A teenage girl is stabbed at a national retail store. A crowd of people is shot at a movie theatre. A man watching a concert is assaulted and badly beaten. Are businesses responsible for what occurs on their premises? Whether a cause of action exists against these businesses is not readily apparent from the surface. A great deal of effort goes into investigating these types of incidents in order to uncover the truth. If nothing more is discovered other than the simple facts mentioned above, it is unlikely that justice can be found for these victims. Often a lack of security and other precautions are to blame for such tragic events. If we, as lawyers, fail to work hard to dig deeply and discover the root cause, responsible parties can escape liability forever. It is easy for these cases to be dismissed without a proper investigation. How do you keep your client’s case alive? Lawyers working hard to get the facts are critical for a negligent security case to survive. This article seeks to explain why developing the facts are so important to pursuing negligent security cases against businesses.
Premises Liability—the basis of negligent security claims—has a long and often colorful history in the Commonwealth of Kentucky. By 1937, discussion of the relevant case law and distillation of the proper axioms entailed the production of a lengthy string citation. Sidebottom v. Aubrey, 101 S.W.2d 212, 213 (1937). The resulting analysis, though bound by the specific context to which it was applied, comported with concepts readily drawn from broader conceptions of negligence. This largely holds true today. Often this dispute is resolved through motions for summary judgment. Marshaling the right kind of evidence is crucial to surviving the motion at this early stage.
This article begins by relating the standard of premises liability set out in the case law. Next, it examines fact patterns from said case law to shed light on the evidence necessary to survive a motion for summary judgment. Finally, it discusses what kinds of evidence plaintiffs should seek during discovery to ensure they survive motions for summary judgment.
As alluded to above, there is no dearth of relevant cases concerning premises liability here in Kentucky. Given the considerable amount of attention judges and advocates focused on this subject, it is not surprising that time-honored maxims emerged. First and foremost among these is a bedrock principle that guides this vein of analysis: “It was the duty of the [proprietor of commercial property] to exercise ordinary care for the safety of his patrons, but he was not the insurer of their safety.” Sidebottom v. Aubrey, 101 S.W.2d 212, 213 (1937). This language establishes no bright line. However, it does provide courts with a guiding principle: Judges should not demand that proprietors do every possible thing within their power, discerned with a microscopic lens. Rather, proprietors are required to employ means reasonably expected of them and others in similar positions. The Court in Sidebottom contrasted this standard with the one to which common carriers are held, noting that it was “not the high degree of care imposed upon” that class of commercial enterprises. 101 S.W.2d at 213.
The high court’s unwillingness to enunciate a more exacting standard is rooted in the need to account for the totality of the circumstances: “What constitutes ordinary care varies with the nature of the business and the use to which the premises are put, but it is care commensurate with the particular circumstances involved in the given case.” Id. The Court, wisely foreseeing the broad spectrum of fact sets to which this principle must apply, conferred wide discretion on courts of first instance to determine whether proprietors acted reasonably regarding their duties. The flexibility of this standard is its great strength. However, flexible standards often make for fact-intensive inquiries, and that is certainly the case here.
Centrality of Foreseeability
Although premises liability reaches beyond acts of violence visited upon invitees, that is the focus of this piece’s inquiry because of its focus on negligent security claims. In cases such as these, determining whether the proprietor’s conduct and precautions comported with the standard of care hinges on the foreseeability of the assailant’s conduct. See Napper v. Kenwood Drive-In Theatre Co., 310 S.W.2d 270, 271 (Ky. 1958). Somewhat self-evidently, it is unreasonable for a proprietor to prevent injuries to patrons which presented no warning, or for which there was no precedent. This precept, however, is not an allencompassing shield. No proprietor may simply claim the violence was unforeseeable, nor may a victim of the violence claim foreseeability by virtue of his or her injury. Foreseeability must be discerned from the facts. As such, this article endeavors to explore relevant case law to determine what kinds of facts are sufficient to show the proprietor knew, or should have known, of the danger to patrons.
Returning to Sidebottom, we are reminded that 1937 was both a very different—and yet hauntingly similar— time and place. In that case, Sidebottom had imbibed “two pints of liquor” while patronizing Aubrey’s “restaurant and soft drink business.” Sidebottom, 101 S.W.2d at 212. Passing out, no doubt from the enormous amount of alcohol he had guzzled, he awoke the next morning with serious burns to his foot. Id. A witness testified that another patron had rubbed a substance on the passed-out Sidebottom’s foot, and set it alight. Id. The proprietor, busy with other customers, had not seen any of this. Id. Further, the plaintiff was only able to say that the conditions in the restaurant were “Noisy and going on is about all I know—cutting up and going on.” Id. at 213.
The court stated that to succeed, plaintiff needed to show:
Either that [the proprietor] knew one of his patrons was about to injure the plaintiff and he failed to exercise ordinary care to prevent such an injury, or that the conduct of some of the persons present was such as would lead to a reasonably prudent person to believe that they might injure other guests. Id.
Finding no evidence that this was the case, the court ruled for the defendant. Perhaps most important for cases to follow, the court found that “the mere fact that some of the patrons were boisterous did not warrant the presumption that one of them would be guilty of such brutality.” Id. However, citing to Rommel v. Schambacher, 120 Pa. 579, 582, 11 A. 779, 779 (1887), the court noted that if the proprietor had watched the scene unfold, and took no steps to prevent it, it might have decided differently.
Procedurally, Park v. Coleman Oil, Inc., 2003 WL 1226248 (Ky. Ct. App. Jan. 10, 2003) is relevant because it bears specifically on the amount of evidence necessary to survive summary judgment. It is also factually relevant, as it involved a robbery wherein a convenience store customer’s car was stolen from him at gunpoint. 2003 WL 1226248, at *1. Looking initially to Napper and then turning to Grisham v. Wal-Mart Stores, Inc., 929 F. Supp. 1054, 1057 (E.D. Ky. 1995) for an analogue, the court sought to determine “when a criminal act would be sufficiently foreseeable.” The Court in Grisham found that robbery statistics for a town as a whole were not enough, because only one of the cited robberies had taken place within five miles of the robbed establishment. 2003 WL 1226248, at *2. Turning back to Park, even though the case was at such an early stage, the Court found that a single newspaper article—which the plaintiff failed to produce entirely—was insufficient to survive summary judgment. Even assuming the truth of these bare allegations, the court refused to find “that such petty thefts are an indicator of an armed robbery.” 2003 WL 1226248, at *2.
Although the court in Sidebottom established that general boisterousness did not make violence foreseeable, and the court in Napper found that even specific boisterousness on the part of certain patrons did not make violence foreseeable, where that boisterousness crosses over into sustained belligerence, courts have found that the issue of foreseeability should be submitted to the jury. In Baxter v. Jim Porter’s Good Time Emporium, Inc., 2005 WL 787940 (Ky. Ct. App. Apr. 8, 2005), a nightclub patron’s leg was broken when bouncers stepped in to break up a fight between himself and a violent patron. 2005 WL 787940 at *1. Vital to the Court’s decision was the fact that angry patron’s bellicosity had been on full display for some time. Id. Writing that it was “possible that the jury” might reasonably believe “that the ‘angry patron’ had been steaming for a sufficient amount of time that Jim Porter’s should have foreseen a growing danger,” the Kentucky Supreme Court remanded the case. Id. at *2.
The final two cases provide a clearer picture of the kind of facts plaintiffs must allege to survive summary judgment. In Waldon v. Hous. Auth. of Paducah, 854 S.W.2d 777, 778 (Ky. Ct. App. 1991), a woman was tragically shot and killed when the housing authority ignored a litany of warnings and failed to act in the face of those warnings.
[T]he personnel at the housing authority were told by the decedent and others that Williams had made repeated threats to kill Smith. The appellee was also aware that Williams was residing (without its permission) in the complex with his daughter or other relatives, yet it took no action to evict him or otherwise discourage his presence in the area. And despite the knowledge of Williams’ threats against one of its tenants, as well as of the frequent occurrence of crimes at the complex, there were no security guards retained to patrol the area at the time of the shooting. 854 S.W.2d at 779.
Where defendants are repeatedly told about the possibility of violence, where the violent nature of the perpetrator is known, where his proximity is near, and where crime is commonplace, defendant is undoubtedly on notice. Moreover, the Authority’s failure to provide security personnel and failure to eject the potentially violent individual are clear violations of the standard of care.
Lastly, in Johnson v. Seagle Pizza, Inc., 2016 WL 4410705 (Ky. Ct. App. Aug. 19, 2016), a case in which Waldon was cited frequently, an individual was shot and killed as a robber fled from a Domino’s Pizza. 2016 WL 4410705 at *1. The Court of Appeals found summary judgment to be premature as the proprietors of the building, citing a number of factors:
[A]ppellants claim a myriad of shootings and armed robberies have occurred at the back doors of Domino’s Pizza restaurants in recent years. Appellants also claim 2201 Stonehenge Avenue is located in Bowling Green’s highest crime district. Appellants have proffered statistics showing four murders and thirty-five robberies occurred in the district over an approximately two-year period. Furthermore, as the trial court noted, there were six robbery investigations at 2201 Stonehenge Avenue since the year 2000. While we are cognizant that none of the prior robberies involved a homicide or violent crime, the facts of those cases and the information Seagle or English knew about those cases might provide sufficient similarity to create foreseeability.
The totality of these circumstances is more than sufficient to survive summary judgement.
The foregoing review of cases paints a broad picture of the evidence necessary to survive summary judgment on premises liability claims. In the interest of developing a modular framework, the focus of this section is on converting these facts into discovery requests. Discovery requests should be directed at one of two categories of facts, delineated by the court’s own insistence that evidence must show that either (1) the proprietor suspected that a particular individual posed a threat, or that (2) a dangerous environment existed, of which the proprietor was or should have been aware.
The first class of requests, concerning the individual assailant, should be directed at demonstrating that the individual had a propensity for the violence and the proprietor, or his personnel, knew it. The findings of the court in Waldon best demonstrate this. In Waldon, the individual was known by organizational personnel to have made specific threats to an individual on the premises and to be present on the premises with consistency. These kinds of information would most likely be recorded as incident reports created by the organization itself, or in police reports provided they were called. Identification and deposition of employees on the business premises is also crucial to developing this information, as those individuals could testify to the proprietor’s knowledge about the individual threat, the frequency with which the individual appeared, and perhaps most crucially, whether or not they were instructed or trained to mitigate the threat. Security footage should also be sought, as it establishes incontrovertible evidence of the individual’s presence and may memorialize the individual’s past transgressions or interactions with staff. These requests exist to show that the proprietor knew of the danger and go a long way toward showing that the proprietor did not act appropriately to prevent the known danger.
The second category of requests, much broader in scope and general in application, covers the overall context in which the violence occurred. Johnson v. Seagle Pizza, Inc. is most on point here. The idea is to show that in the context of this specific location, or in locations similar to this one, the proprietor should have anticipated the high possibility of violence. Incident or police reports showing an elevated occurrence of crime at similar locations (e.g., other Domino’s across the nation) are an important foundation, particularly where the crimes are similar. Crime statistics and investigations for the specific building, address, or immediate vicinity are helpful because they defeat any argument that an incident is isolated. The greater the similarity to violence at locations across a wider range of geography, the better. The same holds true for the number of crimes that have occurred at that location. Proximity in time to other instances of violence, whether at the same location or similar ones, significantly strengthens the evidence.
Keeping your negligent security case against a business alive and surviving summary judgment requires thorough investigation and development of the facts. While no two cases are the same, the type of information requested in discovery should be similar in most cases. As the history of Kentucky case law on this topic illustrates, working hard and early to gather evidence is key.
Note: Corey Fannin and Lisa Circeo thank their law clerk, Jacob Robbins, for his assistance in the development and writing of this article, which was originally published by the Kentucky Justice Association.