Trying Inadequate Security Cases In the Age of Tort Reform
D. Richard Jones, III
Richard Jones Law Firm
1117 Perimeter Center West
Atlanta, Georgia 30338
Fax: (770) 671-8137
A new client comes to your office; she has been raped at her apartment complex. She may not say it in so many words, but what she asks is - couldn't something have been done to prevent this? She is fortunate if the criminal has been caught and punished through the criminal justice system.
What about civil remedies against the apartment manager and owners? Are they liable for what the criminal intentionally did? In essence, inadequate security cases are premises liability cases. Did the owner and manager exercise ordinary care to keep their premises safe? Was the rape foreseeable? What crime previously occurred at the apartment complex and in its immediately vicinity? Is it substantially similar? Did the apartment manager have actual knowledge of dangerous criminals at this apartment or in the immediate vicinity? Did the apartment owners and managers failure to implement adequate security measures proximately cause this rape?
Most jurisdictions require property owners and managers to exercise ordinary care to guard their invitees and guests against foreseeable criminal acts1 . The public policy behind this rule is that the owners are in the best position to know of the criminal risks and are frequently the only ones that can effectively guard against many of the risks of criminal attacks.
Invitees too have responsibility. Did your client exercise ordinary care? Did she know about prior violent crimes at this complex? What did she do to protect herself?
An inadequate security case is generally brought against someone that did not commit the criminal act. We ask the jury to find them responsible for it, for failing to prevent what the defense will often say was a random act of violence. We must prove that the apartment owner and manager should have foreseen this rape, should have taken steps to prevent it and, if those reasonable measures were implemented, more likely then not, the crime would not have occurred.
Inadequate security cases hold landowners responsible for preventable, foreseeable crime and thus produce a safer environment for all of us. It is not uncommon to find security guards, certainly at bars, shopping centers, and even at apartment complexes and hotels.
Apartments, hotels and motels now employ good key control measures by either automatically changing a code at the hotel after each checkout or by changing locks at the apartment. The end result is a safer environment for all, even at commercial properties.
Safety, however, at a shopping center or apartment complex costs money. From an owner's point of view, safety does not produce revenue. It is only an additional cost. Corporate America, most likely, will choose making more money over spending money, though many responsible owners and managers see additional security as a selling point to prospective guests, residents, tenants, and invitees. Inadequate security litigation does change society. We have made apartments, hotels and motels safer for the public.
Most tort reform contains a fundamental attack on long held tort principles of accountability. This becomes quite clear in apportioning fault between a negligent defendant and an intentional tortfeasor.
Before tort reform, Georgia law O.C.G.A. S51-12-31 defined joint and several liability as:
Except as provided in Code Section 51-12-33, where an action is brought jointly against several trespassers, the plaintiff may recover damages for the greatest injury done by any of the defendants against all of them. In its verdict, the jury may specify the particular damages to be recovered of each defendant. Judgment in such a case must be entered severally.
New O.C.G.A. S51-12-31 is substantially different:
Except as provided in Code Section 51-12-33, where an action is brought jointly against several persons, the plaintiff may recover damages for an injury caused by any of the defendants against only the defendant or defendants liable for the injury. In its verdict, the jury may specify the particular damages to be recovered of each defendant. Judgment in such a case must be entered severally.
Gone is the concept that one defendant is entirely responsible for the greatest harm. Instead, a defendant is only responsible for the injury he caused. Furthermore, a jury may specify the particular damages to be recovered of each defendant.
Inadequate security cases starkly demonstrate the faulty logic in abolishing joint and several liability, of listing non-parties on the verdict form and of trying to compare negligent and intentional conduct. After tort reform in Georgia, if the Plaintiff is not at fault, the jury is not required to apportion damages among the named Defendants. It may, but does not have to apportion fault. Did your client exercise ordinary care?
The concept of apportioning fault between negligent conduct and intentional conduct is intellectually, logically and rationally inappropriate in inadequate security cases. A defendant can only be liable if the criminal act was foreseeable; for the defendant to blame the criminal suggests then he need not even guard against the crime itself. What happened to the duty to guard against known dangers - including known dangerous criminals - on or near your property? When the apartment owner or manager blames the criminal, he confuses proximate cause and cause in fact. The criminal act is the cause in fact of the injury, but not the proximate cause. The proximate cause is the owner and manager's failure to guard against known dangerous characters. The apartment owner and manager's liability is secondary or derivative; the criminal is responsible for what he did; rarely is there joint action between the criminal and the owner manager.
Some courts have held that intentional torts are fundamentally different in nature than negligent torts. A true comparison of fault, based on an intentional act and fault based on negligence, in many circumstances, is not possible. Veazy v. Elmwood Plantation Assocs., Ltd., 650 So.2d 712, 719-20 (La. 1994); see also Burke v. 12 Rothschild's Liquor Mart, Inc., 593 N.E.2d 522, 532 (Ill. 1992).
Hopefully, other Courts will recognize the absurdity of trying to compare an intentional tort to negligent ones. Unfortunately many states allow such a comparison.2
Trying to compare an intentional tort to a negligent one is fool hearty. One of the first concepts that must be addressed at the trial of any inadequate security case is that the criminal, whether a named party or not, is responsible for what he did. No one is suggesting otherwise. Inadequate security is part and parcel of basic premises liability law, whereby a property owner or manager has a duty to exercise ordinary care to make his property safe for his invitees. The apartment owner and manager eviscerates his duty by blaming the very hazard against which he should guard. The property owner and manager profit from the presence of the invitee; they should bear the loss as between the two. Now, though the property owners and managers suggest the loss should be that of the invitee despite the fact that the property owner and manager is almost always in a better position to know of and almost always the only one who may implement adequate security measures at the premises. If the defense is permitted to blame the criminal, we effectively undercut the very cause of action. The end result of allowing the property owner and manager to blame the criminal or to attempt to apportion fault between the criminal and the property owner is to eviscerate the duty itself.
Nevertheless, some courts have allowed jurors to compare fault between intentional acts and negligent ones. Blazovic v. Andrich, 590 A.2d 222, 225 (N.J. 1991); Rosh v. Cave Imaging Systems, 26 Ca. App. 4th 1225 (Dist. Ct. App. 1994); Weidenfeller v. Star & Garter, 2 Cal. Rptr. 2d 14 (Dist. Ct. App. 1991).
Often courts reject apportionment of fault. The Florida Supreme Court resolved this issue and held that the apportionment of fault statute enacted as part of their tort reform was inapplicable and not proper and that it was not proper to compare intentional acts to negligent ones. Merrill Crossings Associates v. McDonald, 705 So.2d 560 (Fla.1997). The Fifth Circuit reached a similar result when analyzing Mississippi's comparative-fault statute, Whitehead v. Food Max, 163 F.3d 265, 281 (5th Cir. 1998), and held that the term "fault" in the statute does not include intentional torts.
The defense's argument has some immediate appeal, but beneath its surface, it is intellectually dishonest and improper. If property owners, property managers and their insurers succeed, they will eliminate the rights of many innocent victims of violent crime. What incentive will there be to exercise reasonable care to protect individuals from foreseeable criminal acts?
Before tort reform, Georgia law allowed apportioning of liability among
Defendants only if the Plaintiff himself was negligent. Old 51-12-33(a) provided:
(a) Where an action is brought against more than one person for injury to person or property and the plaintiff is himself to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, may apportion its award of damages among the persons who are liable and whose degree of fault is greater than that of the injured party according to the degree of fault of each person. Damages, if apportioned by the trier of fact as provided in this Code section, shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
This section, however, was limited to where Plaintiff's own negligence concurrently caused the injury or damages by contributory negligence, assumption of risk, or comparative negligence. U. S. Fidelity and Guarantee Company v. Paul Associates, 230 Ga. App. 243, 496 SE2nd 288 (1988).
New 51-12-33 is much broader. It provides:
(a) Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.
(b) Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.
(c) In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.
(d) (1) Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.
(2) The notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty's name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.
(e) Nothing in this Code section shall eliminate or diminish any defenses or immunities which currently exist, except as expressly stated in this Code section.
(f) (1) Assessments of percentages of fault of nonparties shall be used only in the determination of the percentage of fault of named parties.
(2) Where fault is assessed against nonparties pursuant to this Code section, findings of fault shall not subject any nonparty to liability in any action or be introduced as evidence of liability in any action.
(g) Notwithstanding the provisions of this Code section and any other provisions of law which might be construed to the contrary, the plaintiff shall not be entitled to receive any damages if the plaintiff is 50 percent or more responsible for the injury or damages claimed.
The new 51-12-33 requires a jury first to reduce any damage award by the Plaintiff's portion of the fault. If there is more than one named Defendant, then the jury must also apportion the damages among those who are liable for the injury, provided that any damages awarded shall not be a joint or several liability but only a several liability for each named Defendant.
Worse yet, in accessing fault, the trier of fact may consider the fault of non-parties, specifically, "all persons or entities who contributed to the alleged injuries or damages regardless of whether the person or entity was or could have been named as a party to the suit." The criminal will be blamed. He raped your client. The police may be blamed for not providing adequate patrols; a security guard, if one was present, might be blamed for not acting properly, a tenant might be blamed for not calling the police or apartment management. What level of proof must be introduced to blame these other parties? Is defense counsel's conclusary allegation sufficient? Must the defense prove their case against these other persons who contributed to the injury to the same extent a Plaintiff must prove its case or are the Defendants held to a different standard?
Plaintiffs have lost the right to name the parties to the lawsuit; the defense may add new persons responsible for the injury to the verdict form; because you choose not to sue someone doesn't mean that party won't appear on the verdict form. Wise investigation of an inadequate security claim before filing suit is crucial. Who should be named Defendants? Who should not? Why not? How do we apportion liability among the named Defendants? The unnamed Defendants? We best consider these questions and possible answers throughout case preparation.
With tort reform often comes new Daulbert standards for expert witnesses. (O.C.G.A. S24-9-67.1). Selection of your experts in adequate security cases becomes more refined than before. Gone are the days where an inadequate security expert who is a generalist will suffice to carry almost every case. The generalist may still testify as to what was inadequate, and what security measures should have been implemented, but as to particular questions like adequate key control, adequate lighting, adequate training of security guards, adequate staffing of security guards, profiling, apartment management, hotel/motel management, an expert meeting Daulbert standards in these quite necessary fields, may now also be required.
In other words, prosecution of an inadequate security cases become more expensive. Furthermore, each of these experts has their own specialty. All of the inadequate security experts have specialized fields and they tend to gravitate their opinions towards their fields. Is the case in your office in that field?
Before you hire an expert you need to know what the true issues are in your case. Is it a standard of care issue? Is it a foreseeability issue? Is it a causation issue? Is it key control? Is it lighting? Is it staffing of security guards or training of security guards? Moreover, what issue will it be for the defense? Is it causation? Will the defense hire a profiler? If is foreseeability? In a way, you almost need to have three experts available to you - a generalist to carry most of the case, a specialist to deal with specific issues to your case who must meet the new Daulbert standards and perhaps a consulting expert to address the anticipated opinions of the defense expert. Each inadequate security case is unique; each is fact intensive. Thorough case preparation including addressing of anticipated defense's case is essential.
Hiring two or three experts in every inadequate security case dramatically increases the cost of pursing these cases, especially if the defense can blame 95% of the harm on the criminal and leave only 5% of the verdict to the insured defendant. That result is not lost on those who wish to profit without accountability for their conduct.3
1 Lau's Corp. Vs. Haskins, 261 Ga. 491 at 492 (1991); Matt Vs. Days Inns of America, Inc., 212 Ga. App. 792 at 794 (1994), Aff'd, 265 Ga. 235 (1995).
2 Please see the apportionment of fault by State including citations of statutes attached at the end of this article. That survey is copied with the permission of John Leighton of Leesfield, Leighton, Rubio & Boyers, P.A., Miami, Florida, and with permission of the National Crime Victim Bar Association, Washington, D.C.
3 I am indebted to John Leighton of Leesfield, Leighton, Rubio & Boyers, P.A., Miami, Florida, for his article on Inadequate Security. Much of this article is based on his presentation.