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The premise behind premises liability.

SECURITY MANAGERS ARE OFTEN called on to help the company defend itself in premises liability suits. Yet assistance with litigation is one of the least appreciated aspects of a security manager's job. The prudent manager will take litigation-related steps prior to any suit being filed. By taking such steps, some suits can be avoided and the chances of winning a claim can be enhanced.

According to premises liability case statistics compiled by Jury Verdict Research, U.S. courts have handed down 342 guilty verdicts awarding $1 million or more since 1962. Several times that number of million-dollar settlements have also occurred. Of the premises liability cases going to trial in 1990, the plaintiffs won 55 percent of the time, up from 52 percent in 1989.

The law regarding premises liability can be confusing. In most states, the status of the plaintiff when he or she was injured is one of the most fundamental considerations under the law. Plaintiff status falls into three categories: trespasser, licensee, and invitee.

A trespasser is someone who has no business on the property. The term includes not only someone who should not be there at all but also someone who wanders from where he or she is permitted to where he or she should not be.

Property owners are generally not liable to trespassers, but many exceptions exist. First, property owners are liable if they have acted in a malicious fashion or in total disregard of the safety of others. While this rarely happens, it is easy to allege, which explains the proliferation of such suits. Fortunately for companies, it is not as easy to prove. If a person is known to be a frequent trespasser, however, a court may find that this implies consent to be on the property, and the trespasser may be able to sue successfully.

Highly dangerous conditions are a second exception. Examples of dangerous conditions include situations where a plank is missing in a railroad bridge when it is known that pedestrian trespassers cross, or where a cable is placed across a path used by trespassing motorcyclists, or where a downed electrical wire is present when persons are known to trespass. Other highly dangerous conditions that have been the basis of liability to trespassers include unaccounted for dynamite caps or even simple defects in a roadway known to be used by trespassers.

Injuries by dangerous guard dogs can sometimes create liability to trespassers unless a sufficient warning is posted. In one case in Maryland, the court held that the sign "Guard dog on duty--Trespassers will be eaten" was sufficient.

A third exception is known as the attractive nuisance exception, in which a situation is deemed so attractive to children that it invites their trespass. The oldest known case of this exception involved a railroad turntable that children played on and on which a child was injured.

The attractive nuisance doctrine is frequently used for electrical hazards, as in the case where a judge held that the catwalk over a catenary wire on the outside of a fenced railroad bridge could be such an attractive nuisance. In another case, an unguarded building, which was in the process of being demolished overnight, was found by the court to be an attractive nuisance when children played on it during that time and were injured.

Even deceptively deep-standing water has created liability. This doctrine is, however, only for water accumulated as a result of human activity. The doctrine is not to be used for natural environmental hazards.

The second category of plaintiff is licensee, which is the least used of the three categories. A licensee is someone who is on the premises for his or her own business, such as a job seeker or someone on a social visit. A company is only liable for injuries caused to a licensee on the premises if the company permits something it knows to be a latent danger. Exceptions for trespassers would also apply here.

The third category, invitees, is the most common. The term refers to those who are invited onto the premises for the owner's business: a customer, potential customer, patron, or repairperson. The company must have the highest standard of care for these individuals. It must both eliminate known dangers and conduct reasonable inspections to detect all dangers. Any failure to exercise due care can produce liability.

The owner is responsible for any dangerous condition of which it knows or should have known. Both artificial and natural conditions on the premises must be kept reasonably safe in areas where invitees are permitted to go.

Some conditions, even when they cause injury, do not create liability, since they are not considered dangerous. For instance, in one case, tall grass that harbored a snake was held not to be a dangerous condition. In another case, a restaurant rest room's faucet handle that broke when a patron used it was held not to be dangerous when it had a crack not readily visible on inspection. Merchandise stacked precariously high on store shelves or large potholes in a parking lot have, however, been held to pose enough chance of injury to create liability.

Poor lighting in a pedestrian pathway is a danger that can create a potentially hazardous situation and cause someone to fall. The absence of a barrier or guardrail where it is needed is another potential danger.

Snow and ice on pedestrian walkways can create liability only if an accumulation causes an uneven and dangerous surface. If ice covers a hole or is caused by an artificial condition, such as a leaking pipe, then it will be deemed a hazard. In some states, people who slip on ice or snow when they could have avoided the area cannot receive damages. If a slippery or otherwise dangerous condition cannot be avoided, it is more likely that liability will be found. Extra care must be exercised for children or the disabled. They could win a claim in a situation where an adult or able-bodied person could not. An owner is not responsible for obvious dangers like heights and deep water. A worker who knows of a danger on the premises or involving machinery will not have a legitimate claim against a company. But here, too, many exceptions exist. Water on a floor may not be obvious. A glass door cannot be easily seen at certain angles. Small patches of slippery substances on a floor may not be obvious.

An electrical wire overhead was once held not to be an obvious danger, making the company liable when it failed to warn of an electrical hazard, and someone was electrocuted.

Particularly dangerous activities may create liability whether the activity was conducted negligently or not. The owner must reduce the danger, reduce access to the activity, or move the activity to a more appropriate area. This situation might apply, for instance, to blasting activity or storage of explosives or flammables.

Companies may also be held liable to anyone, even a trespasser, for the intentional acts of their employees, particularly security officers, if they use unreasonable force in subduing a suspected criminal on their premises.

A guard force is privileged to use reasonable force to protect the company and employees from intrusion or crime. Reasonable force is that which is necessary to prevent the intrusion or damage to property. Ultimately, the reasonableness of the force used will be determined by the jury.

If a suit is filed, it is usually because the unjustified use of deadly force is alleged. Deadly force, including guns, can be justified only in self-defense in a situation of imminent danger. Under the law, it cannot be used just to prevent a theft or trespass. Whether any danger justifying force exists depends not on the officer's own subjective impression, but rather on how a careful officer would have acted under the circumstances--a more objective test. Many courts have held that an owner cannot use hidden mechanical devices that inflict harm unless adequate warning is given. Automatic devices that inflict deadly force are never permitted. Their use will create liability.

Owners can also be liable for the negligent actions of third parties, such as independent contractors, concessionaires, or other members of the public, who injure others while on company property. The company's liability is in addition to the liability of the third party who inflicts the injury.

If a third person negligently drops, spills, or leaves something on a property and creates a hazard, the time allotted to the company to detect the hazard and prevent a possible accident depends on the type of premises. A supermarket, for example, has a duty to be instantly vigilant, while the owner of a cattle ranch or other large complex would have more time to find the hazard. A business can also be held liable if it negligently selects a careless contractor that injures someone on the premises, or if the business has a duty to inspect a job on premises and performs that duty in a negligent manner. If the independent contractor is working on an unusually or inherently dangerous project, the company may be automatically liable for the contractor's negligence. The situation creates a duty of extra care to ensure that no accident occurs when the project is inherently dangerous.

A business will always be liable for maintaining the premises, even if it delegates that task to an independent contractor. The company can, however, seek indemnity from a contractor or other person who is negligent. Not every action by a third party on the premises creates liability. It has been held, for instance, that a bank is not liable when an angry customer throws a chair out a window, injuring a passerby on the sidewalk.

In connection with liability for the acts of others, liability for serving liquor to those who later cause harm is a potential concern. This liability can arise even if one is not involved with bars or restaurants. Any security manager should be concerned with office parties, for instance.

In some states, a business can be held liable for harm caused by an intoxicated person who was served too much liquor at an office party and then caused harm to himself or herself or others. In other states, businesses that are not licensed to sell liquor are not responsible for monitoring the intoxication level of guests and cannot be held liable even when the intoxicated employee leaves the party in a company car. In most states, however, anyone can be held liable for harm caused as a result of liquor served to someone underage, regardless of that person's visible intoxication level. One controversial aspect of premises law is the liability of property owners and contracted guard services for harm done to persons by criminals on their property. Obviously, no amount of vigilance will prevent all crime. Courts are cognizant that making property owners liable for such crimes will discourage businesses from remaining in high-crime, low-income areas. Many courts have, however, declared that businesses can be held liable for the actions of criminals on their property.

For a business to be held liable for a crime on its property, the victim must show to the jury's satisfaction that the business knew of the likelihood of the crime from past experience and that it failed to take reasonable measures to prevent the crime.

In showing the past crime, the similarity in type, severity, or location of the previous incidents to the incident where the plaintiff was injured will make a plaintiff's case stronger. A history of minor thefts may not create a reasonable anticipation of an assault. Unfortunately, it is often easy to make a particular crime seem foreseeable in hindsight, particularly to a jury. The second element, that the crime could have been prevented by reasonable measures, is also something that a jury, sympathetic to the innocent victim, can often find. It is sometimes difficult to convey how many different types of incidents could occur and how impossible it is to avoid a particular one, but that is important to a defendant trying to win such a case.

Complete records are needed. When litigation arises concerning a criminal assault, a defendant is best protected by detailed records regarding past crimes. Records detailing when and where the crimes occurred and the type of crime can help distinguish past crimes from the one at issue and can show that the specific crime could not have been anticipated.

Documentation could be said to hurt a defense by recording knowledge of prior crime. Those incidents would usually be revealed in testimony. It is better to have documentation that distinguishes the assault at issue from past incidents. Efforts to prevent crime, as well as to keep the premises generally safe and maintained, should also be documented. It is important to be able to show a regular course of conduct. The results of inspections should be recorded. Security officers should have a checklist on which they can easily indicate each part of the inspection made and whether the property was satisfactory.

The checklist must be authentic. It should not just be routinely checked off in full each day. Unless problems are occasionally documented, the record will be characterized in court as meaningless.

A security manager should record injuries as they occur. Security should then contact the injured party, preferably before he or she goes to an attorney. The security office should take photographs and statements from witnesses. If a statement is obtained from a potential plaintiff, security should make sure it is signed and recorded. Statements by a plaintiff may be admitted into evidence even though they are made out of court.

Though security managers may not be risk managers, they should make sure that their company's insurance policies cover matters like serving liquor to employees or the overzealous acts of security officers. While the insurance carrier will provide counsel to defend the company when suits arise, it is often prudent to have corporate counsel monitor that defense to ensure that the claim is handled property and, if appropriate, settled within the policy limits. Sometimes pressure needs to be applied to the insurance company to achieve a settlement agreement and avoid a trial.

Some companies hire private contractors to serve as security officers. If so, how these contracts are drafted may be important if a lawsuit occurs. Contracts should explicitly state what the service's employees are expected to do. All performance standards should be included to help in the event of litigation. The documentation should show that the guard service had the responsibility to keep the premises safe and that the company did not authorize overzealous conduct. It should also provide the company with a better chance for recourse against the guard service in case the company is held liable to an injured person. If possible, a contract with a guard service should state that the service will indemnify the owner in the event of an incident that occurs while the service is on duty.

Companies cannot necessarily avoid getting sued. Security managers can, however, limit the potential for losses related to premises liability claims by understanding the law and directing security operations accordingly.

James R. Kahn is chairman of the Personal Injury Litigation Group with Blank, Rome, Comisky & McCauley in Philadelphia.
COPYRIGHT 1994 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1994 Gale, Cengage Learning. All rights reserved.

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Title Annotation:premises liability suits
Author:Kahn, James R.
Publication:Security Management
Date:Feb 1, 1994
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Next Article:Corporate liability: security's emerging role.

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