Copyright © American Bar Association, 1999.
ABA Journal

May, 1999

Stop 'n' Shop Crime: Business owners wonder how far to go to protect their customers' safety under OSHA guidelines

Michael Higgins

Customers who slip, fall and sue have long been the bane of business owners. But those incidents seem almost quaint compared to the new frontier in premises liability: lawsuits by the victims of violent crime.

While victims are filing more suits, decisions issued last year show they are losing many of the cases reaching the appellate level.

That is good news for owners of convenience stores, shopping malls, apartment buildings, motels and automated teller machines who are targets of the litigation. But, in a recent twist, some experts say new government standards on workplace safety could open up businesses to more liability for crime.

The April 1998 recommendations by the U.S. Occupational Safety and Health Administration say stores that are open late-night hours should consider:

* Increasing staffing during high-risk periods.
* Reducing store hours.
* Installing adequate lighting, drop safes and silent alarms.
* Creating bullet-resistant enclosures to protect clerks.

The guidelines were not meant to create a new standard of due care, says Peter Susser, a partner at Littler Mendelson in Washington, D.C. But, he says, "I don't think one can be entirely confident that they won't work their way into the proceedings."

Phil Gerson, a plaintiffs lawyer and premises liability specialist in Miami, also expects OSHA's position to find its way into court. "It contributes to the overall body of knowledge that [security experts] have, and it's something they will refer to" when they testify, he says.

Yet some safety measures can be counterproductive, warns Timothy Columbus, a partner at Collier Shannon Rill & Scott in Washington, D.C., and counsel to the National Association of Convenience Stores in Alexandria, Va.

For example, bulletproof barriers tend to make customers feel intimidated, thereby reducing traffic in stores and making clerks easier targets for robbers, Columbus says. And robbers who can't reach a clerk may threaten customers to get what they want.

Despite defendants' appellate successes, "The cases are all over the place," says Gilbert Deitch, an Atlanta lawyer whose entire practice consists of these types of suits.

In a Texas case, for example, two pawnshop workers sued their employer after armed robbers tied them up, robbed them and threatened to kill them. An appeals court affirmed summary judgment for the defendant, noting that the store had been vandalized in the past but never robbed. Hickman v. American Pawn & Jewelry, 972 S.W.2d 144 (Tex. Ct. App. 1998).

But in a California case, a man sued a 7-Eleven store after being attacked in a parking lot next to the store. Even though the store didn't own the lot, an appeals court refused to dismiss the case. The evidence showed that juveniles often loitered in the lot, and fistfights sometimes broke out. Southland Corp. v. Superior Court, 250 Cal. Rptr. 57 (Cal. Ct. App. 1998).

In Deitch's own cases, he has won $ 2.5 million for a woman who was raped and $ 1.5 million in a stabbing case in two lawsuits against apartment complexes. "This area of the law has mushroomed in the past 10, 15 years," he says. "In the early '80s it was hardly done. It's everywhere now."

Criminal Histories

In deciding cases, courts ask whether it would have been reasonable to expect the property owner to foresee the crime and take steps to prevent it. Businesses whose customers have been attacked in the past can be vulnerable.

"The key thing is the prior criminal history on the property," says Deitch. "That's the nucleus of a premises liability case."

Sometimes plaintiffs attorneys gather crime statistics from the surrounding neighborhood. But that wields less weight in court. Deitch says he likes to look at a business's own documents on workplace safety. "If their manual says, 'We're subject to that type of crime,' they can be liable," he says.

Columbus argues that this approach assumes violent crime is predictable in a way that it simply isn't. Plaintiffs lawyers, for example, will use the fact that a store has been robbed in the past as evidence that its customers should fear violent assaults. "The data indicate that's not true," he says. "Robbery is a different deal."