, and in your proof.

In voir dire, ask jurors if they cynically believe that crime cannot be prevented and must be tolerated or if they believe reasonable security programs can deter crime. Ask prospective jurors if they know of a place in their community that is safer because of security measures that have been taken. Getting prospective jurors to tell other members of the venire panel that they know of places where security has been effective preconditions the panel to believe that it is likely security also would have been effective on the defendant's property.

In opening statement, emphasize that your burden is not to prove that the crime was specifically preventable, only that if reasonable security techniques had been undertaken, it is more likely than not that the crime would have been prevented.

The defense often makes this generalized argument case specific by describing the criminal who injured your client as a person who was under the influence of drugs or simply lacking any rational system of values. The defense will argue that the senselessness of the violence and the enigmatic or irrational judgment made by the criminal means that deterrence principles would not have been effective.

To refute this argument, consider retaining a criminal psychologist, criminologist, or other similarly trained expert to testify that the criminal acted predictably and could have been deterred.

If the criminal has been apprehended and prosecuted, you can interview or even depose him or her because once criminal liability has been determined, there is no longer a right not to incriminate oneself. Deposition testimony can be risky, however, because of the untrustworthiness of the criminal's statements and the unpredictability of what he or she might say--be it the truth or not.

On the other hand, an interview by your criminal psychologist or criminologist expert is far less risky and usually just as effective. Your professionally trained expert can observe the criminal's demeanor and make judgments about his or her character and motivations.

This evidence is generally admissible because criminal psychologists, criminologists, and the like commonly rely on post adjudication interviews of criminal actors. Based on background information and interviews, a skilled expert can fashion a strong argument as to how the criminal likely would have been influenced by various features of the security program the defendant should have undertaken.

In addition, a thorough background investigation of the perpetrator's criminal history, education, and social and medical history will provide a substantial foundation and add considerable reinforcement to your expert's opinions. Useful inferences about the perpetrator can be drawn from previous modus operandi and prior behavior in analogous situations.

Often, criminals are not apprehended or even identified. Nevertheless, they leave behind clues as to their modus operandi and other evidence your expert can use to support inferences about the criminal's motivation, methods, and likely responses to specific security stimuli. Your criminal psychologist or criminologist expert can rely on his or her experience from previous cases and on studies showing the influence of various security features in preventing crime.

It is fairly safe to offer a program through your expert that, if undertaken, most likely would have deterred the crime. It is difficult for the defendants to dispute the probable effectiveness of your plan when they had none. Offering a program makes the jury comfortable in finding that reasonable security measures would have been effective. Given your retrospective view of the crime, you can design a program with help from a security expert that persuasively shows how the crime could likely have been deterred.

As our national urban lifestyle increasingly involves the shopping center, the public needs reasonable protection from foreseeable and mounting risks of violent crime. As lawyers, we can obtain just compensation for victims and show property owners and managers how to proactively recognize risks and adopt reasonable measures to deter crime on their premises.

Notes

(1.) CARPENTER'S SHOPPING CENTER MANAGEMENT: PRINCIPLES AND PRACTICES 5-7 (Robert J. Flynn, C.S.M. ed., 3d ed. 1984).

(2.) Id. at 7-12.

(3.) 863 P.2d 207, 215 (Cal. 1993).

(4.) McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 901-02 (Tenn. 1996).

(5.) Williams v. Cunningham Drug Stores, Inc., 418 N.W.2d 318, 384-85 (Mich. 1988).

(6.) Callen v. Cale Yarborough Enters., 442 S.E.2d 216, 217-18 (S.C. App. 1994).

(7.) RESTATEMENT (SECOND) OF TORTS [sections] 344 (1965).

(8.) See, eg., Ann M, 863 P.2d 207; Ameijeiras v. Metropolitan Dade County, 534 So. 2d 812, 813 (Fla. Dist. Ct. App. 1988), review denied, 542 So. 2d 1332 (Fla. 1989).

(9.) Murrow v. Daniels, 364 S.E.2d 392, 397-98 (N.C. 1988).

(10.) See, eg., Savannah College of Art & Design, Inc. v. Roe, 409 S.E.2d 848,850 (Ga. 1991).

(11.) 523 A.2d 518, 525-26 (Del. 1987).

(12.) Id. at 525; see also Galloway v. Bankers Trust Co., 420 N.W.2d 437, 439 (Iowa 1988) ("even shoplifting cases can turn ugly"); Foster v. Winston-Salem Joint Venture, 281 S.E.2d 36, 39 (N.C. 1981) (possessor need not foresee exact type of injury that its negligence will cause).

(13.) See, e.g., Seibert v. Vic Regnier Builders, 856 P.2d 1332, 1335-39 (Kan. 1993); Schmidt v. Towers Constr. Co. 584 So. 2d 630, 632 (Fla. Dist. Ct. App. 1991).

(14.) See, eg., Seibert, 856 P.2d 1332; Shoney's, Inc. v. Hudson, 460 S.E.2d 809, 812 (Ga. Ct. App. 1995), cert. denied, 1995 Ga. LEXIS 1206 (Ga. Nov. 3, 1995) (common knowledge that business is in a high crime area).

(15.) See Rosemary J. Erickson & Wayman J. Crow, Violence in Business Settings, 23 AM. BEHAVIORAL SCIENTIST 717-43 (1980); WAYMAN J. CROW & JAMES BULL, WESTERN BEHAVIORAL SCIENCE INSTITUTE, ROBBERY DETERRENCE: AN APPLIED BEHAVIORAL SCIENCE DEMONSTRATION (1975); Wayman J. Crow et al., Set Your Sights on Preventing Retail Violence, SECURITY MGMT., Sept. 1987, at 60.

(16.) Id.

Philip M. Gerson practices with the Law Offices of Philip M. Gerson in Miami.