In 2015, during a visit to a Kroger grocery store in Atlanta, Georgia, a 26-year-old man was robbed and shot by two assailants, resulting in his paralysis. Four years later, a jury awarded the man nearly $70 million after his attorneys successfully argued that Kroger was aware of the store's location in an unsafe, high-crime area but failed to deploy security guards in the parking lot where the shooting occurred.
According to attorney Carrie Blackburn Riley, the Kroger case is notable for defense attorneys specializing in premises liability and negligent security claims. While not directly involved in the case, her practice, Blackburn Riley LLC, primarily focuses on defending insureds, including affordable rent residential property owners, against premises liability and negligent security claims in Maryland.
"From a legal perspective, what stands out about the Kroger incident is how the plaintiff's attorney leveraged two key concepts—atmosphere of violence and foreseeability—to construct a compelling negligence case against Kroger," noted Riley.
The size of the jury award is also notable and can be classified as a nuclear verdict, a term generally used to define verdicts exceeding $10 million. Nuclear verdicts significantly contribute to social inflation, a term used in the insurance industry to describe the rising costs of insurance claims due to changing social attitudes, perceptions, and legal trends.
Janelle Howard, a regional claims manager with HAI Group, an insurer dedicated to the public and affordable housing industry, pointed out that, like any business owner, multifamily property owners, landlords, and managers are susceptible to similar claims.
“The landscape of premises liability has undergone a seismic shift in the multifamily industry due to the rise of social inflation and the looming specter of nuclear verdicts,” Howard said.
This article explores the legal intricacies of negligent security claims in the multifamily industry. It examines how plaintiff attorneys strategically emphasize elements like an atmosphere of violence and foreseeability to build compelling cases that can lead to sizable awards.
Premises liability and negligent security in multifamily settings
In the context of the multifamily housing market, premises liability entails the responsibility of property owners, landlords, and property managers to uphold a secure environment for both tenants and visitors. In cases where individuals suffer injuries or harm due to unsafe property conditions, property stakeholders can be held liable through civil lawsuits.
Negligent security, within the realm of premises liability law, focuses on the obligation of property owners, landlords, and managers to implement reasonable and necessary measures for shielding individuals on their property from foreseeable harm related to security risks.
In the contemporary landscape, there is heightened scrutiny on the adequacy of security measures in multifamily housing, placing property owners, landlords, and managers under increased legal scrutiny.
WATCH NOW: Panel Discussion on Public Housing Premises Security | 2023 HAI Group Risk Management Conference
Establishing the standard of care
Generally, plaintiff attorneys must establish a burden of proof when bringing a premises security case, Riley explained.
Plaintiff attorneys need to demonstrate that property stakeholders had a duty to the victim and that a breach of that duty directly caused the injury. This duty—referred to as the standard of care—varies from state to state, Riley said.
Two legal theories—foreseeability and atmosphere of violence—are crucial in determining the standard of care that a property’s stakeholders must meet in premises security.
"In some states, there is a heightened duty, implying an obligation to provide more security than in other states," Riley noted, emphasizing the variability in legal expectations based on jurisdiction.
According to Howard, foreseeability refers to the ability to reasonably anticipate or predict certain risks that may occur. States have differing definitions of what a reasonable person in the same circumstances would foresee as potential risks. Howard said the atmosphere of violence refers to the prevailing level of violence or criminal activity in a specific area.
“A plaintiff attorney will often try to establish that the defendant should have foreseen or known they had an atmosphere of violence on or around their property,” Howard said.
Property stakeholders may be held to a higher standard of care in areas with a known atmosphere of violence.
“[Property stakeholders] might be expected to implement more robust security measures than a similar property in a low-crime area to adequately address the foreseeable risks associated with the prevailing atmosphere,” Howard said.
How plaintiff attorneys construct compelling legal cases
Plaintiff attorneys frequently concentrate on the physical security measures of a property when constructing a premises security case against its stakeholders.
For instance, if a property manager receives reports about a door consistently being propped open, allowing access to trespassers, and fails to take immediate action to rectify the issue, plaintiffs can argue foreseeability. In this scenario, if a resident is subsequently robbed by someone who entered the building through the propped door, the plaintiffs can contend that the property manager neglected to address a known risk, establishing a basis for foreseeability in their case.
In addition to scrutinizing the security of common area doors, plaintiff attorneys typically assess various physical security attributes, including:
Windows (checking for functional locking mechanisms).
Overgrown shrubbery and bushes (determining if they provide hiding spots for criminals).
Lighting (verifying its proper functionality).
Gates and fences (investigating if they are consistently in a state of disrepair).
Plaintiff attorneys also concentrate on the presence and effectiveness of security measures such as security guards, surveillance cameras, door monitors, and access-controlled doors.
In Riley’s experience, plaintiff attorneys like to tout that a property or surrounding area had a high volume of “calls for service” to police when attempting to establish an atmosphere of violence argument. But this tactic isn’t always a fair gauge, she noted, as calls for police service are just calls, not proven, established events.
“If you have a lawsuit where a plaintiff is seeking damages related to an alleged rape, and police records show a high number of calls for vehicle break-ins and disorderly conduct, the defense can argue that such calls wouldn’t have alerted the landlord or property owner to take different precautions,” Riley said.
Case study: Turning a blind eye
Some negligent security claims are more challenging to defend than others. In a case involving a 22-year-old man shot to death at a multifamily property, Howard said the plaintiff’s legal team had no trouble establishing foreseeability and an atmosphere of violence on the property.
The man was shot in a breezeway, accessible to trespassers through an opening in a perimeter gate. A bootlegger known for selling narcotics and illegal weapons had a unit in the same breezeway.
“The property manager was aware of this and allowed it to go on,” Howard said.
At one point, an assistant property manager attempted to call the police and was reprimanded by the property manager, who told the assistant to stay out of it or risk getting killed. Evidence showed that the property manager allowed convicted felons to live on the property and was giving preferential treatment to residents who were friends.
“About six months after the shooting, the property manager was arrested for public assistance fraud,” Howard noted.
A security expert for the defense team reviewed the property and said the defense team could not successfully argue against foreseeability or an atmosphere of violence, leading to a $1.2 million settlement.
“This was a worst-case scenario,” Howard said.
Case study: Mitigating circumstances
When attempting to disprove foreseeability, defense teams often try to show that a crime was targeted and couldn’t reasonably be prevented. Riley outlined a case she defended involving a property manager sued for wrongful death after a resident was shot in the property’s parking lot.
The plaintiff’s legal team attempted to establish that there was an atmosphere of violence and foreseeability on the defendant’s part. Riley noted that while there was a record of criminal activity in the area, violent crime was low, so the atmosphere of violence argument wasn’t strong. The defense focused the case on proving that the killing was a targeted, intentional crime and was going to happen regardless of preventative actions taken by the property manager. The case eventually settled for $40,000.
“It’s a small amount for a person’s life, but evidence showed that the resident had a large quantity of cocaine in his residence and had prior criminal issues on record, which mitigated the defense team’s circumstances,” Riley said.
Howard noted that even if an incident is targeted and intentional, a successful foreseeability argument can be made by a plaintiff’s legal team. For instance, property stakeholders aware of gang activity on their property could arguably be held liable for an on-premises injury related to gang-related violence, she said.
Case study: Failure to transfer
Plaintiff attorneys attempting to prove foreseeability tend to focus on where property stakeholders allegedly fell short of rectifying a security situation—for instance, the failure to evict a resident involved in criminal activity. Failing to transfer a resident due to a security concern is a common argument in premises security claims.
Howard recounted a case involving an 18-year-old man who was shot near his residence and left paralyzed. The man’s family was granted an emergency transfer to a different property a month later, but the request was waitlisted.
Two months later, the man’s 16-year-old brother was shot at while crossing the street in front of his residence but wasn’t wounded. Four months after that, the 18-year-old was shot and killed while in a wheelchair behind his home. After the man’s death, seven months after the initial transfer request, the family was offered a replacement unit.
Howard noted that it was later determined the property had a significant number of vacant units available.
“It raises the question: ‘Why weren’t they transferred sooner?’” Howard said.
Riley defended a case in which a multifamily resident was killed on her front steps a week after requesting a transfer due to criminal activity, including her son being bullied, her daughter being sexually molested, and incidents of vandalism.
Her transfer request was denied, meaning she didn’t get on the waitlist. Riley said the defense team argued that there was no proximate cause—the defendant’s actions weren’t a significant factor in the shooting—because the resident would have been behind several others on the waitlist, and there were no vacant units available.
“In failure-to-transfer instances, a landlord or property manager only has limited powers,” Riley said. “If there are no units to transfer to, you can’t do anything.”
While the defense team felt the proximate cause argument was strong, there was low confidence it would sit well with a jury, so Riley said the case was settled for around $375,000 before trial.
Case study: Failure to inspect
Another potential foreseeability argument against property stakeholders involves the failure to inspect. Housing inspections are typically performed to search for defective maintenance conditions, not to identify possible criminal activity. However, if an inspection is performed improperly, plaintiff attorneys can argue that the defendant breached their duty to the victim.
In an older but relevant case involving standard of care, Riley defended a housing authority against a negligent inspection claim stemming from a child’s death due to physical abuse.
The housing authority’s inspector indicated she inspected the second floor of a unit, but later admitted that she didn’t check the second floor. About six months later, a child was found dead on the second floor of the unit. After the child’s death, investigators discovered a hole in the wall filled with feces on the second floor. The plaintiff’s legal team argued the inspector would have found the hole in the wall had she performed a proper inspection.
The defense called the argument speculation since the inspection took place six months before the child’s death. Riley said the plaintiff settled with the housing authority for $10,000 due in part because they needed the funds to litigate against a number of other defendants.
Case study: Financial revelations
During the discovery phase of a case, plaintiff attorneys can seek documentation from defendants, such as financial records, to prove their foreseeability argument.
Howard recalled a case in which an armed assailant robbed the plaintiffs while they walked from their mailbox to their apartment. There were minor injuries in the incident, but the plaintiffs filed a negligent security claim, arguing they suffered post-traumatic stress from the incident.
The defense team argued that there was no evidence that different security measures would have prevented the incident. During the discovery phase, the plaintiffs’ legal team gained access to financial records related to the housing organization’s spending on security.
The records indicated that just two months before the armed robbery of the plaintiffs, the housing organization drastically reduced security on the property, opting for a more “budget-friendly” package, Howard said.
Based on this financial revelation and several other factors, including warnings from two other security personnel regarding the need for increased security measures, the judge ruled there was foreseeability in the case, which settled for $1.6 million.
The shifting dynamics of premises liability
In the complex world of multifamily housing, the story of premises security claims is an ongoing narrative, with echoes of the past present in today’s conversation.
A study published in 1991 by the Journal of Contemporary Criminal Justice reviewed 82 premises security claims from 1985 to 1989, including claims against commercial housing providers.
“The judgments and settlements in cases indicate that courts are sending a message to businesses that inadequate or lax security practices will not be tolerated,” notes the study abstract. “These cases revealed blatant security errors and management ignorance.”
The study's timeless lesson echoes today: the scrutiny of security policies and practices intensifies when a criminal incident occurs, irrespective of the sophistication of security systems or the presence of guards.
Fast forward to the present, and the landscape has evolved. While the nature of premises security claims remains familiar, the potential consequences have undergone a seismic shift. Verdicts today have the potential to reach beyond the conventional, with awards surpassing the $10 million mark, a figure that, in the 1990s, would have been deemed extraordinary.
The U.S. Chamber of Commerce Institute for Legal Reform analyzed 1,376 nuclear verdicts between 2010 and 2019. Half were between $10 million and $20 million, and about one-third were between $20 million and $50 million. The remaining 16 percent of verdicts exceeded $50 million (101 ‘thermonuclear’ verdicts exceeded the $100 million threshold). Notably, the median nuclear verdict increased 27.5 percent over the 10-year study period, outpacing inflation.
A large percentage of these verdicts come from states that the American Tort Reform Foundation labels ‘Judicial Hellholes’ as part of its annual report on the topic. Georgia sits atop the foundation’s ranked list of worst litigation environments in 2023-24.
The aforementioned U.S. Chamber of Commerce Institute for Legal Reform study on nuclear verdicts noted that Georgia experienced 53 such judgments between 2010 and 2019, totaling more than $3 billion. Many of these verdicts result from lawsuits blaming businesses for the criminal conduct of others on or near their property.
Defending against premises liability: A proactive approach
To proactively manage risks and establish a robust defense against potentially ‘nuclear’ lawsuits, property stakeholders must prioritize implementing effective security measures.
J.B. Smith, a senior risk control consultant with HAI Group, recommends adopting the concept of Crime Prevention Through Environmental Design (CPTED) as a foundational strategy. CPTED involves deliberately using environmental elements, such as natural access control and territorial reinforcement, to reduce criminal opportunities. Practical applications of CPTED include trimming bushes that could be potential hiding spots for assailants and ensuring adequate lighting on walkways unobstructed by vegetation.
Recently, Florida lawmakers integrated CPTED principles into a tort reform package, creating a special presumption: if a multifamily property owner implements specific CPTED security measures, they are presumed not liable for criminal acts committed by anyone other than their employees.
Smith also underscores the importance of having comprehensive written policies for staff. There’s a distinction between policies, rules, and guidelines, underscoring the need for staff training to exercise discretion appropriately.
"Ensuring that these policies are documented and actively followed is crucial," he pointed out. For instance, where door propping is prohibited, staff should communicate with residents about the importance of securing doorways and document these conversations.
According to Riley, if door propping persists, a property manager may be unable to terminate a lease, but they can demonstrate proactive efforts to address the issue.
"Show that you tried to educate and advise residents that their habit of propping open doors can potentially jeopardize neighbors," she advised.
Howard highlighted the frequent allegations by plaintiff attorneys regarding a failure to train staff in negligent security claims. Documented training sessions can strengthen the defense against such claims.
Riley stressed the importance of transparency regarding features like gates, fences, lights, door monitors, and surveillance cameras.
Clear communication about the presence of a broken gate or the purpose and functionality of surveillance cameras can prevent misconceptions that plaintiff attorneys can leverage in court. She emphasized the value of community meetings and resident notices to defend against negligent security claims.
“Always avoid creating a false sense of security,” Riley said.
By fostering a genuine understanding of the security measures in place, property stakeholders not only mitigate risks and build a robust defense but also contribute to a safer and more informed community.
Have questions about property security? Contact your HAI Group risk control consultant for further information or recommendations.
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