In today’s world, especially when it comes to the employment work place, commercial offices, residential living, hotels/motels, and service providers that enter into a home, a greater duty exist to eliminate foreseeable threats. When attorneys talk about premises liability most people simply don’t understand what they’re talking about. Let me make it very simple. When it comes to liability it is all about what negligence means. Negligence basically has 3 elements. This is only a nutshell look at these heavily litigated issues that take months of law school to review and volumes of case law to interpret.
I. Duty
The question is what, if any duty, do you owe to your employees, tenants, guests, invitees, and customers? Generally there is no duty owed to anyone unless there is a special relationship between the parties. Think about it. This is really pretty simple. As an employer do you have a special relationship with your employees? The answer is yes. As a Landlord do you have a special with your tenants? Again, the answer is yes. As a hotel owner or manager, a restaurant owner or service provider that installs cable or granite counter tops? Again, the answer is a resounding yes. So what does it mean? Pursuant to the national standards, which means those widely accepted national case opinion where judges and attorneys will rely on when analyzing negligence liability for when this special type of relationship exists, then you owe a duty of reasonable safety.
To analyze what “reasonable safety” means you must look at the totality of the circumstances between you or your company and entity with whom the special relationship exists. For example, if you are a landlord you must think about the following things: 1) What are the historical crimes like on my property?; 2) What are the historical crimes in the vicinity of the property?; 3) What is the physical condition of the property?; 4) What safety plan do you have in place?; 5) How good is your criminal background investigation on potential residents?; 6) What methodologies do you have in place to follow through on the rules and regulations?; 7) Are you members of Crime Free and have all of your employees been though Crime Free training?; 8) How do your handle incident reports?; 9) What is your criteria for rental prospects?, and; 10) What systems do you have in place to limit potential risks to your tenants?
In a different example, if you are a service provider and send installation or service techs into a home of your customer: 1) Do you perform or have performed for your company, a criminal background investigation (not just a check or search or instant internet check)?; 2) Do you use private investigators to perform the investigations?; 3) What is your criteria for acceptance?; 4) Do you have a management system in place for your independent contractors and their employees?; 5) Do you have a management system in place for complaints about installation/service techs?, and; 6) In general, what and how much do you have in place to protect our customers? Answers to these questions will determine the nature and extent of your duty and the degree of causation for foreseeable consequences.
II. Causation
The legal word for causation is “proximate cause”. To analyze this element of causation one cannot simply say, “I didn’t do the criminal act, and therefore, I am not liable.” The analysis goes much deeper. The general national standard is:
“If you knew or should have known about a danger or peril and did not take proper remedies to protect against foreseeable harm or damage, you will likely be liable.”
This means that when you answer the questions about duty I posed above, it is not just about what you did know about a particular situation, it is also about what you should have known about that situation. For example, if a resident, or resident’s guest, gets hurt at a rental property by the criminal act of a third party (lets say a gang member that hangs out in the parking lot) then you must analyze not only what you knew about the gang member hanging out in the parking lot, but what you should have known about a gang member hanging out in the parking lot. The simple answer is if you have gang members hanging out in your parking lot then you should have known about that type of activity because it is your property and you should know about what is going on at your own property; and about the tenants that live there.
So again, in an analysis one would look to determine what systems do you have in place to protect your tenants from harm or damage from gang members on your property? In the context of a service provider, this same analysis would occur in the context of: 1) Did you do a criminal background investigation at all?; 2) Who did the investigation; 3) What was the extent of the investigation; 4) What was your criteria for an investigation, and; 5) Did you hire, or allow someone to be hired, to go into a customers home with a criminal background for which you should have known about past violent or dishonest actions.
In other words, the courts will look to see if you had any responsibility for the event taking place. There will be a probe to determine what, if any, part you may have played to causing, making or contributing to the event taking place. The type of causation can take many forms when you look at it from what you knew or should have known and what you should have or actually did to prevent the foreseeability of the event.
III. Foreseeability
Finally, you analyze the third element of negligence as it relates to your enterprise. If it is determined that you do have a duty and that your actions or inactions caused or contributed to the event, or that with a proper remedy the event would likely have not occurred, then we look at whether the thing that did occur was a foreseeable consequence of the duty relating to your actions or inactions. For example, a service provider only does a criminal background check in one county and did not search other places where the service tech lived and may have been convicted of a crimes. The Service tech is sent into the home and rapes and kills the woman customer. It is later found out that this service tech had spent 5 years in prison for aggravated assault in a County that was not searched, but known about. One of the riveting questions will be, “Why didn’t your company learn about the aggravated assault?” The fact that you hired someone else to do the investigation, and expected that it would be done correctly, will not relieve you of responsibility. If conducting an actual criminal background investigation would have uncovered the aggravated assault, but you chose to go with a simple criminal background check or search because it cost less, or because you simply didn’t know the difference; the fact is, that criminal past would have put you on notice not to hire that individual or let that individual represent your company in the capacity of a service tech.
You can see that taking a hard look at duty, causation and foreseeability is of the utmost importance relating to how you analyze your responsibility to conduct an actual criminal investigation by licensed private investigators. The status of the law is to do what you can do, or in other words, what is commercially reasonable and available to do for a criminal background investigation. A check, search, internet or instant product will not protect you or your company from liability in any capacity as it relates to hiring or retention of employees or independent contractors and their employees.
Don’t be fooled by the cheap, instant or internet gimmicks that tout a criminal background check or search. Get the real deal. Get an honest criminal background investigation by real, licensed private investigators. The cost is not that much more the than the false promises; and the peace of mind it brings along with the quality of the work in enormous. With a real Criminal Background Investigation you can demonstrate that you did everything reasonable and were within the National Standards of Negligence Law, thereby avoiding responsibility for wrongful actions upon your customers or employees.
About The Author:
J. Denton (Denny) Dobbins is Nationally and Internationally recognized as the world’s leader in Premises Liability Protection and has been featured across North America sharing the stage with Political Leaders, Police Celebrities, Administrators and Business Leaders. Since 1978, Denny has been involved with the detection and deterrence of Criminal Activity in properties and employment of all types.
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