Negligent Security & Premises Liability - Research Paper Example

Premises Liability Introduction Premises liability is the area of law whereby a landowner or possessor of the premises is held liable for certain torts which occur on their premises, real property or land (Driscoll, 2006). The elements necessary to establish premises liability are the defendant must possess the premises or land, the plaintiff must be an invitee or licensee, and there must be negligence or some other wrongful act (Id.). The most common type of premises liability case is the slip and fall case. Through the years, a number of court decisions have led to the evolution of premises liability law. Unlike many laws that are enforced uniformly across the United States, premises liability law can differ from state to state. As an example, consider the scenario of an individual visiting an apartment and injuring themselves there. In some states, the owners of the apartment building would be liable for the injury; however, in other states, the tenant of the apartment where the injury occurred would be liable for the injury. Therefore, as described in the example, the law of premises liability can be enforced differently depending on the laws of the state involved. Premises Liability and Trespassers As indicated by the classic elements of premises liability, the plaintiff had to be an invitee or licensee in order to hold a landowner liable for a tort that occurs while the plaintiff is on the premises. A 1968 California Supreme Court decision, however, removed the legal distinction between an invitee, licensee and trespasser when deciding if the possessor of the land could be held liable for harm that occurs on the premises and held that a landowner owed a reasonable duty of care to anyone on their premises (Rowland v. Christain, 1968). This decision held that a possessor of land could be held liable for harm that occurs on their property, even if the harm is to a trespasser or an individual that was not invited and should not be on the premises. Attractive Nuisance Doctrine The 1971 case Haddad v. First National Stores, Inc. established the standard for the duty of care owed to trespassing children. Previously the duty a landowner owed to trespassers was not to harm them in a willful or wanton manner; however, the Haddad (1971) decision changed this standard and added a special duty of care with regard to children (VanCoughyen, 2007). The court adopted the attractive nuisance doctrine which makes a landowner liable if the plaintiff can prove: 1) the owner knows, or has reason to know, that children are likely to trespass where the condition exists; 2) the condition is one which the landowner knows and realizes, or has reason to know and realize, involves an unreasonable risk of serious injury or death to such children; 3) the child does not realize the risk or danger involved; 4) the utility to the landowner of maintaining the condition is slight compared to the risk to children; and, 5) the landowner fails to exercise reasonable care to eliminate the danger or otherwise protect the children (Id.). Even though the case established the attractive nuisance doctrine, it is difficult for both a plaintiff and defendant to be involved in any case based on this doctrine. Third Party Premises Liability Another development in the premises liability law relates to the element of the law regarding the necessity of negligence or some other wrongful act. “Third party premises liability” cases refer to cases where the possessor or owner of a property can be held liable for injury or harm that occurs on the premises, but is the result of a wrongful act of a third person and not the possessor of the property. The issues of duty and causation are complex in these cases since the injury is not caused by the possessor of the premises directly, but still may be the liability of the owner or possessor of the premises. Negligent Security In most negligent security cases, the plaintiff who has been injured due to a criminal act brings an action against the owner, manager and/or occupier of the premises. These are the entities that are in a position to control or prevent the incident where the plaintiff was injured from taking place. The general common law principle is that there is no duty to protect against harm caused by the criminal act of a third party. The exception is that a duty is imposed to take reasonable measures where such criminal acts are foreseeable Negligent security cases generally involve an injury to an individual as a result of a criminal assault or robbery that occurs on commercial premises. These frequently occur at malls, shopping centers, hotels, motels, office buildings, schools or parking garages. The majority of cases arise from strong arm robberies and sexual assaults. A strong arm robbery is a robbery by force or threat of force (it does not require a weapon). An armed robbery involves the use of a weapon. A "purse snatch" may be a strong armed robbery (if force or the threat of force is used), an armed robbery (if threatened with a weapon), or a larceny (when a purse is taken without threat or any contact). It is often a matter of semantics whether a purse snatch is a larceny or a robbery. The Florida case of Lai Chau v. Southstar Equity Limited Co. and Brookside Properties Inc. is an example of a third party premises liability case that was based on the concept of negligent security (Nguyen, 2002). In that case, in 2001, a 20-year-old college student was violently abducted at her Tampa apartment complex and shot three times in the head; and, miraculously survived the attack. The young woman sued the apartment complex for negligent security since the two attackers snuck past the security guards at the complex. Lai Chau won the case and was awarded $15.7 million in damages in 2004. In New York, Morales v. Lia (1997) is the leading modern case. In that case, a pedestrian was struck by a car in a strip mall parking lot. The pedestrian was unable to sue the mall owner, as the driver that hit him, and owner of the vehicle, were 100% responsible for the harm. Premises Liability Insurance Homeowners that have a homeowner’s policy on their house probably have premises liability insurance, also referred to as “Personal Liability Coverage.” This is the coverage that protects the homeowner in case someone who does not live in the home has an accident on the property resulting in a physical injury and sues for the cost of medical treatment, lawyer fees, time off work and other damages. Any business or place that deals with the public should carry premises liability insurance. The law accords business owners who deal with the public the highest obligation to insure that a business premises is free of defects and is safe for the public as a whole. This is the reason for all those orange warning signs at the local grocery store. A slip and fall accident can result in a big award for the faller. Summary Slip and fall lawsuits account for a rather large portion of all premise liability cases being presented before civil courts across the country. The issue is so big that many lawyers specialize in this field. To be protected from slip and fall lawsuits the obvious method is slip proofing dangerous areas. For example, one of the most common causes for slip and fall injuries are icy staircases. Certain materials only work in certain conditions, as salt per instance doesn’t work below 15 degrees. In these cases, other materials, such as sand, must be used to prevent people from slipping. When it comes to slippery floors, many companies have created anti-slip cleaners to help prevent slip and fall accidents. Companies were formed to resolve the problem of slip and fall injuries once and for all with a variety of cleaning products designed to enhance the slip-resistance of flooring surfaces. They offer all types of products from slip meters to measure how slippery floors are, to bathtub anti-slip treatments. Slip and fall accidents are unfortunate and do not have to happen so often, so landowners should make sure to take all the steps necessary to be protected from slip and fall injuries and lawsuits. In most negligent security cases, the plaintiff who has been injured due to a criminal act brings an action against the owner, manager and/or occupier of the premises. These are the entities that are in a position to control or prevent the incident where the plaintiff was injured from taking place. The general common law principle is that there is no duty to protect against harm caused by the criminal act of a third party. The exception is that a duty is imposed to take reasonable measures where such criminal acts are foreseeable. For example, a student at a university was killed in his on‑campus apartment by the former boyfriend of a girl he was seeing and brought suit against the school for failing to have adequate security. The case settled prior to suit for $1,500,000. In another case, a foreign visitor attending university in South Florida sustained paraplegic injuries resulting from being shot in the dormitory building as three men attempted to steal his car. He received a $3,200,000 settlement. As mentioned above, premises liability laws are not uniform from state to state. Therefore, it is essential to understand how the laws are applied in the state where the suit is brought. References Driscoll, R.S. (2006). The law of premises liability in America: its past, present, and some considerations for its future. Notre Dame Law Review, 82, 881-911. Haddad v. First National Stores, Inc., 280 A.2d 93 (R.I. 1971). Morales v. Lia, 238 A.D. 786, 656 N.Y.S.2d 458 (3rd Dep’t 1997). Nguyen, Dong-Phuong. "Carjack Victim Begins 2002 At Home." St. Petersburg Times, 1 Jan. 2002. http://www.sptimes.com/2002/01/01/TampaBay/Carjack_victim_begins.shtml. Rowland v. Christain, 69 Cal.2d 108 (1968). VanCoughyen, B. (2007). Premises liability: the attractive nuisance doctrine. Rhode Island Bar Journal, 56, 7-12. Read More