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Although this case is extraordinary, it exemplifies how an increasing number of businesses are becoming targets of ever more savvy plaintiffs and plaintiffs' attorneys. And jury awards and settlements can be steep. According to a recent study by Liability Consultants, Inc., of Sudbury, Massachusetts, the average premises liability recovery (award or settlement) exceeded $1.2 million (although in most cases the plaintiff recovered less than $500,000).
Faced with the looming prospect of premises liability lawsuits, property owners are well-advised to create a defensive strategy that will shield them from costly exposure. This strategy includes understanding workers' compensation laws, documenting community security standards, conducting periodic security surveys, understanding and using crime statistics, and hiring the right experts.
Workers' compensation. In premises liability matters where the plaintiff is an employee of the defendant, the defense often overlooks the one response that may eliminate virtually all liability: workers' compensation. In fact, the estranged boyfriend mentioned at the beginning of this article failed to consider that workers' compensation would protect the employer from liability. Indeed, Michigan's workers' compensation law negated the company's liability and prevented the man's girlfriend from recovering on a claim for negligent security against the company.
In many states, workers' compensation is the only recourse in cases involving on-the-job injuries because the statute bars tort claims arising from the incident. In Doe v. South Carolina State Hospital (Court of Appeals of South Carolina, 1985), for example, a nursing supervisor sued her employer when she was assaulted and raped by an escaped mental patient. The defendant hospital moved for summary judgment (a judge's ruling based on the law and facts) on the grounds that workers' compensation was her sole remedy. The motion was granted, and the court of appeals affirmed.
In its opinion, the appeals court set out three criteria that had to be satisfied for the workers' compensation statute to apply: the injury resulted from an accident; the injury arose out of
the employment; and the injury occurred during the course of employment. Finding all three elements satisfied, the court ruled that the workers' compensation statute barred tort claims arising from the attack. (Continued on next column.)
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