Negligent security cases are often the most difficult types of personal injury cases for victims to prove. Negligent security falls under the broader category of “premises liability,” i.e. a property owner’s legal duty to keep that property in reasonably safe condition for customers and other invitees. While premises liability does not ordinarily extend to criminal acts committed by third parties, a property owner may be responsible for failing to provide adequate security, including proper lighting, locks, or guards.
Fair v. CV Underground, LLC
The Georgia Court of Appeals recently addressed a negligent security claim against a well-known Atlanta shopping center. The plaintiffs were the parents of a man shot and killed on the defendant’s premises. Both the trial court and the Court of Appeals agreed the parents failed to present a case that could survive summary judgment.
The victim was 23 at the time of his death. He was shopping with a friend. According to surveillance video, there was a “brief altercation” between the victim, his friend, and a group of men who confronted them. During the altercation, the victim’s friend threw fire extinguisher at the group. The victim himself was captured on the video “throwing punches.” Shortly thereafter, one of the men shot and killed the victim on a stairway that connected the shopping center’s plaza to the street.
The shooter eventually pleaded guilty to voluntary manslaughter and related charges. He received a 30-year prison sentence, according to news reports. The victim’s parents then sued the shopping center, alleging wrongful death and negligent security.
As the Court of Appeals explained, the defendant was not liable because the victim “was a mutual combatant in the incident” that led to his death. Negligent security applies to cases in which the property owner has “superior” knowledge of a threat to patron safety. In other words, the defendant must have “reason to anticipate a criminal act” based on prior knowledge or an established pattern of criminal behavior in the area. For instance, if there has been a rash of gun violence in and around the shopping center, a store owner could be liable for negligent security if another shooting takes place.
But in this case, the appeals court said, the victim “had already engaged in combat, and thus had knowledge superior” to the defendant’s regarding the danger to his own safety. Even in cases in which a victim does not initiate a fight but merely intervenes to protect a third party, the court said the property owner cannot be held responsible. This applies even where there is a “momentary pause” in the fight, as was the case here, as the shooter followed the victim and killed him nearly 30 seconds after the initial fight ended.
The Court of Appeals’ decision was not unanimous. Two judges dissented. They argued the “mutual combat” defense was not supported by the facts of this case. Noting the victim was dead and could not testify as to how the fight started, the dissent said the surveillance video alone was insufficient to conclude the initial fight was “causally related” to the victim’s shooting death.