by Sara A. McCormick and Arwa A. Abdelmoula — Originally published in the November/December 2019 issue of BOMA Magazine
The issue of premises security was met with heightened scrutiny in the wake of September 11, 2001, and has continued to grow in prominence in the wake of mass shootings across the United States. While terrorist attacks are relatively rare, workplace violence is not. In December of 2017, a fired law firm employee in Long Beach, California, killed one person and seriously injured another. Earlier this year, a disgruntled employee killed 12 co-workers and injured four in Virginia Beach. In fact, about two million people each year report workplace violence, according to the Occupational Safety and Health Administration (OSHA)—and the real number is likely higher. OSHA has estimated that 25 percent of workplace violence goes unreported. Against this background, commercial landlords and their tenants (as employers) must increasingly spend more time—and money—considering building and premises security.
Federal and many state courts have long held that employers may be found liable for foreseeable acts of violence that occur at their premises. Further, about half of U.S. states have either proposed or enacted laws permitting employers to apply for restraining orders on behalf of their employees to prevent violence, harassment or stalking—a tool by which employers have been further empowered to take measures to prevent workplace violence.
While an employer’s obligations with respect to workplace security make sense given an employer’s unique position as the “first line of defense,” a commercial landlord’s role in preventing workplace violence is not only less obvious, but is also an evolving area of the law.
Greater demands
Historically, a landlord could be expected to warrant against structural defects, hazardous substances and safety in the common areas, but it was widely acknowledged that a landlord had limited control over the actions of criminal third parties. This informed lease negotiations, and a landlord’s security measures often were considered a foregone conclusion by prospective tenants. Depending on negotiating strength, a tenant could do little beyond requesting information regarding its building’s existing security systems and insisting that they be maintained for the duration of the term.
However, over the past few decades, courts across the country have imposed a common law duty upon commercial landlords to take measures to prevent foreseeable third-party criminal acts within both common areas and leased premises. The trend of demanding increased employer vigilance has important repercussions for commercial landlords, as it suggests an increasing recognition by states that business entities are uniquely situated and better equipped than the state to police behavior that could result in workplace violence. Further, property owners are facing greater scrutiny in the wake of the October 2017 mass shooting in Las Vegas, the deadliest mass shooting in modern U.S. history. Many victims have filed suits against the Mandalay Bay Hotel for allowing the gunman to stockpile weapons there, and practitioners have observed that the litigation has placed a greater focus on the responsibilities and liabilities of owners and operators of commercial real estate. The pending cases appear to support the general trend towards increased property owner liability for security disasters.
Preparation is key
In light of this, how can commercial landlords protect themselves against claims of failure to maintain a secure premises? Following are a few guidelines:
- Follow applicable laws regarding security and tenant safety. For instance, landlords are generally expected to provide careful screening of both employees and tenants on their properties. If a commercial landlord fails to do so and a crime is committed, it is more likely to be held liable for resulting injuries to persons and property.
- Have a written security plan and stick to it. A judge or jury is more likely to find a lack of reasonableness where a landlord either did not have a security plan in place or did not adhere to a security plan.
- Don’t consent to providing additional security measures. When met with a prospective tenant’s demands for heightened security mechanisms during lease negotiations, keep your focus on access control and general building safety since many courts are inclined to impose these obligations on landlords anyway. If possible, steer clear of commitments to provide a tenant with specialized security services.
- Include tenants’ security obligations in the lease. Tenants should be required to implement security measures as a lease covenant. Consider including the flexibility for the landlord to require increased security measures in the future.
- Don’t rely on waivers of liability or exculpatory provisions. These are increasingly disfavored by courts. Furthermore, you will never effectively waive your duties with respect to maintaining safety in the common areas and you are increasingly likely to be held liable for not preventing known threats (which fall in the realm of the foreseeable). True, a commercial landlord is not an “insurer” of its premises against criminal acts of third parties. However, a landlord cannot look to contract law for relief from liability for its negligence.
- But, still include strong waiver language. Even though these are disfavored, they point to the intent of the parties; not including waiver language could arguably increase a landlord’s obligations.
Ultimately, landlords can expect that prospective tenants will be increasingly security-conscious and inclined to invest time and resources in the negotiation of security provisions in a lease. Given potential exposure and the high stakes involved, it is in a landlord’s interests to be equally thoughtful about these terms, and the lease should be drafted accordingly.
While an employer’s obligations with respect to workplace security make sense given an employer’s unique position as the “first line of defense,” a commercial landlord’s role in preventing workplace violence is not only less obvious, but is also an evolving area of the law.
About the authors
Sara McCormick is Of Counsel and Arwa Abdelmoula is an associate in the Real Estate Practice Group at Ballard Spahr LLP in Philadelphia.