A Legal Mauling: Injuries for Failing to Have Mall Cops

I. Hurt at the Mall

If you’ve ever seen the movie based upon having mall police, you may or may not think it’s a laughing matter to argue mall policing, in front of The North Carolina Supreme Court. On the other hand, if you ever experienced some of the fears of being afraid in a dark parking lot; or if you change your conduct, worry about family, or know friends hurt because of vandalism and assaults in or near a shopping mall…

II.  Invitee vs. Licensee:

In almost any premises injury case, because of the difficulty of distinguishing between invitee and licensee, this is often the break or make of a case by a well-qualified premises liability attorney.

Fortunately, experienced premises liability lawyers are aware of similar cases against malls around the country. The North Carolina Supreme Court seemed especially persuaded by similar cases, where shoppers were hurt in shopping mall parking areas, in Illinois. The specific key? Whether or not the mall management had been notified to be aware of such third-party criminal behavior was essential to the case presented by the premises liability attorney.

III.   Shoulda’ versus Coulda’

Just because a property owner could have addressed the problem or risk, doesn’t mean that they should have. But in this case, the premises liability attorney did a marvelous job of relating not only how the injuries occurred, but the fact that she had reason to worry about them, and apparently communicated these concerns.

In fact, the premises liability attorney showed definitively that she'd reason to expect the mall owners had “(taken) adequate precautions to provide for the safety of their customers.” This reasonable belief had been reflected in further details concerning the mall’s alleged breach of duty. For example, the premises liability attorney pointed out the possibility the attack could’ve been prevented by adequate patrol and mall security in the parking area. Investigation of records showed that there were at least 29-31 major incidents in crime, fairly recently reported, and as having happened right in the mall parking lot. It didn’t matter, according to the premises liability attorney, that “only” four of the crimes were probably technically “assault.” It was the general pattern of criminal activity presented by the premises liability lawyer in evidence that was concerning to the Supreme Court. This evidence, in turn, related to the key issue: was the attack on the woman in the parking lot reasonably foreseeable? The Supreme Court agreed it was foreseeable, and overruled the trial court’s dismissal of the invitee suit.

As in many of these mall safety/premises liability cases, discovering and then using well-managed testimony was crucial to the outcome. The premises liability attorney asked the manager of the mall how many guards were provided for this busy holiday season? The manager was then forced to embarrassingly admit that he had also told the public specifically: the security increases had been approved for the holidays. But in fact, no additional steps had been taken to increase the number of guards on patrol in the parking lot.

IV. The Dissent

It’s worth looking at the (lonely) dissent in this case for a variety of reasons. Premises liability lawyers know that courts and judges often look at very narrow distinctions. These distinctions can make a difference, when they try to separate particular cases from each other. Depending on the dissent, the issues raised may also be used for later cases, when judges may want to expand, limit or explain particular aspects of hard cases. Sometimes, as well, the dissenting judge is later regarded as right, and the dissent may actually have a strong argument that resurfaces in these later cases regarding premises liability. In this case, it’s worth examining the dissenting judge’s obvious, and sometimes apparently humorous, dislike of the majority’s analysis.

We’d already looked at how the premises liability attorney had established the injuries to this woman in the parking lot. Now, let’s look at how the same factors were portrayed by the dissenting judge. Instead of the majority’s emphasis about what she had communicated to the mall owners, or the many incidents of crime at the mall, the dissenting judge ignored the facts presented by the premises liability attorney. Instead, the dissent spoke of the nature of risks generally. The dissenting judge also felt that the majority had wrongly ‘created’ a special duty on the part of landowners to protect invitees against third-party criminals.

According to this dissenting version of limiting liability for property owners, there is no essential reason to create such duty. In fairness to the dissent, and as premises liability attorneys know, foreseeability is sometimes difficult to attribute to a property owner/defendant. On the other hand, the dissent seemed to emphasize whether not it was “fair” to hold a retail merchant responsible for third-party crimes. Thus, the dissent could exaggerate this presumed “new” duty by rhetorically asking “what measures will protect against the thug, the narcotic addict, the degenerate, the psychopath and the psychotic? Must the owner prevent all crime? We doubt that any police force in the friendliest community has achieved that end.” Obviously, the premises liability attorney can point to cases where the answer to the dissent was obvious: delivering promised security. After all, no one recommends disbanding regular policing when crime gets worse, no matter how “friendly” the neighborhood.

It’s a mistake to ignore opposing points of view…especially from important dissenting judges. These somewhat legally vague attempts to limit liability by property owners, artificially (but artfully) are very much in the crosshairs of effective premises liability attorneys. Fortunately for the injured woman in this case, the premises liability attorney undoubtedly anticipated this very pro–property owner opinion, by emphasizing the specific promises that have been made by the mall manager.

Unfortunately, in the law, even the best of judges or courts may forget that human injury is real and often permanent. While judges may be seen as callous when this happens, this risk does raise the importance of having an experienced premises liability attorney. Preparing for these emotional upheavals and allegations can be an important part of not only healing in the process, but also an understanding what’s likely to happen. Without an experienced premises liability attorney, it’s too easy to feel (and unfortunately to be) alone and vulnerable to the system. 

Conclusions:   

This case had once again involved a trial court preventing a jury’s final say on the merits. Premises liability attorneys have had great success in bringing these cases to the attention of the Supreme Court. Very often, but not always, the higher court insists on giving juries their say in court. If you, a family member or a loved one have been hurt in an accident related to being on another’s property or business, or involving related areas such as parking lots, please contact us.  You will speak with a premises liability attorney/lawyer who can best answer your questions.  There is never a fee for this initial consultation.