Friday, March 9, 2012

The Role of Experts, Foreseeability and Duty in Negligent Security Lawsuits

One of the first steps an attorney must take in a negligent security case is to determine the applicable law.  Once the law is understood and nailed down, the law must then be applied to the facts of the alleged negligent security.  Often times this will consist of bullet pointing what must be proven to win.  Then, these issues should be discussed with a negligent security expert (if you have opted to get one involved early on).  Security experts should often be involved from the outset of the case to help the attorney both figure out exactly what the critical negligence was and contribute to working up the discovery portion of the case.  Negligent security experts can affect how the discovery is crafted and, in turn, what is uncovered throughout the case.

One of the legal issues to tackle based on case law and the expert's opinion concerns the issue of "duty".  What duty did the defendant owe to the injured individual?  Then one must consider "foreseeability".  Foreseeability is often the pivotal issue in negligent security cases.  The extent of the foreseeability affects the level of the duty owed.  That is, the more foreseeable a crime was to a defendant and the more dangerous the crime, the higher is the duty owed by the business.

An example (there are many) would be someone mugged in a store parking lot.  If the store had never had a prior violent or criminal incident occur on the property nor had any other criminal events occurred in the immediate vicinity of the area in the past several years, the foreseeability of the mugging would be very low.  Because the event was unlikely and thus less foreseeable, the stores duty to have prevented the mugging was low.  That is a tougher case for the plaintiff to win.

On the other hand, if it was determined that the store had had a similar mugging just weeks before this incident and the general area in question was known to be a high crime area then the likelihood of the mugging was higher and the foreseeability was greater.  If the mugging was highly foreseeable then the store owed the plaintiff a much higher duty to protect.  That is a scenario that creates a much stronger case for the plaintiff.

Our civil justice system asks whether a defendant negligent.  Negligence is breach of a duty.  The lower a defendants duty, the more difficult it is to establish that they breached it.  The higher a defendants duty to protect the plaintiff, the easier it is to establish a breach.  Negligent security experts can help establish both the duty and the rationale for how the defendant breached it and was, thus, negligent.

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