Articles

Security Law: Elements and Tests

By: James F. Pastor, PhD, JD
President of SecureLaw Ltd. and Associate Professor in Public Safety at Calumet College of St. Joseph

In order to assess the liability exposure related to crime and misconduct, one must consider the tort of negligence. Negligence can be defined as the failure or omission to do something that a reasonable and prudent person would do, or doing something a reasonable and prudent person would not do. Negligence causes of action have four elements: duty, breach of duty, causation, and damages. As was explained previously, government has no constitutionally defined duty to prevent crime. Crime has traditionally been considered a superseding cause that broke the causation connection in a negligence-based claim.

1. Duty

Duty is the standard of care that a reasonable and prudent person is required to maintain. This standard is objective. Of course, is difficult to definitively determine an objective standard. It is based on what a reasonable and prudent person would do or not do.1 The logic is that the imposition of a duty often affects an individual’s behavior, since people tend to conform to the duty in order to avoid potential liability.2 In the context of crime, the imposition of a duty is designed to keep people safe from crime.

This does not require preventing the crime from occurring. Sometimes crime cannot reasonably be prevented. In a perfect world, no crime would occur. However, this world is far from perfect. It is clear all crime cannot be prevented, even if the property and business owner tried to prevent it. Indeed, courts do not require perfection. What is typically required is the institution of reasonable security methods in order to diminish the probability that crime will occur. Of course, security methods can stem from a brighter light bulb to Fort Knox—and anywhere in between. How then does a reasonable and prudent person assess what security methods would be sufficient? The answer is the proverbial million dollar question. Indeed, in security litigation, it is often a multi-million dollar proposition.

Fortunately, there are principles that can be used assess the appropriate level of duty. Broadly speaking, duty can be defined by particularized relationships and by the concept foreseeability.3  Courts typically consider duty of care as being based on three broad factors: the circumstances, the terms of the contract (if any), and the expectations of the “special relationship” between the parties (if any). Before considering these factors, some additional explanation is necessary.

First, the notion of a special relationship imposes a duty on the business or property owner. Such relationships include that of common carriers, such as trains and buses, to their passengers. The relationship between hotels and their guests is another example. Implicit in these relationships is a circumstance in which the safety and security of the subordinate party (the passenger and the guest) are in the hands of the business owner and proprietor. In the logic of this relationship, the superior party (owner and proprietor) has an increased or enhanced duty to protect those who depend on that party for their safety and security. Since the existence of a special relationship is often posed in security litigation, these issues will be developed throughout this book.           

The second aspect of duty relates to the terms and conditions of the contract, if one exists. This assessment is typically straightforward. Generally, what is articulated in the contract is what is required by the respective parties. In this way, the duty is based on the language of the contract, or the agreement of the parties.

The third aspect of duty is the most difficult to assess because it is based on the circumstances surrounding the incident. With this assessment, the operative facts often dictate whether a duty exists, or the extent of the duty imposed. In this thinking, a general principle is relevant to the assessment. As danger increases, the actor (owner or proprietor) is required to exercise caution commensurate with the risk. For example, if the risk of crime is particularly great, then the required security measures to prevent crime may increase. The appropriate relationship between the risk of danger and the commensurate duty, however, is tricky to definitively define. Indeed, doing so can be construed as both an art and a science. This is what makes the analysis contained in this book pointed and relevant. Performing a reasonable and prudent analysis to determine the appropriate security precautions for addressing a particular level of risk requires an understanding of both legal principles and security methods.

The typical approach to such an analysis is based on foreseeability.4  The concept of foreseeability can include what the actor (owner or proprietor) actually knew, as well as what that actor reasonably should have known. Thus the actor may be required to anticipate the risk of harmful acts of third persons. This thinking mirrors the description of a landowner’s duty of care in the Restatement (Second) of Torts, which provides that reasonable care must be exercised to discover what harmful acts are being committed or are likely to be committed, give an adequate warning, or otherwise protect the visitors against the harmful acts.5  In this sense, foreseeability may be determined in terms of past experience and future probabilities. It is based on whether the likelihood of conduct by third parties will endanger the safety of those within the particular environment. This assessment takes into account a number of factors, including the following:

  • Crime rates and prior similar crimes
  • Lack of customary security measures (by business in area or by particular location)
  • Statutory violations (repair or maintain building)
  • Nature of the business
  • Area or neighborhood where the business located
  • Standard of security methods in the particular industry
  • Hours of business operation for the business
  • Specific complaints about crime, misconduct or suspicious behavior at the location
  • Expert advise from police or security consultants
  • Relationship between owner’s conduct or action and the injury incurred
  • Extent of injury incurred by the victim (plaintiff)
  • Moral blame attached to the conduct or inaction of the business proprietor
  • Public policy considerations related to preventing harm, including the magnitude and consequence of burden of preventing such harm
  • Availability and cost of insurance for the risk involved 

Obviously, these factors are detailed and fact specific. They are also complex to assess and difficult to predict. This list demonstrates the diverse factors that courts may use to assess foreseeability. However, it is important to distinguish factors from tests. Factors are facts or situational assessments. Tests are legal standards. Typically, tests will often focus on certain specific factors, as being more important to the particular test. For example, in a prior similar incidents test, the lack of any previous crime would defeat the claim. Conversely, in the totality of the circumstances test, the court would consider all factors, not just previous crimes. Consequently, the particular test used by the court is a, or even the, critical determination of liability.

There are various tests that courts use to determine foreseeability. Specific tests include: (1) the specific harm test, (2) the prior similar incidents test, (3) the totality of the circumstances test, (4) the balancing test, (5) the known aggressor/imminent danger test, (6) the actual or constructive knowledge test, (7) the special relationship/special circumstances test, and (8) blending of various tests. While these tests have some overlap, their basic characteristics can be described.

Under the specific harm test, a landowner owes no duty unless the owner knew or should have known that the specific harm was occurring or was about to occur. As this is a very restrictive standard, most courts are unwilling to hold that a criminal act is foreseeable only in these situations.

Under the prior similar incidents test, a landowner may owe a duty of reasonable care if evidence of prior similar incidents of crime on or near the landowner's property shows that the crime in question was foreseeable.6  Although courts differ in the application of this rule, all agree that the important factors to consider are the number of prior incidents, their proximity in time and location to the present crime, and the similarity of the crimes.7 Courts differ in terms of how proximate and similar the prior crimes are required to be as compared to the current crime. Courts can apply more liberal or more conservative standards for this test. For example, in a gun assault case, one court held that although there were 57 crimes reported over a five year period, only six involved a physical touching. In this conservative jurisdiction, the assault with a gun was deemed unforeseeable. Conversely, in a liberal jurisdiction, two prior burglaries of apartments were sufficient to make a rape in an apartment foreseeable. Notwithstanding this difference, this test typically depends on the location, nature, and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question.

While this approach establishes a relatively clear line when landowner liability will attach, some courts have rejected this test for public policy reasons. The typical public policy criticism is that the first victim in all instances is not entitled to recover. As such, if there were no prior similar incidents, landowners have no incentive to implement even nominal security measures. Hence, some argue this test incorrectly focuses on the specific crime and not the general risk of foreseeable harm. Indeed, one can make the logical argument that the lack of prior similar incidents relieves a defendant of all liability. This is so, even when the criminal act was, in fact, foreseeable due to generalized crime within the community. However, advocates of this standard argue that merchants should be responsible only for the dangerous conditions they created. In this sense, prior similar incidents would act as “constructive notice,” which protects the interests of the customer, while giving the property or business owner a fair opportunity to take steps to shield them from liability.8

Under the totality of the circumstances test, a court considers all of the circumstances surrounding an event to determine whether a criminal act was foreseeable. This may include the nature, condition, and location of the location and larger community, as well as prior similar incidents in and around the property in question.9 Courts that employ this test may do so out of dissatisfaction with the limitations of other tests, such as the prior similar incidents test. The thinking behind this test is that all relevant factors associated with the crime should be taken into account. The wide scope of this test is favored by those who seek to prevent crime—and by those who advocate liability for those who fail to prevent crime.  

A frequently cited limitation of this test is that it tends to make foreseeability too broad and unpredictable, effectively requiring that landowners anticipate crime. Indeed, the numerous factors cited above are difficult to assess and predict. Sharp argues that foreseeability alone does not create a duty. Rather, the ability to have foreseen and prevented the harm is the key determinative of responsibility inherent in this duty.10 Nonetheless, this test is very popular with courts as it gives a wide-ranging analysis to all relevant factors related to the incident. Hence, this test is useful because it can incorporate all relevant factors. However, it is difficult to apply for the same reason.

Under the balancing test, courts balance "the degree of foreseeability of harm against the burden of the duty to be imposed."11  In other words, as the foreseeability and degree of potential harm increase, so does the duty to prevent it. However, the burden of preventing foreseeable crime must also be considered. For example, in high-crime areas, the burden of preventing crime may become too onerous as to drive away all commerce. Hence, this test seeks to balance the foreseeability of crime against the burden of preventing crime. In this assessment, the burden is considered in various ways, including the cost of security measures, the economic impact of a “hardened” business environment, and the feasibility of security measures to actually prevent crime. Because this is a difficult “balancing act,” this test still relies heavily on prior similar incidents in order to ensure that an undue burden is not placed on business or landowners.

Under the known aggressor/imminent danger test, courts assess whether the owner or proprietor had reason to know that a particular assailant is aggressive, belligerent, or prone to violence against customers or patrons. This is a very factually specific test, where knowledge of the particular offender’s actual violent propensities is critical to imposing liability. If this knowledge is not shown, then liability for the crime will not attach.

In a similar test, the actual or constructive knowledge test, the owner or proprietor must have knowledge, either actual or constructive, of the threat posed by an offender or of the crime that was likely to occur. As with known aggressor/imminent danger test, this is a very restrictive test. It requires a high level of knowledge and specificity of the offender or of the crime. One distinction between this test and the known aggressor/imminent danger test, is that actual or constructive knowledge test provides for a longer temporal assessment. In order for liability to attach, the former focuses more on the time frame between the knowledge and the crime. The latter allows for liability with less emphasis on time considerations, with more emphasis on what the business or property owner knew—or should have known—about the potential for crime to occur. While this is not a definitive distinction between the two tests, it is a way to frame the logic of both. 

As mentioned earlier, the special relationship/special circumstances test focuses on the relationship of the parties, such as hotel-guest, carrier-passenger, and the like. This test, however, also looks at the circumstances surrounding this relationship. In this way, the status of the parties (special relationship) is coupled with relevant factors (special circumstances) in the assessment of liability.  

As shown by the short descriptions of these different tests, there is substantial variance in how liability assessments are made. The fact that different states use different tests further complicates the task of assessment. Consequently, the following table was developed as a reference to facilitate the process.12 (See table in State by State Liability Tests).

2. Breach of Duty

Breach of duty is characterized by a failure to act or by conduct that falls short of the applicable standard of care. In essence, the actor failed to do what a reasonable and prudent person would do in the circumstance. Alternatively, the actor did something that a reasonable and prudent person would not do in the circumstance. 

For example, consider the hypothetical case of a security officer assigned to guard a movie theater. If a fire started in the theater, the security officer would be required to take some affirmative act, such as calling 911, notifying supervisory personnel, or escorting patrons from the facility. If the security officer failed to carry out any such act, this omission would likely be deemed a breach of duty by a court. Alternatively, if the security officer yelled “fire” in the crowded theater and then ran out of the facility, this conduct would also likely be deemed a breach of duty by a court. In either case, there is an affirmative duty to act in a reasonable and prudent manner under the circumstances. The failure to do so may result in the breach of the duty of care.

Generally, in the context of security personnel, the standard of care is based on how a reasonable officer confronted with a similar situation would act. Absent some affirmative misconduct by a security officer, the failure to prevent a criminal act is usually not considered a breach of duty. The key issue is whether the security officer promptly reported the incident, and took other appropriate measures to secure people and property in and around the crime scene. In the context of property or landowners, the standard of care is the duty described in the discussion and table provided previously. If this duty is not adhered to, it is deemed breached.

3. Causation

The legal term for causation is proximate cause. This element imposes rational limits on liability based on some cogent connection between the conduct and the harm suffered. Generally, the closer the connection between the conduct and the harm (damage), the most likely the conduct will be deemed the proximate cause of the harm. This connection is assessed in terms of time, space or distance, sequence of events, and the like. A typical assessment of causation is through the substantial factor test. In this test, the question is whether the defendant’s conduct (or omission) was a substantial factor of the incident causing (or contributing) the injury or the harm. For example, if a crime would have occurred despite any reasonable security precautions, then the causation element was not satisfied.13

The question of causation involves two key issues:

  1. Whether certain security measures would have likely dissuaded the offender from committing the crime.
  2. Even if the offender would not have been deterred, whether certain security measures would have enabled security or police officers to interdict the offender.

4. Damages

The damage element stems from the breach and is connected by causation to the harm or injury. In the elements of negligence, the harm or the injury is called damage(s). There are many types of damages and many ways to calculate damages.

Types of damage claims include:

  1. Compensatory (general) damages entail the non-tangible impact, including:
    2. a. Mental anguish
    b. Emotional distress
    c. Pain and suffering
    d. Loss of enjoyment
  2. Special (economic) damages entail the tangible impact, including:
    3. a. Medical expenses
    b. Lost earnings
    c. Lost earning capacity (future earnings)
    d. Rehabilitative expenses
    e. Future medical expenses
  3. Exemplary (additional) damages entail supplementary penalties, including:
    4. a. Punitive (for punishment and deterrence)
    b. Treble (three times)
  4. Wrongful death relates to the damages created by the death of the person

While there is no set calculation of damages, my experience is that the following formula is typical in a negligent tort claim. Typically the economic damage amount can be calculated to a rather precise figure. Remember this aspect of damages is the most tangible. This figure will be the total of each subsection of this category. For example, consider these damage amounts:

1. Medical expenses: $50,000
2. Lost earnings: $10,000
3. Lost Future Earning Capacity:   None
4. Rehabilitative expenses:  $10,000
5. Future medical expenses: $10,000
  Total economic damages: $80,000

Using this figure as a baseline, the formula requires this amount be multiplied to represent the general (non-economic) damages. This calculation is as follows:

$80,000 (economic damages) X 3 or 5 or 7 (general damages) = Total demand or total value of claim.

Here the intangible aspect is the appropriate multiple to be used in this equation. If the multiple is three (3), then the equation is: $80,000 X 3= $240,000. If the multiple is five (5), then the equation is: $80,000 X 5= $400,000. If the multiple is seven (7), then the equation is: $80,000 X 7= $560,000. The numbers would change depending upon the multiple used in the formula. In this way, the higher the multiple, the higher the recovery. In my experience, it is unusual to obtain a multiple in double digits. While this does occur, it is not very frequent. The key to the amount of the multiple depends on a number of factors, including the negotiation or litigation skills of the attorneys, the sympathy generated by the plaintiff (or lack thereof), the ease of demonstrating liability (or stated in the opposite way-the difficulty in proving liability), the forum where the case was filed, the existence and amount of insurance coverage, and the other factors which are relevant to the particular case.

Finally, if punitive or treble damages are relevant, these would be applied as a separate category. For example, treble damages are three times the total damages. Treble damages are damage provisions derived from specific statutes. They are designed as incentives to increase the likelihood that the statute would not be violated. In essence, treble damage clauses triple the value of the claim. This can be a real motivation in potential litigation.

Punitive damages designed to punish the bad conduct of the defendant, and act as an example to deter others from similar bad conduct. Two key U.S. Supreme Court cases govern the standard of punitive damages.14  These cases provide that punitive damages should be framed within three “guideposts.” These are the degree of reprehensibility, the ratio between compensatory and punitive damages, and of awards in similar cases. These guideposts were summarized by Stamatis and Muhtaris.15  As to the degree of reprehensibility, it is generally considered the most important indicator. This indicator has great significance in security law claims, as it looks at the defendant’s conduct in light of the following:16

  1. Whether the defendant caused physical as opposed to only economic pain
  2. Whether the defendant showed indifference to or reckless disregard for health or safety of others
  3. Whether the defendant was involved in repeated acts or omissions
  4. Whether the injury or harm was caused by an intentional act, not simply an accident

As to the other two indicators, the ratio between compensatory and punitive damages is deemed the least important factor.17  Indeed, the case of State Farm Auto Insurance Co. v. Campbell, 538 U.S. 408 (2003) stands for the proposition that there is no “bright line” mandate between these types of damages. In this way, the court held that there is no one standard, no “one size fits all formula.” Consequently, the range of damages that could be applied is based on the facts and circumstances of the case.

Whatever the “correct” amount is deemed to be, the key in this regard is to understand the formula used to assess the “value” of these cases. Of course, value does not just equate with money. The damage done to crime victims often is not corrected by money. What is the value of losing a loved one? Can a woman who was brutally raped be adequately compensated? What about the victim of an armed robbery who has to return to work—the scene of the crime—to continue to serve his clients? Can these people be “fixed” by money? Many, if not most, would answer no. Unfortunately, the legal system can do little more for these victims other than to award money damages. Money is intended to make the victim whole. As inadequate as this may be, this is the best that the system can achieve. Of course, the better answer is to prevent the crime from occurring. Hopefully this book will help serve to achieve this goal, even in some small measure.

1. Kaufman, Uri (1990). When Crime Pays: Business Landlords’ Duty to Protect Customers from Criminal Acts Committed on the Premises. South Texas Law Review 31 (89).

2. Bazyler op cit. at 734.

3. Sharp, Rex A. (1987). Paying for the Crimes of Others? Landowner Liability for Crimes on the Premises. South Texas Law Review 29 (11).

4. Bazyler op cit. at 751.

5. See for example, Ali Sameer v. Tahir Butt, 343 Ill. App. 3d 78, 796 N.E. 2d 1063 (2003).

6. Gordon and Brill op cit. at 4-5.

7. Sharp op cit. at 65–66; and Kaufman op cit. at 96.

8. Kaufman op cit. at 114.

9. Sharp op cit. at 65; and Kaufman op cit. at 96–96.

10. Sharp op cit. at 44.

11. See for example, Posecai v. Wal-Mart, 752 So. 2d 762 (1999)

12. This chart adapted from Young, Eric G. (2005). Cause of Action Against Tavern Owners, Restaurants, and Similar Businesses for Injuries Caused to Patrons by the Criminal Acts of Others. WestLaw: Causes of Action Second Series, 26 Causes of Action 2d 1; and from independent research conducted by this author.

13. See for example Toscano-Lopez v. McDonalds, 193 Cal.App.3d 495 (1987).

14. State Farm Auto Insurance Co. v. Campbell, 538 U.S. 408 (2003); and BMW of North America v. Gore, 517 U.S. 559 (1996).

15. Stamatis, Peter S. and Alexander T. Muhtaris (2005). Maximizing Punitive Damages. Illinois Bar Journal 93, March.

16. Ibid at 21.

17. Ibid at 21.

 

SecureLaw, Ltd.    65 West Jackson Blvd., #112, Chicago, IL  60604-3598    Phone: 312-423-6700    Fax: 312-692-2322    © James F. Pastor 2007