by Lance Thompson~
Business owners and operators know that achieving success requires a balance of many tasks. The customer experience is perhaps one of the most difficult to manage. From interaction with store personnel to an overall satisfactory encounter, customers will recall the life experience associated with their visit to your establishment. What about the safety of the customer?
While most recognize the duty to have an establishment that is clean, welcoming, and safe, are businesses required to do more? Should they do more even if not required? From a legal standpoint, it is a challenging issue that seems to be a moving target, particularly when it comes to on-premises security. Generally, extra security is required when the business locale shows a reasonable business owner that the customer experience would be enhanced by feeling more secure. Two factors Tennessee courts look at are: (1) number of criminal incidents in a short time in the vicinity; and (2) similarity of harm that has occurred in comparison to what you are seeking to prevent. If your business is in a high crime area, security is required. The level of security depends on the risk presented.
DUTY OF CARE
Duty of care arises when there is documented history of extensive prior crimes occurring on the business owner’s property over a short period of time. For example, the Tennessee Supreme Court found a duty of care to exist in response to evidence of 286 criminal incidents occurring at a mall during the 14 months immediately preceding the plaintiff’s injury caused by a third-party criminal. Staples v. CBL and Associates, 15 S.W. 3d 83 (Tenn. 2000). Similarly, in McClung v. Delta Square Limited Partnership, the court cited to evidence of 164 criminal incidents that had occurred on or near a shopping center parking lot within the 17 months prior to the plaintiff’s injury by third-party criminal, including a bomb threat, 14 burglaries, 12 reports of malicious mischief, 10 robberies, 36 auto thefts, 90 larcenies and 1 attempted kidnapping: 937 S.W. 2d 891 (Tenn. 1996). In finding that a duty of care existed, the court noted that all these crimes occurred on or in the immediate vicinity of the shop owner’s parking lot, took place within a relatively short period of time prior to the abduction of the plaintiff’s wife and involved a significant threat of personal harm. McClung, 937 S.W. 2d at 904. In comparison, in the case of Z Gem Company v. Dollar Rental Car, 406 F.Supp. 2d 867 (W.D. Tenn. 2005), the court held that two prior incidents of criminal activity on the property were not sufficient to create a reasonably foreseeable risk of harm under Tennessee law when compared to the 164 and 286 prior incidences of criminal activity in the McClung and Staples cases.
IMMEDIATE VICINITY
Courts have defined the “immediate vicinity” of a defendant’s premises a narrow application. In McClung, the immediate vicinity to which the court considered was limited to the parking lot directly adjacent to the defendant store owner’s parking lot. Similarly, the court in Keaton v. Walmart Stores East LP, 2009 WL 17853 (Tenn. Ct. App. Jan. 2, 2009) refused to consider an adjacent trailer park that plaintiff attempted to use to show criminal activity in the immediate vicinity of the defendant’s parking lot because the trailer park was not visible from the defendant’s parking lot, was not located in the immediate area and was a distinctly different operation than that of the defendant’s business. Finally, in Crews v. Hooters Restaurant of Nashville, 2001 WL 459112 (Tenn. Ct. App. 2001), the court held that in a situation with no evidence of prior violent crimes against person or property on the defendant’s property, the plaintiff had the burden of presenting evidence of more than general instances of criminal activity in the area. The Court indicated some precise evidence regarding the nature, extent and proximity of the alleged crimes would be needed.
The McClung Court explained that in assessing whether a business owner owes a duty, courts will consider:
- The location
- Nature and extent of previous criminal activities and their similarity
- Proximity or other relationship to the crime giving rise to the cause of action
To hold otherwise would impose an undue burden on business owners. The court adopted a balancing approach to appropriately address the economic concerns of the businesses and the safety concerns of customers who are harmed due to negligence of the business. By way of illustration, using surveillance cameras, posting signs, installing stronger lighting, or removing or trimming shrubbery might, in some instances, be cost effective and yet greatly reduce the risk to customers. Depending on the degree of criminal activity, the physical presence of security guards, either armed or unarmed, could also be considered. The court explained rather than having an incentive to do nothing (out of fear of having assumed a duty), businesses would be encouraged to take reasonable security precautions. The business owner is in the best position to know the extent of crime on the premises and is better equipped than customers to take measures to thwart it and to distribute the costs.
So how much is enough? Like much of the law, there are many factors. To enhance the customer experience, an owner or operator of a business must weigh the cost of providing security with the safety concerns of its customers. Where your business is located, and what happens around your business is the main determining factor. Too much unnecessary security can give customers the wrong idea – not enough can get you sued. This balance must include an analysis of what Tennessee courts require. Let us know how we can help you and your business find that balance.