Ep. 27: Foreseeable Harm · Negligent Security and the Duty to Invitees

The person at the center of this episode never stole anything. They were a customer — attacked in the parking lot on the way back to their car. In "Foreseeable Harm," Don Carr and Jim Cords widen the season from the suspect to the invitee, breaking down negligent security: the duty a business owes to protect the people it invites in from foreseeable third-party crime. Why customers earn the highest standard of care, how a plaintiff builds foreseeability from your own incident reports and the crime pattern around you, and why these cases turn not on the crime but on whether you took reasonable steps — lighting, cameras, sightlines, patrols. The most damning exhibit is usually the maintenance log showing you knew the light was out. Light the lot.

Loss. Liability. Law.

Transcript

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This is the City Safe Podcast, a conversation at the intersection of community safety, technology, and leadership, co-hosted by Don Carr and Jim Kortz. Together, we examine the critical issues facing cities today and the smarter tools that can help reduce crime and protect our communities. From instant communication systems to emerging technology, we break down what works, what doesn't, and what's next for urban safety. Because in today's world, keeping people safe requires more than good intentions. It requires innovation, data, and decisive action. Listen to the City Safe Podcast. Available now on Spotify, Apple Podcasts, and YouTube Music. Subscribe today and join the mission to make cities safer for everyone. Thanks for joining us on another episode of the City Safe Podcast. This is episode 27. Foreseeable harm, negligent security, and the duty to invitees. I'm Don Carr. I'm Jim Cords. And everything we've talked about this season, the person on the other side was a suspect, someone taking something. Today we flip it completely. The person at the center of this episode didn't steal anything. They were a customer. They parked, they shopped, and on the way back to their car in your lot, after dark, they were attacked. They didn't lose merchandise. They lost a lot more than that. And the lawsuit that follows isn't about what someone took from you. It's about what happened to them on grounds you controlled. And the legal theory has a name: negligent security. The claim isn't that the store committed the crime. Everyone agrees a third party did that. The claim is that the harm was foreseeable, and the store had a duty to take reasonable steps to protect the people it invited in, but it didn't. Which means loss and liability, they don't just be at the register, they meet in your parking lot, on your sidewalk, at your own front door. So, Jim, in episode 23, we defined foreseeability in the abstract. Today, it gets real because it's the engine of this entire claim. But before foreseeability, there's a prior question: who do you even owe a duty to in the first place? Because it's not everyone equally, right? Right. And this is the premises liability 101, but it matters. The law traditionally sorts people on your property into categories, and the duty you owe rises with the category. The highest duty is owed to what's called an invitee. And a customer in a store is the textbook invitee. They're on your property for your business benefit. Uh, you invited them there to spend money, right? So you owe them the highest standard of reasonable care. So say why that's fair, Jim, because it tracks the season's logic. It's fair because you brought them there for your own gain. You opened the doors, you ran the ad, and you lit the sign. You created that invitation. And the law says if you invite the public onto your property to benefit your business, you take on a corresponding duty to use reasonable care to keep that property reasonable safe for them. The benefit and the duty come together. Right. Capability and benefit create the duty. Same principle as the parking lot assault in episode 23. Same principle as detection. The party who set the conditions and stands to gain is the party who owes the care. And reasonably safe includes a duty that surprises people. The duty to protect invitees from the foreseeable criminal acts of third parties. That's the negligent security claim in one line. Not that you have to guarantee safety, nobody can do that, but that you have to take reasonable measures against foreseeable danger. And there's that word again, Jim. Foreseeable. Everything hinges on it. So let's walk our customer's case the way a court would, because foreseeability is built piece by piece. Start with that threshold question, Jim. The first thing a plaintiff has to establish is that this harm was foreseeable to the property. And the most common way to prove it, prior similar incidents. Was there a history? Prior assaults, robberies, car break-ins in the lot. And if there is a documented pattern of violent crime at that location, the plaintiff argues the operator was on notice that someone could get hurt. And as we covered in 23, the notice often comes from the operator's own records, their incident reports, police call logs to that address. Their own data builds the foreseeability case against them, and it widens from there. It's not only prior incidents on your exact property. Courts may look at this surrounding area, the nature of the business, the crime rate of the immediate vicinity. A store operating in a location with a known pattern of nighttime crime can be charged with foreseeing that its customers face a risk in a dark lot. So the pattern puts you on notice. So foreseeability is established. The harm was knowable. Now what? Well, now the duty has attached, and the question becomes the one that decides the case. Did the operator take reasonable steps? This is where negligent security cases are actually won and lost. Not on whether the crime happened. It did, everyone knows it happened, but on whether the business did what a reasonable operator would have done about a known risk. And this is the architect's part. So I'll take this one. Reasonable steps and a foreseeable crime lot are not exotic. Lighting, functioning lighting, not a fixture that's been dark for three months. And it's in the maintenance log that it's been dark. Cameras that work, trimmed sight lines, so the corner by the cart return isn't a blind spot. In higher risk settings, security presence or patrols. None of this is guaranteeing safety. It's reasonable care, proportional to a known risk. And the plaintiff's case writes itself when those basics are missing. Three prior results in that lot, the lighting's been out for months, and it's documented. No cameras, no patrol. And then that fourth customer gets hurt. So the argument isn't you caused the crime, it's you you knew this lot was dangerous. You had cheap, reasonable measures available, and you took none of them. Knew, could have acted, didn't. That's the whole season in three beats. Right. And the inverse is the defense. The operator who saw the same pattern and responded, they lit the parking lot, put up cameras, ran patrols, documented all of it. That operator can stand up and say, the duty was real, we knew the risk, and here's everything reasonable we did about it. So it's the same crime might happen, but completely different liability. Because liability here doesn't turn on the crime, it turns on the response to the foreseeable risk. So the operator's takeaway? Monday morning. If you run a property, the public walks on to, what does this demand? First, know your own history and your own neighborhood. Your incident data and the crime pattern around you aren't just operational metrics, they're the foreseeability record. If there's a pattern, you're on notice, whether you've consciously acknowledged it or not. Pull the data and actually look at it. Second, and this is cheap insurance, maintain the basics and document that you maintain them. Lighting works, and there's a record that you check it. Cameras function, sight lines are clear, because the most damning fact in these cases is almost always the maintenance log showing you knew the light was out and left it. The failure to fix the known thing is worse than the thing itself. Yeah, that documented neglect is the plaintiff's favorite exhibit. So flip it. Make your maintenance record the thing that proves you took the risk seriously. Third, match the measures to the risk. A low crime suburban strip and a high crime urban lot. Well, those don't owe the same response because reasonableness scales with foreseeability. The more foreseeable the harm, the more the law expects. So a location with a real pattern needs to be honest with itself about what reasonable now requires of it. And the human point underneath all of it, this isn't only about avoiding a lawsuit. The reasonable steps that defend you in court are the same steps that keep an actual person from getting hurt on your lot or on your property, right? So the legal duty and the moral one point in the same direction here. Do the thing, and a customer goes home safe and you're defensible. They're not intentional. That's right, Jim. And that's the cleanest version of this show's whole argument. Good structure protects people and it protects you. That same act, it does both. So in closing, here's where it lands loss prevention isn't only about what leaves the store, it's about what happens to the people you invited in. You owe your customers, your invitees, reasonable care. And when crime is foreseeable on your property, that duty includes reasonable steps to protect them from it. Negligent security cases don't turn on the crime. Everyone agrees a third party did the crime. They turn on was the harm foreseeable? And did you do something reasonable about it? Your own records usually answer the first half. What you did or didn't do answers the second. That dark lot with the documented broken light and the history of assaults, that's not an accident waiting to happen. Legally, it's a duty waiting to be breached. Light the lot, fix the thing you know is broken. Your customers are counting on it, even if they never knew they were. And next week, the evidence itself turns on you. The footage that proves your case is the same footage that, deleted on the wrong day, becomes the thing that sinks you. Retention spoliation and the camera that cuts both ways. I'm Don Carr. And I'm Jim Kords. Stay well, stay aware. And stay city safe. That wraps up this episode of the City Safe Podcast. Thanks for joining us in the conversation about smarter strategies for safer cities. If you found today's discussion valuable, share it with your network and help us spread awareness about the tools and technology making a real impact. Be sure to subscribe on Spotify, Apple Podcasts, and YouTube Music so you never miss an episode. Until next time, stay informed, stay connected, and stay city safe.