The following is an excerpt from Gary Martin Hays' most recent book The Authority on Inadequate/Negligent Security Claims in Georgia: The Definitive Guide for Attorneys, Injured Victims, & Their Families.

Gary provides a peek behind the curtain at how the Law Offices of Gary Martin Hays & Associates successfully represents clients with inadequate/negligent security claims in the state of Georgia.

If you have questions regarding negligent security, contact us at 770-934-8000.

Chapter 1

What Are Inadequate/Negligent Security Claims?

Inadequate security (or negligent security) claims are a means by which a victim of a crime may seek civil damages against the commercial establishment or business for the entity's failure to protect that person from a foreseeable crime by a third person.

This is based upon the legal theory that the business (the landowner, the property owner) has a duty to offer "reasonable security measures" and to protect lawful visitors upon their property from attacks by a third party. The assumption is that the crime (attack, rape, assault, shooting, stabbing, etc.) could have been prevented or, at a minimum, been made less likely to happen if the business had used reasonable and appropriate security measures.

It is important to note that the victim of a crime does not have a legal right to civil damages just because they were injured on the business's property, or because they were the victim of a criminal act while on the property. The owner must owe some kind of legal duty to the person on their property. Georgia law has three (3) different classifications for visitors upon a property:

(1) Invitee: O.C.G.A. Section 51-3-1 sets forth the duty that the owner or occupier of land has to an invitee upon its property:

"Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe."

The statute specifically addresses one to whom the owner of the business/property owes the legal duty - an invitee - by either express invitation or an implied invitation. An invitee could be a customer that comes onto the property to do business with the store owner. It could also be someone who goes to a restaurant for a meal, or a person that walks through the doors of a motel or hotel seeking to rent a room for the night. As an invitee, as someone who is "invited" onto the property to conduct business, the property owner owes the highest level of protection under Georgia law.

(2) Licensee: O.C.G.A. Section 51-3-2 sets forth the duty that the owner or occupier of land has to a licensee upon its property:

"(a) A licensee is a person who:

• Is neither a customer, a servant, nor a trespasser;
• Does not stand in any contractual relation with the owner of the premises; and
• Is permitted, expressly or impliedly, to go on the premises merely for his own interests, convenience, or gratification.

 (b) The owner of the premises is liable to a licensee only for willful or wanton injury."

Licensees are people that are on the property for their own purposes with the express or implied permission of the owner. This could include party guests or social guests - people visiting for their own amusement or enjoyment - or perhaps family friends with an open invitation to visit. Another example may be that of a salesman coming onto the property with the goal of selling something or it could be someone walking inside a store to ask directions or for a restaurant recommendation nearby.

A different duty or standard of care is imposed upon property owners as to licensees. They owe the licensee a duty to warn of a risk of harm if the landowner/business knows of the dangerous condition and the licensee is not likely to be able to discover it.

(3) Trespasser:

A trespasser is someone who comes upon the property of the owner without permission. There is no real duty on the landowner's part to anticipate the presence of a trespasser as one is entitled to assume that other people will obey the law and not trespass on someone else's property.¹ Also, if the landowner is not aware of the presence of the trespasser or of the danger that they may face, there is no duty for the landowner to maintain the property.²

It is important to note that there is not a federal law on the books that mandates what legal duties property owners/businesses have to provide security. As previously noted, I shall address this only from the perspective of Georgia law. For the purposes of this book, I shall also only deal with claims that may be presented by the first two categories - Invitees and Licensees.

What types of commercial establishments or businesses can be held liable in an inadequate security claim?

The following is just a list of examples:

• Apartments and apartment complexes
• Colleges and universities - not only in the dorms, but around campus
• Nursing home and assisted living facilities (claims have arisen from the failure of a nursing home to prevent Alzheimer patients from wandering)
• Hotels, motels, and resorts
• Construction sites
• Parking lots, garages, and decks (including stairwells and elevators)
• Cruise ships
• Hospitals (in-patient molestation by staff or other patients or visitors. Patients are certainly vulnerable while medicated/sedated.)
• Mental health facilities
• Convenience stores (including shootings, stabbings, abductions)
• Bars, nightclubs, and liquor stores
• Movie theaters
• Banks and ATMs (especially when the area is not well lit, or where the person is in an enclosed area without windows to see the entire area)
• MARTA stations and parking lots
• Shopping centers, malls, discount malls, strip malls, retail stores, and outlet malls
• Office buildings, complexes, and parks
• Churches and other places of worship
• Concerts and amphitheaters

Why go after the business or property owner when the third party was the one who committed the crime?

There are several reasons:

• Sometimes the criminal is never caught or is unknown.
• The crime may never have occurred but for the business not having security, or failing to exercise ordinary care by having proper security measures. In essence, their failure to act or their refusal to properly act allowed the conditions to exist which led to the crime.
• It is often rather easy for us to identify the owner or the responsible entity for the management of that business/premises - especially when the perpetrator is not known.
• The owner or responsible entity for that property is often more likely to have insurance that will help pay claims for their negligence.
• Pursuing claims against the owners or responsible entities will encourage them and others to have the necessary security systems in place to protect invitees and licensees on their property and will hopefully prevent future attacks.

Who can be held civilly liable in these attacks?

In many claims, there are multiple potential targets, including:

• the criminal defendant, if known;
• the business owner;
• the business tenant, especially if they were contractually responsible for providing security and did not do it, or if their efforts were substandard;
• the management company;
• any security company or contractor that was paid to install, maintain, and/or monitor the security equipment or cameras;
• any security company providing guards that did not properly do their job, or were not properly trained or supervised.

Who can bring the potential claim?

If the victim lives through the attack, is coherent, has the mental/emotional faculties to make an informed decision, and is eighteen (18) years of age or older, then the claim vests with them. If the victim is a minor, the parent(s)/custodial parent can bring the claim on the child's behalf. Some cases may require a guardian be appointed to pursue the claim and monitor any recovery of the victim's behalf, especially if the victim is a child or is mentally incapacitated.

Spouses may also have a claim for loss of consortium whenever their partner has been the victim of a criminal attack and suffered injuries. The purpose of loss of consortium is to compensate the spouse for their loss of "benefits" due to the injuries. This could be based upon loss of love, affection, companionship, comfort, or the damage to the couple's sexual relations because of the attack.

Who has the right to pursue the claim if an adult victim dies as a result of the attack?

The answer depends on whether or not the person was married. If they were married at the time of the death, then the claim belongs to the surviving spouse.

What if the person who died was not married at the time of their death, but was living with their significant other? Does this person have a claim for the wrongful death? The answer is NO - because they were not married at the time of the death.

If the victim was not married, then Georgia law holds that if there is no surviving spouse, the claim will vest with the surviving children of the deceased. This will require the Court to appoint someone to handle the claim for the benefit of the child/children.

What are the different types of cases that may arise out of inadequate security claims?

Over the years, we have helped people who have been the victim of the following criminal attacks:

• Assaults
• Sexual assault/rape
• Shooting victims
• Stabbing victims

In all of the claims that we handle, we understand the physical and emotional toll that these attacks can have upon the victims and their families. There is no shame in asking for help to deal with the mental trauma and we work to make sure our clients are able to get the assistance they need to cope with all aspects of their injuries - both physical and emotional.

¹ Norris v. Macon Terminal Co., 58 Ga. App. 313, 198 S.E. 272 (1938).

² Leach v. Inman, 63 Ga. App. 790, 12 S.E.2d 103, at 105 (1940).

 

The information we are sharing with you in this book is general in nature. It is not designed to provide specific legal advice regarding you and your potential claim. The information in this book may or may not apply to your specific case. Nothing can replace a consultation with an experienced attorney to discuss the facts about your particular claim.

If you would like to have our law firm conduct a free, no-obligation, completely confidential consultation of your inadequate security claim, please do not hesitate to call us at 770-934-8000.