Premises Liability - When Property Owners are at Risk
person
A.J. Johnson
today
08/25/2018
One of the least understood risks that owners of multifamily properties face is the risk related to someone being injured due to a violent crime at their property. This short article is intended to provide a general overview of "premises liability" as that liability relates to security but is not legal advice. Owners should consult their own attorneys regarding specific risks associated with their property, but this brief article should give you things to think about.
The key to be liable for someone’s injury at your property due to violence is whether or not a landlord could reasonably know that residents are at risk. In legal terms, the violence is "foreseeable." Whether or not a crime is foreseeable depends on many factors. Courts will examine to determine if there were signs that the landlord should have picked up on, indicating a high potential for crime. For example, if a resident is attacked in the lobby of an apartment building, the landlord is now on notice that a crime of this type is possible - and needs to take steps to prevent it in the future. But, foreseeability can occur even if no crime has occurred; I’ll discuss some examples below.
The Basics of Owner Liability
Common law has established five basic principles that establish an owner’s obligation to protect residents:
Duty of care;
Breach of the duty;
Damages;
Causation; and
Foreseeability
Duty of Care
As a landlord, you owe residents a duty of care to maintain "reasonably" safe premises. What is reasonable depends on a number of factors, but the main element is that security must be proportionate to risk.
Breach of Duty
A breach of duty occurs when an owner fails to perform a duty that is either imposed by law or assumed voluntarily. For example, every locality requires door locks on unit entry doors. If locks are not working - and the landlord knows it - the duty of care to residents has been breached.
Damages
To be entitled to damages, a plaintiff must have suffered damage of some type - physical injuries being the most obvious. Mental anguish may also be considered damage as can lost time from work and property damage.
Causation
A court should find an owner liable only if there was a link between the crime and the breach of the owner’s duty and that breach was a substantial factor in the harm to a resident. For example, a resident informed management on August 1 that her window lock was broken. Management did not repair the lock and on August 20, an intruder entered the unit through the window and sexually assaulted the resident. Management breached its duty of care and may be held liable for the attack on the resident. Keep in mind that a victim does not have to prove that it is absolutely certain that the crime would not have occurred had it not been for the broken lock; she would only have to show that, more likely than not, management’s failure was a substantial contributing factor to the crime.
Foreseeability
Courts will apply a "reasonable person" standard when assessing whether a duty of care was breached. In other words, given the circumstances at the site, could a reasonable person have anticipated that commission of a crime was likely? If the answer is yes, the crime was "foreseeable." Foreseeability is the most complex area of the law relative to duty of care, and it is a concept that varies from state to state. It may depend on the judge hearing the case, the jury, and any local laws. There are two common approaches to foreseeability:
Prior Similar Crime - In these cases, a victim must show that prior crimes at the site or in the area were similar to the one that prompted the lawsuit. For example, prior assaults in an apartment community’s parking lot would create a foreseeable crime.
Totality of Circumstances - Here courts may consider evidence of prior dissimilar crimes, especially those that occurred near the apartment community. This approach will consider:
Prior crime at the site - this could include not only violent crime but also crimes such as theft, vandalism, and burglary. There is often a relationship between property crimes and a higher risk of violent crime.
Prior crime elsewhere at the site - if a crime occurs at another part of the same site, many courts will consider the crime to be foreseeable.
Crime in the immediate vicinity of the site - the presence of drug dealers or gangs in or near the site may put management on notice that crimes against residents are foreseeable
Prior crime in the neighborhood - courts may hold that a crime at your property was foreseeable if there had been occurrences in the surrounding neighborhood. However, crimes committed in the neighborhood are generally not enough to demonstrate foreseeability. The crime rate in the neighborhood would have to be substantial enough that a reasonable person would know that crime at your site is likely or highly possible.
Crime in similar business establishments - businesses of certain types are more likely to have crimes in particular categories. For example, disorderly conduct and assaults often occur in bars and nightclubs; car thefts happen in parking lots; and robberies often take place in convenience stores. Apartment communities, which are impacted primarily by burglary, robbery, rape, and assault and battery are on notice that these crimes are foreseeable.
Prior complaints - complaints by residents about unsafe conditions (e.g., gangs or drug dealers) may put you at notice that your property is at risk for crimes against your residents.
Knowledge of crime and acknowledgement of risk - "acknowledgement" requires evidence that the defendant was aware of problems at the site. If the victim can show that the defendant took no action to eliminate the risk it had acknowledged, the case may well be decided in favor of the plaintiff.
It is important that property owners understand the basics of premises liability and discuss methods for reducing such liability with insurance agents and local police officials.