In the last few years, I have been fortunate to have attorneys and their clients trust me as their mediator in a significant number of high-exposure negligent security cases.

Negligent security cases can offer a variety of factual scenarios but at their heart, involve injury to a plaintiff resulting from the criminal act by a third person on a defendant’s property. The idea behind a negligent security case is that the property owner (or occupier or manager) should have known that there was a danger to the plaintiff, and that by taking adequate steps, could have prevented the harm that was caused to the plaintiff.

These cases are often well-suited to mediation because of the risk to both sides. As a mediator of negligent security cases, I’d like to explore some of the issues inherent in these cases and how these issues can unfold during the mediation.

The Duty of the Property Owner May Vary  

The majority of negligent security cases that I’ve mediated have been shooting cases where a “bad actor” has been on the premises of the defendant and has shot and killed an individual whose family is bringing the lawsuit.  Generally, there are allegations that there had been prior incidents of violence on or near the property, and that the defendant should have increased its security to protect the person killed. I’ve had other negligent security claims involving sexual assault or simple battery that, while they do not result in a fatality, still can leave the victim with significant physical and emotional injuries.

The duty a property owner to a particular person may vary depending on that person’s status on the property. As with any other premises liability claim, an invitee is entitled to the greatest level of care. An example of an invitee might be a customer at a gas station who is pumping gas and purchasing a cup of coffee. In a nutshell, the property owner must keep the premises safe for this customer through the exercise of ordinary care.

A lesser duty of care is owed to a licensee. An owner is only required to refrain from willfully or wantonly hurting the licensee or recklessly exposing him or her to hidden perils. A licensee may be someone stopping to use the restroom at a gas station who is not there to purchase anything or provide any benefit to the owner.

The lowest duty or care is owed to a trespasser. This is someone who has neither express nor implied permission to be on the property at all. The owner’s only duty or care is not to willfully injure the trespasser (exceptions to this duty exist).

Knowing the distinction between these is absolutely critical in a negligent security case, as it greatly affects the obligations that a property owner has to the injured victim.

Why and When Mediation is Appropriate

A negligent security case may go to mediation for several reasons but obviously it needs to be well-suited to mediation on both sides. From a defendant’s perspective, the risk continues to be that plaintiffs’ verdicts in negligent security cases can be very high. Often mediation occurs before a motion for summary judgment has been filed, or ruled on if it has been filed. The defendant must recognize that there are no guarantees that a judge will grant that motion. Once you have 12 sympathetic people sitting in a jury box, anything could happen.

The plaintiff’s risk of course is that the judge could find insufficient evidence to send the case to a jury and throw the case out. Or assuming a third-party criminal act, a jury could blame that person rather than the defendant, and the plaintiff could get nothing. There is a lot of risk on both sides. Mediating before the motion is filed allows both parties to maintain positions of leverage, which necessarily means they both face significant risk as well.

For both parties, there is a strong likelihood that whatever the outcome in the trial court, the case will be appealed. The time, expense and uncertainty of the appellate process makes closure attractive. Mediating cases pre-suit can also be beneficial to both sides because discovery in these cases is very costly. That said, a certain amount of pre-suit investigation is still needed to know about prior violence in the area and the defendant’s history of security measures on the property.

Preparing to Mediate a Negligent Security Case

Before the mediation, I always like to talk to the attorneys and find out whether they want to have a joint session. If either the attorneys or I feel it’s going to be unproductive, we won’t have a joint session. In the case of a fatality, the approach to the victims’ family members is of utmost importance. They need to know that you understand what they’ve gone through, but that part of your role is to talk about the legal analysis of the case. It’s fragile.

Plaintiffs’ lawyers need to let their clients know that those family members are going to hear things that they may not want to hear or that are hard to hear but that that may be an important step in the process. At least at mediation, both parties are working toward a common goal; at trial, both sides are working toward completely opposite goals.

The Day of Mediation

During the mediation, it’s important to consider, as with any type of case, that the first offer is not the last offer. Mediation requires patience. It can be delicate, but settling this kind of case is not about finding the value of a human life or of the injury. Ultimately mediation is about finding a compromise on the risk that the outcome of a motion or trial may not be what you want it to be. It’s a process and in any kind of case, the first demand is usually much higher than the defendant is interested in contemplating, and the first offer is much lower than the plaintiff is interested in contemplating.

It’s important to trust the process. One of the benefits the mediator has is that he or she is spending time in both rooms and in some cases, hearing information that is confidential. While the numbers may not seem like you’re making progress, the mediator is having those private conversations and may know that progress is being made.

When a Case Fails to Settle at Mediation

There are times when the mediator knows that the case probably isn’t going to settle at mediation, and it is appropriate to walk away. However, even if the case doesn’t settle at mediation, playing the process out is helpful. More often than not, continued conversations after the mediation date can bring the case to resolution. An effective mediator will stay involved and continue to push the parties well after the mediation date to settle the case. That’s how I approach cases that impasse or fail to settle at mediation — and most of them do in fact settle before trial.