Five Warning Signs That You Need to Boost Site Security
Every manager’s worst nightmare is a violent crime against a resident at his tax credit site. And compounding the tragedy of the crime is the risk of liability. You could be held liable for the crime if you knew your residents were at risk of that type of crime. In legal terms, the crime would be “foreseeable” and you'd failed to take reasonable steps to prevent it from happening for you to be liable, says security and liability consultant Jon Groussman.
When is a crime foreseeable? Courts look to see if there were signs that should have tipped you off that the crime might occur. For example, if a resident is assaulted in her unit, you now know that an assault is possible—that is, foreseeable—and you’ll need to take reasonable steps to prevent it from happening again.
But what if no assaults have occurred at your site? Do you still need to take precautions to prevent one? You might if there are other signs that make such a crime foreseeable.
To help you determine whether you need to increase security, we’ll tell you about five signs that signal you’re at risk of a violent crime occurring at your site. If any of these circumstances apply to you, don’t ignore them. Make sure your security devices are in good repair and talk to your attorney and insurance carrier about other security measures you should take, such as guards or improved lighting or landscaping. And once you’ve taken these steps, don’t let up. If you allow your security measures to lapse, you could be held liable if a crime occurs.
Five Warning Signs
Here are five warning signs that mean your tax credit site is vulnerable to violent crime:
1. Violent crime has occurred against resident in building. The clearest sign that a crime is foreseeable is that such a crime has already occurred. You’ll need to take steps to ensure that it doesn’t happen again. If you don’t, and another violent crime is committed against a resident, a court is likely to find you liable for it.
In one case, a Texas minor was sexually assaulted at a building. The minor’s mother sued the owners, claiming that the attack was foreseeable. The mother offered police records of eight violent personal crimes that occurred at the building in the three years before the sexual assault. The mother also showed that the owners and manager of the building had actual knowledge of many of these crimes and that security services for the building had been terminated and not replaced.
The trial court ruled for the owner, claiming that the sexual assault wasn’t foreseeable because the earlier crimes didn’t involve sexual assault. The Texas appeals court reversed the lower court’s ruling. The court said the crime was foreseeable. A crime needn’t be exactly the same as a previous crime in order to have been foreseeable [Urena v. Western Investments Inc., August 2003].
2. Violent crime has occurred in common area. If a violent crime has occurred in your building’s common area, this may also make a violent crime in a unit foreseeable. The crime puts you on notice that your site is a target and that the next intruder might get all the way into a unit.
In one case, a Florida resident was robbed and sexually assaulted in her unit. She sued the owner, claiming that the crime was foreseeable because two violent attacks had occurred previously in the building’s parking lot. The owner claimed that a violent attack in a unit wasn’t foreseeable because the previous attacks had taken place in a common area and not in a unit.
The court said the previous attacks were enough to put the owner on notice that his residents were at risk in their units, even though they had occurred in a common area. The presence of violent criminals at the site made it foreseeable that they might get into a unit [Czerwinski v. Sunrise Point Condominium, March 1989].
It’s important to make sure your site’s common area security devices and the security measures you’ve taken are maintained and in good repair. In one case, a widowed resident sued the owner for the wrongful death of her spouse in a unit rented from the owner, caused by an intruder breaking into the unit. There was evidence that outdoor lighting of a common area behind the deceased tenant’s unit didn’t function when the tenant was killed and hadn’t functioned for some time.
The Maryland court of appeals ruled that the owner could be liable for a foreseeable injury caused by a known dangerous or defective condition located within the part of the property over which the owner retained control. The owner had a legal duty to take reasonable security measures within the common areas when the owner knew or should have known of criminal activity having taken place on the premises. The owner had a continuing obligation to properly carry out its security measures, including maintaining and regularly inspecting devices implemented to deter criminal activity. The owner had a duty to adequately maintain the exterior lighting it provided to deter criminal activity, and its duty was not fulfilled by providing a working lock on the patio door through which the intruder entered [Hemmings v. Pelham Wood Limited Liability Partnership, June 2003].
3. Violent crime has occurred in other buildings at your site. If you have more than one building at your site, a crime in any one of them puts you on notice that the other buildings are also susceptible.
A New York City resident was attacked in the stairway of her building, dragged up to the roof, and raped. She sued the owner, claiming that it had failed to take proper precautions against the foreseeable attack. The owner claimed that the attack wasn’t foreseeable because there had been no prior rapes in the building.
The court allowed the lawsuit to continue, saying the crime might have been foreseeable. There had been numerous rapes in other buildings at the site, and the presence of drug activity in the victim’s building put the owner on notice that it might be vulnerable to more serious crimes there [Jacqueline S. v. City of New York, May 1993].
4. Gang or drug activity. Even if there have never been burglaries or physical assaults at your site, the presence of gangs or drug dealers may put you on notice that you’re at risk for crimes against your residents.
For example, a resident who was injured in a gang-related shooting sued the owner for premises liability, alleging that the owner breached his duty to take reasonable steps to ensure the safety of the site’s residents. The trial court found that the resident failed to present evidence sufficient to establish that the owner had a duty to take additional security measures or that the owner’s alleged inaction had proximately caused the injuries.
The appeals court disagreed, finding that where indicators of a reasonably foreseeable risk of a violent gang assault existed, an owner had a duty to undertake precautions to protect residents from criminal activity attributable to a gang presence. Further, there were sufficient facts to establish that the gang shooting at issue was reasonably foreseeable. The owner knew that gang members were congregating in the area and that they had been congregating in the space from which the bullet that injured the resident was shot. The owner was also aware that gang-related crimes and other activity had occurred on and near the premises. That evidence included testimony from an expert on gangs and security that but for the lack of security and lighting, the shooting would not have occurred [Castaneda v. Olsher, September 2005].
5. Crime in neighborhood. You may also need to take action based on criminal activity in your neighborhood. Even if you’ve never had a break-in or an attack at your site, a court might rule that crime at your site was foreseeable if there had been crime in your neighborhood. Usually, general criminal activity won’t, by itself, make crime at your site foreseeable. The neighborhood crime rate needs to be so bad that it makes a crime at your site more likely than not. There also needs to be evidence of criminal activity within the specific area at issue, either on the owner’s property or closely nearby.
In one premises liability case, residents sued the owners for a carjacking incident that took place at the site. But the owners successfully showed that a lack of crime in the neighborhood didn’t make the possibility of violent crime at the complex foreseeable. In two years before the carjacking, there was no violent crime at the site, save one domestic assault between relatives. And there was no evidence of any specific crimes of any nature in the immediate surroundings. In fact, the evidence showed that the census tract in which the site was located actually had a lower rate of violent personal crime than the city as a whole. The court concluded that the carjacking was unforeseeable to the owner and the manager; thus, they owed no duty, as a matter of law, to provide additional security to prevent the crime [Texas Real Estate Holdings, Inc. v. Quach, October 2002].
Jon Groussman, JD: President, Cap Index Inc., 150 John Robert Thomas Dr., Exton, PA 19341; www.capindex.com.