What Must You Prove In An Inadequate/Negligent Security Claim? : Law Offices of Gary Martin Hays & Associates

The following is an excerpt from Gary Martin Hays' best-selling book The Authority On Inadequate/Negligent Security Claims in Georgia. If you have questions about your rights after being assaulted on a business's property, give us a call at 770-934-8000.

CHAPTER 2

The victim of a criminal attack can present a negligent/inadequate security claim based upon the duty imposed on business/property owners for their failure to offer or provide reasonable security measures and to protect invitees and licensees from foreseeable crimes by third parties.

The assumption is the crime could have been prevented by the commercial entity - or at a minimum been made less likely - had they used appropriate security measures.

Here is a summary of what we must prove to be successful in these claims:

The victim was authorized or invited to be on the premises at the time of the attack.
The owner of the property owed either a legal or a contractual duty to exercise ordinary care to make the premises safe to the victim. (Or, the owner of the property assumed the duty to provide security but failed to do it in a reasonable and appropriate manner.)
The property owner failed in its duties (legally or under contract) to provide the victim with reasonably safe premises and did not protect the victim from the criminal actions of a third party.
The attack - the crime - would not have occurred if the Defendant fulfilled its legal or contractual duty to provide adequate security.

In Ratliff v. McDonald¹, the Court of Appeals held that "[a] property owner is not an insurer of an invitee's safety, and an intervening criminal act by a third party generally insulates a proprietor from liability unless such criminal act was reasonably foreseeable." (Emphasis supplied.)

But, "[I]f the proprietor has reason to anticipate a criminal act, he or she then has a duty to exercise ordinary care to guard against injury from dangerous characters."² If there is no "foreseeability", then there is "no duty on the part of the proprietor to exercise ordinary care to prevent that act" from arising.³

What Are Foreseeable Crimes in Georgia?

One of the ways we may prove that a crime is foreseeable to a business or a property owner is by showing that similar crimes have occurred on or near the property in question so the owner is or should be on notice that more crimes might occur. Evidence of similar criminal activity occurring on or near an owner's property may establish that the crime was "foreseeable."⁴

A crime may be "substantially similar" when a court analyzes the "location, nature, and extent of the prior criminal activities and their likeness, proximity or other relationship to the crime in question."⁵ However, "substantially similar" does not mean the crimes must be "identical," according to Drayton v. Kroger Co.⁶

The prior incident - the prior criminal act - must be sufficient enough to gain the attention of the business owner so that they might be aware of the dangerous condition which could lead to other attacks, and it is usually a jury question as to whether or not it was reasonably foreseeable.⁷

To further clarify this point, "[f]oreseeable consequences are those which, because they happen so frequently, may be expected to happen again."⁸

It is important to note that you do not always need prior crimes in and around the property to support a claim for inadequate security. In Shoney's, Inc. v. Hudson, the Court of Appeals held that "[A] showing of prior similar incidents on a proprietor's premises is not always required to establish that a danger was reasonably foreseeable. 'An absolute requirement of this nature would create the equivalent of a 'one free bite rule' for premises liability, even if the [proprietor] otherwise knew that the danger existed."⁹

The need to have prior similar incidents as a basis for proving foreseeability was also addressed in SunTrust Banks, Inc. v. Killebrew, when the Court held "[r]equiring a prior similar incident in such cases would lead to arbitrary results, and would engage the courts in the mechanistic, unreasoned application of rules, requiring us to turn a blind eye to the simple reality that some business owners may reasonably anticipate criminal activity even if no prior crimes have occurred."¹⁰

When evaluating the foreseeability of a crime, we look at some of the following factors:

The condition of the premises when the attack happened. What condition was the apartment, the parking lot, or the business in at the time of the attack? In a state of disrepair? Poor upkeep? Not well maintained?
Were the security lights out, not working, or non-existent in the area?
Should the area have better lighting?
Should brushes have been trimmed or removed to prevent a criminal the opportunity to hide for a surprise attack?
Did the property have security? Was it 24-hour security? Were the security guards in uniform? Were they patrolling at the time of the attack? Should there have been a security patrol? In car?
Did the property market "security" and advertise that the apartment community was "gated and patrolled" but there were no security measures in place?
Were there security cameras in the area? Were they operational? Was anyone watching the cameras or should someone have been watching them?
Should there be a gated entry? Should it be manned 24 hours?
One should also look at the nature of the business as there are different security concerns for an apartment complex compared to a parking lot or a bar.
Is the business in a low, moderate, or high crime area? And what measures should be put in place for security in light of other prior crimes in the area?
How many entrances/exits are there to the building and are these controlled? Supervised? Card key or code entrance?
What kind of door locks or window locks - if any - were used by the apartment complex? The building?
Were broken windows allowing entrance opportunities? Should security bars have been on the windows to prevent entrance?
Did the property have a secure perimeter fence? Was it adequate in size/height and in good repair?
Was there a failure to warn patrons/customers/ invitees/tenants of the prior and/or recurring criminal activity in the area or upon the premises?
Were security measures recommended but never put in place? Or were they only partially implemented?
Were security measures upgraded/updated in light of other attacks in the area or on the property?
Were security measures not implemented because the business was more concerned with profits instead of the safety of the invitees?
Was there a failure to timely respond or properly respond to the victim of an attack?
Would reasonable inspection of the premises have revealed the security concerns (broken windows, faulty locks, lights not working, doors, gates, etc., damaged)?
If the attack was committed by an employee of the business owner/management company, would a pre-employment screening/background check/criminal history have revealed that the person was not fit to work in their job?
Were there missing master keys? Were there too many duplicated keys? Were keys lost or stolen and the locks not changed?
Did the business/apartment complex have proper screening procedures for guests on the premises?
If the company handled cash or were dealing with expensive items (such as jewelry), did the business have proper protective enclosures, pass-through windows, or bulletproof glass to protect the employees or guests?

Often, it is important to hire a security analyst to review the crime scene, as well as the prior crime reports to see if the security measures, if any, that were in force and effect at the time of the crime were adequate under ordinary circumstances.

The following statutes under Georgia law are important ones to review when evaluating and preparing an inadequate security claim:

O.C.G.A. Section 51-3-1: Duty of owner or occupier of land to invitee

O.C.G.A. Section 51-3-2: Duty of owner of premises to licensee

O.C.G.A. Section 44-7-14: Tort liability of landlord

O.C.G.A. Section 51-6-1: Right of action for fraud accompanied by damage

O.C.G.A. Section 41-1-1: Nuisance

O.C.G.A. Section 51-12-5.1: Punitive damages

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¹ 326 Ga. App. 306, 312 (2014).
² Days Inn of America v. Matt, 265 Ga. 235 (1995).
³ Id.
⁴ Walker v. Aderhold Props., 303 Ga. App. 710, 712-713 (2010).
⁵ Sturbridge Partners v. Walker, 267 Ga. 785, 786 (1997).
⁶ 297 Ga. App. 484, 485-486 (2009).
⁷ Id.
⁸ Medical Center Hosp. Authority v. Cavender, 331 Ga. App. 469 (2015), citing Brown v. Alltech Investment Group, 265 Ga. App. 889, at 894 (2003).
⁹ 218 Ga. App. 171, 173-174, 460 S.E.2d 809, cert. denied (1995.)
¹⁰ 266 Ga. 109, 464 S.E.2d 207 (1995)