Negligent Security: Legal Overview

For property owners, taking pains to ensure that visitors to their land are safe is more than just the right thing to do. It's a legal obligation. For centuries, our legal system has recognized that property owners have a duty to make their property safe for others. This includes taking reasonable precautions to prevent violent criminal acts. If property owners have good cause to suspect a violent crime may occur but do not takes steps to prevent it, they may be sued for negligent security by the injured victim.

Legal Principles of Negligent Security

Negligent security falls under the umbrella of premises liability, which also encompasses other property safety issues like slip and fall accidents, fire injuries, and defective stairs. The legal principles underpinning premises liability reach back to the feudal system and English common law. When these principles were first being developed, their function was mainly to protect landowners' rights to do as they pleased with their property. Because of this focus, great emphasis was placed on the distinction among categories of visitors and the duties landowners owed to each.

  • Invitees were visitors whose presence furthered the aims of the property owners. They were owed the greatest duty of care. Today, customers at a retail store, clients invited on business, or independent contractors hired by a business owner might be classed as invitees.
  • Licensees were visitors who were on the property for their own benefit. Modern examples include guests at a dinner party, friends visiting an employee at work, or extended family members staying overnight. Note that even if the owner extends an invitation to a visitor, the visitor might not be considered an invitee.
  • Trespassers were those who had no right to be on the property. In many cases, property owners remained unaware of a trespasser's presence or expressly prohibited it.

Historically, property owners owed the greatest duty to invitees and the least duty to trespassers. However, in recent decades the neat three-category system has begun to erode in the U.S., partly due to changes in the economic system and the perceived societal value of land. Although the type of visitor is still often relevant in premises liability cases, courts have made fewer distinctions among the duties owed to each group.

Changes have proceeded at a different pace across states, so that in some areas the distinctions are starker than in others. New York State still recognizes these categories. However, property owners are generally expected to take reasonable steps to ensure the safety of any visitor to their property - even trespassers.

Proving Negligence

As noted above, courts in both England and the U.S. have long recognized that landowners owed a duty of protection to those on their property. However, the emergence of "negligence" as a discrete legal concept is a relatively modern development. While it is highly relevant to premises liability cases, it extends to other areas of law as well.

For several centuries, in both England and the U.S., cases involving accidental injury could be handled through various other legal channels. In the mid-1800s, the legal definition of "negligence" as a breach of duty resulting in harm began to coalesce. From the mid-1800s until the 1980s, negligence became more prominent in American courts, and judges started identifying new duties of care that certain groups owed to others.

Today, there is an established pattern for how negligence cases - including negligent security cases - are handled. To prove negligence, the plaintiff must show that each of the following is true.

  1. Person A has been injured.
  2. Person B had a duty of care toward Person A. That duty included preventing the sort of injury Person A sustained.
  3. Person B acted carelessly, in a way that breached the duty of care owed to Person A.
  4. Person B's carelessness was the direct (or proximate) cause of Person A's injury.

If Person A can establish that all four elements are present, and if Person B does not provide sufficient evidence to exculpate themselves, then Person B would be found liable and would be required to compensate Person A.

Factors in a Negligent Security Case

A negligent security case hinges on whether or not a crime was foreseeable. In other words, would a reasonable person have cause to suspect the crime might happen, and were reasonable steps taken to prevent it?

In many cases, a history of similar crimes at the same location is used to establish foreseeability. For example, if three stabbings had occurred in a mall parking garage within the last year, it may be argued that the fourth stabbing was foreseeable. On the other hand, if a stabbing occurred in a well-lit parking lot in a neighborhood where no assaults have been recorded for the last decade, it would be difficult to call the crime foreseeable.

Another important factor is whether the establishment was providing adequate security. There is no standard definition for what constitutes "adequate security," so this is assessed on a case-by-case basis. The security measures deemed adequate for a college campus will be different than the security measures deemed adequate for a take-out restaurant.

The plaintiff must also show that the property owner's negligence was the direct cause of their injury. If an apartment building had broken locks on the front door but a tenant was attacked outside in the parking lot, the owner's negligence (failing to fix the locks) did not lead to the tenant's injury.

Speak with a Negligent Security Attorney Today

If you have been injured as a direct result of a property owner's negligence, the experienced negligent security attorneys at Block O'Toole & Murphy can help. You can contact us online anytime, or call us at 212-736-5300 for a free consultation. We serve New York and New Jersey.