Lessons from a Trial Lawyer on Winning and Losing Negligent Security Lawsuits against Retailers

As loss prevention leaders heard accounts of the mass killing inside an El Paso Walmart, sadness at the senselessness of the tragedy was probably a common reaction. Or, perhaps anger at the rise of this type of violence in American society. But knowing just how difficult it is to safeguard these retail spaces, “negligence” was probably not what came to mind.

Yet, perhaps inevitably, a legal action is taking aim at the retailer’s security. A couple wounded in the shooting claims it was inadequate, and they have asked a court to compel the retailer to provide risk assessments and other security-related documents. “If Walmart had taken its responsibilities to its customers seriously, it would have had a visible security presence that would have stopped the shooter from coming to Walmart and killing all those people,” the couple’s attorney Patrick Luff said in an interview with ABC News.

In response, a Walmart spokesperson issued a statement to the news organization that, “This tragic event will be with us forever, and our hearts go out to the families that were impacted. Safety is a top priority, and we care deeply about our associates and customers.” With respect to the legal action, the statement read: “We preserved what information we have, and we’ve worked meticulously with federal and local authorities as they documented everything that took place on August 3. Once we are served with the complaint, we will respond appropriately with the Court.”

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Could Walmart really be held liable for a clearly random act of violence? It seems unlikely. Liability hinges on the issue of foreseeability, because it triggers the obligation to take reasonable protection measures. Mass killings have certainly grown more common, but to suggest that a specific act against a specific store at a specific time was foreseeable seems a stretch. Although juries are fickle, to be sure.

Indeed, it’s perhaps more dangerous for retail security leaders to read too much into the request for Walmart risk assessments and other documents. Such a thing shouldn’t cause a company to think, “maybe I better not write anything down,” suggested one trial lawyer in a presentation at a national security conference.

Action Is Better than Inaction

The fear of negligent security lawsuits isn’t overblown—an incident resulting in death or serious injury frequently spurs a claim—but the vulnerability to successful suits probably is exaggerated, suggested the plaintiff’s attorney, who makes a living suing companies for negligent security. In a bit of détente to prevent future criminal victims, he explained to security executives why he takes and wins cases.

His experience is that a fear of lawsuits can drive companies to overthink the issue, which leads to incidents and expensive jury verdicts. “There are companies that have the attitude, ‘just don’t provide any security at all and then we’ll have no obligation,’ but that is not the law in any state,” said Haggard, who noted that it is the duty of commercial establishments to take reasonable care to provide a safe premises. “That’s what companies are being told, and it is a shame. Not only is it untrue, but it leads to people being hurt.”

Similarly, some companies think they’re being crafty by never writing down anything about security, believing that if they write down procedures then they must follow them, so it’s better to avoid it altogether. Such a thing not only makes for a bad corporate citizen, it’s poor legal strategy, said the attorney.

In a negligent security lawsuit, there is bound to be wrangling over “duty,” “reasonableness,” “foreseeability,” and other loosely defined legal terms, but it is companies that think they can avoid any responsibility altogether that pays a trial lawyer’s bills. “When I see companies lose a case it is most often because juries don’t want to see companies trying to employ the ostrich defense,” he said.

In recent victories against high-risk targets in high-crime areas, none of them had ever bothered to gather a single piece of data about crime in the area. “In my last four cases, defendants all said, ‘It’s not our job; it’s outside our fence.’ That is music to my ear in a deposition,” he said. Another common defense strategy is to rely on the difficulty of preventing crime, said Haggard. “They’ll say, ‘yes, we did nothing, but so what? It wasn’t preventable.’ Juries don’t like that,” he said.

Juries look much more favorably at affirmative defenses—and he does, too, in deciding which cases to take. “Rarely am I involved in cases where a defendant says, ‘this is our plan, this is our program, this is why we do it this way, and we’re damn proud of it.’ That’s a case that I will turn down,” he said.

“When companies have been proactive in security, that is not a case I want to have. I want the path of least resistance.” For him, that means inaction by a company that will indicate to a jury that it disregarded people’s safety. These are the companies that lose security lawsuits, he suggested. It is very rare for a company to lose a negligent security case when it makes security a priority and makes an honest, good faith effort to deliver it.

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