Behind the Façade: Negligent Security and Premises Liability
The Georgia Court of Appeals upheld a nearly $43 million verdict against a CVS Pharmacy in southwest Atlanta over a parking lot shooting during a robbery that left a man with permanent serious injuries. Defense attorneys raised several objections to the verdict. They argued that the victim was just as much to blame as CVS and that the jury verdict should be voided since they did not lay any blame on the unknown shooter. The court disagreed. (Georgia CVS Pharmacy, LLC v. Carmichael, Georgia Court of Appeals, 2021)
Plaintiff James Carmichael arranged to meet a man in the parking lot of the CVS to sell an iPad in 2012. After exiting his vehicle, the shooter appeared and put a gun to Carmichael’s head, demanding money. Carmichael complied, then grabbed his own gun and attempted to fire. Instead, the robber shot Carmichael several times in the stomach and back, leaving him with permanent nerve damage after multiple surgeries.
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Carmichael sued CVS for premises liability, and in 2019 a Fulton County jury returned a verdict of $45 million in damages, apportioning 5 percent of the fault to Carmichael for an award of $42.75 million. The John Doe shooter and the man Carmichael met were each apportioned no liability.
CVS claimed in their defense that Carmichael was not an invitee and thus deserved a lower standard of care. The appeals court disagreed. In the written opinion of the case, the court wrote that a “reasonable jury” could conclude that prior criminal activity made the robbery reasonably foreseeable. The judge wrote that Carmichael had no superior knowledge of the danger. The jury could determine that increased security or better lighting might have deterred the attack.
In a current case, scheduled to go to trial in September 2022, the plaintiff (we will call him Joey) pulled through the opened gates of the apartment complex. Joey pulled his car toward the back of the complex, near his apartment. There were shadows because the lighting didn’t cover places potential hiding places for criminals.
Joey pulled into an open parking space. As he opened the car door, gunfire rang out. Bullets from two guns penetrated his car striking him. He ran in the hail of gunfire toward his apartment, collapsing on the sidewalk. The gunmen leaped into his car and made their exit. Seven .45 caliber and three 9 mm casings were recovered by police. Joey was severely injured—his legs would be amputated above his knees to save his life.
The next question most would come to ask, “Was this attack foreseeable and the apartment complex negligent?”
These cases illustrate a recent legal trend. Classifying security measures as amenities or courtesies may backfire when attempting to defend an apartment complex or shopping mall in a negligence lawsuit. Jurors expect landlords and property management companies to exercise a reasonable standard of care in protecting tenants from violent crime; the law demands it.
This article explores when prior crime makes the risk of criminal conduct against invitees unreasonable and foreseeable. The property owner and property management company have a duty to act reasonably to protect tenants and guests from such risks. Inherent in these cases is the concept of foreseeability.
A murder in Texas led to a precedent setting case in determining foreseeability. Luis Gutierrez in San Antonio, Texas, and his pregnant wife, Karol Ferman, went to a late movie at the Regal Cinemas at the Quarry Market, a 53-acre shopping mall managed at the time by Trammell Crow Central Texas, Ltd. According to the legal opinion, shortly after midnight, as the couple exited the cinema and neared their car, Ferman heard a shot. When she turned around, she saw the shooter, dressed in black with a black hood or ski mask over his face. Ferman did not think the first shot hit anyone, but she thought the shooter's second shot hit Gutierrez in the shoulder. Gutierrez fell to the ground, then got up, and the couple started running towards the south end of the mall. Then Ferman fell to the ground and, no longer able to move, got under a car. She never thought their assailant was shooting at her.
A subsequent autopsy revealed Gutierrez had been shot once in the back, twice in the back of his right shoulder, and once in the back of the head.
Gutierrez’s mother Maria and Karol Ferman filed a lawsuit alleging that Gutierrez’s death was proximately caused by Trammell Crow’s negligent failure to provide adequate security. The jury returned a verdict in favor of the plaintiffs and awarded them $6.5 million in damages.
Most every state has legal standards that must be reviewed based on the location of the premises. As an example, in Texas, foreseeability of an unreasonable risk is analyzed by considering the factors described in the Timberwalk case. (Timberwalk Apartments, Partners, Inc. v. Cain, Supreme Court of Texas, 1998)
In Timberwalk, The Texas Supreme Court found that an apartment complex was not liable for the sexual assault of a tenant because the crime was not foreseeable.
In the written opinion of the case, the court noted that “the evidence in the present case is that no violent personal crime occurred at the Timberwalk Apartments for ten years preceding Cain's sexual assault. The only crimes that had occurred in the complex were the tire-slashing by Cain’s roommate’s ex-boyfriend, and a car burglary and car theft at an earlier, unspecified time. In the year preceding Cain’s sexual assault, only one sexual assault had occurred within a one-mile radius of the Timberwalk Apartments. That same year, six assault-type crimes occurred in neighboring apartment complexes. There is no evidence that any of these crimes was ever reported in the media, or that Timberwalk knew or had any way of knowing about them.”
The court also noted that the legal concept of foreseeability includes several factors—proximity of prior crime, recency of prior crime, similarity of prior crime, frequency of prior crime, and publicity of prior crime.
Proximity of Prior Crime
Proximity refers to the distance from the subject property to the prior crime considered. The courts generally limit the radius one can consider in determining relevant crime. A plaintiff will have a stronger case when the crime data shows substantial and repetitive crime on the premises of the landlord. However, many courts allow a two-mile radius to establish proximity.
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Recency of Prior Crime
Recency is the amount of time between the prior crime considered and the event at issue. A landlord or property management company has a stronger defense when the plaintiff is unable to show similar violent crimes in the past two to three years.
The court’s imposition of a duty on Trammel Crow in the Gutierrez case rested upon its conclusion, according to the written opinion of the case, that “there is no doubt” that nine robberies and one aggravated assault over a two-year period at a 53-acre shopping mall were “‘sufficiently similar’ to Gutierrez’s shooting” to render his murder foreseeable. It was thus irrelevant to the majority’s analysis that none of the previous “violent crimes” involved a shooting (much less an injury from a shooting).
Likewise irrelevant to the majority’s analysis was the undisputed evidence that the chance of being a victim of any violent crime (much less a murder) at that shopping center during the two years preceding Gutierrez’s death was 1,637,630 to 1. The majority’s analysis appeared to reject the Texas Supreme Court’s analytical framework in Timberwalk and replace it with a rule of strict liability for premises owners.
Similarity of Prior Crime
Similarity looks at the type of prior crime. Robbery, aggravated assault, murder, and rape are Part I violent crimes, according to the U.S. Federal Bureau of Investigation (FBI) Uniform Crime Report. Residential burglary is also a Part I crime, and Texas courts have stated that residential burglaries are appropriate to consider when evaluating foreseeability of violent crime. Also, an appellate court noted that “property crimes may expose a dangerous condition that could facilitate personal crimes, as when apartments are targeted repeatedly by thieves,” and “[b]urglaries, by their very nature, may suggest the foreseeability of violent crime.” (Jenkins v. C.R.E.S. Mgmt, L.L.C., U.S. Court of Appeals for the Fifth Circuit, 2016)
Auto theft and attempted auto theft are also similar to the crime where the victim was shot while being car-jacked. Motor vehicle theft is also a Part I crime. Attempts to take vehicles may also involve violence, however, one should not limit similar prior crimes to the specific facts of the instant crime.
Joey was shot during a carjacking, which is an aggravated robbery. The expert for the defendant opined that none of the prior aggravated robberies, including those at gunpoint and those which were carjackings, were sufficiently similar to the shooting and carjacking of the victim, because no one had been shot. This narrow and restrictive view of similar crimes may be difficult to defend, because it is in conflict with most state laws.
As mass shootings continue to rise in the United States, courts and the public are shifting their perception on who is ultimately responsible for protecting potential victims. https://t.co/7OF0HMOBFj— Security Management (@SecMgmtMag) August 1, 2022
The defense expert noted that he selected addresses for similar relevant crimes that were at or near the apartment complex. In fact, the defense report could have used a flawed method which made it near impossible to find similar crimes to include in his foreseeability analysis. The report omitted crimes directly in front of the complex and other apartment complexes next door. Rather, the report analyzed crimes at two churches, a daycare facility, and a dental office—all places that were extremely unlikely to have any violent crime.
At no point did the court in Trammell Crow indicate that it was changing the Timberwalk analysis. Instead, the court engaged in a typical Timberwalk foreseeability analysis and examined similarity of prior crimes. Prior violent crime at the entire 53-acre mall consisted of 10 robberies—three with guns and one with an unknown object that could have been a gun.
In distinguishing each prior crime, the court pointed out that the aim of the criminals was to obtain property, and three of the robberies were perpetrated on businesses—two stores and a bank—rather than individuals. The court also noted that no weapon had been fired, and no victim was seriously injured. However, the court focused on the extremely unusual nature of Luis Gutierrez’s shooting, stating that “the circumstances of this attack are extraordinary.”
The extraordinary circumstances were that the assailants opened fire from behind at long range without making any prior demand. After missing with the first shot, the attacker proceeded to shoot Gutierrez four more times from behind before taking his wallet.
The court further explained that the foreseeability requirement protects owners from liability “for crimes that are so random, extraordinary, or otherwise disconnected from them that they could not reasonably be expected to foresee or prevent the crimes.” The court concluded that “the attack on Luis was so extraordinarily unlike any crime previously committed” the defendants could not have foreseen or prevented it.
Frequency of Prior Crime
Frequency considers how often prior crime occurred during a time period in the area considered. The plaintiff has a duty to show that the frequency of similar crimes occurred over a specified period, such as two years. A case where there was one violent crime similar to the case in question more than five years ago will make it difficult to show the frequency of violent crime on the premises.
For example, in a Florida case that was settled out of court, a woman we will call Mary and her 18-year-old son, Roger, decided to take a break after a long day moving to another apartment.
Along with two friends, Mary and Roger went to a Palm Beach, Florida, shopping center. They walked out of a restaurant micro-brewery in the shopping center after enjoying a meal. The parking lot was pitch dark. The only illumination was from the restaurant. As they got close to Roger’s pickup truck, they noticed a woman dancing in the bed of the truck and two men jumping on the back bumper. The trio were loud and ignored Mary and Roger’s request to get off the truck.
Suddenly, a female jumped from the bed of the truck and brutally attacked Mary. The men attacked Roger, breaking his leg. One of the men joined in the beating of Mary, slamming her head into the pavement.
During preparation for trial, the expert witness for Mary and Roger discovered that the shopping center had upgraded the lighting since the attack. The change in lighting was a fact the defense never disclosed. The expert found pictures of the shopping center that were taken months after the attack, which evidenced the sub-standard lighting. There were 197 crimes in the two years before the plaintiffs were attacked in the parking lot of the defendant’s premises. Of these, 65 were suspicious incidents, persons, or vehicles; 41 were disturbances; 30 were unwanted guests; and 19 were assaults. The expert mapped the crimes in his 47-page report detailing his opinions of the negligence of the shopping center.
The parties agreed to a mutual settlement.
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Publicity of Prior Crime
Publicity of prior crime considers whether the property owner knew or should have known of the prior crime.
The expert for the plaintiff in Joey’s case noted that the apartment complex knew about the crime that occurred on their property because the tenants informed them, the Houston Police Department informed them, their security guard informed them, and management received PIP (Positive Interaction with Police) reports, which listed all crime occurring on the property. The internal communication documents produced during discovery also demonstrated awareness of the crimes.
In the three years before the shooting of Joey, the Houston Police Department responded to the apartment complex 65 times concerning crime-related offenses allowed by Texas courts in laying the foundation for exemplary damages, or what is commonly known as punitive damages. Police responded to one non-family related murder. They responded to a total of 14 felony aggravated assaults, of which four were attempted murders and nine involved a deadly weapon. A police officer was also the victim of an aggravated assault. Police responded to 13 felony robberies in the complex.
Six of the robberies were classified with a deadly weapon. There was one sexual battery offense, along with seven terroristic threat offenses, two of which involved a firearm.
Security practitioners may find themselves in court as a witness. We spoke to a few experts about what to expect and how to handle questioning like a pro. https://t.co/nzAUcsCArl— Security Management (@SecMgmtMag) July 1, 2020
Prevention is Key
Prevention is the best tool to mitigate harm to tenants and invitees. Reasonable steps can help protect the property owner and management company from claims of negligence in the aftermath of a premises-related sexual assault, robbery, shooting, or murder.
Establish clear security policies and procedures, provide training at all levels, and take immediate and appropriate action when crime impacts the enterprise. Property managers should frequently audit the performance of their internal and contract security personnel. Independent risk assessments that meet ANAB-accredited ASIS International standards are critical. Review law enforcement crime data and internal incident reports monthly. Sound security practices should never be marginalized or become an afterthought.
Lighting is another critical component of a sound crime prevention plan. Many county and municipal governments have regulations on the level of lighting for parking lots and commercial businesses. Moreover, ANSI has standards regarding minimum lighting levels. A common practice is mapping the property and recording light readings in foot candles. This type of record will become valuable evidence in the event of a future negligence lawsuit. Joey’s attackers were able to take advantage of the heavy shadows.
If the enterprise has not equipped itself to perform a thorough and objective risk assessment, it often decides instead on labeling security as an amenity. This is a tremendous mistake. If made, the next time the business responds may be in a deposition in a costly and highly public negligence lawsuit.
Steven C. Millwee, CPP, is a proven expert witness for both plaintiff and defense counsel in claims of negligence and background screening. He is the founder, president, and CEO of SecurTest, Inc., a background screening and investigative consulting firm. Millwee was the 2002 president of ASIS International. He is a frequent expert witness in premises liability, negligent security, and background screening cases, and is the author of numerous articles and patents.