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10 defense tactics in inadequate security cases.

You must be able to persuade the jury that the plaintiff's negligence, if any, was slight compared with the defendant's. Make sure the jury understands your client was confronted with an emergency situation.

Success in inadequate security cases depends primarily on a thorough understanding of negligence principles. In essence, your case is reduced to determining whether the defendant provided customers with reasonably safe premises and, if not, whether this failure caused the client's injury.

The defendant will use a variety of tactics to confuse the issue, but if you stick to the basic tenets of negligence law and keep the court and jury focused on them, your chance of success will increase. Here are 10 defense tactics and strategies for overcoming them.

1. Blame the assailant: the verdict form

In these cases, the defendant will attempt to place the assailant's name on the verdict form to eliminate or significantly reduce the percentage of fault attributable to the defendant. In comparative negligence cases, the apportionment of fault to the assailant reduces, and may eliminate, recoverable damages. In jurisdictions that maintain joint and several liability, this tactic significantly increases the possibility that no negligence will be attributed to the defendant. The issue is typically raised by pre-trial motion.

Many jurisdictions recognize that, absent specific statutory language to the contrary, comparative negligence statutes are not applicable to intentional torts(1) or other causes of action that are founded upon a party's non-negligent conduct.(2)

If your state allows comparison of non-negligent with negligent conduct, either by statute or judicial decision, you still have compelling arguments against applying those laws in inadequate security cases.

The inadequate security cause of action is founded on negligence. Negligence exists if one person owes a duty to another and breaches that duty.(3) The premises owner is duty bound to take reasonable action to protect patrons from the unreasonable risk of physical harm. This includes the duty to protect them from reasonably foreseeable intentional acts of third parties.(4)

This duty should be the focal point of your attempt to keep the assailant's name off the verdict form. The practical effect of including a criminal assailant on the form is to eliminate the premises owner's duty. Courts that have recognized this impact have refused to allow the assailant's name on the verdict form.

In Veazey v. Elmmood Plantation Associates, Ltd, the Supreme Court of Louisiana recognized that the state's comparative fault laws are broad enough to encompass the comparison of negligent and intentional torts in an appropriate factual setting.(5) "Fault" is not defined in the Louisiana statutes. The court held that the trial court must determine the appropriateness of this comparison case by case.

In Veazey, the court found that public policy considerations weighed against allowing this comparison. The plaintiff had been raped by an intruder who entered her second-story apartment through her bedroom window.

The court found substantial evidence that management had misrepresented security in the apartment complex and that security had been substandard. The court cited Kansas State Bank & Trust Co. v. Specialized Transportation Services, Inc., for the proposition that "negligent tortfeasors should not be allowed to reduce their fault by the intentional fault of another that they had a duty to prevent."(6) Allowing the comparison reduces the landlord's incentive to protect against the same situation occurring again. The Louisiana Supreme Court found this result clearly contrary to public policy.

The New Mexico Court of Appeals applied the same reasoning in holding an employer vicariously liable for the intentional wrongful acts of its off-duty employee.(7) The court refused to allow comparison of the employer's conduct with the off-duty employee's intentional acts.

The legislative history of a state's comparative negligence statute may be helpful in keeping intentional tortfeasors' names off a verdict form. In 1994, Wyoming amended its comparative negligence statute to expand the definition of fault.(8) The legislative history indicated that the 1994 amendment, as originally drafted, defined fault as follows:

"Fault" includes acts or omissions, alleged to be

a legal cause of death or injury to person or

property that are in any measure negligent,

reckless, wanton, culpable, or intentional, or

that subject an actor to strict tort or strict product

liability, and include breach of warranty,

assumption of risk and misuse or alteration of a

product.(9)

However, the amendment as enacted did not include "intentional" language in the definition of fault. The clear inference to be drawn from this deletion is that the legislature did not intend to include intentional conduct in the definition of comparative fault. This legislative history, combined with prior case law prohibiting comparison of negligent conduct with wrongful conduct predicated upon strict liability and breach of warranty theories, recently assisted a Wyoming trial court in deciding that a criminal assailant should not be included on the verdict form.(10)

2. Blame the assailant: no proximate cause

Proximate cause is likely to become a battleground in these cases. Typically, the proximate cause issue will be raised by a defense motion for summary judgment. In defining the term, the majority of courts have adopted the "substantial factor" test. Under this test, the defendant's conduct is a proximate cause of the event if the conduct was a substantial factor in bringing about the event and the injury. The substantial factor question should be answered by the jury."

To avoid summary judgment, it is essential that the issue of proximate cause be discussed in terms of foreseeability. Whether circumstances exist from which an owner should reasonably foresee that customers are at risk and that appropriate security measures should be taken is a fact question to be answered based on "the totality of the circumstances."(12)

3. Assert intervening or superseding cause

The defense lawyer may claim that the assailant's actions were an intervening or superseding cause of the plaintiff's injuries. This defense is best analyzed in the context of the premises owner's duty to take reasonable precautions to protect its patrons from the reasonably foreseeable intentional acts of third parties. Application of the intervening cause defense without reference to this duty effectively eliminates the premises owner's obligation to protect its patrons from criminal attacks.

An intervening cause is one that arises after a defendant's negligent act and is not foreseeable.(13) Foreseeable intervening forces are within the scope of the original risk and, thus, within the scope of the defendant's negligence. Courts generally agree that intervening causes that fall fairly within this category will not supersede the defendant's responsibility.(14)

4. Blame the plaintiff

The plaintiff's comparative negligence is asserted in nearly every negligence case. If defense counsel can find ways to attribute negligence to the automobile passenger injured in a rear-end collision, you can be sure that your plaintiff will be a prime target in the inadequate security case.

* "You knew that dark parking lots were dangerous, didn't you?"

* "You knew that it was dangerous to walk at night in an unfamiliar area, didn't you?"

* "You could have run away, couldn't you?"

You must convince the jury that your client acted reasonably given the circumstances. At a minimum, you must be able to persuade the jury that the plaintiff's negligence, if any, was slight compared with the defendant's. Make sure the jury understands your client was confronted with an emergency situation.

The defendant, on the other hand, had years to anticipate potential dangers, implement plans to eliminate or lessen those dangers, and hire and properly train employees to deal with those dangers. Use the plaintiff's testimony to emphasize the defendant's superior knowledge of the risks and the reasonableness of the plaintiff's behavior.

* "I'm a visitor to this city and this area."

* "I'm staying at a hotel recommended by AAA."

* "No one at the hotel warned me that this was a high crime area."

* "I was walking through the parking lot of the hotel where I was staying--where else should I have parked?"

* "I thought if I screamed loud enough someone from the hotel would come--I didn't want to run farther away from the `safety' of the hotel."

5. Focus on the few minutes of the attack

Defense counsel will attempt to narrow the focus of the case to the brief interval of the attack. If the defense is successful, the plaintiff's chances of success diminish significantly. Most criminal attacks occur in a brief span of time, and during the attack there may not be enough time for the premises owner to prevent injury. The owner should have acted before the attack.

Defense counsel may ask the plaintiff or witnesses to close their eyes, envision the attack, and say "stop"when it is over. Counsel will time this "reenactment," which typically lasts only a few seconds. You must shift the focus to actions that the defendant should have taken before the. incident that would have prevented the attack. These include training employees adequately, anticipating potential danger to customers, and alerting patrons to the crime rate in the vicinity.

Aetna Insurance Co. reportedly gives its insured business owners a premises security handbook to improve their security and prevent violent crime. The book suggests the following as reasonable precautions a premises owner should take:

* Assess the operation's susceptibility to crime.

* Educate employees and tenants.

* Carefully select and then supervise employees.

* Update written security plans.

* Restrict access to the property.

* Increase security at night.

* Use effective security cameras and alarm systems.

* Control key access and usage.

* Pay special attention to holidays and special events.

* Do not exaggerate the level of security --customers or tenants may expect complete protection without exception.

* Set an appropriate budget for security needs.(15)

Your security expert should be able to provide a list of reasonable security precautions that the defendant should have taken. Remember, do not fall into the trap of limiting the focus of the case to the few seconds of the attack.

6. Use distinguishable case law

Inadequate security case law is factually intensive. Many cases that appear devastating on the surface may be factually distinguishable. For example, the standard of what constitutes notice of a dangerous condition may be different for a family restaurant owner than a tavern owner.

The Wyoming Supreme Court, in Hanna v. Cloud 9, Inc., recently affirmed summary judgment in favor of a defendant bar owner who was sued by a patron injured during a fight at the bar. (16) The court reiterated the premises liability rule set forth in White v. HA, Inc, that a tavern owner owes a duty to protect all customers from third-party assaults where (1) the tavern keeper knew or should have known about a disturbance, (2) enough time elapsed between the disturbance and the assault for the tavern keeper to take appropriate action, and (3) there was a connection between the disturbance and the assault.(17) The court went on to note that the attracting disturbance must be "action, threat of action, or some type of demonstration."(18)

The Hanna case was decided while a restaurant inadequate security case was pending at the trial level. The plaintiff in that case had been injured during an attack by a drunk off-duty employee of a local family restaurant that did not serve alcohol. Predictably, defense counsel immediately filed a motion for summary judgment based on Hanna.

The trial court orally denied the motion, reasoning that the "disturbance" definition relating to taverns did not apply to family restaurants that do not serve alcohol.(19) When the defense raises case law that seems to support its position, you should point out distinguishing facts and reasoning.

7. Claim the security expert is a hired gun

Security experts can provide important insight and direction regarding fact gathering and case focus, and they should be involved as early as possible. Your expert may be the most important weapon in defending against an early motion for summary judgment or to dismiss. You must be careful, however, about the expert you call as a witness at trial. Your investigation expert may not be the best choice as a trial expert.

The more your expert has testified previously, especially if tied to plaintiffs only, the more likely the jury will believe the defense's portrayal of the expert as a hired gun. Your expert should be an expert regarding security related to the defendant's business--if the defendant is a hotel, hire an expert in hotel security. Consider the possibility of using two experts--one national and one local. The national expert will discuss whet the defendant should have been doing. The local expert will testify that he or she agrees --in fact, that's how "they" do it at his or her place.

8. Argue no warning

The defendant may claim that this incident is the first of its kind, and, therefore, the defendant should not be held responsible; that is, every dog deserves one bite. The defendant is really raising the "prior similar incidents rule," which has been used by courts to evaluate foreseeability. In the past, this rule provided a significant hurdle for plaintiffs because it held that a criminal act is foreseeable only if a similar act occurred at or near the same area.(20)

Courts should reject this approach for a compelling reason: "Under the prior similar incidents rule the first victim is never compensated, regardless of the actual foreseeability of the act."(21) The proper approach is to recognize that the lack of prior acts is only one factor in determining negligence. Negligence should be based on an evaluation of the defendant's conduct in light of the "totality of the circumstances."(22)

The issue at this level may not be what the defendant knew but rather what the defendant should have known. Your expert can help you with what the defendant should have known. Trade publications and the defendant's policy manuals may show that the defendant knew more than it admitted. For example, policy manuals may prove the defendant knew it had a duty to anticipate and plan for possible dangers.

In a recent Wyoming restaurant case, the plaintiff was injured by a drunk in a violent attack on the premises.(23) The defendant argued that an attack like this had never occurred before in the restaurant.

The defendant's policy manuals--which contained emergency procedure checklists, robbery procedures, earthquake procedures, and other training procedures--reflected the defendant's knowledge of its duty to anticipate situations that were potentially dangerous and to adequately train its employees to deal with those situations.

The defendant also contended that, to its knowledge, drunks were not dangerous. National publications, government studies, and industry publications all provided strong evidence of the correlation between alcohol and violent criminal acts. The denial of any causal link in light of that overwhelming evidence presented a compelling picture of a defendant who had failed to reasonably anticipate dangers and adequately train employees to deal with them.

9. Misstate the standard of care

Defense counsel will claim that the defendant is not a guarantor or insurer of the safety of all people on its premises. This tactic is an attempt to misstate the standard of care, confuse the jury, and improperly imply that the plaintiff is claiming the defendant should ensure the safety of all patrons.

Counsel will attempt to use this argument throughout trial. If possible, you should not permit this. Consider filing a motion in limine to deal with the issue before trial.

The plaintiff is not claiming that the defendant should ensure the safety of everyone on the premises, merely that the defendant should provide a reasonably safe premises.

10. Seek victory early

Defense counsel will act quickly to achieve a knockout punch. Motions for summary judgment or judgment on the pleadings are likely to be filed early in the case. You may not have time to resist those motions if you do not prepare early.

Involve your expert immediately, preferably before filing suit. The expert can assist you in obtaining the information necessary to create factual issues that will allow you to survive the summary judgment motion.

Obtain crime statistics. Find out what normal police response time is to the premises. Discover what information the defendant had about the assailant's criminal records. Ascertain applicable industry standards. Initiate discovery immediately. File discovery requests regarding the defendant's policy manuals, training records, employment applications, and so forth. Take depositions of key personnel. Obtain affidavits of necessary witnesses to rebut the anticipated motion. In the inadequate security case, it's not a question of whether a summary judgment motion will be filed, it's a question of when.

Defendants in these cases have an arsenal of weapons for shifting the blame. By anticipating defense tactics and preparing adequate responses, you can best ensure a favorable outcome.

Notes

(1) HENRYWOODS, COMPARATIVE FAULT 165, 166 (2d ed. 1987).

(2.) See, e.g., Phillips v. Duro-Last Roofing, Inc., 806 R2d 834 (Wyo. 1991) (holding that Wyoming's comparative negligence statute does not apply to products liability actions premised on strict liability and breach of warranty).

(3.) See generally Seibert v. Vic Regneir Builders, Inc., 856 R2d 1332,1338 (Ken 1993).

(4.) RESTATEMENT (SECOND) OF TORTS [sub sections]314(a), 344; Estep v. Jack-in-the-Box, Inc., 546 S.W.2d 116, 118 (Text Ct. App. 1977); Kansas State Bank & Trust Co. v. Specialized Transp. Servs., Inc., 819 R2d 587 (Kan. 1991).

(5.) 650 So. 2d 712 (La. 1994).

(6.) 819 R2d 587, 606.

(7.) Medina v. Graham's Cowboys, Inc., 827 R2d 859 (N.M. Ct. App. 1992).

(8.) WYO. STAT. ANN. [section]1-1-109 (Michie 1994).

(9.) 1994 Wyo. Sess. Laws SF35.

(10.) Morelli v. Gulley Enters., Inc., Docket 136, No. 462 (Wyo., Laramie County First Jud. Dist. Ct. 1995).

(11.) RESTATEMENT (SECOND) OF TORTS [sub sections]431, 433; WILLIAM L. PROSSER & W. PAGE KEATON, THE LAW OF TORTS 267 (5th ed. 1984).

(12.) Seibert, 856 R2d 1332,1339.

(13.) See generally Buckley v. Bell, 703 R2d 1089, 1092 (Wyo. 1985); RESTATEMENT (SECOND) OF TORTS [sub sections]440, 441.

(14.) PROSSER & KEATON, supra note 11, at 303-04.

(15.) Kristen L. Nelson, Picking Up the Tab for Violent Crime, BEST'S REV. 39, 45 (May 1994).

(16.) 889 P.2d 529 (Wyo. 1995).

(17.) Id at 532 (citing White v. HA, Inc., 782 P.2d 1125 (Wyo. 1989)).

(18.) Id.

(19.) Morelli, Docket 136, No. 462.

(20.) See generally Sharpe v. W.H. Moore, Inc., 796 R2d 506, 510 (Idaho 1990).

(21.) Brian W. Healey, Inadequate Security: Stealing Prominence from Slip and Fall, ATLA EXCHANGE Q. (Spring 1994).

(22.) Seibert, 856 P2d 1332.

(23.) Morelli, Docket 136, No. 462.
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Author:Burke, E. James
Publication:Trial
Date:Feb 1, 1997
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