Crime, risk and liability
While at your wash, one of your customers is physically attacked and severely injured. Are you liable for your customer’s injuries if sued? Are you negligent for not hiring a security guard?
You might not think your business requires a security force, but after a crime occurs, the finger-pointing begins. Before an attack happens there are some things you can do to avoid legal responsibility for crimes committed by third parties on your property.
Owners are not liable for unforeseeable crimes
Premise owners are generally not liable for unforeseeable criminal conduct of a third party. Although most states have not specified what a premises owner must do to protect its customers, all generally agree that owners are not insurers and are not responsible for all injuries suffered by customers.
Instead, an operator must provide adequate security where the risk of crime can be reasonably anticipated. If you had reason to know the attack on your customer would occur — if it was foreseeable — and you did not take steps to prevent crime or warn your customers of the risk, you may be liable.
What crime is foreseeable? Unfortunately crime in our country is everywhere. But it would be unfair to hold all business owners liable for crimes that happen to be committed on their property. Instead courts across the country evaluate the risk of crime in one of two ways.
The first method focuses on the totality of the circumstances facing a business owner. In practice the nature of a business is a key consideration under this analysis. Courts that follow this approach look at factors such as:
• Operating hours;
• The percentage of cash used at the business;
• Whether alcohol is served or sold on the premises; and
• The history of crime on the premises.
The problem with this approach is that it over-generalizes and fails to take into account the risk of the location itself. Just as crime has visited schools that we assume will be safe for our children, some bars and liquor stores have never experienced crime.
Thus, even if your wash has never been the site for a crime, the law in your state might imply an obligation to provide security based solely on how you operate.
Other states follow a prior similar incidents approach to “foreseeability.” That is, whether your business has been the scene of a similar crime in the recent past will determine whether you should foresee a risk of crime.
Taking the various approaches to foreseeability into account, wash owners should be mindful of the following general factors in determining whether the risk of crime should be anticipated:
Previous crime: Has any criminal activity previously occurred at or near the premises? Importantly, owners generally are not expected to regularly inspect criminal records to determine the amount of crime on or adjacent to the wash’s location. Keeping accurate records of prior incidents at each location is important to determine your ongoing need for additional security and whether a crime should have been anticipated. In a lawsuit, an injured customer may try to prove the occurrence of previous crime by reviewing emergency call records and police reports. Calls for service records are an unreliable measure of crime at a location, so it can be helpful to identify previous emergency service calls to your wash that did not result in a criminal investigation.
Frequency of crime: Many security experts will tell you that the risk of crime at a location is best determined by reviewing trends of crime. The occurrence of several similar crimes over a short period might make future crime foreseeable. On the other hand, if your wash has not been the scene of one or more violent crimes over the last couple of years, the absence of a crime trend establishes the lack of a risk of crime.
Similarity of crime: Do a string of car vandalisms suggest that an assault will take place at your wash? Probably not. Experts and courts agree that prior crime must be similar in type and severity to suggest a risk of violent crimes.
Neighborhood: You don’t need an expert to conclude that your business’s neighborhood may suggest an increased need for security. Wash locations in high traffic, urban environments may require more attention than a location in a small, rural town. But your review of the surroundings should move beyond stereotypes. Walk your neighborhood, talk to neighboring business owners, and find out if they have experienced crime.
Operations: Take a step back and review your hours, lighting, and methods of payment. If you operate late into the night, are not well-lit, and offer exclusively coin-operated, self-service bays, your late-night customers may be placed in a vulnerable position. If a customer is assaulted, every aspect of a customer’s wash experience will be scrutinized. It is better to review this now than to wait until you are on the defensive.
These factors are merely a sample of the angles courts across the country will use to examine whether business owners should be held liable after the fact. If the sum total of these factors indicates that the criminal attack that occurred on your property was not foreseeable — if you could not have known it would occur — then you will not be liable for any damages to your customer.
If sued, what’s next?
If you as a wash owner are sued and found liable for your customer’s injuries, you probably will not face punitive damages. Most states prohibit the award of punitive damages for harm resulting from the criminal acts of others. Exceptions exist and it is prudent to consult an attorney for specifics in your state. You might also want to check with your insurer because most states permit insurance against certain punitive damages.
Every business owner faces a risk of being sued when a customer is injured on their premises. Fortunately, the law in most states does not hold wash owners responsible for unforeseeable criminal attacks. Security can reduce premeditated crime and may be prudent to lower your risk of liability, but it is not an end-all, be-all solution and is not required to avoid legal liability.
In other words: Be proactive. If you use incident reports, be certain that crimes are reported in detail. Train your employees about the importance of accurate reports. And talk to your attorney about how to prevent being targeted with a lawsuit if one of your customers is criminally attacked while at your wash.
Patrick J. Carew is an attorney with Crouch & Ramey, LLP (www.crouchfirm.com) in Dallas, TX. He represents clients across the country in defense of premises security, general and product liability and non-subscriber claims. Patrick may be reached at email@example.com.