The theory (fact actually) in these cases is that the intentional act only happened because of the negligent security. Had a bar taken steps to protect patrons from a known bad actor then that bad actor wouldn't have later beat someone up. Had an apartment complex in a bad area of town installed security lighting and bars on unit windows, a burglar wouldn't have broken in and hurt a resident. It is obviously difficult to shift a jury's focus from the intentional actor (who often times has committed a criminal act) to the party whose negligence led to the criminal act. I don't have a solution per se to this conundrum. But I think that each negligent security case has facts unique to it. The only way to solve the riddle to get liability apportioned correctly is through focus group research for that case. Finding out from people in the community, before the trial, what they are thinking about the case. Finding out what facts in the case should be focused on or flushed out to improve the chances of success at trial. Dwyer vs. Rocky's Place is a good example of a negligent security case where plaintiff's counsel just could not get the jury's focus off the assailant.
In Dwyer, the male plaintiff alleged that the defendant bar failed to take appropriate action to prevent him from being attacked by another patron, Mr. Kephart, outside the bar. Mr. Kephart was also named as a defendant in the case, but was not represented at trial. The defendant tavern maintained that it had no knowledge of the assailant's violent nature and was not responsible for the incident which took place outside the premises. The plaintiff withdrew his dram shop claim prior to trial. The plaintiff testified that he was leaving the defendant's bar when he was unexpectedly punched in the face by the assailant as he came out the door. Other patrons at the bar on the night in question testified that the assailant had threatened them inside the bar. The plaintiff alleged that the defendant tavern knew, or should have known that the assailant presented a danger to patrons of the establishment. Kephart was a frequent customer of the defendant tavern and had been involved in previous altercations there, according to the plaintiff's claims.
The plaintiff sustained an orbital fracture in the assault necessitating reconstructive surgery involving a bone graft, according to evidence offered.
The defendant Kephart was convicted of aggravated criminal assault in connection with the attack upon the plaintiff. The defendant bar argued that it had no knowledge of Kephart's violent nature and was not responsible for the incident which occurred outside the bar. No one informed the bar personnel of any threats made by Kephart, according to testimony presented by the defense.
The jury found the defendant Kephart 100% responsible and found that the defendant bar was not negligent. The plaintiff was awarded $ 150,000 against the defendant Kephart only. This seems like a great verdict until you realize that Kephart likely had insufficient funds to satisfy the award against him. I would bet that the plaintiff in this case got very little, if any, of his $150,000 verdict. Sad but true.
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