Fighting new defenses in inadequate security cases.

New defense strategies have made it harder for plaintiffs to get compensation for their injuries, but the battle is not lost.

Inadequate security cases present great challenges for plaintiff trial lawyers. A successful case requires proof that a standard of care existed, that through negligence it was breached, and that the breach was a proximate cause of the damage. The failure to meet each proof requirement dooms the case.

The plaintiff must prove that the defendant should have not only foreseen the crime but should have taken reasonable steps to prevent it. Then, the jury must be convinced that those measures would in all likelihood have prevented the crime. This is a very heavy burden, and it is getting harder to carry.

As inadequate security law has evolved, defendants have devised new tactics to defeat plaintiff's claims. Two strategies that present significant challenges are apportioning fault between the property owner and the perpetrator and using criminal profilers to show that the perpetrator would not have been deterred by reasonable security measures.

Apportioning fault attacks the very heart of the inadequate security tort. Clearly negligent defendants, faced with liability for failure to provide security, have argued that they should be able to minimize or eliminate their liability by blaming the very person they had a duty to defend against--the perpetrator. Unfortunately, several jurisdictions have embraced this defense, and several more are on the fence.(1)

In theory, comparing the perpetrator's and the property owner's or possessor's fault for the plaintiff's injuries should result in a finding that the criminal is 100 percent at fault. This is because the intentional criminal act is what caused the harm --what we call the "cause in fact."

Courts that have been willing to compare the perpetrator's fault to the negligence of the premises owner or possessor have eviscerated longstanding concepts of negligence, accountability, and proximate cause. Generally, one who possesses property--an owner, landlord, or lessee--owes a duty of care to visitors to eliminate reasonably foreseeable hazards, or if that is not possible, to warn of any hazards about which the possessor has greater knowledge than the invitee.(2)

If the property has a history of violent crime, the possessor is assumed to know this and must protect invitees from that danger. The possessor's failure to protect the invitee is the proximate cause of the harm.

The liability theory is based, in part, on the belief that a commercial property owner directly or indirectly profits from the presence of the invitee, and, therefore, the owner should bear the cost of an invitee's loss or injury on the property.

Alternatively, a substantial number of courts, premised on the "public invitee theory," have extended the property possessor's liability for injuries sustained by visitors to the property.(3)

The practical effect of allowing defendants to lessen their liability in favor of intentional tortfeasors is that crime victims cannot recover their losses. As one court noted, "the assailant's paramount, and probably exclusive, responsibility for the victim's beating will be reflected in the jury's percentage allocation of fault."(4) Another court observed that "such a rule could, in effect, defeat plaintiff's cause of action."(5)

In the first of the handful of reported cases in which the fault of the negligent defendant was compared with the intention al conduct of the assailant, the jury found the negligent landowner's share of fault to be only 20 percent.(6) However, in another case, the jury found the negligent defendant was 75 percent at fault.(7)

Even when the jury finds that most of the fault rests with negligent landowners, appellate courts have sometimes overturned these verdicts. For example, the courts in California have created a particularly hostile environment for victims of landowner negligence.

In Scott v. County of Los Angeles, an appellate court overturned a jury's finding that the negligent defendant's share of fault was 99 percent.(8) Similarly, in the case of Martin v. United States, the Ninth Circuit held that California's Fair Responsibility Act requires apportionment of fault between an intentional tortfeasor and other negligent tortfeasors.(9)

Plaintiffs fare better in Florida. That state's high court has held that it is improper to compare the acts of a person who intentionally does harm with the negligence of a tortfeasor who is charged with preventing the harm.(10) The ruling was based on the court's interpretation that a tort "reform" statute enacted to subrogate joint and several liability did not apply to actions based on intentional torts.

Setting the stage

Allowing a negligent landowner to minimize its liability by blaming an intentional tortfeasor may seem unthinkable to many lawyers. However, three changes in fundamental tort principles have permitted this outcome in several jurisdictions.

Abolishing joint and several liability. Apportionment of fault is unimportant if joint and several liability still exists. If a judgment is fully collectable against any defendant, then it can be recovered from a negligent property possessor, even one found responsible for only a small share of the fault. However, since the mid-1980s, many jurisdictions have either abolished joint and several liability or severely limited it.(11)

Listing nonparties on the verdict form. Traditionally, a plaintiff has had the choice of whom to sue. By suing only the property possessor, the plaintiff could keep the issue of the intentional tortfeasor's share of fault from going to the jury. Of course, the negligent defendant could try to bring in the intentional tortfeasor as a third-party defendant if the tortfeasor's identity was known and he or she could be located.

In recent years, however, courts and legislatures in several jurisdictions have held that to properly establish a defendant's share of fault, the jury, should be asked to apportion the fault of all responsible entities, regardless of whether the entities were parties to the lawsuit. This has allowed juries to compare the fault of a negligent defendant with the fault of a nonparty intentional tortfeasor.

Comparing negligent and intentional conduct. One final doctrinal change is necessary before negligent defendants are allowed to minimize their liability by blaming intentional tortfeasors: Courts have to conclude that it is possible and proper to compare negligent and intentional conduct. This issue is one of the most bitterly fought in tort law today.

Profiling

Using criminal profiling is the latest--and in many ways most insidious--defense tactic in negligent security cases. This strategy attacks the plaintiff's proof of causation. The defendant contends that no matter what security was provided, the criminal would still have attacked the plaintiff.

Profiling was developed to create a model for apprehending serial murderers. The defense is loosely based on the concept of criminal profiling developed by the FBI's Behavioral Science Unit. Traditionally, a profile was used to assist law enforcement agencies with the "investigation, apprehension, and prosecution of the offender."(12) The experts who espouse these theories are generally retired FBI agents, psychologists, psychiatrists, or criminologists.(13)

To support this defense, the defendant develops a model of a criminal who would not be deterred from committing the crime in question and then says that the criminal who attacked the plaintiff fits the model. The defendant uses the profiler's expert testimony to effectively attack the causal relationship between the property possessor's negligent maintenance of inadequate security and the plaintiff's inevitable victimization by the perpetrator.(14) Essentially, the defendant claims that because the best security in the world would likely not have deterred the crime, the plaintiff's case must fail.

Often the defense is based loosely on a framework of whether the criminal was organized or disorganized or whether there was substantial planning of the crime. Likewise, some profilers will say the crime was not preventable because the criminal was under the influence of drugs or alcohol and therefore not using rational thought.

Fighting back

Although new defenses in these cases have made it harder for plaintiffs to get compensation for their injuries, the battle is not lost.

For example, several jurisdictions have expressly rejected the concept of apportioning fault in negligent security cases. Some courts have based their conclusions on the language of their jurisdiction's apportionment of fault statute.(15) Other courts have noted the adverse effect apportionment would have on negligent security claims.(16)

Still other courts have reached the conclusion that it would be unfair to allow a negligent defendant to minimize its liability by saying the plaintiff's injuries were caused by intentional acts the defendant was supposed to prevent. The Kansas Supreme Court held that "negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent."(17)

As a legal scholar recently explained:

   Not all cases involving the combination of negligence and intentional
   misconduct are alike. There may be exceptional circumstances, where, by
   reason of the unique nature of the duty allegedly breached, it would be
   inappropriate to allocate fault between a party who negligently exposed
   another to injury from intentional harm and the intentional wrongdoer. One
   example would be the liability of an apartment owner for negligently
   failing to protect tenants from criminal trespassers, such as neglecting to
   provide sufficient lighting around the building or keeping entrances locked
   or guarded to discourage burglars or rapists. In that instance, the
   distinctive nature of the duty of care--to prevent precisely such
   intentional wrongdoing--is such that the negligent actor should not escape
   responsibility to the plaintiff by shifting the major share of the blame to
   the intentional wrongdoer.(18)

Unfortunately, apportionment of fault is a concept that has superficial appeal. It is difficult to argue against the proposition that parties should only have to pay for their share of fault.

But the superficial veneer cracks when this argument is made in the context of an inadequate security case. One could argue that it simply is not possible to compare intentional conduct with negligent conduct.(19) This is like comparing fault in a products liability case between a negligent manufacturer and a strictly liable distributor. It cannot be done with intellectual honesty.

To illustrate, consider this argument in a crashworthiness case. It would be impossible and legally disingenuous to compare the fault of the person who caused a low-speed collision with the fault of the manufacturer whose car could not protect its occupants at low speeds. It is equally intellectually dishonest to compare the intentional act of a criminal perpetrator to the ordinary or gross negligence of a premises owner who allows it to occur.

Another effective way of illustrating the unfairness of the defense is to analogize the plaintiff's case to a circus performance where a lion gets loose, leaps into the audience, and mauls some children. The circus owner could have put up nets and fences to prevent this but chose not to because of the cost.

When the lion gets away at a later show and attacks another child, do we blame the lion or do we conclude it is the responsibility of the party profiting from the attendance of the injured child to pay for the loss? Of course, the circus owner--who had control over the premises, knew of the danger, and decided not to pay for nets and fences--should bear the burden of paying for the child's injuries.

Like apportionment of fault, the profiling defense has several weaknesses.(20) Although profiling experts are often skilled professionals and have experience testifying in court, they are by no means the last word on criminal psychology. Nor is there much support in the academic literature for their claims, especially when it comes to garden-variety street crimes.(21) Since the profiling concept was developed to apprehend serial murderers and rapists, it is generally inapplicable to ordinary crimes of opportunity.

Consequently, the limitations of profiling must be revealed through aggressive discovery and careful questioning of the experts. For example, questions relating to the reliability of the behavioral evidence obtained by the profiler may be challenged. An evidentiary challenge regarding the scientific process of the criminal profile can be made under Daubert principles.(22)

In some cases, profiling can be an asset to the plaintiff's case. Often, the profiler will be of assistance in helping prove the criminal could have been deterred from committing the crime. The profiler may determine that if proper security measures were in place, the perpetrator would have been effectively discouraged from committing the unlawful act, solidifying the causal link between the property possessor's failure to provide adequate security and the victim's injuries.(23)

Safer society

Holding property owners and possessors liable for failure to protect guests has produced a safer society. Security guards can now be found at malls, shopping centers, hotels, and apartment complexes. Hotels routinely employ better key controls, like changing the code on key cards after each checkout and refraining from announcing guests' room numbers to the public.

Were it not for inadequate security litigation, it is reasonable to assume these increased security measures that protect the public would not exist.

New and sophisticated defense strategies aim to eliminate the rights of the many innocent victims of violent crime and threaten the future safety of others. To fight these trends and ultimately ensure victory for clients, plaintiff lawyers must be especially careful about deciding which cases to accept. Once the decision is made to take a case, proper preparation, investigation, and discovery will pave the way to success.

Notes

(1.) See Whitehead v. Food Max, Inc., 163 F.3d 265, 281 (5th Cir. 1998). Arizona, California, Colorado, Connecticut, Kentucky, New Jersey, New Mexico, New York, and Utah have embraced the apportionment of fault defense. Louisiana has adopted a case-by-case analysis in determining whether to apply apportionment of fault principles in a case involving an allegedly negligent defendant and an intentional tortfeasor.

(2.) Throughout th is article, "possessors," "landowners," and "lessees" are used interchangeably. There are important distinctions in the duty each owes to a visitor, and these differences vary from state to state.

(3.) See generally W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS 470-71 (5th ed. 1984).

(4). Blazovich v. Andrich, 590 A.2d 222, 225 (N.J. 1991) (citing dissenting judge in court of appeals).

(5.) Bach v. Horizons, Ltd., 838 F. Supp. 559, 561 (M.D. Fla. 1993).

(6.) Weidenfeller v. Star & Garter, 2 Cal. Rptr. 2d 14 (Ct. App. 1991).

(7.) Rosh v. Cave Imaging Sys., 32 Cal. Rptr. 2d 136 (Ct. App. 1994).

(8.) 32 Cal. Rptr. 2d 643 (Ct. App. 1994).

(9.) 984 F.2d 1033, 1039 (9th Cir. 1993). The Ninth Circuit in this case said it was certain the California Supreme Court would not hold otherwise and held that the district court should follow the California Court of Appeals holding in Weidenfeller, 2 Cal. Rptr. 2d 14.

(10.) Merill Crossings Assoc. v. McDonald, 705 So. 2d 560 (Fla. 1997) (finding comparison inappropriate).

(11.) Whitehead, 153 F.3d 265, 279-81.

(12.) Scott Ingram Note, If the Profile Fits: Admitting Criminal Psychological Profiles into Evidence in Criminal Trials, 54 WASH. U.J. URB. & CONTEMP. L. 239, 242 (1998).

(13.) Id.

(14.) See Daniel B. Kennedy & Robert J. Homant, Problems with the Use of Criminal Profiling in Premises Security Litigation, 19 TRIAL DIPLOMACY J. 223 (1997). This article is required reading for any trial lawyer facing a profiling defense in an inadequate security case.

(15.) Ashe v. Konover Mgmt., 1994 Conn. Super. LEXIS 1598 (Conn. Super. Ct. June 22, 1994).

(16.) Compare Bach, 838 E Supp. 559, with Blazovich, 590 A.2d 222 (disregarding concerns of effect of cause of action). In one case, a 71-year-old woman who had been raped in the restroom of a Burger King restaurant received only 20 percent of the jury's award because the rapist was found 80 percent at fault for her injuries.

(17.) Kansas State Bank & Trust Co. v. Specialized Transp. Servs., 819 P.2d 587, 606 (Kan. 1991).

(18.) G. Sisk, Interpretation of the Statutory Modification of Joint and Several Liability: Resisting the Deconstruction of Tort Reform, 16 U. PUGET SOUND L. REV. 1, 30-31 (1992);see also Merill Crossings Assoc., 705 So.2d 560.

(19.) See Blazovich, 590 A.2d 222.

(20.) See Kennedy & Homant, supra note 14.

(21.) See JOHN DOUGLAS & MARK OLSHAKER, MINDHUNTER: INSIDE THE FBI'S ELITE SERIAL CRIME UNIT 169-70 (1995); see also Curt R. Bartol, Police Psychology: Then, Now, and Beyond, 23 CRIM. JUST. & BEHAV. 70-89 (1996).

(22.) Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993); see also Ingram, supra, note 12, at 262-65.

(23.) See Kennedy & Homant, supra note 14.

RELATED ARTICLE: Prepare your premises case with documents from the ATLA Exchange

The inadequate security documents listed below and many others on issues in premises liability litigation are available from the ATLA Exchange. For more information, visit the Exchange Web site at http://exchange.atla.org, or contact the Exchange by phone at [phone] or by fax at [phone].

Arnett v. Linda Manor L.P. Plaintiffs' complaint and trial brief in a Nevada case alleging inadequate security in an apartment complex parking lot. (No. 1924.)

Coyne v. Taber Partners I. The parties' appellate briefs in a First Circuit case holding a hotel may have a duty to protect guests from criminal assaults while in off-premises hotel transportation. (No. 2470.)

Doe v. Applewood Village Apartments. Plaintiff's briefs opposing summary judgment and defendant's response in a California case alleging inadequate lighting and security in an apartment complex parking lot and failure to prohibit issuance of parking permit to nonlessors. (No. 2088.)

Doe v. Balcor Property Management, Inc. The parties' pleadings and plaintiffs fact statement in a Georgia case alleging there had been inadequate security at an apartment complex. (No. 2089.)

Doe v. Brook Apartments. Plaintiff's memorandum on a landlord's duty to provide security against third-party criminal activity in a Texas case involving sexual assault of a tenant. (No. 1525.)

Doe v. First Gibraltar Bank. Plaintiffs' complaint in a Georgia case alleging an apartment owner and management company failed to warn tenants of prior assaults and keep the premises safe, and a response to a summary judgment motion from a companion case. (No. 1769.)

Doe v. System Parking, Inc. Plaintiffs' complaint and trial brief, the parties' appellate briefs, and the appellate court's opinion in an Ohio case alleging negligent parking lot security. (No. 2044.)

Edwards v. M & S Assocs. Plaintiff's complaint and brief in a Texas case alleging an apartment owner and management company failed to provide adequate security, resulting in a tenant's sexual assault. (No. 1802.)

Jeffery v. Publix Supermarket, Inc. Plaintiffs' complaint and the verdict in a Florida case alleging a supermarket and shopping center provided inadequate parking lot security. (No. 2101.)

Lopez v. Rouse Co. Plaintiff's complaint and pretrial settlement memorandum in a Pennysylvania case alleging inadequate security against a mall and bank with an ATM. (No. 1970.)

McDonald v. Wal-Mart Stores, Inc. Plaintiff's complaint and memorandum arguing for liability of both the landlord and tenant in a Florida case alleging inadequate security in a shopping mall parking lot. (No. 2484.)

McKinnon v. Best Western Int'l, Inc. Plaintiffs' complaint and trial brief in an Oregon case alleging a motel provided inadequate security, leading to the murder of two guests. (NO. 2283.)

Morris v. Krauszer's Food Stores, Inc. Plaintiff's request fro voir dire, requested jury charge, and trial brief in a New Jersey case that alleged inadequate store security. (No. 2540.)

L098 1MMA 

John Elliot Leighton is a partner with Leesfield, Leighton, Rubio & Mahfood in Miami.