Premises Liability: Has Apportionment of Fault Killed "Failure to Provide Security" Cases?


By Sun Choy and Jake Daly
Twenty years ago, premises liability typically meant property owner liability for the “slip-and-fall” case.  While “slip-and-fall” cases remain popular, landlords and property management companies have become the prime target of multi-million dollar claims for failing to provide adequate security.  In these “failure to provide security” cases, the plaintiff, usually a resident or invitee of an apartment complex, is the victim of a violent criminal act.  Instead of going after the criminal, the plaintiff seeks monetary damages from the “deep pocket” property owner based on a theory of negligence. 

Under this theory of recovery, the plaintiff alleges that the crime at issue was reasonably foreseeable based on the property owner’s knowledge of other similar crimes, but the property owner had failed to take reasonable security measures to prevent such crimes.  With the assistance of “security” and “property management” experts, this theory of recovery has proven to be quite successful for plaintiffs and their attorneys.  Given the numerous high-profile cases that have resulted in multi-million dollar verdicts across the country, it is not surprising that the American Association for Justice f/n/a the Association of Trial Lawyers of America often devotes national seminars to teaching plaintiff’s lawyers how to successfully prosecute these claims.
In response, many states, including Georgia, have enacted “tort reform.”  Under Georgia’s tort reform, for example, the defendant property owner has the ability to bring the criminal into the case for purposes of allowing the jury to apportion fault to this non-party.  Importantly, the damages award, if any, is reduced by the percentage of fault assigned to the non-party criminal.  Thus far, the apportionment of fault to the non-party criminal has dramatically impacted “failure to provide security” cases.  In a recent trial in DeKalb County, Georgia, the jury apportioned 5% fault to the property management company and 95% fault to the non-party criminal shooters.  Moreover, DeKalb County is widely viewed as a hostile venue for corporate defendants.  To say the least, this verdict sent tremors through the legal community, but especially the plaintiffs’ bar.  Based on this verdict, one could conclude that multi-million dollar verdicts against landlords and management companies are on the decline.  Such a conclusion may ultimately be proven to be correct.  However, at this time, it would be premature to conclude that apportionment of fault has killed “failure to provide security” cases.
While apportionment of fault to the non-party criminal is certainly a major factor in assessing potential exposure, there remain many other case-specific factors to consider.  These factors include the extent of the property owner’s knowledge of prior similar crimes, the security measures employed by the property owner, the particular circumstances of the crime at issue, the severity of the injuries alleged by the plaintiff, the “likeability” of the parties, the experts retained by the parties, the trial judge and the venue.  Further, at least in Georgia, the plaintiffs’ bar is gathering its considerable resources to mount a constitutional challenge to the apportionment of fault statute.  For now, there is no doubt that apportionment of fault has greatly reduced the viability of multi-million dollar “failure to provide security” cases.
For more information, contact Sun Choy at 770.818.1412 or [email protected] or Jake Daly at 770.818.1431 or [email protected].