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Criminal Acts on Your Property: Implications in Workers’ Compensation and Premises Liability. Laurie A. Loeschner lloeschner@evans-dixon.com (314) 552-4019. Reason to be Concerned?. A crime was just committed on your property or your insured’s property
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Criminal Acts on Your Property: Implications in Workers’ Compensation and Premises Liability Laurie A. Loeschner lloeschner@evans-dixon.com (314) 552-4019
Reason to be Concerned? • A crime was just committed on your property or your insured’s property • The crime resulted in injuries to invitees and/or employees • Should you be concerned about claims against your company/your insured for a random crime? • In our defense oriented (insert sarcastic inflection) state of Missouri….. …OF COURSE YOU ARE CONCERNED!
Frequency of Assaults • Per OSHA, over 2,000,000 people report being victims of workplace violence each year. • At greater risk when the employee: • Is responsible for money • Works with dangerous or unstable groups • Works in isolation • Provides a service • Works where alcohol is dispensed • Works at more dangerous times or in areas that have a high crime rate
Potential Claims(depending on details of fact scenario) • Employee • Workers’ Compensation • Civil Lawsuit • Invitee • Civil Lawsuit
Workers’ Compensation • Missouri workers’ compensation law covers employees who are injured • 1) in an “accident” • 2) that is in the course and scope of his or her employment. • Per Section 287.120 RSModefines the term “accident” as including “injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.” • First question to ask – what type of assault occurred?
Types of Assaults under Workers’ Comp • Under Missouri Workers’ Compensation law, there are 3 categories or types of assaults:
Work Related • Compensable • When the assault is related to or arises out of the employee’s work • Customer assaults employee • Co-employee assaults employee • Essentially, if there was no personal motive associated with the assault and the assault occurred in the scope and course = work related and compensable
Neutral • Compensable • An assault that occurs in the scope and course of the employment, but the motive behind the assault cannot be determined/proven
Personal • Not compensable • “Committed in the course of private quarrels that are purely personal to the participants” • If it is determined and can be proven that the assault arose out of a personal dispute • Does not matter if assault was unprovoked – still not compensable • Does not matter who ultimately injured the employee – still not compensable
Non-Compensable Personal Assaults • Gas station patron threw acid in employee’s face because he thought the employee had been kissing his wife. Freeman v. Callow, 525 SW2d 371 (Mo. App. 1975). • Employee’s boyfriend (who did not work with employee) came into work and stabbed her and then abducted her. Scheper v. Hair Repair, Ltd. , 825 SW2d 1 (Mo. App. 1992).
Non-Compensable Personal Assaults • Employee had been physically abused by her boyfriend outside of work. She was shot by her boyfriend while working. Flowers v. City of Campbell, 384 SW3d 305 (Mo. App. 2012). • Although unprovoked assaults on the employee, the courts held these assaults were not compensable because they arose out of purely personal disputes.
Penalties? • Penalties of 25-50% • Can be applied if proven that employee failed to follow employer’s policies and procedures, thereby resulting in the assault/injuries • However, Judges HATE to apply penalties • In comp, medical is 60% of the value of the case – if penalties applied on medical, case is basically guaranteed to go to trial • May be best to take your lumps in comp as opposed to civil claim – cheaper and quicker
Civil Claim Arising from Crime on the Property • Litigation arising from crimes on the property can relate to any crime, including property crimes, but most often relates to a violent crime (i.e. rape, kidnapping, murder, assault, etc.). • Crimes can be committed by a stranger, a third-party known to the victim, an employee or owner. • Crime can occur anywhere and cannot be 100% prevented by the property owner or property manager.
Duty of Property Owner • General Rule • In Missouri, a property owner has not duty to protect against criminal acts of third parties. • As with every great rule of law, there are exceptions….
The Standard in MissouriPrior to 7/5/18 • The Missouri Supreme Court essentially adopted Section 344 of the Restatement 2d of Torts by recognizing a duty on business owners to protect invitees from criminal acts of unknown third persons in certain circumstances. Madden v. C&K Barbecue Carry Out, Inc., 758 S.W.2d 59 (Mo. banc 1988). • This duty arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury to the business owners’ invitees. • A “totality of the circumstances” approach is used to determine if the duty exists (i.e. if crime was foreseeable). • The exact crime or injury need not be foreseeable. • Only need to show that a reasonable person could have foreseen that injuries of the type suffered would be likely to occur under the circumstances.
Foreseeability of the Crime • Foreseeability is based on: • Prior crimes involving the employees or parties at issue • Prior violent crimes at the property • Property owner/management’s knowledge of prior crimes • Violent crime rate at property v. crime rate at similar surrounding properties • Security measures at the property • Maintenance of said security measures • Prior complaints by employees and customers • Nature of the business • Location of the property • Prior knowledge of violent propensities of assailant
The Business Premises Safety Act - Duty • 7/5/18- Senate Bill 608 was signed by Gov. Parson • Attempt to limit and define the duty of a business owner • Duty to guard against criminal acts or harmful acts occurring on the business’ premises when: • 1) the business knows or has reason to know that such acts are being committed or are reasonably likely to be committed in a particular area of the business • AND • 2) sufficient time exists to prevent such crime or injury
Business Premises Safety Act – Affirmative Defenses • No liability if: • The business has implemented reasonable security measures; • When the claimant was a trespasser under the influence of alcohol or a controlled substance OR was committing or attempting to commit a felony; OR • The criminal act or harmful act occurred while the business was closed to the public
Other Defenses and Considerations • Comparative Fault • Provocation • Failure to follow policies and procedures • Targeted crime • Stay • Liens
Keys to a Successful Defense • Maintenance • Policies and Procedures for security • Training of employees • Documentation - Written - Photos - Video
Deterrence is Vital • Be proactive and not reactive. • Deterring a crime is primarily based on: • Maintenance of the property and documenting same • Maintaining relationships with employees, customers, and local law enforcement • Proper safety measures • Policies and procedures
Policies and Procedures • All employees should be familiar with the property and the needs at the property. • Cannot just rely on reports or complaints by customers, tenants, etc. • Property should be regularly walked to discover unsafe or hazardous conditions. • Be certain to implement a checklist to complete during the property inspections. • Cover all bases, ensures nothing is overlooked and document that the inspection was completed (i.e. date, time, person(s) involved, aspects of property inspected).
Documentation • Most, if not all, cases rest on the documentation of resident complaints and maintenance records. • Documents play several roles: • Paint a picture of what is happening at the property • Paint a picture of what is NOT happening at the property Assist you in recalling events and dates if a case or claim should arise • Typically trying to prove the absence of something. • GOOD RECORDS TYPICALLY INDICATIVE OF GOOD MAINTENANCE AND MANAGEMENT
Build Relationship with Local Law Enforcement • Management should have open communication with local police and encourage their regular presence at the property. • Police can provide essential information about incidents • Police can also provide a calls for service log for your property at your request. Details all calls to the police associated with your property. • Starting point for information. You should follow-up with the police to obtain copies of reports for incidents. Some reports may be unavailable, but you should still request them and document all requests.
Response to Notice of Assault • Management must make a quick and thoughtful response • Notice can come from many sources including employees, customers, police, supervisors, maintenance personnel. • The person receiving the first notice of the incident should immediately report it to their supervisors. • Supervisors should have additional training to direct onsite personnel on appropriate response to the incident.
Notifying Others of Incident • Notice to Insurer • Management should immediately notify their insurance so a proper investigation and response can be initiated. • Retention of Counsel • As part of their investigation, the insurer can decide whether counsel should be retained. • Retention counsel typically assists in collecting and preserving evidence. • Also may need to work with police regarding evidence collection. • Try to stay one step ahead of opposing counsel • The victim often retains counsel immediately to begin their investigation, including speaking to witnesses and taking photographs.
Incident Reports • Incident reports should be used for personal injury, property damage and criminal incidents. • The form should include the following: • Date and time of incident • Date and time of notification • Identity of person taking information • Statements from reporting owner or guest – including obtaining a handwritten statement • Statements from witnesses • Description of incident • Witnesses to incident • Weather conditions • Contributing causes to accident • Injuries – get a complete description of complaints and possibly photograph visible injuries
Photograph Area of Accident/Incident and Damage • Keep a camera on-site or use your cell phone to photograph the area of the incident and any resulting damage to the property. • Make sure photographs are maintained and attached to the incident report. Identify the photographer by name.
Maintaining Reports and Photos • Incident reports and photos should be kept at the onsite office (if applicable) and any corporate or central management office. • They should be maintained in a separate file exclusively used for incident reports and photos. • It is important that either electronic copies or hard copies be transmitted to the corporate or central management office to ensure that at least 2 copies of these important records can later be used should a claim or lawsuit be filed.
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