Criminal Acts on Your Property: Implications in Workers’ Compensation and Premises Liability

1. Criminal Acts on Your Property: Implications in Workers’ Compensation and Premises Liability Laurie A. Loeschner lloeschner@evans-dixon.com (314) 552-4019

2. Reason to be Concerned? • A crime was just committed on your property or your insured’s property • The crime resulted in injuries to invitees and/or employees • Should you be concerned about claims against your company/your insured for a random crime? • In our defense oriented (insert sarcastic inflection) state of Missouri….. …OF COURSE YOU ARE CONCERNED!

3. Frequency of Assaults • Per OSHA, over 2,000,000 people report being victims of workplace violence each year. • At greater risk when the employee: • Is responsible for money • Works with dangerous or unstable groups • Works in isolation • Provides a service • Works where alcohol is dispensed • Works at more dangerous times or in areas that have a high crime rate

4. Potential Claims(depending on details of fact scenario) • Employee • Workers’ Compensation • Civil Lawsuit • Invitee • Civil Lawsuit

5. Workers’ Compensation • Missouri workers’ compensation law covers employees who are injured • 1) in an “accident” • 2) that is in the course and scope of his or her employment.  • Per Section 287.120 RSModefines the term “accident” as including “injury or death of the employee caused by the unprovoked violence or assault against the employee by any person.”  • First question to ask – what type of assault occurred?

6. Types of Assaults under Workers’ Comp • Under Missouri Workers’ Compensation law, there are 3 categories or types of assaults:

7. Work Related • Compensable • When the assault is related to or arises out of the employee’s work • Customer assaults employee • Co-employee assaults employee • Essentially, if there was no personal motive associated with the assault and the assault occurred in the scope and course = work related and compensable

8. Neutral • Compensable • An assault that occurs in the scope and course of the employment, but the motive behind the assault cannot be determined/proven

9. Personal • Not compensable • “Committed in the course of private quarrels that are purely personal to the participants” • If it is determined and can be proven that the assault arose out of a personal dispute • Does not matter if assault was unprovoked – still not compensable • Does not matter who ultimately injured the employee – still not compensable

10. Non-Compensable Personal Assaults • Gas station patron threw acid in employee’s face because he thought the employee had been kissing his wife.  Freeman v. Callow, 525 SW2d 371 (Mo. App. 1975). • Employee’s boyfriend (who did not work with employee) came into work and stabbed her and then abducted her.  Scheper v. Hair Repair, Ltd. , 825 SW2d 1 (Mo. App. 1992).

11. Non-Compensable Personal Assaults • Employee  had been physically abused by her boyfriend outside of work.  She was shot by her boyfriend while working.  Flowers v. City of Campbell, 384 SW3d 305 (Mo.  App. 2012). • Although unprovoked assaults on the employee, the courts held these assaults were not compensable because they arose out of purely personal disputes.

12. Penalties? • Penalties of 25-50% • Can be applied if proven that employee failed to follow employer’s policies and procedures, thereby resulting in the assault/injuries • However, Judges HATE to apply penalties • In comp, medical is 60% of the value of the case – if penalties applied on medical, case is basically guaranteed to go to trial • May be best to take your lumps in comp as opposed to civil claim – cheaper and quicker

13. Civil Claim Arising from Crime on the Property • Litigation arising from crimes on the property can relate to any crime, including property crimes, but most often relates to a violent crime (i.e. rape, kidnapping, murder, assault, etc.). • Crimes can be committed by a stranger, a third-party known to the victim, an employee or owner. • Crime can occur anywhere and cannot be 100% prevented by the property owner or property manager.

14. Duty of Property Owner • General Rule • In Missouri, a property owner has not duty to protect against criminal acts of third parties. • As with every great rule of law, there are exceptions….

15. The Standard in MissouriPrior to 7/5/18 • The Missouri Supreme Court essentially adopted Section 344 of the Restatement 2d of Torts by recognizing a duty on business owners to protect invitees from criminal acts of unknown third persons in certain circumstances. Madden v. C&K Barbecue Carry Out, Inc., 758 S.W.2d 59 (Mo. banc 1988). • This duty arises out of circumstances in which there is a foreseeable likelihood that particular acts or omissions will cause harm or injury to the business owners’ invitees. • A “totality of the circumstances” approach is used to determine if the duty exists (i.e. if crime was foreseeable). • The exact crime or injury need not be foreseeable. • Only need to show that a reasonable person could have foreseen that injuries of the type suffered would be likely to occur under the circumstances.

16. Foreseeability of the Crime • Foreseeability is based on: • Prior crimes involving the employees or parties at issue • Prior violent crimes at the property • Property owner/management’s knowledge of prior crimes • Violent crime rate at property v. crime rate at similar surrounding properties • Security measures at the property • Maintenance of said security measures • Prior complaints by employees and customers • Nature of the business • Location of the property • Prior knowledge of violent propensities of assailant

17. The Business Premises Safety Act - Duty • 7/5/18- Senate Bill 608 was signed by Gov. Parson • Attempt to limit and define the duty of a business owner • Duty to guard against criminal acts or harmful acts occurring on the business’ premises when: • 1) the business knows or has reason to know that such acts are being committed or are reasonably likely to be committed in a particular area of the business • AND • 2) sufficient time exists to prevent such crime or injury

18. Business Premises Safety Act – Affirmative Defenses • No liability if: • The business has implemented reasonable security measures; • When the claimant was a trespasser under the influence of alcohol or a controlled substance OR was committing or attempting to commit a felony; OR • The criminal act or harmful act occurred while the business was closed to the public

19. Other Defenses and Considerations • Comparative Fault • Provocation • Failure to follow policies and procedures • Targeted crime • Stay • Liens

20. Keys to a Successful Defense • Maintenance • Policies and Procedures for security • Training of employees • Documentation - Written - Photos - Video

21. Deterrence is Vital • Be proactive and not reactive. • Deterring a crime is primarily based on: • Maintenance of the property and documenting same • Maintaining relationships with employees, customers, and local law enforcement • Proper safety measures • Policies and procedures

22. Policies and Procedures • All employees should be familiar with the property and the needs at the property. • Cannot just rely on reports or complaints by customers, tenants, etc. • Property should be regularly walked to discover unsafe or hazardous conditions. • Be certain to implement a checklist to complete during the property inspections. • Cover all bases, ensures nothing is overlooked and document that the inspection was completed (i.e. date, time, person(s) involved, aspects of property inspected).

23. Documentation • Most, if not all, cases rest on the documentation of resident complaints and maintenance records. • Documents play several roles: • Paint a picture of what is happening at the property • Paint a picture of what is NOT happening at the property Assist you in recalling events and dates if a case or claim should arise • Typically trying to prove the absence of something. • GOOD RECORDS TYPICALLY INDICATIVE OF GOOD MAINTENANCE AND MANAGEMENT

24. Build Relationship with Local Law Enforcement • Management should have open communication with local police and encourage their regular presence at the property. • Police can provide essential information about incidents • Police can also provide a calls for service log for your property at your request. Details all calls to the police associated with your property. • Starting point for information. You should follow-up with the police to obtain copies of reports for incidents. Some reports may be unavailable, but you should still request them and document all requests.

25. Response to Notice of Assault • Management must make a quick and thoughtful response • Notice can come from many sources including employees, customers, police, supervisors, maintenance personnel. • The person receiving the first notice of the incident should immediately report it to their supervisors. • Supervisors should have additional training to direct onsite personnel on appropriate response to the incident.

26. Notifying Others of Incident • Notice to Insurer • Management should immediately notify their insurance so a proper investigation and response can be initiated. • Retention of Counsel • As part of their investigation, the insurer can decide whether counsel should be retained. • Retention counsel typically assists in collecting and preserving evidence. • Also may need to work with police regarding evidence collection. • Try to stay one step ahead of opposing counsel • The victim often retains counsel immediately to begin their investigation, including speaking to witnesses and taking photographs.

27. Incident Reports • Incident reports should be used for personal injury, property damage and criminal incidents. • The form should include the following: • Date and time of incident • Date and time of notification • Identity of person taking information • Statements from reporting owner or guest – including obtaining a handwritten statement • Statements from witnesses • Description of incident • Witnesses to incident • Weather conditions • Contributing causes to accident • Injuries – get a complete description of complaints and possibly photograph visible injuries

28. Photograph Area of Accident/Incident and Damage • Keep a camera on-site or use your cell phone to photograph the area of the incident and any resulting damage to the property. • Make sure photographs are maintained and attached to the incident report. Identify the photographer by name.

29. Maintaining Reports and Photos • Incident reports and photos should be kept at the onsite office (if applicable) and any corporate or central management office. • They should be maintained in a separate file exclusively used for incident reports and photos. • It is important that either electronic copies or hard copies be transmitted to the corporate or central management office to ensure that at least 2 copies of these important records can later be used should a claim or lawsuit be filed.

30. Thank You! 501 Cherry St., Suite 200 Columbia, MO 65201 (573) 777-8823 11422 Miracle Hills Dr., Suite 400 Omaha, NE 68154 (402) 397-0800 10851 Mastin Boulevard, Suite 900 Overland Park, KS 66210 (913) 693-0900 211 N. Broadway, Suite 2500 St. Louis, MO 63102 (314) 621-7755 1100 Main Street, Suite 2000 Kansas City, MO 64105 (816) 472-4600 4905 S. National Ave., Bldg. B Springfield, MO 65810 (417) 882-4700