In evaluating if a duty to protect exists, courts have applied the following approaches:

• If the commercial entity had knowledge of imminent criminal activity in the area.
• Voluntary Assumption of Duty – if you offer security on your premises for your visitors, you should do so in a reasonable manner in view of the dangers to which the security program was directed.
• Contract – if you are a landlord you may have assumed the responsibility of providing secured premises under the contract terms to your tenants. Also, if the visitors relied on the commercial entity to take appropriate security measures a court may reason that providing security is an implied contractual obligation. For example, a college must provide a secured premise for their students as part of the overall services the college provides to their pupils.
• Special Relationships – these are cases in which the victim of a crime was on the premises of the commercial entity for a purpose that is beneficial to both parties. Such is the case of customers, employees, suppliers, etc. The courts are inclined to find a duty to protect those parties.
• Prior Incidents – the court used this to determine whether the criminal incident was foreseeable. Courts will look at previous attacks, the similarity of the incidents, the frequency, the statistics of the geographical area. These factors and others can be used to determine if the commercial entity reasonably expected the incident to happen and should have undertaken security measures to minimize the risk.
• Totality of Circumstances – under this approach the court will assume that the commercial entity had a duty to protect someone from harm if the risk of harm was substantially higher than normal conditions. The evidence is determined on a case by case basis. Since this is an open approach, this grants the court ample discretion in reviewing the case. This in fact, results in an open ended premises security exposure for virtually all commercial entities. Modern jurisprudence favors this totality of the circumstances approach, which is likely to become the basis for future premises security litigation.
• Once the claimant has established a duty to protect, the next step is identifying a breach of that duty. This can be done by claiming that the commercial entity provided inadequate lighting, insufficient surveillance cameras, lack of security personnel, broken locks on doors, faulty intercom systems, inadequate fences to deter trespassers, etc.
• The next step is to prove that this breach of duty is the proximate cause to the injury of the claimant. The criminal activity would have been deterred if the premises owner had not breached that duty to protect. Also, the claimant must establish that there is a reasonable connection between the owner’s negligence and the injury suffered.
• What can you do to prevent criminal activity in your business? The easiest way would be avoiding crime-prone locations. If this is not feasible, then the security programs must conform to industry standards and to building codes, statutes and ordinances. In businesses where criminal activity is possible due to the nature of the operation (i.e. convenience stores, pubs, etc.), security programs and procedures should be in place and the employees must be trained to anticipate problems. Contracts should be reviewed and incident reports must be prepared to compare statistics with peers in the industry & neighborhood. This is important to determine the required level of security in the area.
• Indemnification & defense coverage is available under the Commercial General Liability policy, but poor loss experience could result in higher premiums or unfavorable coverage terms. Also, this type of claim affects the business goodwill.