Forensic Victimology 2nd Edition

Chapter Fifteen: Forensic Victimology and Civil Remedy in Premises Liability

Cases

Premises Liability Cases• Forensic victimology is not limited to use in criminal

trials. It also serves an important role in civil litigation. Civil litigation is initiated by victim-plaintiffs as a consequence of a defendant liability for harm caused during criminal acts or acts that involve defendant negligence. That harm is referred to as a tort – a civil wrong for which the plaintiff hopes to receive compensation.

• This chapter focuses on negligent security issues and premises liability, as these are the most commonly associated with violent crime victims seeking compensation.

Premises Liability Cases

• Premises liability is the civil responsibility incurred by property owners that fail to provide reasonable and adequate security to their lessees, customers and other invited patrons or guests while on their property, to include the structures within.

• This includes harm caused by third parties engaged in the commission of criminal acts.

The Duty to Protect• In a negligence case, the court will rule on whether

or not the defendant’s owed an alleged victim a duty of care.

• In general, there is no duty of care owed to any victim unless there is a special relationship between the two parties (for example, landlord-tenant, innkeeper-guest, etc.).

– Therefore, a trespasser enters a property with no rights and no special relationship and accept the risk of whatever they encounter (barring any exceptions).

The Duty to Protect• Once a duty of care is established by virtue of a

special relationship, the question will arise as to what precisely the duty is, and whether or not the defendant breached it.

• Litigants will often introduce evidence purporting to establish certain standards of care against which a defendant’s conduct is to be compared.

• Reasonableness is the most subjective determining factor for a standard of care, referring to what a reasonable person would do.

Forseeability• Foreseeability refers to the ability to see or know in

advance – the reasonable anticipation that harm or injury is a likely result from certain acts or omissions.

– To determine the forseeability of a particular crime and subsequent harm within the facts of a given case, Voigt and Thornton (1996) suggest the employment of an overall “crime forseeabillity model”.

– Kennedy (2006), on the other hand, provides that forseeability should be assessed on a continuum from not foreseeable to highly foreseeable, explaining that there are four tests.

Forseeability1. Imminent harm test – requires the plaintiff to show that a

landlord was aware that a specific individual was acting in such a manner as to pose a clear threat to the safety of an identifiable target.

2. Prior similar acts test – a test which is based on the premise that the past is in fact the best indication of the future.

3. The totality of the circumstances test – refers to the determination of forseeability by virtue of examining the social and environmental factors related to a particular type of crime.

4. The balancing test – a legal test which provides that property owners need to scale their security efforts to meet known threats based on the potential for harm, and within reason.

Forseeability• Forseeability is perhaps the most important issue

for criminologists because unless the foreseeability of harm can first be established, there is no duty to protect.

• If a forensic criminologist determines that a crime was not foreseeable, then this may be used by defense to argue that no duty existed in the case at hand.

• Consequently, while the court may determine that a defendant has a clear duty of care, the issue of foreseeability can be used to remove it.

Offense and Offender Deterrability

• Once the issue of foreseeability has been assessed, the forensic criminologist may examine the same evidence to determine whether the offense would have been preventable and the offender deterrable.

• A deterrent is anything which impedes or has a tendency to prevent.

– This refers to specific security measures that may be taken by property owners to impede different types of crime.

Offense and Offender Deterrability

• Another useful measure is whether an offender is instrumental or expressive in the commission of their crimes.

– The instrumental offender is defined by their desire to achieve a specific end, usually financial or materially oriented. They are deliberate, planful, and engage in acts of precaution to limit their exposure of being discovered, identified and apprehended.

– The expressive offender is defined by their heightened emotional state; their motive is persona, being associated with jealousy, anger, power, or even sexual desire.

• The criminal who acts instrumentally is typically more deterrable.

The Importance of Victimology

• In cases of civil litigation, the victim may have engaged in contributory negligence with respect to the harm that has befallen them. This can be a legitimate defense against all or part of the property owner’s liability.

• The forensic victimologist must conduct a victimology to determine whether and how enduring victim traits and temporary circumstances played a role in their victimity.

– The questions to resolve when assessing a victim revolve around: establishing their responsibility for the crime, and the nature of their vulnerability for crime.