When “Reasonable Care” Isn’t Enough

At the heart of every premises liability case is the presumed duty of “reasonable care” by a landlord or property owner, obliging them to undertake sufficient measures to protect patrons on their property from foreseeable risks and dangers that can harm them.

Reasonable care runs the gamut from risks in the landlord’s direct purview – maintaining staircases and parking lots from dangerous decay, salting sidewalks and driveways in icy weather to prevent slip-and-fall injuries, or keeping dangerous animals off of a property – to hazards not within their full control, like assault or burglary. The latter are considered foreseeable dangers in most states, which property owners can mitigate by installing fences and gates, putting up bright lights and security cameras, and subjecting the property to security guard patrols.

Or at least, that’s what we think.

In fact, thefts, assaults and other crimes can occur whether one or more of these measures are in place or not. While perhaps rare, the most brazen offenders will commit violent acts in well-lit environments, even surrounded by cameras or with witnesses. More plausibly, a patron on private property can be victimized when the landlord’s steps to provide them with reasonable care are incomplete or fall short. Using only one security measure like bright lights, or poorly placed cameras giving criminals extensive blind spots within which to operate, are two examples.

Reasonable care is always circumstantial, and legal professionals may argue the property owner took all the steps they could be expected to, and an incident happened anyway. No measure is perfect. For instance, even experts who agree that cameras deter violent crime in public places concede that this depends on how they are used and where they are placed.

Still, others suggest their presence makes little difference. A collection of studies by the Municipal Technical Advisory Service of the University of Tennessee’s Institute for Public Service paints a more mixed picture, with some showing an increase in crime after the installation of CCTV and others with no positive impact on the commission of violent crime.

The same with street lights – one expert believes their presence instead helps seasoned criminals know which cars to break into. Both are welcome arguments for defense lawyers or a landlord’s insurance company after an incident.

Adding another factor to the mix, consider a scenario where a patron notices that private property, such as a parking lot, is not very well lit or isn’t guarded by either a gate or security guards. They proceed onto the property anyway and fall victim to an offense.

In a few jurisdictions in the United States, comparative or contributory negligence exists, which weighs up the victim’s perceived level of fault, as well as that of the property owner when calculating damages. For instance, someone with 60% of fault will win 40% of awarded damages. But most everywhere else, under comparative fault, it’s all-or-nothing, where one side is responsible for the consequences of negligence and the other is not.

Periodically, a headline will hit the news, or a case will turn up in court that seems to spring straight from the gaps in even the most well-intentioned property owner’s safeguards. As a result, a small number of people will face additional legal challenges in demonstrating a failure of reasonable care in these incidents, further complicated by the limitations on recovering damages for premises liability present in all cases.

Because every situation is unique, you should never hesitate to seek advice and determine which options are available for you after an incident involving the negligence of a property owner or landlord. For this, an experienced legal team is invaluable to walk you through your questions and develop an action plan, from insurance demand letters to launching a case.