The average American probably does not think about security very often, at least in terms of security offered by someone else. But in the landscape of the world today, security is almost always around us, whether we know it or not. Over our shoulder, protecting us from nefarious ne’er do wells, we rely on security to ensure our physical, mental and financial safety. It may be an oversight, but many people take security for granted until it should be there, and isn’t.
Security is an essential part of doing business for many organizations in Pennsylvania. Many have recognized the need for properly staffed, equipped and trained security to ensure visitors are not harmed by others. Indeed, the courts have ruled that it is a responsibility of certain individuals and organizations to provide security. When security is inadequate, improperly equipped and trained or does not respond to situations properly, members of the public are exposed to the possibility of harm. Ultimately, when harm does occur, laws regulating premises liability historically include the responsibility of providing security.
There is no clear standard of what amounts to adequate security for every situation. Some situations, like Philadelphia Eagles games, require a massive security effort utilizing the latest in technology. Other events, like a family reunion held at a rental hall, will not require the same level of security. Determining what amounts to adequate security is a question the courts are best equipped to handle, often leaving security organizers to do the best they can to provide a safe environment without making it feel like a prison camp, and without any clear guidelines to guarantee compliance.
Premises liability claims typically arise from situations in which an individual or group is hurt or killed because of a dangerous situation the responsible party knew about, or reasonably should have known about, yet failed to prevent. A common situation that involves premises liability law is slip, trip and fall injuries, such as when spills are not cleaned up at a grocery store, or sidewalks are not repaired in front of a business. In these situations, the owner of the property where the accident happened can be held liable and be responsible for damages, attorney and court costs, and financial recovery. If an injured party can demonstrate that the responsible party did not take care to prevent injuries, courts may find them partially or wholly liable for damages, and settlements can run from a few thousand to many millions of dollars, depending on the case.
The incorporation of negligent or inadequate security within premises law is a relatively recent development that some scholars view as the fastest growing category of premises law. Much of the historic law that formed our modern understanding of adequate security originally applied to innkeepers, a long-established class that is recognized as owing a duty of care to prevent attacks, robberies and violence against guests. Today, a growing number of organizations, businesses, events and government agencies are faced with liability claims for failing to provide adequate security. The newest area of negligent security law emerging in courts nationwide deals with the growing issues of terrorism and cyber-security.
Almost always, negligent and inadequate security claims arise from harm caused by a third party, known or unknown to either the defendants or plaintiff.
What Adequate Security Looks Like
The goal of providing security is to prevent harm to visitors, guests and members of the public from nefarious actions of third-party individuals. Laws requiring security will typically examine what a responsible party could foreseeably identify as a potential threat or cause of harm. Many businesses utilize audio and video recording technology, posted notice of possible harm, and quite often, either or both uniformed and plain-clothes security agents. It is likely impossible to determine the effectiveness of these measures overall. Data provided by the Federal Bureau of Investigations indicates that where security is a priority, violent crime decreases. Overall, violent crimes across all categories have declined in recent years, and this change can be attributed to inclusion of new security features and an enhanced view of the role and responsibility security plays in preventing violent crime.
Depending on circumstances, adequate security might be nothing more than a sign warning patrons to beware. In other situations, video surveillance and patrols might be better suited to addressing the dangers. For an increasing number of businesses today, a combination of policy, training, security systems, alarms, and guards are necessary to prevent unlawful behavior that can cause injury.
What the Law Says about Security
Pennsylvania has long established laws requiring property owners to prevent harm from members of the public. In all premises liability claims, courts will look at what the responsible party knew or should have known about hazardous conditions, commonly discussed as negligence. Negligence can be defined simply as failure to prevent an accident that a reasonable person would have identified. Simple negligence is often the leading cause of action in premises liability law, and often establishes fundamental responsibilities.
Occasionally, the term Gross Negligence will also apply to premises liability claims. Gross negligence is differentiated from simple negligence under the assumption that a responsible party who demonstrably knows of a hazard, yet fails to correct it is intentionally violating their duty to care for members of the public. Negligence is typically unintentional, while gross negligence often is considered intentional. Inadequate and negligent security claims often include claims of negligence, gross negligence and negligent hiring. It is common in negligent or inadequate security cases to have multiple defendants, each owing a certain amount of responsibility.
Pennsylvania has unique laws regarding premises liability responsibility that take into account factors that may reduce or eliminate the responsibility of property owners in regard to negligence. The term used is comparative negligence, and at its most basic interpretation, means nothing more than that a defendant should not be held entirely responsible for negligence when the plaintiff was partially at fault for the damages they incurred. As an example, if an individual ignores a wet floor sign then slips and falls, the business owner cannot be held negligent for the entirety of damages. In matters where the courts determine the plaintiff is more than 50 percent liable, no damages can be recovered from defendants, regardless of severity of the injury.
How Security Applies to Premises Liability Law
When looking at the established laws regarding personal injury and premises liability, it is always the responsible person whose actions, or lack thereof, caused the potential for injury. Security is applied somewhat differently, in that the individual who causes the harm is a third-party and is usually not known to the injured person nor the responsible individual. While the offending person or people might face criminal and civil charges, the claims against the property owner or responsible party relating to the negligent or inadequate security issue did not cause the injury, but rather, did not do enough to prevent the injury from happening.
In terms of security, Pennsylvania courts have recognized that parties assume responsibility for providing security voluntarily and involuntarily. In matters dealing with residential property, courts have decided that owners who do not advertise any type of security system or protocol can not generally be held liable for negligent security issues.
Voluntarily offering a security system as a benefit either to members of the public, employees or those who are paying for access, under the law, provides an expectation of security. The definition of a “security system” is not spelled out entirely. For example, courts once would find that property managers who failed to repair a broken door lock to a common area of an apartment community did not run afoul of negligent security, as the door lock is considered a normal part of home maintenance, not a component of a security system.
That view has been challenged, and in it’s ruling in the matter of Reider v Martin, the Pennsylvania Supreme Court ruled against defendants because they had been made aware of a broken door lock and had promised to repair it, but failed to do so, even after repeated intrusions. The court ruled that the definition of a “security system” includes more than guards, cameras and alarms, but also can include properly functioning door locks, thereby incorporating an involuntary guarantee of security and applying a responsibility on property owners to maintain their property.
In determining responsibility, the courts have historically looked at what could lead a responsible party to reasonably conclude security is essential, and to what level security should be provided. In some instances, courts have ruled that defendants did not owe a duty of care to visitors when anticipating harm was not possible. What the courts look at typically includes crime statistics for a given area, numbers of similar reports of harm and the overall expectation of what might occur.
In the eyes of the law, an owner of a bar in a college town will have a greater expectation of harm- and need for security- than an upscale restaurant owner is expected to hold. Even cases where controlled access buildings have had multiple property crimes, the owners might not be held liable in the case that a tenant experiences a sexual assault by an intruder who found the door lock inoperable because the nature of the crime was unforeseeable.
Each negligent or inadequate security case is different. The majority of claims arise from attacks by third-parties on guests or visitors in a few places that people frequent.
- Sports Stadiums, Event Centers, Fairs and Concerts
- Hotels, Apartments and Community Housing
- Retail Malls, Shopping Centers and Parking Garages
- Public Buildings and Transportation
Sports Stadiums, Event Centers, Fairs and Concerts
Many negligent security claims arise from injuries happening at sports games, festivals and event centers, and other places where lots of people gather. Negligent or inadequate security claims in these places typically involve assault. Fights tend to break out when emotions are high and particularly when alcohol is involved.
The Philadelphia Police Department reports that more than 1,000 crimes were committed in the last six months in the area immediately around the South Philadelphia Sports Complex, home to the Phillies, Eagles, 76ers, Flyers and other sports teams. The Sports Complex Special Service District, South Philadelphia claims that eight million visitors and 5.5 million vehicles use the complex annually. With around 22,000 parking spots and events 300 days a year, security is a serious priority.
During a sold out Eagles game, around 900 part-time security guards, backed up by uniformed and plainclothes police officers patrol the parking lots, causeways, stands and other public areas, even the bathrooms. Security during games uses a mixture of technology and tactics to ensure the safety of 69,000 guests.
The Bureau of Labor Statistics (BLS) reports that 1.1 million Americans are employed as security guards. In Pennsylvania, as of May 2017, 47,200 residents are employed as security guards, earning an annual average salary of $27,150. Pennsylvania sets standards for employment of security guards, requiring the ability to pass a background check, fingerprinting and verifying ones identity and work history for the past three years. The minimum age to apply is 18. Applicants pay for fingerprinting, background check and a $200 fee before petitioning a judge for licensure. No standard for specialized training has been established.
Armed security requirements are more strict, requiring a psychological interview, background examination and three character witnesses. Applicants must be 21. The judge who hears the applicants petition for licensure determines whether the individual has appropriate training.
Poor training, lack of proper training and failing to abide by protocols established through training programs commonly are associated with negligent security claims.
The most common situation that is likely to involve a claim of negligent security is when fights break out during games, concerts and crowded events. Research conducted by Arizona State University has shown that the likelihood of spectator violence increases with temperature, noise and large crowds. In many negligent security cases, the injured plaintiff was not involved in the fight.
Stadium parking lots both present a problem for security services and are among the most likely place to experience crime. Robberies, assaults and many other crimes happen frequently in parking lots. Property crimes are very high in parking lots during events.
The Bureau of Justice Statistics (BJS) reports that the annual average number of violent crimes happening in parking lots nationwide between 2004 and 2008 was 401,920. BLS reports an additional two million property crimes over the same period.
In order to hold a security company liable for damages through negligent security, it must be shown that the security company had a reason to believe that a crime could be committed. Security guards are generally expected to prevent fights from happening, rather than break the fight up.
In 2014, during a football game at Lincoln Financial Field between the Philadelphia Eagles and the Dallas Cowboys, a fight broke out in a bathroom between fans of the rival teams. A Cowboys fan named Patrick Pearson had his ankle broken during the confrontation. He sued the Eagles, the stadium and the security company that provided security during the game.
A jury awarded him $700,000, in part because of the claim of negligent security. Pearson argued that Apex, the security company involved, should have reasonably anticipated fights breaking out in the restroom and done more to prevent altercations from happening. The jury agreed.
Today, Eagles fans very well may encounter security officers in the restroom, dressed in away team jerseys. Most security teams at professional sports games today employ undercover guards.
If you have been injured at a stadium or event center, and you believe negligent or inadequate security resulted in your injuries, it is important to contact an attorney who specializes in personal injury law and has experience litigating negligence and negligent security claims.
Apartments, Community Housing and Residential Security
Apartments and community style residential homes are often targeted by criminals because of the relative anonymity granted when large numbers of people live in one place, with guests and visitors coming and going, and little in the way of security. In general, landlords of apartment buildings in Pennsylvania are not required to provide security for residents. The Philadelphia Department of Licenses and Inspections states that landlord responsibilities include maintaining doors and windows in good condition, which includes ensuring that door locks function correctly. Philadelphia requires regular inspections of rental properties to ensure compliance with minimum standards of habitability.
Crimes that happen in and around apartment communities vary. Landlords who operate rental properties in high crime areas are more likely to have a legal obligation to provide security under the belief that crimes are reasonably foreseeable. Generally, negligent security claims against landlords will typically involve violent crimes that are reoccurring and which landlords do not address.
Property crimes are the most common crime committed, including thefts, vandalism and like crimes. Generally, property crimes cannot be used to generate a negligent security claim unless a person is injured in the commission of the crime. Pennsylvania courts have determined that property crimes occurring does not raise the likelihood that violent crimes are reasonably foreseeable.
When determining whether a landlord owes a duty of care to provide security, courts will look at similar crimes that have happened and what steps, if any, landlords undertake to prevent crimes from continuing to happen. Many factors are involved in the courts analysis, and each situation is unique. Apartments, including common areas, are generally considered private property that is not open to the public, however parking lots and access ways are accessible to the public. This wrinkle in law can create confusion when determining whether a landlord owed a duty of care to provide security against third party crimes.
The United States Department of Justice, Bureau of Justice Statistics (BJS) reports that on average, a burglary occurs once every 18 seconds nationwide. Data from the BJS indicates that 28 percent of break-ins happen while someone is at home, and seven percent of those instances result in a violent crime. The data shows that apartment dwellers and people who live in community housing are less likely to encounter a robber, with eight of every 1,000 burglaries happening to a resident of an apartment who is home at the time. Assault is the most common violent crime.
Between 2003 and 2007, 430 homicides occurred during a home invasion burglary attempt nationwide, according to data from the Federal Bureau of Investigations. Forty-four percent of encounters with burglars lead to violence, with nearly 3 percent of victims suffering a sexual assault and no other injury.
Gated communities and secure access buildings face a unique legal challenge in that an implied warranty of safety is conveyed to tenants because of the presence of security features, whether it is key card access at gates, a doorman monitoring access or some variation of a security system in place. Negligent security claims can arise when a third party gains access to these type of housing due to lapses in security or failure to maintain the systems. Broken or inoperable door locks, windows and walls and fencing that are incomplete or damaged are indicators of a failure on the part of the landlord to provide a safe and secure residence.
In a 2013 study of the impact security forces have on crime rates, researchers identified that correlations between security and crime varied greatly, and seem to largely depend on the types of crimes committed, the area where crimes happen and the long-term presence of security. Researchers found that property crimes as a whole declined when security forces were present.
As a result of the varied causes leading to negligent security claims, it is nearly impossible to create statistical likelihood of particular crimes occurring. Estimates across numerous legal research groups indicate that the most common violent crimes committed in apartment settings are assault, rape and robbery. The Philadelphia Police Department (PPD)report that in 2018, 1,048 rape cases were filed, a slight decrease from 2017 of 9 percent. That same year, 12,881 robbery and assault cases were filed city-wide. Crime statistics are available online through the PPD website and includes a crime map to help identify areas of higher than average crimes.
Landlords who advertise properties as having security features express a liability for ensuring the safety of residents and their guests. Promoting 24 hour security, Closed Circuit Television Cameras (CCTV) and like systems, keyed access security alarms and other safety and security features -up to and including armed sworn security officers- intended to attract and retain residents owe a duty to care for the safety of people accessing the property.
In some cases, the liability assumed by landlords will include parking lot areas, hallways and common grounds and any area that residents or their guests have access to which could expose them to the likelihood of violence through the ease of access to the public. If a landlord advertises a secure residence, the courts will hold them liable for providing adequate security.
Adequate security for residential properties is assessed the same as in other situations. Crimes committed recently will be examined, and if it is determined that a landlord could reasonably foresee the potential for violent crime to occur, yet measures were not enacted to prevent crimes, a negligent or inadequate security claim is possible.
If you are a tenant of a building that does not provide adequate security or demonstrates lapses in security that resulted in an intruder causing you harm, contact an attorney with experience litigating negligent security claims.
Bars, Nightclubs, Restaurants and Hotels
Bars, nightclubs, restaurants and hotels are targeted frequently by criminals, and are also likely locations for assaults to happen. Bars and nightclubs are typically considered an environment of inherent risk and danger, and as such, the expectation that security is provided exists. The level of security that is adequate depends on many factors that include the location of the property, the clientele and past problems. Negligent security claims can also be brought in instances wherein a security guard uses excessive force or becomes violent with a patron, causing injury. Shootings that occur at bars and nightclubs fall within the scope of negligent security as well.
Fights that happen within the bar or restaurant are only part of the issue. More commonly, violence and sexual assault happen in parking lots near bars and restaurants. These areas are often the least secure, offering opportunity to persons up to no good. Robbery, car jacking and assault happen frequently in parking lots near bars and restaurants. Parking lots that are poorly lighted are a particular hazard, and it is common to see poor lighting as an aspect of security negligence.
Research published by the National Center for Biotechnology Information, National Institute of Health shows that rates of sexual assault and violence increase when alcohol is added. The research identified that on-site alcohol sales in large volume tend to be associated with as much as 9 percent higher rates of patron-on-patron violence, rape and assault.
Perhaps the very earliest incorporation of a duty to provide security originated in 15th century England, when the courts determined that innkeepers were required to prevent crime from being committed against guests. Today, hotels are expected to provide numerous aspects of safety, and typically will use cameras, motion-sensing lighting and uniformed patrols to reduce liability for negligent security claims. Generally, hotels are expected to ensure each person who enters the facility is checked in and is there for a legitimate purpose. When hotels fail to check in visitors, they expose themselves to liability through negligent security claims.
Bars, hotels, restaurants and nightclubs that are located in areas with identifiable high crime rates should take extra precaution to ensure the safety of patrons. Research on the effectiveness of policy on reducing violence has shown that no one set of rules will effect reduction of violence. In some studies, the presence of additional security has even been linked to increased violence, particularly when the security force is poorly trained. Another study showed an increase of violence at bars and nightclubs that scanned IDs, as some patrons take offense to showing identification and become violent and angry at being refused admittance.
If you have been injured in an assault at a bar, nightclub, restaurant or hotel, contact an attorney who specializes in Premises litigation with experience in negligent security claims.
Trains, Buses and Airports
Public transportation is intended to provide an easy, inexpensive and safe mode of travel. Over the course of the last several decades, following terrorist attacks in the UK, Japan and France to name a few, increased attention has been paid to providing security. The South Eastern Pennsylvania Transit Authority (SEPTA) has instituted policies and practices to prevent terrorism from happening that include security cameras, armed and undercover officers, public information campaigns and cooperation with local police departments to secure the trains, platforms and parking areas.
In the past decade, train safety has evolved to meet the challenges of terrorism. Today, mass transit operators are faced with the need to ensure the safety of passengers from all types of possibilities, including terrorism.
Terrorist attacks on public transportation are exceedingly rare in the United States. In fact, the only recorded act of terror on a US rail line happened in 1995 when saboteurs deliberately removed 29 rail spikes and moved a train track four inches, causing an Amtrak passenger train to derail as it crossed a 30-foot high trestle bridge over a dry river bed. The ensuing crash killed one employee and injured 78 others. The perpetrators were never identified or caught, and conspiracy theories abound.
Much more common are assaults that start either on a train or bus, in a parking lot or on the platform waiting for transportation. The most numerous crime committed on public transportation is the theft of cellular phones. Theft of cell phones -and items carried onto public transportation- is considered a property crime. Absent a physical injury, the crime is non-violent and cannot be considered as a negligence issue. The majority of assaults reported to transit officers begin with an attempted theft that escalates to a physical assault.
SEPTA employs 260 sworn police officers to protect riders and the surrounding regions. Violent crimes on SEPTA trains peaked in 2012 at 541 incidents, and as a result of increased security, have declined by nearly half. SEPTA says that often, riders are surprised when plainclothes officers issue citations for minor crimes.
Despite best intentions, crimes do happen on SEPTA transit vehicles. This MAP shows the nature and details of crimes committed near SEPTA stops.
September 11, 2001 was a day of infamy that changed many accepted norms for most Americans. A significant change was the increased presence of security at airports. In 2001, the federal government passed the Patriot Act, a measure intended to give law enforcement the upper hand in dealing with potential terrorist threats. Through the expansion of the Transportation Security Administration (TSA), the government has taken on a greater role in guaranteeing passenger safety in US airport terminals.
The federal government crafted the expansion of TSA in such a way as to shield itself from most litigation. As with any other security firm, however, the agents employed by TSA are expected to perform the job assigned without causing harm or injury. Claims against TSA, employees of TSA and claims of negligent security as a result of the actions of TSA should be discussed with an attorney, as the laws regulating federal agencies are nuanced, complex and dependent on specific facts.
Employers owe a duty of care to those they employ, and this includes a safe workplace. Many employers find themselves in a difficult situation of providing a secure environment and avoiding wasting financial resources. Workplace security has become a major topic of discussion in recent years as news reports of violence have become more common.
Sadly, in the Philadelphia area, seven people lost their lives in workplace violence incidents in 2016. Data from BLS shows that this was a decrease from 2015, when 10 Pennsylvanians died as a result of workplace violence. The Occupational Safety and Health Administration (OSHA) reports that around 2 million Americans report workplace violence each year, and estimates are that many incidents go unreported.
Established law holds that an employer is liable for the actions of employees, past or current, and that should they be capable of reasonably concluding that the employee is a danger, they must take action to ensure that person does not cause harm to other employees. Negligent security claims have been brought against employers who do not prevent former employees from accessing the business and who knowingly ignore obvious indications of a potentially threatening employee.
Cyber-crimes are the new kid on the block in addressing negligent security claims. Most claims arising from negligent or inadequate security issues hinge on foreseeability and actual harm. Only recently have crimes involving theft of personal data been viewed in terms of negligent security.
In a landmark ruling, the Supreme Court of Pennsylvania found the University of Pittsburgh Medical Center (UPMC) liable under negligent security laws for allowing a breach of data, compromising social security numbers, names and identifying information of employees.
Theft of personal information has the potential of causing serious harm to victims, and employers owe a duty of care to protect information when they collect identifying data about employees, according to the court in the case Dittman v. UPMC et. al. The matter was decided in 2018.
Technology has changed the landscape of business in many ways, and the threat of malicious attacks is a significant problem faced by today’s employers. Under federal law, businesses are required to inform employees and consumers of data breaches, but only since the Dittman decision have victims had an avenue to seek compensation for potential or real damages as a consequence of the failure to secure employee information.
To date, no negligent security claims arising from consumer data breaches have been successfully argued in court. California enacted the California Consumer Privacy Act, slated to go into effect January 1, 2020 which will establish per-consumer fines for data breaches up to $750 each. Under California law, UPMC would owe approximately $46.5 million.
The major part of the decision established by the Pennsylvania Supreme Court is that employers are responsible for the secure storage of data collected, and failure to do so is nothing short of avoiding the foreseeability of a crime.
What To Do and Who Can Help
If you have been victimized by the criminal actions of another person, you have a right to recover damages. If the injuries you sustained happened as a result of a third-party while you were a guest or visitor, a consumer or an employee, it is imperative you discuss the facts of your case with an experienced attorney.
First, call the police. Make an effort to record as many details as you are able, as they may be essential to demonstrating inadequate or negligent security. Make note of visible cameras, quality of lighting and response times, if possible. Document the security company name and the name of the employee representing the security firm. If you know who the perpetrator of your injuries was, provide that information to police. if you have been assaulted, seek medical assistance. Failure to document injuries sustained in a third-party attack is often used to discredit claims by wily defense attorneys.
If someone witnessed what happened, get contact information and ask if they are willing to share what they saw or heard with your attorney. Often, witnesses who can corroborate the facts help to reinforce your statement and provide more evidence that a crime was committed in the manner you experienced it.
Each negligent security claim rests on the particular facts and circumstances involved. While commonalities exist in the application of the law, the factors that are involved in determining how the law applies are incredibly complex. Hire a law firm that has a proven track record of recovering damages for clients who have experienced damages and injuries resulting from negligent or inadequate security.