In Negligent Security Cases Plaintiff Must Prove That Security Was Actually Negligent

When a patron of a business is assaulted and injured by a criminal on the premises, there is sometimes a possibility of suing the business or property owner for negligent security.

When I have handled such cases, the usual drill has been to gather evidence of prior criminal assaults on the premises to prove that the owner was on notice of the need for increased security, and then get an expert to testify about the types of security measures that should have been employed but were not.

Often when we have investigated potential cases of negligent security we have found a shocking number of assaults and shootings in parking lots and common areas at apartment complexes, night clubs, stores and shopping centers. That makes it relatively easy for a security expert to testify about both active and passive security measures that could have helped prevent the incident in question.

Last week, the Georgia Court of Appeals has provided a reminder that one must actually do the hard work of proving what the business actually did something wrong in its security measures.

In Yearwood v. Club Miami Inc., A12A0550, 12 FCDR 1820 (06/08/12), the Georgia Court of Appeals (Hon. Anne Barnes) affirmed a trial judge’s (Hon. Dax Lopez, State Court of DeKalb County) grant of directed verdict for the defendant night club in injury suit arising after the plaintiff was shot in defendant’s club. The plaintiff presented no evidence showing that defendant’s voluntary security measures were inadequate or insufficient or that defendant’s measures made security situation worse.

Surprisingly, the plaintiff presented no evidence of prior criminal acts on the premises and no testimony that the security checks and search for guns at the door was actually negligent rather than merely unsuccessful. The plaintiff’s case was essentially one assuming strict liability because the assailant got a gun past the club’s security measures.

The lesson in this case is that lawyers who represent people injured in criminal incidents on business premises must investigate prior similar criminal acts on the premises, conduct detailed discovery about the security measures that were or were not used, and introduce expert testimony from a credible security expert to present to the court exactly why the defendant’s conduct fell below the standard of care for premises security under the circumstances.

If all that can be done convincingly, and if there are insurance coverage or assets available, then there can be a good chance of recovering compensation for the victim. However, if such a case is not presented with adequate evidence and skill, it will fail.