- Posted by admin
- On July 16, 2018
When I go out and talk with companies and individuals who are looking to contract security, I am very shocked to learn that very few business owners truly understand premise liability or even liability in general.
Premises liability claims are wide ranging – from slip-and-fall accidents to intentional 3rd Party shootings during a robbery. Recent cases have detailed a business owner’s liability for criminal acts committed on their property by third-party actors, and the implications of these acts are important for business owners to understand.
Customers of a business are considered invitees. This distinction is important because business owners must provide a higher duty of care to insure their employees and customer’s safety in the event of criminal acts.
Outside the classic hazards for slip-and-fall claims or injuries from lack of maintaining the premises, one area of liability business owners faile to consider is criminal acts by third parties.
In Bass v. Gopal, Inc., the Court held that a balancing test should be applied as to whether a business owner should be held liable for the criminal acts of a third party on their premises. The balancing test seeks to balance the degree of foreseeability of harm against the burden of the duty owed by a business owner. Ultimately, the Court ruled, “a business owner has a ultimate duty to take reasonable action to protect its invitees and employees against the foreseeable risk of physical harm.”
What does this mean? Under the court’s ruling in Gopal, a business owner is liable for injuries sustained by customers or employees during the course of a robbery or other criminal acts such as a person walking in to just to shoot people.
In Lord v. D & J Enterprises, the S.C. Supreme Court unequivocally held that the Gopal decision applied retrospectively, as opposed to prospectively. Generally, “decisions creating new substantive rights have prospective effect only, whereas decisions creating new remedies to vindicate existing rights are applied retrospectively.” The Court decided the Gopal decision fell into the latter category, because that decision “created no new duty for business owners, but, rather, clarified the test in assessing the scope of this duty.”
In Lord, the plaintiff presented expert testimony by a security consulting firm regarding the foreseeability of the crime and whether an Armed security guard posted at the entrance of the business or in that business would have deterred the crime. Using the Gopal balancing test, the court in Lord decided that this was enough to create a question of fact for the jury and allowed for the plaintiff’s case to survive a summary judgment motion.
The Lord and Gopal decisions arguably make it easier for plaintiffs to survive summary judgment motions and present their case to a jury. The dissent in Lord, written by Justice John W. Kittredge, lamented that “today the Court holds that a merchant has a duty to provide a security guard where random acts of criminal violence occur miles away from the business.” Id. at 704 (J. Kittredge dissenting). The decision should make business owners think twice about the security measures they employ, the training your security officers have, and the services it provides at your place of business.
The last thing a business owner wants is to be in front of is a jury explaining why he or she didn’t spend a little extra on Security and a jury will likely be less sympathetic to a business owner than to the wounded victim; and with a plaintiff’s ability to survive summary judgment made easier by Lord and Gopal, this is exactly the type of situation in which business owners may find themselves in if they are not careful with who they hire to provide professional security services at their business location.