Monday, April 16, 2007

Foreseeability In Premises Liability Cases

Civil lawsuits resulting from security-related incidents on both public and private property generally are classified as “premises liability” cases. The basic concept of premises liability is that owners/landlords have a legal obligation to provide reasonable security based on foreseeability. But many persons with an interest in providing or assessing “reasonable security” – security and loss prevention practitioners, and attorneys – are sometimes misinformed about the concept of foreseeability.

“Foreseeability” as defined by most courts in the U.S. (with only few minor exceptions, most notably Michigan) is a broader concept than is recognized by many. Foreseeability is usually determined by a formal assessment of 4 distinct criteria:

The inherent nature of the premises: Every premises has a distinct nature, each with its inherent problems and risks. Bars, for example, have different inherent risks than do shopping malls, just as schools have different inherent risks than do hospitals. The intrinsic nature of the premises is the first factor to be considered in determining foreseeability.

The history of security incidents at the premises: History does have a tendency to repeat itself. A premises with a history of crime and security incidents can probably expect more crime and incidents in the future. The history of events at a premises is the second factor to be considered in determining foreseeability.

And with regard to the history of incidents at a premises, Courts have not necessarily held that criminal or security incidents of a specific nature are a determining factor. For example, a parking lot with a history of thefts and robberies will probably not be able to successfully claim that it was unaware of security issues when a carjacking occurs. Criminal and security incidents in general are considered, because security measures are usually not implemented to prevent or deter only one type of incident (the CCTV surveilling the parking lot is not only scanning for thieves and robbers).

The history of security incidents in the immediate geographic surroundings: Crime usually does not limit itself to specific sites. Criminals engaged in inappropriate activities are usually opportunists who are always looking for an easy target. So security problems that occur in a neighborhood will frequently find their way to and impact any given premises in that neighborhood. The history of events in the neighborhood is the third factor to be considered in determining foreseeability.

Industry security standards for the premises: Any organization whose industry has established some formalized standards or practices for security has an obligation to at least consider those security measures. Industry standards, guidelines and practices are usually not developed until and unless there is significant commonality among the members of the industry. So standards and practices that have been developed, especially for security, are probably relevant and must be considered. Industry security standards are the fourth factor to be considered in determining foreseeability.

So a quick review of past incident reports will not be sufficient for an organization to successfully argue that it has met its obligation with regard to foreseeability. And why is foreseeability so important? Because it is the results of the foreseeability assessment that determine what security measures are reasonable under the circumstances.