Using experts in premises cases.

Tap a security expert's knowledge in order to fine-tune your client's inadequate security case.

Over the past several years, an increasing number of lawsuits have been filed against the owners of hotels, apartment complexes, shopping centers, bars, parking lots, fast food restaurants, office buildings, convenience stores, and other locations. This has changed the way these cases are pursued and, especially, the way they are investigated.

A decade ago, a demand letter accompanied by a preliminary opinion of an expert often brought expeditious and favorable resolution for the plaintiff because of the potential liability faced by defendants in these actions.

But these quick, favorable outcomes are a way of the past. Defendants now take a more aggressive action in their defense of premises security cases. They have increased their expertise in defending these cases and lobbied to change state laws to make it more difficult for plaintiffs to bring inadequate security actions. To succeed, plaintiffs and their attorneys need greater expertise and must conduct more thorough discovery before any hope of settlement or a favorable judgment is in sight.

Cases alleging inadequate security are fact intensive and multidimensional. This makes the use of an expert, especially early in the discovery phase, paramount. Selecting the right expert is crucial. Not only should you be concerned with the expert's professional background, but you must ensure that the expert has experience testifying in depositions and trials.

The expert must be able to support his or her opinions using reliable methodology, as the Supreme Court required in Daubert v. Merrell Dow Pharmaceuticals and Kumho Tire Co. v. Carmichael.(1) As a plaintiff attorney; you should welcome an objective analysis by an expert who will point out both the strengths and the weaknesses of your case.

This article provides practical information about how to use a premises security expert during discovery and how the expert can support your theory that the defendant's negligence was a proximate cause of your client's injuries.

In the various settings of a premises security lawsuit, property owners or their representatives generally have the duty to provide "reasonable care" for people legally on the premises and to protect them from "foreseeable" harm.(2)

Yet, "reasonable care" and "foreseeable harm" are somewhat elastic terms determined by specific facts of an individual case, industry standards of practice, and the defendant's own practices. A security expert should appraise whether the combination of these factors adds up to civil liability for the property owner.

Selecting an expert involves a number of considerations. Certainly there are the issues of reputation, publication of papers, and basic experience. A security expert must also understand a variety of businesses, from pizza restaurants to five-star hotels. The expert must be familiar with case law governing premises litigation in general and in the forum where the case is to be tried.

Most important, the expert must be able to look at a location's security measures, analyze them, apply the case facts, and determine if those measures were reasonable under the circumstances and conditions on the premises at the time of the attack. Did the defendant breach the standard of care? Were the defendant's actions or lack of actions a proximate cause of the attack?

The right security expert for the job is the person who will know about and understand these issues. When you interview candidates, understand that an expert's opinions must be objective and that an honest evaluation of your client's case may not support your legal theory. Do not expect opinions from the expert right away or discuss theories or impressions of the case before the expert is retained.

To develop an ample selection of experts from which to choose, check with groups like ATLA's Motor Vehicle Collision, Highway, and Premises Liability Section and the ATLA Exchange, which has an expert witness database. Also examine prior successful cases and talk with your peers.

Working with the expert

Once the expert is retained and issues such as pending deadlines and jurisdictional matters are understood, have the expert review all paperwork developed in the case so far. This includes official records of the incident--police reports, photographs, and witness interviews--as well as legal documents, including the complaint, the answer, and responses to interrogatories. Other materials such as newspaper reports of the crime may be useful. Make good use of the expert's time by organizing these materials in chronological order before you turn them over to him or her for review.

Let the expert help guide you during the discovery stages of the lawsuit. The expert should know what key documents to obtain and can help you draft deposition questions for witnesses. He or she can recommend effective exhibits to be used during depositions or testimony. These exhibits can effectively demonstrate to opposing counsel and the defendant key issues such as foreseeability and breaches of the standard of care. These types of exhibits can be instrumental in settling the case before trial.

Discovery in these cases begins with collecting materials that will answer questions about the foreseeability of the incident that caused your client's injury, the standard of care, and proximate cause.

Foreseeability. These issues vary from state to state and are constantly being challenged and redefined by the courts. Some jurisdictions require just one "prior similar incident" to prove foreseeability. Other jurisdictions consider the "totality of the circumstances."

Foreseeability is a concept used in various areas of law to limit the liability of a party if a given event was not and could not have been anticipated. Foreseeability in a premises security case generally hinges on the nature and frequency of prior criminal acts committed on the property or in the immediate area. Some states require a "substantially similar in nature" crime to have been committed on the premises during a reasonable period of time before your client's attack (normally two to five years).(3)

Other states take a more conservative approach by looking at the "totality of the circumstances." Under this approach, courts consider crimes committed on the premises or in the immediate area as well as conditions that might make a premises attractive to would-be criminals, such as lack of lighting, poor access control, and inadequate locking mechanisms.(4)

To determine foreseeability, the expert evaluates the criminal history of the property by reviewing 911 calls or calls for police service, which can be obtained through the appropriate police agency. In some cases, city and county response areas may overlap, making it necessary to contact more than one police agency to evaluate all calls for service to the premises. Many properties, such as malls and apartment complexes, may have more than one reporting address. It is important that all reporting addresses be identified and thoroughly researched.

Patrol officers and other police officials may also provide valuable information regarding the property and surrounding area. Affidavits may be obtained from police personnel when the premises is located in what they believe is a high-crime area.

The expert will also consider problems inherent to particular locations, such as robberies at automated teller machines and assaults at nightclubs.

Depending on the circumstances surrounding your client's attack, security guard logs, maintenance logs, and complaint files may assist in proving the foreseeability of the crime. Even the company's hiring practices and retention policies might be useful to an expert.

Say, for example, a defendant failed to conduct a thorough background investigation that would have revealed an applicant's criminal background and his or her propensity for criminal conduct and drug use. The defendant continued to employ the person even after past criminal activity was discovered. The plaintiff could use this evidence to argue that the defendant should have anticipated the possibility that the employee might commit a crime.

In some cases, the conditions on the premises at the time of your client's attack--such as poor lighting, inadequate security locks, and the absence or inadequate number of security personnel--may make the crime foreseeable.

Standard of care. The standard of care is most often defined by the customs and practices commonly followed within an industry. The standard may be further defined by state and local ordinance, industry publications and trade journals, and practices unique to a particular geographic area.

The strongest standards are those that defendants impose on themselves in their policy and procedure manuals and in the practices that management and employees outline in deposition testimony.

Certain security standards could be applied to many industries. For example, landscaping must be maintained according to the "three foot/seven foot" rule (shrubs trimmed to a height of no more than three feet and tree limbs to seven feet above the ground for maximum visibility). General lighting standards require the elimination of shadows and dark areas. When inspecting a premises, the expert will see whether the common areas and perimeter are well lit and whether locks and other physical security measures have been kept in good working order.

Additional standards for ensuring the safety and security of the property involved may be set forth in advertisements, brochures, or statements made directly to the victim by the defendant's employees. These statements may be the basis for a claim of fraud in addition to a claim of inadequate security.

To evaluate whether the defendant met the standard of care, the security expert will need the following documents:

* corporate manuals, such as training materials for employees, policy and procedures books, and security manuals;

* security or insurance audits;

* descriptions and records of security equipment;

* personnel files on in-house security staff;

* contracts and post orders outlining the specific duties that are to be performed by security services provided by outside agencies;

* ordinances covering off-duty police officers (Some cities and counties prohibit police officers from working off-duty security jobs, and others set parameters and pay scales for officers who work extra jobs.);

* security manpower schedules;

* number, description, and maintenance records of security vehicles; and

* documents outlining improvements in security since the incident.

The expert should also consider these questions:

* Was there a written security plan?

* Who had the day-to-day responsibility for security?

* Were employees trained in both security and safety awareness?

* What were the business's hiring practices? Did they include reference and criminal background checks?

* Were there meetings with employees to discuss safety? Were minutes kept?

* How did the defendant represent the facility to the plaintiff? What guarantees, statements, or understandings were given to the plaintiff regarding security?

* Did the defendant demonstrate or show the plaintiff the security measures?

* Did the defendant keep records of criminal activity?

* Did the defendant provide written notice to patrons or tenants concerning criminal activity on the premises?

* Did the defendant talk with employees and share knowledge of crime?

* What was the overall condition of the facility? Was it well maintained?

* Were there letters or complaints from patrons concerning crime problems or requests for additional locks, lights, or other security devices?

* Did the defendant maintain a liaison with police? Was an analysis of crime ever done on the property?

* How often, if ever, did police patrol the facility?

* If there was an outside security agency, what were the officers' duties and how did they perform them? What was the officers' level of training? How were they evaluated?

* Had other outside security agencies worked on the premises before? Had the owner terminated them?

Proximate cause. For the plaintiff to prevail, the defendant's breaches of the standard of care must have played a part in allowing the incident that caused the client's injury. To survive a motion for summary judgment, there must be a causal link between the breach and the incident. A jury ultimately decides whether a defendant's actions or lack of actions was a proximate cause of a plaintiff's injury, but a security expert's investigation will reveal the factual background that will allow you to argue causation and liability.

The expert will examine the actions of the perpetrator and the victim as well as those of the defendant. He or she will need to determine the following:

* Were the plaintiff's actions reasonable under the circumstances?

* Would the plaintiff have acted differently if he or she had been aware of the property's criminal history?

* Did the perpetrator target the victim or the property?

* Did the perpetrator take precautions against being identified?

* Are there indications that the perpetrator could have been easily deterred from attacking the plaintiff?

The plaintiff's actions during the attack should be examined by reviewing his or her statements to police and doctors along with other forensic clues. Whether or not the plaintiff contributed to the injury may be considered by the jury during trial and balanced against actions taken by the defendant to deter criminal activity on the property.

Perception versus reality

To promote business, property owners must attract patrons to their property. They do so in various ways, depending on the type of business. Owners of an office building may increase revenue by renting space to shops and restaurants. Operators of a hotel may target business travelers by offering luxury amenities and meeting space. Property managers and leasing officers may attract residents to apartment complexes by promising security.

Business patrons, travelers, and residents of apartment complexes know a place is safe based on what they hear and see. They may not know whether the property is in a high-crime area, but the landlord does. They may not know whether criminals have easy access, but the landlord does. It is easy for patrons of a business, hotel, or restaurant or residents of an apartment building to be lulled into a false sense of security.

Criminals know that business travelers or visitors to hotels or office buildings may be off-guard and rely on the owner to provide reasonable protection. A tenant who uses an apartment building's common laundry room late at night may appear to be taking a risk, but he or she was probably reassured of the room's safety by the defendant at the time he or she leased the apartment. Security features such as lighting, landscaping, or access control gates can contribute to the perception of safety. That feeling of security is the responsibility of the property owner.

A premises liability action is complex, involving multiple levels of investigation. It is also likely to be vigorously defended by property owners and their insurance companies. To succeed--indeed to survive a motion for summary judgment--you must have a multitude of facts at hand. This evidence can be obtained in a careful investigation conducted by an expert familiar with the security industry and the legal issues of a case.

Notes

(1.) 509 U.S. 579 (1993); 119 S. Ct. 1167 (1999).

(2.) RESTATEMENT (SECOND) OF TORTS [sections] 344 cmt. f (1965); Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477 (D.C. Cir. 1970); Paterson v. Deeb, 472 So. 2d 1210,1217 (Fla. Dist. Ct. App. 1985); Sturbridge Partners, Ltd. v. Walker, 482 S.E.2d 339, 340 (Ga. 1997); Taylor v. Hocker, 428 N.E.2d 662 (Ill. Ct. App. 1981); Polomie v. Golub Corp., 640 N.Y.S.2d 700, 700 (App. Div. 1996); Cordes v. Wood, 918 P.2d 76 (Okla. 1996); Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985).

(3.) See, e.g., McCoy v. Gay, 302 S.E.2d 130 (Ga. Ct. App. 1983); Savannah College of Art & Design, Inc. v. Roe, 409 S.E.2d 848, 850 (Ga. 1991); Woods v. Kim, 429 S.E.2d 262 (Ga. Ct. App.), cert. denied, 1993 Ga. LEXIS 775 (Ga. June 25, 1993).

(4.) See also Schmidt v. Towers Const. Co., 584 So. 2d 630 (Fla. Dist. Ct. App. 1991); Newell v. Best Security Sys., Inc., 560 So. 2d 395 (Fla. Dist. Ct. App. 1990); Sturbridge Partners, 482 S.E.2d 339; Piggly Wiggly S., Inc. v. Snowden, 464 S.E.2d 220, 223 (Ga. Ct. App.1995); Matt v. Days Inn of Am., Inc., 443 S.E.2d 290, 292 (Ga. Ct. App. 1994).

For further reading

Mary Jo Broussard, Slip and Fall on Ice and Snow: Plaintiff Beware, TRIAL, Aug. 1998, at 60.

E. James Burke, Ten Defense Tactics in Inadequate Security Cases, TRIAL, Feb. 1997, at 50.

Jeff E. Rusk & Chris Riley, When Life in the Fast-food Lane Turns Violent, TRIAL, Jan. 1997, at 48.

Larry Talley is a security consultant in Roswell, Georgia.