Author: Andrew Ragali | Manager, Marking and Communications | HAI Group

In 2015, during a visit to a Kroger grocery store in Atlanta, Georgia, two assailants robbed and shot a 26-year-old man, resulting in his paralysis. Four years later, a jury awarded the man nearly $70 million after his attorneys successfully argued that Kroger was aware of the store's location in an unsafe, high-crime area yet failed to deploy security guards in the parking lot where the shooting occurred.

According to attorney Carrie Blackburn Riley, the Kroger case is notable for defense attorneys specializing in premises liability and negligent security claims. While not directly involved in the case, her practice, Blackburn Riley, LLC, primarily focuses on defending insureds, including affordable rent residential property owners, against premises liability and negligent security claims in Maryland. 

"From a legal perspective, what stands out about the Kroger incident is how the plaintiff's attorney leveraged two key concepts—atmosphere of violence and foreseeability—to construct a compelling negligence case against Kroger," noted Riley.

The size of the jury award is also notable, classified as a nuclear verdict, a term generally used to define verdicts exceeding $10 million. Nuclear verdicts significantly contribute to social inflation, a term used in the insurance industry to describe the rising costs of insurance claims due to changing social attitudes, perceptions, and legal trends.

Janelle Howard, a regional claims manager with HAI Group, an insurer dedicated to the public and affordable housing industry, pointed out that, like any business owner, multifamily property owners, landlords, and managers are susceptible to similar claims.

“The landscape of premises liability has undergone a seismic shift in the multifamily industry due to the rise of social inflation and the looming specter of nuclear verdicts," Howard said.

This article explores the legal intricacies of negligent security claims in the multifamily industry. It examines how plaintiff attorneys strategically emphasize elements like an atmosphere of violence (AOV) and foreseeability to build compelling cases that can lead to sizable awards.

Watch now: Insightful panel discussion on premises security in public and affordable housing communities, brought to you by the 2023 HAI Group Risk Management Conference

Premises Liability and Negligent Security in Multifamily Settings

In the context of the multifamily housing market, premises liability entails the responsibility of property owners, landlords, and property managers to maintain a secure environment for both tenants and visitors. In cases where individuals suffer injuries or harm due to unsafe property conditions, property stakeholders can be held liable through civil lawsuits.

Negligent security, within the realm of premises liability law, focuses on the obligation of property owners, landlords, and managers to implement reasonable and necessary measures for shielding individuals on their property from foreseeable harm related to security risks.

In the contemporary landscape, judges and jurors closely scrutinize the adequacy of security measures in multifamily housing, placing property owners, landlords, and managers under increased legal scrutiny.

Establishing the Standard of Care

Generally, plaintiff attorneys must establish a burden of proof when bringing a premises security case, Riley explained.

Plaintiff attorneys need to demonstrate that property stakeholders had a duty to the victim and that a breach of that duty directly caused the injury. This duty, referred to as the standard of care, varies from state to state, Riley said.

Two legal theories—foreseeability and atmosphere of violence—are crucial in determining the standard of care that a property's stakeholders must meet in premises security.

"In some states, there is a heightened duty, implying an obligation to provide more security than in other states," Riley noted, emphasizing the variability in legal expectations based on jurisdiction.

According to Howard, foreseeability refers to the ability to reasonably anticipate or predict certain risks that may occur. States have differing definitions of what a reasonable person in the same circumstances would foresee as potential risks. Atmosphere of violence refers to the prevailing level of violence or criminal activity in a specific area.

“A plaintiff attorney will often try to establish that the defendant should have foreseen or known they had an atmosphere of violence on or around their property," Howard said.

Property stakeholders may be held to a higher standard of care in areas with a known atmosphere of violence.

“[Property stakeholders] might be expected to implement more robust security measures than a similar property in a low-crime area to adequately address the foreseeable risks associated with the prevailing atmosphere," Howard said.

How Plaintiff Attorneys Construct Compelling Legal Cases

Plaintiff attorneys frequently concentrate on the physical security measures of a property when constructing a premises security case against its stakeholders.

For instance, if a property manager receives reports about a consistently propped-open door consistently, allowing access to trespassers, and fails to take immediate action to rectify the issue, plaintiffs can argue foreseeability. In this scenario, if a resident is subsequently robbed by someone who entered the building through the propped door, the plaintiffs can contend that the property manager neglected to address a known risk, establishing a basis for foreseeability in their case.

In addition to scrutinizing the security of common area doors, plaintiff attorneys typically assess various physical security attributes, including:

• Windows (checking for functional locking mechanisms)
• Overgrown shrubbery and bushes (determining if they provide hiding spots for criminals)
• Lighting (verifying its proper functionality)
• Gates and fences (investigating if they are consistently in a state of disrepair)