Businesses and property owners in every state must take reasonable steps to keep their premises safe. Typically, these steps include implementing reasonable security measures. But the idea of “reasonable” security can vary from state to state. Indeed, the idea of “reasonable” is, itself, open to interpretation. As a result, you might reasonably wonder, “What is reasonable security? And, by contrast, what is negligent security?”
Every state has its own take on negligent security. They depend both on the written laws and the precedents set by earlier court rulings. Nonetheless, there are several common elements that run through most, if not all, negligent security cases.
The Basics of Premises Liability and Negligent Security
Generally speaking, negligent security is a specific concern within the broader concept of premises liability. In turn, premises liability falls under the broader concept of negligence claims. Accordingly, the basic principles of negligent security claims share similarities with most negligence claims:
- Someone owed a duty of care to others
- That person failed to uphold that duty of care
- That failure led directly to an injury
- The injury caused real damage
Here, premises liability cases tend to involve some additional questions about the duty of care:
- Importantly, they ask whether the property owners knew about the conditions that led to injury. Or, if the owners did not know about the conditions, were these conditions matters that the owners should have known about if they had taken reasonable steps to review their properties. Again, the matter of “reasonable” comes back into play.
- They may also ask whether the injured parties had good reason to be on the property in the first place. For example, Colorado and Missouri laws might protect property owners from premises liability claims if the injured parties were trespassers or committing felonies on the property. Illinois removed any legal distinction between invitees and trespassers but says that courts should consider a host of other circumstances. These include whether there were warning signs, if the hazards were obvious and whether the injured parties were misusing the premises.
In other words, premises liability cases often ask whether the owners should have known about risks, and they ask about the sorts of activities taking place. And it is at the nexus between these concerns where we often find the center of negligent security claims.
What Security Measures Are Reasonable?
What businesses and property owners will find is that the amount of security a court may consider “reasonable” depends on many factors:
- A reasonably foreseeable concern
- The amount of time available to install security measures after learning of a threat
- How much the cost of these measures might harm the business
- A business’s ability to live up to its own safety protocols
- How well a business makes use of its existing security features
These last two points were at the center of a case that found its way to the Missouri Supreme Court back in 2018. In that case, a woman told her employer that she was afraid her ex-boyfriend might try to hurt her. In fact, the St. Louis Record reported that she expressed her concerns to her employer the day he failed to show up for a court hearing related to an order of protection he had filed against her.
According to its safety protocols, the woman’s company should have offered her a parking spot near the receptionist’s window and an escort to her vehicle. But it didn’t. Nor did it, according to the court record, actively monitor its security cameras. Instead, the woman found her ex-boyfriend waiting for her in her car. He shot her in the back of her head. Somehow, she survived and filed suit.
Businesses can learn from this case by making sure they live up to their own standards. Yet, if businesses think the answer is to lower their standards, they may find themselves in even deeper trouble.
Doing Nothing Is Not the Answer
While businesses face an ever-increasing threat of nuclear verdicts of $10 million or more, they cannot afford to ignore proper security. As Insurance Journal noted in 2021, one Georgia case clearly highlighted the explosive potential dangers of negligent security.
In that case, a man sued CVS after he was shot on its premises. He survived, but he was in a coma for a month and had to endure several surgeries, as well as ongoing problems with his nerves, hearing and speech. He argued that CVS had been negligent with its security because the area had seen “numerous robberies and assaults.” Despite this, the company had removed the security guards it had previously had at the site. It had also ignored employee requests for extra lighting.
Because the company had not taken steps to hire new security guards or add the lighting to deter criminal activity, it suffered in court. A jury found CVS was 95% responsible for the man’s injuries. By contrast, the jury found the man only 5% responsible. On top of this, the court awarded a $43 million verdict in the man’s favor.
What Can You Do?
Clearly, businesses and property owners cannot afford to do nothing. That stance could cost you millions or tens of millions of dollars. Moreover, claims of ignorance may not save you. A jury can still find you liable if it feels a “reasonable” person in your place would have recognized the threat. Accordingly, the best defenses against premises liability and negligent security claims frequently start with diligent and “reasonable” efforts to maintain safe premises.
That said, if you must defend yourself against claims of negligent security, it’s worth remembering several things:
- There are many potential ways to challenge the claim. These may include technical challenges against the filing and challenges against the facts and arguments it presents.
- You will want to explore whether you actually owed a duty of care to the injured party. Even if you owed a duty of care, circumstances may limit the duty you owed.
- The plaintiff will need to show you were aware of a foreseeable danger. Or, if you were not aware, they’ll need to show that you would have been aware if you made reasonable efforts to remain informed. You can nip these arguments in the bud by showing how you made reasonable efforts to remain informed and were still unaware.
- You can also show that you took reasonable steps to address the safety risks you identified. Unfortunately, the concept of “reasonable” may scale with the perceived threat. Businesses in high-crime locations may need to take additional steps. In the case of CVS, this may have meant hiring security guards.
- Make sure your employees follow any protocols and make use of the systems you put into place. It may also help your case to show how you trained everyone involved.
In short, to win a negligent security claim, the plaintiff needs to argue that you clearly knew you needed better security, you didn’t pull it together, and someone suffered because of your failures. Your goal is to point out the flaws in such an argument. You’ll want a good attorney to help you, there, but your defense likely starts much earlier. It starts with the steps you take to provide reasonable security. When you can show that you’ve done that, your attorney’s argument becomes far easier and more compelling.