No one disputes that something terrible happened to Lai Chau on Dec. 13, 2001. The courts are still trying to decide, though, how much of the blame her former apartment building owner and manager share in the attack that nearly killed her.
The University of South Florida student was carjacked in the parking lot of her apartment building, driven to a nearby elementary school, shot three times in the head and left for dead. Remarkably, Chau survived. In February, the 2nd District Court of Appeals in Florida upheld a $10 million punitive damages award and $5.7 million compensatory damages award against Southstar Equity and Brookside Properties Inc. Within weeks, the former owner and former manager of Chau's Tampa apartment complex filed a request for an en banc hearing by the district court or for certification to petition the Florida Supreme Court for a hearing.
Southstar Equity LLC and Brookside Properties Inc. v. Chau raises the issue of how much responsibility a building owner or manager bears in a third-party attack under the theory that the owner or manager misrepresented safety and security.
"In a 21st Century, post-Sept. 11 world, there is a concern for safety and security that must be balanced against the fact that we live in a dangerous world where criminals prey on people and property," says Joseph L. Amos Jr., a partner with Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap.
Chau charged that Southstar and Brookside committed negligence, negligent misrepresentation and intentional misrepresentation. Besides failing to provide adequate security, salespeople at the complex misled tenants and potential tenants about crime at the complex, the jury found.
An appeals court upheld the jury decision, finding Southstar and Brookside were negligent and misrepresented the level of security at the Remington Apartment Homes where Chau rented an apartment while attending school.
The appeals court ruling noted that the jury found it was corporate policy at the complex to mislead "tenants and prospective tenants by concealing the high level of criminal activity occurring at
"People who develop apartment complexes target lower-income people or those in college," says Chau's attorney Barry Cohen, senior partner at Cohen, Jayson & Foster. "Tenants should be able to receive reasonable protection. It's not right to make facilities really pretty, then tell lies when tenants and potential tenants ask about security."
According to Cohen, the security system at Chau's apartment complex was flawed, with broken gates and substandard lighting.
The night of Chau's abduction, three men--two of them convicted felons, all of them drunk and high on drugs--were able to sneak into the apartment complex and abduct Chau as she was getting out of her car. All three were convicted of the assault and are now in prison.
Mark Hicks, a senior partner of Hicks & Kneale and part of the legal team representing Southstar and Brookside, declined to comment.
In requesting review of the appeals court ruling, Southstar and Brookside argue that the court failed to direct a verdict on punitive damages: "The panel's resolution of the punitive damage issue is truly of exceptional importance. No Florida decision has ever permitted punitive damages in a premises liability case involving injury caused by a third-party criminal assailant based on intentional misrepresentation of crime/security. The panel decision is the first to do so."
They also argue that the alleged misrepresentations "did not proximately cause Chau's injuries as a matter of law."
At press time, there had been no ruling on the request for an en banc hearing or Supreme Court appeal.
According to Cohen, Southstar, Brookside and many other property managers view security in terms of dollars and cents. "Companies make decisions that it's not cost-effective, and that it doesn't make good business sense," he says. "That is just short-sighted on their part."
When it comes to safety and security, companies need to carefully weigh their responsibilities to those who are on the premises, according to Amos.
"A landowner owes two duties to invitees or customers," he says. "First, they must maintain and keep the premises in a reasonably safe condition. And second, they must warn invitees and customers of any dangerous act that they know of or should have known of."
The standard in these situations should be one of reasonableness, according to Amos. "You need to be proactive, taking reasonable steps to deter or prevent crime," he says.
To do so, companies should first take an honest look at their physical properties. Then, they should call on experts who can provide guidance on the best way to make the premises as safe as reasonably possible. Amos suggests talking to safety and security consultants, lawyers and law enforcement personnel to help identify and shore up any weaknesses that could lead to a premises liability claim.
"I don't want to minimize this by saying it's not rocket science," he says. "In an unfortunately dangerous time, companies that own and manage properties need to be proactive.