Violence comes to the mall.

During the past 25 years remarkable growth in large regional shopping malls has led to the demise of downtown shopping districts. These glittering monuments to the rise of suburbia are worlds unto themselves, with child care, elaborate food courts, entertainment, and, of course, retail shopping. Unfortunately, criminals have followed money and shoppers to the malls.

Below the surface of a seemingly carefree shopping environment lies an underworld of gang violence, abductions, carjackings, armed robberies, sexual assaults, and crimes against young children. Indeed, in some ways malls represent ideal locations for criminals--vast parking lots and garages, upscale shoppers, victims available day and night, private property with few if any regular police patrols, and a population led to believe that malls represent refuges from inner-city ills.

In many cases, mall owners and operators have not responded adequately to crime at their properties. In that context, victims of violent crimes have increasingly begun to demand--and have sometimes obtained--better protection from criminal assaults through litigation attacking inadequate security.

This article briefly reviews the legal bases for inadequate security actions against malls, identifies several legal the-ories counsel may wish to consider, and proposes a written discovery plan.

Before 1970, victims of criminal violence had little recourse against premises owners and operators since criminal attacks were viewed as unforeseeable or, as a matter of law, not caused by security lapses, however egregious. During the past 25 years appellate courts in many states have revisited the issue, and many states now recognize a cause of action for inadequate security provided that the property owner could reasonably have foreseen that a violent crime could occur.(1) Certain jurisdictions still cling to the restrictive view that victims must establish that prior similar crimes occurred at the premises.(2) More progressive jurisdictions evaluate foreseeability based on the totality of the circumstances.(3) Courts also must decide the geographical scope of crimes. Should the analysis focus only on crimes at the defendant's premises(4) or include the dangerousness of the neighborhood?(5)

Several significant legal issues arise in shopping center security litigation more frequently than in other security matters.

First, unlike many apartment buildings and motels, shopping malls almost invariably have been the site of prior crimes. In the author's experience, large malls (above 700,000 square feet of leasable area) often log dozens of crimes "against the person" each year, including assaults, armed robberies, stalking of female patrons and employees, and brandishing of weapons.

Since large malls regularly and predictably attract criminals, it is far easier to establish foreseeability at a mall than at a 12-unit apartment complex. In short, even the "prior similars" rule often poses no hurdle, since crimes, unfortunately, are quite common.

Second, malls often employ security guards, in part because the vast parking lots and garages are ideal haunts for criminals. As a result, malls often voluntarily accept the duty to protect patrons under assumption of the duty principles recognized 72 years ago by Benjamin Cardozo, then a New York Court of Appeals judge: "It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all."(6) Appellate courts have echoed Judge Cardozo's sentiments in the inadequate security context.(7)

Third, mall owners--unlike many commercial property owners--often carefully document crimes through incident reports. As a result, if crimes are occurring on the premises, the owners and operators will likely be aware of many of the crimes, and victims can more easily prove notice. (Counsel should always request incident reports or crime statistics from local police as well, however, since crime victims may not report crimes to the mall.)

Legal Theories

Attorneys for crime victims have a variety of legal theories in their arsenal, depending on the facts of the case and the jurisdiction in which the suit is filed. The following are six possible theories; many others may be appropriate.

Negligence. Negligence actions, as in all areas of tort law, entail an inquiry into whether the defendant exercises reasonable care in securing the premises.(8) A negligence action might be premised on an insufficient number of guards, the absence of guards, poor placement of guards (for example, failing to patrol criminal "hot spots"), poor patrol techniques, inadequate lighting, or lack of training.(9)

Negligence per se. Apart from a duty to exercise reasonable care, statutes, ordinances, or regulations may impose specific legal obligations (for example, parking lot lighting requirements), which, if violated, may be held to constitute negligence per se.(10)

Failure to warn. If a number of crimes have occurred at a mall, a duty to warn may arise. Common sense suggests that not every crime must prompt a warning to every shopper, but in certain situations, the theory is appropriate.

Many mall operators, for example, insist that store employees park in distant parking lots or garages so that customers will be able to park near the mall. The employees, however, leave work at night, alone, after the mall is closed, and are often targets of criminals. If this pattern has emerged, mall management must warn store employees and improve security measures.(11)

Fraud. A mall may advertise that shopping is safe, trumpet the virtues of its security force, or advise store employees that little crime occurs. If these representations are made and a victim's reliance on them can be established, a fraud theory may be appropriate. In some states, such as Texas, fraud may be coupled with statutory deceptive trade practice charges.(12)

Third-party beneficiary. Crime victims who are not parties to a contract to provide security but who are among the intended beneficiaries of that contract may be able to pursue a third-party beneficiary action for breach of that contract.

For example, a lease between a store and a mall may require that the mall provide common area security. A store employee held up at gunpoint as a result of poor security can argue that she is the intended beneficiary of that lease and that its breach provides her with a cause of action.

Nuisance. If criminal activity at a mall is especially frequent and serious--particularly drug dealing--counsel should explore whether a common law nuisance claim could be brought.(13)

Paper Trail

Paper discovery is essential in inadequate security litigation against large malls.(14) Counsel should use interrogatories, document requests, subpoenas to third parties, and Freedom of Information Act requests.

In virtually every inadequate security case, certain issues will arise that should be the subject of extensive discovery before depositions. The following seven areas of discovery are illustrative, not exhaustive.

* Crime history. For foreseeability and standard-of-care purposes, counsel must develop a crime history of the premises. Counsel may need to seek records of all police service calls or, depending on the jurisdiction, counsel may be limited only to records of crimes against the person. The extent of the inquiry should reach into the past several years,(15) and it may include crimes only on the mall property, in the neighborhood, or in the police reporting district.(16)

Requests for production should include crime summaries or other compilations of crimes that were prepared by the defendants.

Counsel should obtain from the local police department statistical summaries of crimes at the mall as well as specific incident reports.(17) The availability of incident reports varies by jurisdiction. Some require only a request, others a subpoena, and still others a court order. Steps may need to be taken to protect the privacy of prior victims identified in incident reports. As part of the investigation, counsel should interview the officer responsible for tracking crime in the mall's jurisdiction.

* Security plan. Counsel must identify all components of the security plan that were theoretically in effect on the day of the crime. Much of the narrative inquiry into the nature of the security program should be saved for depositions, but documents critical to educating counsel must first be obtained. Defendants often have elaborate written security manuals, which are invaluable in setting the standard of care.(18)

In addition, document requests should seek records relating to the number, deployment, and training of security guards as well as records of security vehicles and other equipment. Counsel should also inquire into whether closed-circuit television cameras were used or considered.

* Day of the crime. Counsel must determine how security actually functioned on the day of the crime. Through discovery requests, counsel should obtain any documents that indicate the number of guards on duty and their location. These documents would include all guards' and dispatchers' logs, guards' time cards, work force schedules, and vehicle logs.

Counsel should also seek all documents discussing the crime, including the defendant's incident report and all reports to insurers prepared before litigation was reasonably foreseeable since these reports should not be subject to a claim of work product protection. Finally, counsel should obtain all documents relating to other security measures, including closed-circuit television tapes and maintenance logs for lighting on the day of the crime.

* The crime. Counsel should investigate the crime and be prepared to prove the elements of the crime through witnesses, police investigators, confessions, and demonstrative evidence. Establishing the facts of the crime through other sources will be essential in cases in which victim testimony may be unavailable or of questionable reliability--for example, in homicides, brain injuries, and sexual assaults of victims too young to testify effectively.

After being retained, counsel should contact the prosecutor and ask that all evidence in the criminal investigation be preserved. Counsel should also request copies of all documents involved in the investigation, especially confessions, victim impact statements, incident reports, witness statements, forensic pathology reports, and photos.

* Security flaws. Counsel should request audits or evaluations of the security program conducted before and after the crime. Large mall developers often conduct periodic in-house evaluations of mall operations, and security evaluations may be included.

Counsel should also seek documents that will allow an analysis of security changes over time, such as cutbacks in guards, vehicles, and cameras.

Security directors and guards often complain about inadequate resources, and these complaints may be noted in personnel files. Counsel should identify (through interrogatories, document requests, or counsel's investigator) former guards to interview. They are usually helpful and understand the flaws in security only too well.

Large organizations may have dozens, if not hundreds, of invaluable memos regarding crime, security shortcomings, and security complaints. Security directors' frustrations with poor patrol practices (fraternizing, patrolling in pairs) may be well documented.

Other flaws may be cataloged in complaints by commercial tenants or shoppers in malls. Documents often discuss measures that were not adopted, like increases in guards, the use of closed-circuit televisions and off-duty police, or the purchase of additional vehicles.

* Caliber of guards. In cases involving guards, defendants have placed great faith in fallible human beings. Unfortunately, the caliber of guards can be astonishingly poor, and proving that fact will confirm many jurors' worst fears and suspicions.

Counsel should seek documents and ask interrogatories addressing job performance, rate of pay, qualifications (from resumes and job application forms), training, licensing requirements, reasons for termination, alcohol or drug abuse, any disciplinary action, crimes while on duty, and any preemployment criminal record check. Negligent hiring may be an issue if a crucial guard was unqualified or had a criminal background.(19)

* The perpetrator. Perpetrators often have visited the scene of the crime on a number of occasions, may be known to the defendants by name or physical description, and may have even worked at a store or for the mall itself. Counsel should request all incident reports, leases, and other documents involving the perpetrator; request all security memos discussing the perpetrator; and ask whether the perpetrator had been banned from the mall or whether a BOLO (Be on Look Out) alert had been issued at any time for the perpetrator.

Inadequate security litigation requires a clear understanding of the legal bases for claims, careful selection of applicable legal theories, and thoughtful preparation of an extensive discovery plan. Vigorous representation of crime victims will help them piece together their lives and highlight security flaws that responsible property owners can then correct to minimize future violent crime.

Notes

(1)Doud v. Las Vegas Hilton Corp., 864 P.2d 796, 799 (Nev. 1993); Taco Bell v. Lannon, 744 P.2d 43, 47-48 (Colo. 1987); see also RESTATEMENT (SECOND) OF TORTS [sections]344 cmt. f (1965).

(2)California has seemingly come full circle, at first rejecting the "prior similars" rule and recently resurrecting it, at least in cases where the plaintiff argues that security guards should have been employed. Cf. Isaacs v. Huntington Memorial Hosp., 695 P.2d 653, 666 (Cal. 1985) (holding that similar prior incidents need not be proven to establish foreseeability) with Ann M. v. Pacific Plaza Shopping Ctr., 863 P.2d 207, 215 (Cal. 1993) (stating that the requisite degree of foreseeability rarely, if ever, can be proven in the absence of prior similar incidents). The principle of stare decisis and victims of violence in California have both suffered in the process.

(3)Seibert v. Vic Regnier Builders, Inc., 856 P.2d 1332 (Kan. 1993); Doe v. Dominion Bank, 963 F.2d 1552, 1560 (D.C. Cir. 1992); Crinkley v. Holiday Inns, Inc., 844 F.2d 156, 160-61 (4th Cir. 1988).

(4)Scott v. Watson, 359 A.2d 548, 554 (Md. 1976).

(5)See, e.g., Crinkley, 844 F.2d 156, 161.

(6)Glanzer v. Shepard, 135 N.E. 275, 276 (N.Y. 1922).

(7)See, e.g., Rowe v. State Bank of Lombard, 531 N.E.2d 1358, 1365 (Ill. 1988); Jardel Co., Inc. v. Hughes, 523 A.2d 518, 524 (Del. 1987).

(8)See Jardel, 523 A.2d 518, 525.

(9)Binford v. Lehndorff Tysons Joint Venture, 35 ATLA L. REP. 222 (Aug. 1992).

(10)Lopez v. Rouse Co., 37 ATLA L. REP. 63, 64 (Mar. 1994) (violation of the Bank Protection Act).

(11)See, e.g., Doe v. First Gibraltar Bank, 36 ATLA L. REP. 173 (June 1993) (verdict against owner and manager of apartment complex in case premised in part on defendants' failure to warn tenants of prior crimes).

(12)Doe v. Brook Apartments, 35 ATLA L. REP. 222 (Aug. 1992).

(13)Lew v. Superior Court, 25 Cal. Rptr. 2d 42, 44-45 (Ct. App. 1993) (owners of apartment building held liable in nuisance for actions of criminals using building to sell drugs).

(14)Depositions are even more important but are beyond the scope of this article.

(15)See Isaacs, 695 P.2d 653, 663 (rejecting ironclad three-year rule).

(16)See Crinkley, 844 F.2d 156, 161.

(17)See Jardel, 523 A.2d 518, 526; Brown v. J. C. Penney Co., Inc., 688 P.2d 811, 813-15 (Or. 1984).

(18)See Crinkley, 844 F.2d 156, 162.

(19)See Arrington v. Fields, 578 S.W.2d 173, 176 (Tex. Ct. App. 1979) (negligent hiring of a convenience store security guard).