This [article] gives a brief overview of how to deal with premises security litigation when it arises on your premises. It addresses case management, investigation and evaluation. Based on these three building blocks, it highlights best litigation planning, budgeting and best resolution plans for security claims.
Once a complaint is received by your claims department, the first cause of action is to review the facts alleged in the complaint and assess the information contained. Is there an existing case in the company’s files? Or is it the first time your company is hearing about this incident? The company should try to identify all the named defendants and which of the defendants are insured. What are the legal causes of action alleged in the complaint and what facts support the allegations?
After the preliminary assessment of the case, the company should gather all the relevant information including all the possible witnesses, crime grid statistics, police reports, incident reports, any documents/reports as to other incidents, security information, retrieve any surveillance footage (save enough –recommended an hour before and an hour after), assess lighting on the property, interview security personnel, if any, etc. It is important to understand that at this point it is possible that the only source of information is the complaint. That is why it is essential to gather all the relevant facts in connection to the incident as quickly as possible.
In this stage, it is essential to identify any potential security liability issues at the premises. Retaining a security company early on to assess the premises may not be a bad idea. A security company will evaluate the reasonableness of the security measures all ready in place based on the crime grid statistics and what they show. The important thing in this phase is getting on the offense and creating your own narrative.
This process includes an assessment of the possible liability and damages issues related to the plaintiff’s claim. Before deciding on a successful litigation plan, the company must understand the possible ramifications of each cause of action, and the likely results. What are the available defenses and the chances of a successful outcome based on what information is available. To succeed in a negligence claim a plaintiff must prove (1) the existence of a legal duty; (2) a breach of that duty; (3) proximate cause of the plaintiff’s damages by defendant’s breach;and (4) damages. Proximate cause had two components: (1) foreseeability and (2) cause-in-fact. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004).
In cases of liability arising after a crime is committed on the premises, it is necessary to understand the issue of foreseeability. Generally, a foreseeability analysis includes matters such as the imminent harm, the existence of prior similar crimes and the totality of the circumstances.
For example in Florida, in a premises liability case a property owner is generally under no duty to exercise any care to warn or guard against the harmful acts of a third party unless that third party’s harmful behavior is reasonably foreseeable. And although not dispositive, a showing that of no prior incidents can shed a light on the difference between whether an accident “is merely possible and whether it is reasonably foreseeable.” Las Olas Holding Co. v. Demella, 228 So. 3d 97, 104 (Fla. 4th DCA 2017)
In Texas, the courts compare the narrowed criminal history of the premises with the crime in question based on the five factors: proximity, publicity, recency, frequency, and similarity.See Flanagan v. RBD San Antonio L.P., 04-16-00761-CV, 2017 WL 5615567(Tex. App. Nov. 22, 2017).
A litigation plan is a mutually agreed upon plan between claims professional and defense counsel to implement the resolution plan. Although it must identify all the agreed upon steps to achieve the resolution plan, it is not a start to finish all-encompassing plan, but a living document built in phases.
After a litigation plan is agreed upon, ask counsel to estimate time expenditure necessary for that portion of the litigation plan. The budget should track the litigation plan and include costs for any experts that are used during that portion of the litigation plan.