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Prove notice with standards and statistics: when a commercial property has had no prior criminal activity, use industry standards and data from nearby properties to establish that crime on the premises was foreseeable.

Article Excerpt
Negligent-security lawsuits are a fast-growing segment of litigation in the United States, second only to slip-and-fall cases. (1) Plaintiffs in these cases typically are victims of a violent crime on a commercial property and seek to hold the owner liable, but they win only 48 percent of these cases. (2)

One of the key reasons plaintiffs do not succeed in these claims is failure to prove notice. Once notified of a foreseeable risk, commercial real estate owners have a duty to take reasonable steps to make their property safe.

Plaintiffs usually try to establish notice by showing a history of similar crimes at the property at issue. When no prior crimes have occurred there, the case is more difficult. Plaintiffs and their attorneys can enhance their chances of proving notice and duty by using statistics and industry standards.

In many states, landowners have a special relationship and statutory duty to invitees and others who visit their property. (3) To establish a negligence claim, the plaintiff must prove that the owner had a duty, to protect others against unreasonable risks; that the duty was breached; that there is a reasonable, close causal connection between the conduct and the resulting injury; and that the plaintiff suffered damages as a result. (4)

Over the past decade, appellate courts nationwide have held that a landowner has a duty to provide adequate security when there is a history of similar criminal activity on the property. Thus, owners have been found liable for injuries resulting from third-party criminal activity if they have received notice that crime might occur, making it reasonably foreseeable under community standards. (5)

Some appellate courts have also held that a landowner's duty is triggered by a history of criminal activity near the property. (6) Because the landowner must take notice of and respond...

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