Elements that must be proved and damages that can be recovered
Marcy went shopping at her local grocery store one winter evening. When she exited her vehicle in the unlit parking lot, she noticed a man coming toward her. Feeling uncomfortable, she turned back to her car. Before she could get into her car, the man struck her from behind and stole her purse. Marcy collapsed from the blow and fractured her hip.
In this hypothetical scenario, it’s clear that Marcy’s assailant bears responsibility for Marcy’s injuries.
But what about the owner of the grocery store?
Should the owner be held liable for failing to provide adequate lighting or some other form of security in the parking lot? Does it make a difference if there was a spree of muggings shortly before Marcy was mugged?
The laws and statutes that seek to answer these questions is known as “negligent security.”
What is negligent security?
Negligent security (sometimes called “premises security” or “inadequate security”) is a legal cause of action brought against a property owner when an individual is injured on the property due to a lack of reasonable security.
Negligent security actions are commonly filed against:
- Apartment complexes
- Shopping malls
- Hospitals
- Retail stores
- Schools
- Parking garages
Negligent security is a branch of premises liability. In both instances, a person is claiming that they were injured on someone else’s property.
In a typical premises liability claim, the injured person is seeking damages from the property owner due to some dangerous condition that existed on the property and caused their injury (such as a broken step or slippery floor).
In a negligent security action, the injured person is seeking damages from the property owner for the criminal acts or wrongdoing of an independent third party (such as a robber or mass shooter).
What does a plaintiff need to establish in a negligent security action?
Generally speaking, the law doesn’t impose a duty on people to protect others from criminal acts of unknown third persons. There are, however, exceptions when a special relationship exists.
The 2 most common special relationships that may give rise to a duty to protect others from criminal acts are:
- Innkeepers and guests
- Common carriers and passengers
In addition, all states have now recognized that business owners owe a duty to provide their customers with reasonable protection from foreseeable criminal activity.
What’s reasonable protection?
What constitutes reasonable protection depends on the specific circumstances of the case. Common examples include:
- Security guards
- Security cameras
- Adequate lighting
- Security hardware (locks, gates, etc.)
In some states, there are statutes that list certain security measures that businesses can take in order to create a presumption that they provided their customers with reasonable protection.
What’s foreseeable criminal activity?
There are 3 main tests to establish foreseeability in negligent security actions:
- The imminent harm test. In states that apply the imminent harm test, business owners who discover that a customer is in peril must warn the customer or call the police. This means that the business owner has no duty to foresee some future harm, but must only react to an immediate harm.
- The prior criminal incidents test. In states that apply the prior criminal incidents test, crimes against customers are foreseeable only if the plaintiff can establish that the owner knew or should have known of prior similar crimes on the premises.
- The totality of the circumstances test. In states that apply the totality of the circumstances test, the plaintiff can introduce any evidence of foreseeability, such as prior security measures, the character of the neighborhood, and all prior crimes near the premises. The court considers all these factors to determine whether the crime should have been foreseeable.
Negligent security damages
The types of compensation available in a negligent security action depend on the state in which the lawsuit is filed. In general, plaintiffs can recover:
- Economic damages. These include monetary losses that result from your injuries, such as medical expenses, lost wages, and property damage.
- Noneconomic damages. These include non-monetary losses that result from your injuries, such as physical pain and suffering and emotional distress.
No matter what state you’re in, it’s a good idea to keep track of all your expenses and document the impact of the injury on your day-to-day life. These records will help ensure you receive the damages you deserve.
Damages/Expenses Worksheet
Damages worksheet to track expenses for your injury claim (medical treatment, property damage, lost wages, prescriptions)
Download in PDF format
Accident Report Form
Sample post-accident report form to keep in your glove box - fill out at the scene or as soon as you can after a car accident
Download in PDF format
Keep in mind that in some states, your damages can be reduced by your percentage of fault. For example, if your apartment building has no security locks to prevent criminals from entering the building, but you leave your apartment door unlocked, you might be held partially responsible if a burglar enters your apartment and your damages may be reduced accordingly.
Examples of negligent security cases
Negligent security lawsuits are fairly common in the United States. Let’s take a quick look at some real-life examples:
An apartment resident in Florida who was attacked by a fleeing felon sustained multiple fractures when she jumped from a window to escape. The resident claimed that the owner of the apartment building provided inadequate security. The owner claimed that the security was adequate, that the area was not a high-crime area, and that the resident was negligent in opening her door thinking it was an air conditioning repairman. A jury awarded $1.82 million to the resident after finding the owner 80% negligent and the resident 20% negligent.
A pharmacist was shot and killed by a drug user. A personal representative for the pharmacist’s estate claimed that the owner of the store knew of prior similar incidents and should have taken measures to prevent the fatal attack. The jury agreed and awarded the pharmacist’s estate $5.8 million.
A man was killed during a robbery while working at a car wash. During the trial, it was revealed that the surveillance cameras at the carwash hadn’t worked for over 2 years. In addition, the carwash was located in a dangerous neighborhood as there were 4 earlier crimes at the carwash that the worker wasn’t told about, and the manager of the carwash refused to walk onto the property without an armed escort. A jury awarded $5.45 million to the family of the deceased.
Negligent security cases typically require thorough investigations to uncover evidence to support claims that business owners should have foreseen crimes. In addition, insurance companies are generally implicated and fight these cases tooth and nail.
If you think you may have a negligent security case, use our free online directory to reach out to an experienced personal injury attorney.
See our guide Choosing a personal injury attorney.