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What If?—Five Tips For Limiting Negligent Security Liability

Justin R. Parafinczuk
Justin R. Parafinczuk

Last updated on April 10th, 2018 at 04:51 pm

by Justin R. Parafinczuk, Esq.civil trial attorney and shareholder, Koch Parafinczuk Wolf Susen, P.A.

Slip and falls, poorly stocked shelves and parking lot obstacles each present personal injury hazards for supermarket customers and potential liabilities for supermarket retailers. Enter the age of violence in the public space, where shop owners—and their customers—face an entirely new set of threats.

In the insurance defense industry, “negligent security” represents a growing area of concern. This is defined as failing to identify the threats your customers face when in and around your store and property. These can range from vehicle break-ins to armed robbery in or outside the store.

Regardless of whether you’re the property owner or a tenant, failing to address security can potentially make you negligent and liable for damage claims and even wrongful death claims in the event of a patron’s death.

Addressing security can help reduce the likelihood of a violent event occurring—and potentially mitigate any fallout if one does. This is critical to preventing high-stakes damage claims.

Asking ‘What If…?’

As a supermarket owner or retailer, if a customer is robbed, assaulted, injured or killed while in your store or on your property, expect that you will be sued for damages. The first question your insurance company, insurance defense attorney and the plaintiff’s attorney will ask is, “What did you do to prevent this from occurring?”

Ask yourself the same question, before it occurs. The fewer answers you have now, the harder it will be to defend yourself later. These five questions may help determine how prepared you are to avoid a security event:

1. Do we have a security plan? This safety and security plan will outline your protection, prevention, evacuation and response measures. This plan will help the business or property owner establish that they have their own internal standards and protocols, and that employees have been educated and trained to respond effectively. In the modern age, this is no “do it yourself” activity. It should be developed internally by your chief security officer or by a qualified security consultant with police or military experience or a security certification.

2. Do we need a security guard? Whether armed or unarmed, a security guard can serve as a deterrent to potential thieves and robbers. First, though, contact local law enforcement or do a search for your area’s crime grid. Next, search for nuisance, thefts, break-ins, robberies, armed robberies and other violent crimes. If you decide armed security is warranted, vet prospective providers closely. Have they been sued? Are they bonded and insured? Will you want them to be stationed only at your entrance, or should they patrol the premises? Are they trained and ordered to intervene if they spot a threat, or simply “observe and report”?

3. Do we have surveillance cameras? Cameras in the supermarket started as a way to spot false slip-and-fall incidents. In today’s age, cameras take on a far greater role. Costs are so low that in the event of a lawsuit resulting from a crime, interior and perimeter security video would be conspicuous by its absence. The question, then, becomes whether you have them professionally monitored by a trained organization, or does your staff have the time and experience to monitor the feeds? For many, the answer is obvious.

4. What is my landlord doing to protect the property? The interior is yours to protect. The exterior, perimeter and shared areas present a “gray area” under the law. Work with your landlord and adjacent tenants or property owners to create a “blanket” of security. Discuss erecting signage warning of security patrols and video surveillance. Install bright lighting. Trim trees and foliage to reduce hiding spots. Deterrence has real value. When criminals see this, they might look elsewhere. If your customers see it, they might gain peace of mind.

5. Ultimately, ask yourself what the defense and plaintiff attorneys will ask: “Have you done everything in your power to mitigate threats and avoid negligent security?” The goal is to confidently answer, “Yes.”

Justin R. Parafinczuk, Esq. is a board certified civil trial attorney and shareholder with the law firm Koch Parafinczuk Wolf Susen, P.A. His practice area focuses on first-party property insurance defense, professional liability, negligent security claims and complex commercial litigation. He can be contacted at [email protected].

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