Could Better Benchmarking Help Mitigate Liability for Retail Crime?

A convenience store must pay $1.1 million to a man shot by stray bullets outside its store after a Georgia appeals court affirmed the award, upholding the jury’s decision that the store was partially responsible for the man’s injuries (Khalia, Inc. v. Rosebud; and vice versa, Court of Appeals of Georgia, Fifth Division; A19A1891, A19A1969; Dec. 6, 2019).

Here’s what happened. Dontavious Miles parked his car at the end of a gas pump island at a convenience store in Atlanta and exited the vehicle to go inside while his friend, Daniel Rosebud, waited inside the car. Miles and another man then had a confrontation during which shots were exchanged, some of which hit Rosebud.

The verdict: The jury awarded $1,718,367.46 in total damages, finding defendant Khalia, Inc., which rented the retail location, to be 66 percent at fault for the victim’s injuries. The trial court entered judgment on the verdict against Khalia in the amount of $1.134 million. The appeals court upheld the award saying, “This trial court correctly determined that a jury should decide whether Khalia was ‘wanton or willful’ in failing to take ‘ordinary care’ to warn invitees, such as Miles, and their guests, such as Rosebud, of the hazardous conditions on its premises, including frequent criminal activity and gunfire, of which it arguably had knowledge.”

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What doomed the store’s defense? Evidence before the jury showed that the property address was a well-known scene of illegal drug transactions, loitering requiring police intervention, and at least two incidents of prior gunplay, including a shooting inside the store three days before the incident at issue. The store manager knew of the gunplay, and a police officer testified that the location’s level of criminal activity required him to stop there four or five times a day. A detective also testified that although businesses are authorized to obtain a “criminal trespass warning” empowering the police to arrest trespassers, Khalia had never requested such a warning.

In his ruling, the appeals court judge noted that the shooting victim was injured—not by a pre-existing defect—but as a result of acts and omissions after he arrived and remained on the premises. “That is, a failure either to maintain security measures required under the dangerous conditions known to Khalia employees or to warn customers and their guests of those dangerous conditions.” As always, the test for liability is the proprietor’s superior knowledge of the hazard, he noted. Interestingly, he mentioned that a crime does not have to originate on the property for a property operator to be liable for it under a foreseeability analysis.

The case hints at the types of data that is typically gathered to assess a company’s liability in a premises security lawsuit, including data on calls for service for the premises and surrounding area; reports of relevant crimes on the premises (three to five years prior to the date of the incident); reports of relevant crimes in the surrounding area (two to three years prior to the date of the incident); and other relevant crime history information and media reports.

But juries are also swayed—not just by numbers—but by the appearance of outliers. A retail store that fails to take security measures in line with other stores in similar circumstances doesn’t stand much of a chance with juries. As such, experts insist that benchmarking to assess security reasonableness is a viable important way to mitigate liability for retail crime.

“Reasonableness” provides a key baseline for preventing and prevailing in security lawsuits. Benchmarking can help a security team determine—after an extensive period of discovery—whether a jury would think that the documents show that a company’s security measures were reasonable. Here are ideas advanced by security consultants and expert witnesses we interviewed for using benchmarking in planning store security:

  • Benchmark your security measures against other stores in the area. It’s not a guarantee, but if you can show that your security measures are equal to security at stores providing similar services in a similar demographic area, the case against you will be harder to make. Reach out to other organizations to participate in a you-do-mine-and-I’ll-do-your’s assessment, some suggested.
  • Benchmark your security measures against yourself. Just as plaintiff’s attorneys will focus on any security measure you have that fails to meet your peer test, if your security measures fall short of your own policies, then you increase the risk of a judgment against you. Written policies should be thoroughly reviewed at least annually, and as often as a change in risk occurs, to make sure they match the security measures you provide. For enterprise retail organizations it is important to have the same security standards in place at one location as other locations where you have assessed a similar level of risk.
  • Benchmark your security measures against recommendations. For example, you might be asked in a deposition for a list of publications you read, say security experts. A team of legal assistants might then scour those publications for articles that make recommendations for security measures you failed to provide. If those exist, it can raise a red flag for a jury.
  • Benchmark your security measures against local regulations. This can be one of the toughest tasks for loss prevention directors with stores in many states. In some, for example, court cases have set a precedent that parking structures and late-night retail establishments should be considered ‘inherently dangerous’ areas. This makes a “first bite argument”—that you could not have foreseen an incident because no similar incident had ever taken place—a claim that the courts could reject.
  • Benchmark your security measures against recommendations by industry associations. For example, to reduce liability for crime in your parking areas, security teams should assess lighting provided at stores against Lighting for Parking Facilities, a guide for recommended practices by the Illuminating Engineering Society of North America.

Nothing is ever a guarantee when juries and emotions are involved but taking security measures that are standard in the community can often be enough to protect a property from large verdicts based on findings of willful or wanton negligence, experts suggest.

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