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Premises Liability and Inadequate Security

The firm represents persons who are injured because of negligence in maintaining and operating premises such as shopping centers, restaurants, hotels, and apartment complexes. These cases typically involve negligent design or maintenance of the property or negligent failure to provide adequate security to protect persons from criminal assault.

If you believe that you have a premises liability case, please contact us at (919) 682-3700 or fill out the contact form here. ________________________________________________________________________

Recent case report:

$6.25 Million Recovered in Inadequate Security Case

On March 26, 2012, Charles Bentley and co-counsel Joe McLeod settled an inadequate security case during the third week of trial while the jury was deliberating.  The venue was Hoke County, North Carolina. 

 

We have received a number of inquiries regarding this case, including questions from attorneys who represent crime victims and who are members of the Inadequate Security Litigation Group of the American Association for Justice and the National Crime Victim Bar Association.  We are posting this information about the case in order to respond to the most commonly asked questions relating to the procedural history of the case and the evidence presented.  The settlement has been reported by North Carolina Lawyers’ Weekly and The JereBeasleyReport.

 

The total amount of the settlement was $6.25 million, which has been paid.

 

The plaintiff was twenty-six years old at the time of the incident.  On June 4, 2007, at approximately 3:00 AM, he went to a twenty-four hour restaurant to get something to eat after spending some time at a club with a friend and co-worker.

 

The restaurant was crowded, and plaintiff and his friend decided to go somewhere else to eat. However, the plaintiff needed to use the restroom.  He went to the door of the restaurant where an unarmed security guard was controlling access to the restaurant.  The security guard gave permission to the plaintiff to enter the restaurant to use the restroom.  When the plaintiff walked out into the parking lot after using the restroom, he was robbed of two gold chains then shot in the back.  The perpetrators were members of the Bloods gang.  The bullet severed the plaintiff’s spinal cord at L1-T12, leaving him permanently paralyzed below the waist.

 

The complaint was filed on June 2, 2010, alleging negligence against the franchisor, the franchisee, the president of the franchisee, the property owner, and the security company that provided two unarmed security guards.  In addition, a claim of successor liability was brought against the franchisor.  The franchisor had foreclosed on a loan made to the franchisee and had acquired the franchisee’s restaurant after plaintiff was shot.

 

After plaintiff filed suit, affiliates of the franchisor filed an involuntary bankruptcy petition against the franchisee.  The Trustee removed plaintiff’s case from state court to bankruptcy court.  Plaintiff obtained an order granting relief from the stay order and filed a motion for remand of the action to state court.  The motion for remand was contested by the Trustee and the defendants.  After a hearing, the Bankruptcy Judge entered an order remanding the case to Hoke County on March 28, 2011.

 

After the case was remanded to Hoke County, where plaintiff resided, defendants filed motions seeking to transfer venue to Wake County, where the shooting had occurred.  The motions to transfer venue were denied on April 29, 2011.  Defendants then filed a motion to have the case designated as exceptional.  Plaintiff opposed the motion, which was also denied. 

 

On February 10, 2012, the Court heard oral arguments on motions for summary judgment filed by each of the defendants.  Plaintiff agreed to dismiss claims against the property owner.  Plaintiff claimed that the franchisee’s negligence in failing to have adequate security was a cause of his injury.  Plaintiff pursued a claim of actual agency against the franchisor.  In addition, plaintiff argued the “mere continuation” theory of successor liability against the franchisor.  As to the liability of the security company, plaintiff argued negligent breach of the security contract between the security company and the franchisee.  Plaintiff had also alleged that he was a third-party beneficiary of the security contract, but plaintiff did not argue this claim at the summary judgment hearing.

 

The Court denied the summary judgment motions with the exception that summary judgment was entered on behalf of the security company on the third-party beneficiary claim and for the franchisor on the issue of actual agency. 

 

At the beginning of trial the Court bifurcated the liability and damages issues and severed the successor liability claim against the franchisor.

 

A mediation settlement conference had been held on December 15, 2011.  A settlement offer was made in the amount of $100,000.00, which the plaintiff rejected.

 

Plaintiff’s security expert, Norman D. Bates, Esq., of Bolton, MA, testified at trial.  Mr. Bates testified that there had been armed robberies, assaults, and shots fired on the premises during the three-year period leading up to the date plaintiff was robbed and shot and that violent crime was foreseeable.  Plaintiff also presented evidence that prior to the shooting the police department had requested the franchisee to hire off-duty police officers to provide security.  The franchisee had agreed to hire the officers, but their presence had not been implemented by the night plaintiff was shot.  The police had also requested the franchisee to close the restaurant briefly during the bar rush, but the franchisee responded that it did not have the authority to close because of its franchise agreement.

 

The defendants argued that the perpetrators were not deterrable and that the crimes against plaintiff could not have been prevented by the security measures requested by the police and testified to by plaintiff’s security expert.  The defendants pleaded contributory negligence but abandoned that defense during trial.

 

The defendants offered testimony of two security experts at trial.  Jon Groussman of Naples, FL, testified for the security company.  Joseph Cavallo of Loganville, GA, testified for the franchisee.  These experts testified that the defendants had acted reasonably and that the crimes against the plaintiff could not have been prevented by better security measures.  The franchisee also offered testimony from Mark Safarik, a former senior FBI behavioral analyst, who testified that the offenders were not deterrable and that the crimes against the plaintiff could not have been prevented by hiring off-duty police officers.

 

At the close of the evidence, the Court granted the motion for directed verdict made by the president of the franchisee in his individual capacity and denied the motions of the other defendants.

 

During the third week of trial, while the jury was deliberating the negligence issues, the franchisee and the security company agreed to settle plaintiff’s claims.  The total amount of the settlement was $6.25 million.  Prior to settlement, plaintiff was prepared to put on evidence in support of his claim for damages during the second phase of the trial.  Plaintiff’s damages witnesses included Richard P. Bonfiglio, M.D., physiatrist, of Murrysville, Pennsylvania, Cynthia Wilhem, Ph.D., certified life care planner, of Chapel Hill, and J. C. Poindexter, Ph.D., economist, of Roanoke, Virginia. 

 

There was an insurance coverage case filed by defendants’ insurance carriers that was pending in another court involving an assault and battery exclusion and an issue of which policy was primary.  As part of a global settlement, the insurance coverage issues, the liability claims, and the successor liability claim were resolved.

 

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Bentley Law Offices, P.A.
3200 Croasdaile Drive, Suite 606
Durham, NC 27705
Tel: (919) 682-3700 | Fax: (919) 683-1080


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