Receive free forms and advice for efficient discovery and settlement in personal injury cases

In personal injury litigation, mismanagement and inefficiency often plague the early phases of case development. Over 300 carefully selected forms, checklists, questionnaires, complaints, and memoranda will help you organize and economize your personal injury work.

Improve the speed and effectiveness of your intake, investigation, pleading, discovery, and settlement with these practice-proven tools:

Model interrogatories
Deposition checklists
Interview questionnaires
Case evaluation checklists
Client, witness and expert letters
Sample complaints
Memoranda
Motions
Settlement letters

To have your free personal injury forms chapter e-mailed to you, fill in the blanks below and press Submit. The chapters available are listed below.

You may select one of the following chapters and have it e-mailed to you at no charge:

Chapter 1: Initial Client Contact

Chapter 2: Investigation and Evaluation

Chapter 3: Experts

Chapter 4: Discovery

Chapter 5: Settlement

Chapter 6: [Reserved]

Chapter 7: Premises Liability

Chapter 8: Products Liability and Toxic Torts Cases

Chapter 9: Medical Malpractice

Chapter 10: Police Assault and Battery

Chapter 11: Automobile Accidents

Chapter 12: Dram Shop/Liquor Liability

Chapter 13: Insurance Bad Faith

Chapter 14: Premises Security

Here are the first 10 pages of a 40-page chapter:

Chapter 14

Premises Security

§1400 Interview, Investigation and Evaluation

§1410 Interrogatories

§1420 Defendant’s Interrogatories to Plaintiff

§1430 Request for Production of Documents

§1440 Deposition Checklists: Premises Security Cases

§1450 Request for a Physical or Mental Examination

§1460 Requests for Admissions

§1400 Interview, Investigation and Evaluation

§1401 Client Interview Questionnaire

§1401.1 Premises Security Investigator Intake Sheet

§1401.2 Expert Witness Intake Sheet: Premises Security Cases

§1401.3 Premises Security Expert Witness Transmittal Package

§1401.4 Role of Criminologist

§1401.5 Checklist of Discovery Items in Premises Security Cases

§1402 Premises Security Complaints

§1402.1 Sample Complaint: Landlord Liability

§1402.2 Sample Complaint: Hotel/Motel Premises Security

§1402.3 Sample Complaint: University Premises Security

§1402.4 Sample Complaint: Movie Theater Premises Security

§1402.5 Sample Complaint: Bank Premises Security

§1402.6 Sample Complaint: Shopping Mall Premises Security

§1402.7 Sample Complaint: Parking Lot Premises Security

§1402.8 Sample Complaint: Amusement Park Security

§1402.9 Sample Complaint: Bar, Restaurant, or Tavern

§1403 Investigation and Evaluation Checklists: Premises Security

§1403.1 Checklist on Proving Shopping Center Liability for Third Party Crimes

§1403.2 Checklist on Proving ATM Liability

§1410 Interrogatories

§1420 Defendant’s Interrogatories to Plaintiff

§1430 Request for Production of Documents

§1431 Document Requests: Plaintiff to Defendant

§1432 Document Requests: Defendant to Plaintiff

§1440 Deposition Checklists: Premises Security Cases

§1441 Deposition Checklist: Plaintiff to Premises Owner or Occupier

§1442 Deposition Checklist: Defendant Premises Owner or Occupier to Plaintiff

§1443 Deposition Checklist: Premises Security Experts

§1444 Deposition Checklist: Expert Witness and Environmental Factors

§1445 Checklist: Challenging the Qualification of the Opponent’s Expert

§1446 Notice of Videotaped Deposition (with Production of Documents) to Premises Security Expert

§1450 Request for a Physical or Mental Examination

§1460 Requests for Admissions

§1461 Request for Admissions: Plaintiff to Defendant

§1462 Request for Admissions: Defendant to Plaintiff

§1400 Interview, Investigation and Evaluation

Premises security cases focus primarily on theories sounding in negligence. In some way, the premises owner or occupier failed to act prudently and reasonably and, therefore, invited, contributed to or exacerbated the injury. The premises security case may involve a shopping mall, a university or college, convenience store, hotel or motel, movie theater, sports facility or a variety of other premises where injuries are caused by a third party’s criminal act. Like premises liability law, premises security litigation generally involves a person who has been injured while on the land of another.

In premises liability cases, the plaintiff is often injured by a defective condition. In premises security cases, the plaintiff is the victim of the third party’s criminal actions. Some courts still adhere to the view that criminal acts of third parties are superseding causes sufficient to absolve the premises owner or occupier of liability. The modern trend, however, is for courts to conclude that an injured person who was induced to rely on the premises owner or occupier’s representations of safety may sue when those representations, warranties or duties are breached. See generally, Annot., Private Person’s Duty and Liability for Failure to Protect Another Against Criminal Attack by Third Person, 10 A.L.R. 3d 619 (1966 & curr. supp.); J. Tarantino & M. Dombroff, Premises Security: Law and Practice §2.2 (1990); see also Rusk & Riley, “When Life in the Fast-Food Lane Turns Violent,” 33 Trial 1 at 48 (Jan. 1997) (discussing attacks at restaurant drive-throughs and legal theories for injuries sustained by patrons); Glazier & Green, “Allocating Fault in Negligent Security Cases,” 33 Trial 1 at 54 (Jan. 1997) (raising arguments that negligent defendant should not be allowed to share fault with intentional tortfeasors to reduce a plaintiff’s jury award).

For additional information, see Niedelman, “Paying for Another’s Crime Against Patrons,” 42 For the Defense 22 (Aug. 2000) (article discusses the evolution of owners’ or proprietors’ liability for criminal offenses and discusses the so-called “specific harm” test, the “prior similar incidents” test, the “totality of the circumstances” test, and the “balancing” test, and discusses the legal and logical strengths and weaknesses of each and argues that courts are leaning toward the “balancing” test).

Premises security cases have a number of factual, procedural and legal problems which make it difficult to prevail at trial. However, as a result of the nature and extent of injuries received by the plaintiff-victim, the premises security case may allow the plaintiff to recover a substantial amount of damages if he or she is successful. Because the premises security case is not always a “winner” and in fact may not be economical to undertake, however, this chapter will offer suggestions on how best to evaluate these cases to determine whether they are factually, legally and economically viable.

There are four principle tests that courts have used to determine owners’ or proprietors’ liability for criminal attacks against patrons. They are as follows:

The Specific Harm Test

This is the oldest of the approaches and has fallen out of disfavor among most courts. Under the specific harm test, an owner will be liable to a patron for criminal acts of third parties, but only if the owner knew or should have known that the criminal activity posed a threat of imminent harm to a patron and was about to occur. Under the specific harm test, courts focus on the premise that a third party criminal act is an intervening cause that cuts off or extinguishes the potential liability of the owner, and also focuses on the principle of common law that a store owner or proprietor is generally not charged with any duty to protect customers from criminals.

Generally, under the specific harm test, liability can only be overcome if there is a special relationship between the plaintiff and the defendant, e.g., landlord/tenant, common carrier/passenger. Certain cases that discuss the specific harm test include: Bailey v. Bruno’s Inc., 561 So.2d 509 (Ala. 1990); Wright v. Webb, 234 Va. 527, 362 S.E.2d 919 (1987); Morgan v. Southland Assocs., 883 P.2d 205 (Okla. 1994); Shipes v. Piggley Wiggley St. Andrews, 269 S.C. 479, 238 S.E.2d 167 (1977); Nail v. Jefferson County Truck Growers Ass'n, 542 So.2d 1208 (Ala. 1988).

The Prior Similar Incidents Test

The prior similar incidents test focuses on whether over a period of time there have been a series of criminal events on or near the premises, about which the owner was aware or should have been aware. Accordingly, under the prior similar incidents test, the focus is on whether the criminal incident at issue was foreseeable. Cases which focus on the prior similar incidents test include Butler v. Acme Markets Inc., 89 N.J. 270, 445 A.2d 1141 (1982); Tolbert v. Captain Joe's Seafood Inc., 170 Ga.App. 26, 316 S.E.2d 11 (1984); Galloway v. Banker's Trust Co., 420 N.W.2d 437 (Iowa 1988); Polomie v. Golub Corp., 226 App.Div.2d 979, 640 N.Y.S.2d 700 (1996); Thiele v. Rieter, 838 S.W.2d 441 (Mo.App. 1992); Taylor v. Hocker, 101 Ill.App.3d 639, 428 N.E.2d 662 (1981).

The Totality of the Circumstances Test

Under the totality of the circumstances test, a court will determine whether foreseeability for the purpose of establishing a landowner’s liability for criminal acts of third persons on the landowner’s property can be established other than by evidence of prior similar incidents on the premises. The totality of the circumstances test generally rejects the prior similar incidents test as being “flawed,” as the prior similar incidents test “leads to results which are contrary to public policy.” See Isaacs v. Huntington Mem. Hosp., 38 Cal.3d 12, 211 Cal. Rptr. 356 (1985). The court concluded that the “first victim always loses, while subsequent victims are permitted recovery. Such a result is not only unfair, but is inimical to the important policy of compensating injured parties.” Id. at 361. The court rejected the idea that a landowner should always have one “free” victim as it would discourage the landowner from implementing security measures and “contravene the policy . . . preventing future harm.” Id.

The court also considered and criticized the prior similar incidents test’s vagueness with uncertainty as to how “similar” any prior incidents must be to satisfy the rule. The court also criticized the rule as “erroneously equating foreseeability of a particular act with previous occurrences of similar acts,” noting that “the fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts.” Id. at 362. Finally, the court reasoned that the prior similar incidents rule removes too many cases from the jury's consideration, as foreseeability would ordinarily be a question of fact. Id.

The Isaacs court adopted the totality of the circumstances rule, determining that foreseeability is an “elastic” concept, id. at 361, and that such circumstances as numbers of previous assaults and thefts, whether the area was in a high-crime area, the kinds of individuals who frequent the area (including whether they were under the influence of alcohol or drugs), the number of security guards, whether the premises were monitored by television cameras, the ability to communicate with security and police and the like, all were part of the totality of the circumstances in determining whether liability could result on the part of the landowner. See also Restatement (Second) of Torts, §344, which provides a general rule for liability when the owner is in control of business premises, and in particular comment (f), which provides:

Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of a third person are occurring, or about to occur. He may, however, know or have reason to know from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

Note: A number of courts actually used §344 as a basis for adopting the prior similar incidents test. See Butler v. Acme Markets, Inc., 89 N.J. 270, 445 A.2d 1141 (1982).

The Balancing Test

The California Supreme Court ultimately reversed itself, abandoning the totality of the circumstances test in Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal.4th 666, 25 Cal. Rptr.2d 137 (1993). The Court abandoned the totality of the circumstances test because “lower court opinions have questioned the wisdom of our apparent abandonment of the ‘prior similar incidents’ rule and ‘upon further reflection and in light of the increase in violent crime’ some ‘refinement’ of the totality of the circumstances test was required.” 25 Cal. Rptr. 2d at 144-45.

Note: The other problem with the totality of the circumstances test is that it becomes so fact-intensive “that it provides no guidance for courts in attempting to define the scope of commercial owner's duties to its patrons. This simply provides more opportunities for plaintiffs’ verdicts. Indeed, the test has been described as ‘imprecise,’ ‘unfair,’ and ‘troublesome.’” Niedelman, supra at 25, quoting McClung v. Delta Square Ltd. Partnership, 937 S.W.2d 891, 900 (Tenn./st1:State> 1996).

The McClung case adopted the balancing test, and also determined that “the requisite degree of foreseeability essential to establish a duty to protect against criminal acts will almost always require that prior instances of crime have occurred on or in the immediate vicinity of defendant's premises.” McClung,/i> 937 S.W.2d at 902. The Court also instructed trial courts to consider:

the location

the nature

the extent of previous criminal activities, as well as their similarity, proximity or relationship to crimes giving rise to the cause of action.

Id. Several other courts have adopted or at least expressed approval of the balancing test. These courts include Krier v. Safeway Stores, 943 P.2d 405 (Wyo. 1997); Posecaiv v. Wal-Mart Stores, 752 So. 2d 762 (La./st1:State> 1991).

FFinally, Niedelman concludes that the trend toward accepting the balancing test “re-injects some rationality into the outcome of crime-on-the-premises …” and further that “[w]hether the applicable test has denominated ‘prior similar incidents’ or its new twin ‘balancing test.’ If an owner's liability is based on its knowledge of a pattern of prior similar incidents, the owner can monitor such behavior and know that as violent incidents increase, so does its obligation to provide security.” Niedelman, supra at 55.

Premises liability cases often have an interplay with civil and criminal courts, and it is important for the client to understand the different remedies that may be available in each, as well as what you can do as a personal injury attorney and what the respective roles of a prosecutor are. Many clients do not initially understand the difference and expect far more from the personal injury attorney than he or she can deliver./p>
EEven though the personal injury attorney will not prosecute a criminal case, this does not mean that he or she should not remain fully apprised of the status of the criminal case and should try to establish a productive relationship with the prosecutor(s). In this regard, you should also be aware that many prosecutors prefer that a civil lawsuit not be filed before the criminal case is concluded. They fear there will be a defense that the victim may be financially motivated or that any discovery in the civil case may aid the defense and allow the defense to obtain materials that it would not otherwise be able to get in criminal discovery. Accordingly, at least one commentator suggests that “[a]s long as there is no statute of limitations problem, it is advisable to refrain from filing a civil lawsuit until the criminal case is resolved.” Baldinger, “Civil Suits and Uncivil Criminal Acts,” 34 Trial 6 at 36, 38 (June 1998). In many cases, personal injury attorneys will be able to obtain the investigation materials in a criminal case, and if there has been a plea of guilty or a guilty verdict, it can often be used against the defendant-perpetrator in a civil case with summary judgment on liability often resulting.

Make sure that the client has realistic expectations of what can be proven in terms of liability and damages and what other remedies are available in civil litigation, e.g.i>, injunctions and restraining orders. Where a potential personal injury claim is against a third party (as opposed to the perpetrator) whose negligence contributed to the crime or to the opportunity for the crime, then carefully review any liability insurance that may be available. Be careful to note, however, that there are many potential exclusions to coverage, including intentional acts by an employer’s servants or criminal acts by third parties. Carefully review the insurance policies at issue in this regard. See generally, J. Tarantino & M. Dombroff, Premises Security: Law & Practice (1990).

§1401 Client Interview Questionnaire /p>

If the client can recollect and narrate what happened, he or she should be the prime source of information necessary for successful investigation of the premises security case. However, in many premises security cases, the client will be the estate of a deceased victim of a criminal attack. In other cases, the client may suffer from traumatic amnesia, post-traumatic stress disorder or may otherwise be incapable of recollecting or narrating sufficient details of the attack to make the interview productive. Whenever the client is an estate of the decedent, the facts pertinent to the case must be developed through other witnesses or through consultation with police and a variety of forensic experts. When the client suffers from some memory deprivation, or traumatic amnesia, it may be possible through psychological counseling, or even hypnosis, to refresh the client’s recollection to the extent necessary to conduct a meaningful interview.

Where the client is able to recall events leading up to, during and after the attack, the initial interview will generally provide counsel with facts sufficient to draft the complaint. With the goal of drafting the complaint in mind, the initial interview should focus not only on the facts of the case, but on the client’s story, including the impact of the attack and injuries on the client’s life. You might ask the client’s permission to tape record or even videotape the initial interview. This procedure will dispense with the need for taking detailed notes so you can focus instead on the client’s story and conduct the interview in a conversational tone as opposed to a strict question and answer session.

TTo help with this, a client interview form or questionnaire follows and should be completed with the assistance of a paralegal or investigator before the initial interview. In this way, the initial interview will focus on the client’s needs, concerns and questions regarding the premises security litigation and will allow time to evaluate the client for possible deposition and trial examination. See J. Tarantino & M. Dombroff, Premises Security: Law and Practice §7.3 (1990).

Note: For excellent suggestions on how to conduct a client interview along with sample questions which can be adapted to the premises security case, see Abbott & Bubany, “The Anatomy of a Client Interview (With Resources and Sample Questions),” 42 The Practical Lawyer/i> 8 at 61 (December 1996).

Client Interview Questionnaire

I. Background Data

1. Client name: __________________________________________________

2. Home address and telephone number: ____________________________
______________________________________________________________________

3. Business address, telephone, fax numbers and e-mail address:
______________________________________________________________________
______________________________________________________________________

4. Date and place of birth: ______________________________________

5. Educational background: _______________________________________

6. Armed forces service: _________________________________________

7. Employment history: ___________________________________________

8. Marital status: _______________________________________________

II. Premises Security Incident

9. Date of incident: _____________________________________________

10. Day of Week: _________________________________________________

11. Time of Day: _________________________________________________

12. Weather conditions: __________________________________________

13. Location (include specifics regarding the premises, e.g., description of shopping plaza, store, bank, apartment, hotel, motel, school or university, or other establishment): ______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

14. Describe in detail the facts leading up to the incident and the attack:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

15. Describe any prior knowledge of or visits to the premises:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

16. Before the incident and attack, did you know the owner or occupier of the premises? If so, provide details concerning the owner’s name, address and other information about the scope and nature of your knowledge or prior relationship. ____________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

17. Did you know the assailant? If so, provide details including name, address and other pertinent information concerning the assailant:
______________________________________________________________________
______________________________________________________________________

18. Are you aware of any prior attacks or similar incidents occurring on the premises? If so, provide details: _________________________________________________
______________________________________________________________________
______________________________________________________________________

19. Are you aware of any witnesses to the incident or attack? If so, provide names, addresses and other information: _____________________________________
______________________________________________________________________
______________________________________________________________________

20. Did you have any contact with any security personnel on the premises be fore the incident or attack? If so, provide name, address and other pertinent information:
______________________________________________________________________
______________________________________________________________________

21. Did you have any contact with security personnel after the incident or attack? If so, provide name, address and other pertinent information
______________________________________________________________________
______________________________________________________________________

22. Did you have any contact with police or law enforcement officials after the incident or attack? If so, provide names, addresses and other pertinent information:
______________________________________________________________________
______________________________________________________________________

23. Did you give any statements, whether in recorded or unrecorded form, to anyone after the incident or attack (e.g., police, media, physician, psychologist or psychiatrist, insurance adjuster, etc.)? If so, provide name, address, title or occupation of individual to whom the statement was given, the date and time the statement was given and a summary of the contents of the statement: ___________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

224. After the incident or attack, were you ever asked to identify, or attempt to identify the assailant? If so, in what way were you asked to identify the assailant (e.g., review of mug shots, lineup, showup, etc.)? Provide details regarding results of any identification procedures:.
______________________________________________________________________
______________________________________________________________________

III. Economic Damages

25. List all medical damages sustained as a result of the incident or attack:
______________________________________________________________________

26. List all lost wages, benefits or employment opportunities:
______________________________________________________________________
______________________________________________________________________

27. List all other miscellaneous economic damages sustained (e.g., domestic help or services, special equipment purchased, etc.): ________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

IV. Pain, Suffering and Limitation of Activities

28. Describe the frequency, severity, location and duration of pain and discomfort experienced as a result of the incident and attack: __________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

29. List all activities precluded or prohibited, whether work-related, social or family-related: _____________________________________________________________
______________________________________________________________________
______________________________________________________________________

30. Describe the effects the incident or attack has had on your personal life:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________

31. Describe the effects the incident or attack has had on your relationship with spouse, children, family or friends: _________________________________________
______________________________________________________________________
______________________________________________________________________

32. List other non-economic damages sustained (e.g., nightmares, post-traumatic stress disorder, traumatic amnesia, etc.): __________________________________
______________________________________________________________________
______________________________________________________________________

V. Other Possible Claims

1. Loss of consortium—Spouse: ____________________________________
______________________________________________________________________

2. Loss of consortium—Children: __________________________________
______________________________________________________________________

3. Criminal injuries—compensation claims: ________________________
______________________________________________________________________

4. Workers’ compensation claim: __________________________________
______________________________________________________________________

5. Miscellaneous claims: _________________________________________
______________________________________________________________________

VI. Criminal actions

1. Criminal complaints filed (identify name or names of perpetrators).
______________________________________________________________________
______________________________________________________________________

2. Identify police department or other law enforcement agencies contacted.
______________________________________________________________________
______________________________________________________________________

3. Identify all statements given to police departments or law enforcement agencies.
______________________________________________________________________
______________________________________________________________________

4. Identify status of criminal proceedings.
______________________________________________________________________
______________________________________________________________________

5. If a specific prosecutor or prosecution officer from the police or law enforcement agency has been assigned to your case, please identify (name, address, police department, district attorney’s office or law enforcement agency, and telephone number).
______________________________________________________________________
______________________________________________________________________

§1401.1  Premises Security Investigator Intake Sheet

Investigators play an important role in the preparation and defense of the plaintiff’s premises security case. From the defense perspective, where insurance coverage is applicable, an adjuster will be assigned to the case to handle the initial investigation. That adjuster may also work with an investigator skilled in premises security matters.

From the plaintiff’s perspective, it is important to have an investigator with some law enforcement background or legal training to obtain the information necessary to evaluate, prepare and if necessary, try the premises security case.

Under ideal circumstances the investigator will have some legal training. In many cases he or she will not. Therefore, it is important that you give the investigator detailed guidance on witnesses to interview, information and documents to obtain and statements to take.

An investigator should have good interviewing and interpersonal skills. It is important that the investigator not alienate any witnesses or overlook any material evidence. When used properly, the investigator can save you a tremendous amount of time, effort and expense and can assist in narrowing and properly focusing evaluation and preparation of the case.

Following is a list of instructions to give to and review with the investigator in any premises security case.

1.    Obtain as much information as possible on the identity of the owners and occupiers of the premises. You need this information to determine possible defendants in any action brought.

2.    Obtain as much information as possible about the assets of the owners and occupiers of the premises including any insurance coverage available to satisfy any claims.

3.    Obtain as much information as possible from local law enforcement officials about incidents of criminal activity in and about the premises for the past several years. Include information about any prior criminal activity or attacks on the same premises where this incident or attack took place.

Note: It is important to try to establish prior knowledge on the part of the owners or occupiers on the possibility of attacks on the premises.

4. Obtain as much information as possible regarding any security measures or procedures undertaken at the premises by the owners or occupiers. These might include security cameras, security guards, fences, security guidelines, lighting, alarm systems and the like.

5. Obtain photographs of the areas where the assault or attack took place.

6. Interview all witnesses to the assault or attack. Be candid in your discussions with these witnesses. Do not make any misrepresentations regarding your role or for whom you work.

7. Obtain as much information as possible regarding the identity of any assailants, if known, and any information regarding their past criminal history, police record, convictions and the like.

Practice Tips:

Instruct the investigator on the scope and nature of the attorney-client privilege and work product doctrine so the investigator recognizes both the importance of preserving client confidences and the attorney’s thoughts and mental impressions. It is important that the investigator does not inadvertently waive a privilege by disclosing information that otherwise would be protected to third parties.

Make sure the investigator understands his or her role, responsibilities and duties. Establish in advance both the scope of work and responsibility and the fee for that work.

Advise the investigator whether and to what extent a written report should be prepared, and if so, whether the report should contain findings or alternatively, whether an oral report that might later be reduced to writing is preferred. This way, the expert can take notes, but not memorialize those notes in a written report until debriefed by counsel.

If a report is reduced to writing, make sure that the investigator knows that the report must remain confidential and the report should bear the legend: “Confidential-Attorney Work Product.”

Make sure the investigator knows what timetable he or she is working on especially when the expert should report back with the preliminary report, final report and findings. Generally, you should have the investigator report back on a regular basis rather than waiting until the investigator has completed all findings and is ready to brief the attorney with the full report. The former approach will allow you to direct the investigator and make sure he obtains necessary to assess and evaluate the case properly.

MMake sure the investigator keeps a detailed log on his or her activities and any interviews conducted. This way, should the investigator have to testify at some future time, he can refresh his memory or, alternatively, the notes may possibly be used as past recollection recorded. See Fed.R.Evid. 612 and 803(5) (discussing present recollection refreshed and past recollection recorded); J. Tarantino, Trial Evidence Foundations §§654-655 (1986) (same).

NOTE: For further information on investigating premises security cases, si>ee Edenhofer, Investigating Inadequate Security Cases, 34 Trial 3 at 35 (1998) (article advocates exhaustive investigation as a key to successful litigation of premises security cases, with attorneys focusing the investigation principally on the breach of property owner’s duty to protect entrance from injuries caused by reasonably foreseeable criminal acts).

§1401.2 Expert Witness Intake Sheet: Premises Security Cases

See the CD for a form that can help obtain information to determine and evaluate an expert’s qualifications. Because a premises security case often requires expert testimony on the issue of foreseeability of criminal attacks on the premises, opposing counsel often launch qualifications or competency attacks on an expert witness. The more thorough the intake and evaluation of the expert, the better you will be able to determine whether to retain the expert and how successfully the expert will withstand a qualification or competency assault.

§1401.3 Premises Security Expert Witness Transmittal Package

When you make a determination to retain an expert in a premises security case, you must give the expert sufficient information properly to evaluate the merits of the claim. It is not the expert’s job to obtain all information necessary to render an opinion on liability or damages. You should prepare a packet of materials to send the expert with information that can help him to evaluate the case initially and determine what additional material he needs to fully develop and analyze before rendering an opinion. A transmittal package that includes relevant reports, statements, information and, if drafted, pleadings can help the expert review and assess what is available prior to formulating an opinion.

See the CD for a sample transmittal letter to the expert in a premises security case.

§1401.4 Role of Criminologist

Certain experts in premises security cases are known as criminologists. They generally are retained to offer a variety of opinions in negligent security litigation. They can:

Assist in developing a general theory of the case;
Identify appropriate defendants (other than the typical target defendant);
Provide background on other experts;
Assist in the cross-examination of the opponent’s experts;
Assist in drafting interrogatories and responding to interrogatories and requests for production of documents;
Provide tactical advice;
Offer an opinion to a reasonable degree of certainty that the defendant failed to provide security or breached a duty that caused injury to the plaintiff.

See generally Kennedy & Homant, “The Role of the Criminologist in Negligent Security Cases,” in 1996 Wiley Expert Witness Update: New Developments in Personal Injury Cases § 8.1 (1996); P. Anderson & L. Winfree, Expert Witnesses: Criminologists in the Courtroom (1987); Baine, “Understanding Negligence Security Lawsuits,” 15.10 Crime Prevention Rep. 1-10 (1992).

The following checklist on the criminologist can provide assistance in negligence security cases:

1. Assist in developing the general theory of the case.

2. Assist in identifying appropriate defendants.

3. Assist in providing background information on other experts.

4. Assist in discovery:

(a) drafting or responding to interrogatories;

(b) drafting or responding to request for production of documents;

5. Offer appropriate opinions to establish plaintiff’s claims:

(a) defendant’s duty to provide security;

(b) breach of duty;

(d) causation;

(e) injury.

Note: Although the criminologist generally will not testify about the extent of injury, you can ask the expert to opine whether the defendant demonstrated simple negligence or gross negligence. The expert’s opinion can be taken into account in determining compensatory or punitive damages. Kennedy & Homant, “The Role of the Criminologist in Negligence Security Cases,” supra at 156.

6. The predictability of crimes at the particular location.

Note: The criminologist can separate potential defendants into classifications. These classifications can produce higher versus lower crime rates. The criminologist can testify that a history of previous criminal behavior can predict future criminal behavior, and that other factors, including age, gender, work and drug use, are predictive of criminal behavior. See Megargee, “The Prediction of Dangerous Behavior,” 3 Crim.Just. & Behav. 3 (1976).

7. Determine classes of places or places that have higher crime rates (environmental criminology). See Kennedy, “Architectural Concerns Regarding Security in Premises Liability,” 10 J. of Architectural Pilan. & Res. 105 (1993); Hunter & Jeffery, Preventing Convenient Store Robbery Through Environmental Design and Situational Crime Prevention: Successful Case Studies (R. Clark ed. 1992).

8. Offer opinions on actual notice, constructive notice and foreseeability. See J. Tarantino & M. Dombroff, Premises Security: Law and Practice (1990).

9. Offer opinions on the relative costs of crime and security, and opinions on public policy issues (re adequate security measures to obviate or lessen crime). Williams v. Cunningham Drug Stores, Inc., 429 Mich. 495, 418 N.W. 843 (1988) (discussing issues of fairness in economic arguments along with concerns over the public taking on police responsibilities, and determinations of whether costs of security should be borne by the merchant or passed on to patrons).

NOTE: For a good discussion on how to examine the criminologist or other security expert from a plaintiff’s perspective, see Everett, Direct Examination of Security Experts, 34 Trial 3 at 28 (March 1998) (suggesting that attorneys focus on issues of reasonableness of the defendant’s security program and the implementation of that program on the day of the crime).

§1401.5 Checklist of Discovery Items in Premises Security Cases

In conducting the discovery in a premises security case, make sure to review, at a minimum, each of the following:

To have your free personal injury forms chapter e-mailed to you, fill in the blanks below and press Submit. The chapters available are listed above.