Beyond crimes Featured

8:00pm EDT April 25, 2007
One of the insurance criteria that property owners and lessees often overlook when setting up their businesses is the need for taking precautions to avoid premises liability resulting from the criminal acts of third parties. That omission can affect them adversely.

There may be various reasons for not acquiring the proper liability protection. For example, property owners and lessees may not be sure whose responsibility it is to provide coverage or what part of the premises is or is not covered. Issues like these should be — and can be — resolved before business owners open their doors.

Smart Business spoke with Patricia B. Lehtola of Godwin Pappas Ronquillo LLP to learn more about property owners’ and lessees’ responsibilities for providing premises liability protection against third-party criminal acts, and how they benefit from doing so.

Are landowners under any obligation to protect people from criminal acts committed by third parties while on their premises?

Ordinarily, premise owners have the responsibility to protect people from such criminal acts if they retain the right of control for the safety and security of the premises. Premises owners can, however, relinquish this control to another party, such as an independent security company or a business owner who is renting space and has assumed the right of control according to the lease terms.

Does that protection include warnings to people on the property about the possible harm caused to them by third parties’ criminal acts?

The general rule in legal terms is that premise owners have a duty to use ordinary care to protect invitees from criminal acts perpetrated by third parties if they know or have reason to know that there is a reasonable and foreseeable risk. That simply means proprietors have to take reasonable care that may or may not require actual warnings to protect individuals on their property.

Does the existence of a special relationship between a proprietor and a person on his property establish any liability on his part?

That depends on the person’s status. There are three distinct statuses: trespassers, who have no authority to be on the premises; invitees, who are on the property for their own and the proprietor’s mutual benefit; and licensees, who are on the property merely by permission rather than invitation and usually for their own benefit.

Proprietors owe different duties to each. For trespassers, the proprietor has almost no duty, other than to not hurt them intentionally. For invitees, most often customers of businesses on the premises, the standard is to use reasonable care to maintain the property safely. Proprietors’ duty to licensees is simply to disclose to them concealed or unanticipated dangers, such as an obscure hole in the ground.

What happens if there is a dispute over who retains that right and control?

The parties involved or the court would look to the lease to determine the individual parties’ responsibilities, their policies and procedures regarding who has the right of control for security of the premises, etc. That explains why it is important that the parties to a lease draft it in such a way that the right of control is assigned precisely — especially if any of them do not want that responsibility or associated litigation or court costs.

How can proprietors and business owners protect themselves against premises liability and/or the associated costs of litigation brought on by third-party criminal acts?

One way is to work with attorneys as soon as possible to draft a lease that spells out exactly who is responsible for third-party security. In fact, anyone who is even thinking about starting a business should consult an attorney about premises liability.

But attorneys can do much more. For example, they can help clients access police records regarding criminal activity for the past couple years in the areas in which they want to open their businesses. Depending on what is learned, the attorneys can help clients implement plans to deal with concerns and protect people and property. They can install panic buttons, provide better lighting in parking lots or around elevators in buildings, hire security guards or take other proactive steps.

How does working with attorneys benefit property owners and other parties in respect to premises liability?

They will get insights into what their exact premises liability responsibilities are, receive advice about implementing training programs for managers, and be able to define what are considered reasonable steps to ensure that they have done enough to protect themselves. Of course, they will also have legal help should they face litigation or other legal remedies.

That can save them time and money in the long run, which justifies working with attorneys as early as possible.

PATRICIA B. LEHTOLA is a partner with Godwin Pappas Ronquillo LLP in its Dallas office. Reach her at (214) 939-4858 or plehtola@godwinpappas.com.