Friday, September 8, 2017
Aaron Twerski and Jon Shane have posted to SSRN Bringing the Science of Policing to Liability for Third-Party Crime at Shopping Malls. The abstract provides:
Unlike state and municipal police forces that can generally not be sued by victims of crime on the grounds that they provided inadequate policing, shopping malls are regularly the targets by crime victims in tort actions for failing to provide adequate security. Courts have struggled with the question of how to set the standard for reasonable policing. Most courts place heavy emphasis on the foreseeability by the mall management of the likelihood of criminal activity to take place on the grounds of the mall. In doing so they rely on the testimony of security experts who intuit as to the adequacy of the staffing. This article challenges the case law on several grounds. First, experts fail to utilize objective data as to the workload of security officers on the mall. The article will demonstrate that such data is available and provides an objective measure as to adequate staffing. Second, foreseeability of crime is too uncertain a measure as to the adequacy of staffing. The question of how much foreseeability is sufficient to trigger a duty of security has bedeviled the courts. Third, courts have struggled to determine whether better security would have avoided harm to a particular crime victim. Thus, even if security is found to be inadequate it is often impossible for plaintiffs to prove causation. This article argues that once a court, based on objective data, sets the standard of reasonable care that the burden of proof that additional security would not have averted the crime to the victim should shift to the defendant management of the mall.