CLAIMS INVOLVING FAILURE IN SECURITY

By Philip Freidin & Manuel Dobrinsky

When a person is assaulted, attacked and our injured by a third person on a business or commercial property, the question always arises as to what responsibility the business owner had to ensure the safety of its patrons. Often times, the law imposes liability on the business under the theory that the business owner is in the best position to a) ascertain if the property is subject to criminal acts and b) what protections to put in place if the business owner determines that her property is subject to criminal acts.

For example hotels, office buildings and other commercial properties, depending on their size and location, should be aware of the propensity for criminals to enter their premises. The same is true of cruise ships, gated communities, and, as we have recently seen, in schools, universities, courthouses, government complexes, airplanes and a multitude of locations.

Depending on the size of the business, the location of the business and the number of previous criminal activities at the location, the law imposes a duty on the business owner to make reasonable efforts to deter and prevent criminal activities on its property. The protection may be accomplished by fences, lighting, cameras, patrolling officers, inspections, alarm systems, or, as is often the case, a systematic means of securing people entering the premises. Which method is appropriate must be determined on a case by case basis. The higher the crime level and the larger the property, the greater level of security should be put in place.

There are many examples where the threat of lawsuits has caused businesses to change their practices and protect their customers. In essence, lawsuits provide the economic incentive for businesses to take measures that will protect their patrons and prevent costly lawsuits. Because of lawsuits, hotels stopped handing out keys with room numbers on them; public parking lots are better lit; large complexes have begun registering license plate numbers, and businesses in high crime areas employ security guards and/or off-duty police to patrol their premises.

In our schools and universities, bad actors can and should be identified and dealt with before tragedy strikes. The Columbine and Virginia Tech shootings raise questions as to whether or not the administrations of those schools had knowledge that could have helped avoid those tragedies. Similarly, public schools need to monitor their hallways and their bathrooms. In Florida, there has been at least on well publicized incident where one student stabbed another student to death in the bathroom.

Not every attack on a business premise is preventable. However, in our experience many violent crimes can be deterred. Most often when a person is attacked on a business property, it is a crime of opportunity. That is, the criminal sees an opportunity to attack and feels secure that he will not get caught. Deterrence works because visible security measures take away the criminals' comfort and convinces them that their chances of getting away are slim.

Another area where issues of negligent security arise is in the context of bars and nightclubs when two or more patrons become involved in an altercation. Many times the bouncers will become involved and use excess force severely injuring one of the patrons. If you can prove that the bouncers overreacted, you may well be able to hold the business owner who hired the bouncers responsible. Also, there is also liability if the bouncers simply throw all of the patrons involved in the altercation out at the same time, and then one of the patrons severely attacks or kills another patron in the parking lot.

In those cases, it is possible to establish negligence on the theory that the bouncers or other of the bar's employees should have known that sending the fighting patrons out together would only cause the altercation to be moved, and possibly escalated, to the parking lot. A better practice is to detain the individuals and call the police so that the patrons are escorted out of the bar. In fact, in one case we handled, two individuals began fighting in a bar, got thrown out and then while outside one patron pulled a gun from his car and killed the other. The court held that the bar was liable for the negligent acts of its employees.

The Miami, Florida injury attorneys at FREIDIN · DOBRINSKY are available to provide free consultations if you have any questions regarding these issues.