Ryan Zavodnick | July 27, 2025 | Premises Liability
Whether you are walking into a take-out restaurant to pick up dinner, a jewelry store to get a ring cleaned, or a gas station to get a receipt when the gas pump has no more paper, you expect to do so without injury. In fact, you expect that you will take care of your business, get back in your car, and move on with the rest of your life, without a second thought to this specific errand. When this does not happen, and you are injured because the property owner did not take the appropriate steps to prevent harm, you may have a premises liability claim against the property owner. What happens when you are injured as the result of a crime, though? Is that also the property owner’s fault? Depending on the circumstances, you may have a negligent security claim against the property owner. If you were injured as the result of a crime and believe the property owner may be liable, Zavodnick & Lasky’s experienced Delaware premises liability attorney may be able to review the details of your injury and offer guidance on your legal rights and options. Call (215) 774-6467 to book an appointment in our New Castle County office and learn more about your next steps.
What Is Duty of Care?
When used in regard to premises liability, duty of care is a legal term that refers to the legal obligation an individual or organization has to take reasonable precautions to prevent foreseeable harm to others who enter their property. Duty of care requires property and business owners to exercise reasonable standard of care, meaning to take steps that a prudent person would take under similar circumstances to ensure others’ safety. They must take reasonable action to identify and address potential hazards, which can include regular property inspections, defect repairs, and providing warnings where necessary. If the owner fails to meet their duty of care and someone is injured on their property, the owner may be held liable in a premises liability lawsuit.
A negligent security claim is a type of premises liability claim. In this type of claim, the individual is a victim of a criminal act occuring on the property. Property owners have a duty of care regarding security as well. They must use reasonable security measures to protect others who enter their property. If they do not, the injured individual may be able to file a negligent security claim.
Types of Visitors and Duty of Care
While property owners have a duty of care to all visitors on the property, the standard of that care is based on the type of visitor. There are three types of potential visitors to a property in Delaware:
- Invitees: These individuals have been invited to the property for business purposes, such as customers in a business. This does not need to be a formal or personal invitation. A business being open is considered an invitation.
- Licensees: These individuals are on the property for their own purposes, such as social guests or those with permission. Guests at a house party or a salesperson are examples of licensees.
- Trespassers: These individuals are on the property without permission. Trespassing is a crime and can severely limit the individual’s ability to file a premises liability claim in general, and a negligent security claim specifically.
Duty of Care to Invitees
Property owners owe the highest duty of care to invitees. Because these individuals have been invited onto the property or into the business for the mutual benefit of the individual and the property or business owner, the owner must take all reasonable steps to ensure their safety for their intended purpose. Invitees can bring a claim for any injury sustained, whether as a premises liability (such as a slip and fall) or a negligent security claim.
Duty of Care to Licensees and Trespassers
Licensees are owed a lesser duty of care. Property and business owners must warn licensees of known and unreasonable risks that the licensees could not have expected. Because a licensee’s presence on the property is not for the mutual benefit of both parties, their ability to file a negligent security claim is limited. They must be able to prove that the property or business owner’s actions were willful, wanton, or intentional.
Trespassers, because they are unlawfully present on the property, are owed the lowest duty of care. However, property owners can still be held responsible for a trespasser’s injuries if those injuries were caused by traps or ultra-hazardous conditions. Like licensees, trespassers must be able to prove the property or business owner’s actions were willful, wanton, or intentional under 25 DE Code § 1501. There are exceptions to this, however. For example, if the property owner knows that people frequently trespass on their land, they may have a duty to warn about or repair any dangerous conditions. If the property contains an attractive nuisance, such as a swimming pool or trampoline, that would attract children, the property owner may be held liable for a child’s injuries if a child trespasses.
Key Elements of a Negligent Security Claim
There are four key elements to any premises liability claim, and these four elements also apply to negligent security claims. The four elements are: duty of care, breach of duty, causation, and damages. If any of these elements are missing, the claim is likely to fail.
Element #1: Duty of Care
The duty of care requires owners to provide reasonable protection for invitees from foreseeable dangerous conditions. For a typical premises liability claim, this might include warning people about a pothole in a sidewalk until it can be repaired or securing a loose stair railing to a wall; in a negligent security claim, this includes foreseeable criminal acts. This requires the property or business owner to have knowledge of the dangerous condition or criminal act.
This requirement that the owner know about the condition means that if the property is in a generally safe area with a low crime rate, the first instance of a crime happening on their property may not be something the owner can be held liable for. However, if the property is located in an area with a high crime rate or if this or other types of crimes have occurred on the property before, the owner may be liable.
Element #2: Breach of Duty
The second element is that the owner breached their duty of care. This means that the property owner failed to take reasonable actions to prevent injury in a premises liability case. This could mean that they knew about the pothole or loose railing and failed to repair it and did not warn visitors about it. In a negligent security case, it means the property owner failed to take adequate security measures to ensure the safety of others. This might mean they did not address poor lighting, lack of security personnel, or inadequate security systems. If a property owner failed to take reasonable steps to mitigate the risk that someone would commit a crime on their property, they have breached their duty of care.
Element #3: Causation
The third element is causation. This means that the injured individual was injured as a direct result of the property or business owner’s breach of duty. The injured party must be able to show that had the property or business owner taken reasonable steps to mitigate the risk, they would not have been injured. This applies even if the individual is partially liable for their own injuries. Under 10 DE Code § 8132 (2024), if the injured individual is partially responsible for their injuries, they may still file a claim if they are 50% or less responsible, but their damages will be reduced by their percentage of fault.
Element #4: Damages
The final key element is damages. This means that the injured person suffered actual damages, including medical expenses, lost wages, and pain and suffering. This distinction matters, because it prevents people from filing premises liability claims over extremely minor injuries like scratches, bruises, or scrapes. The individual’s may still be relatively minor, but they must be severe enough to have warranted medical attention and incurred expenses the individual would not have had otherwise.
Common Examples of Negligent Security and Their Solutions
Premises liability is typically thought of as accidental injuries, such as when an individual slips and falls, or an object falls on them. However, negligent security is slightly different because the injury that results from it comes from someone else committing a crime. While it may be possible to file a lawsuit against the individual who actually committed the crime, they often do not have the financial resources to compensate the victim. Because the crime may have been prevented if the property or business owner had taken adequate security measures, they can be held liable and often have insurance or other resources that allow them to compensate the victim. If an individual has been injured as a result of a criminal act, they can look at the property for some of the more common examples of negligent security.
Common Examples of Negligent Security
Some common examples of negligent security include:
- Broken or missing locks
- Failing to monitor entrances or exits to the building or the property
- Poor lighting in parking lots, stairwells, or other places that may be secluded or deserted at certain hours
- No security cameras in high-risk areas
- Lack of trained security personnel
While these are common examples, there may be other security measures that should have been taken but were not. Individuals who have been injured as a result of a crime and believe negligent security may have played a role should speak with the premises liability attorney at Zavodnick & Lasky to learn more about what signs to look for, what evidence they may need, and what their next steps may be.
Solutions to Negligent Security
In addition to looking for indications of negligent security, injured individuals may also want to look for sudden solutions at the property after their injuries. If they notice any of these solutions, it may indicate that the property owner is aware of their potential liability in the victim’s injuries. Signs to look for include:
- Newly hired trained security guards
- Newly installed or repaired security cameras or alarms
- Installation of adequate fencing (or repairs to existing fencing)
- Making sure the area is well-lit
- Making sure door locks work and doors close completely
- Making sure gates close and lock
These signs do not necessarily indicate that the property owner is liable for negligent security. Instead, they may indicate that the victim was the first person to be injured in this way and the property owner is now ensuring that they have taken adequate security measures to prevent it in the future. However, if a victim notices these signs, it may be worth discussing their case with an attorney to learn more.
Property and Business Owners That May Be Liable
While any property owner or business may be liable in premises liability cases, there are some that are more commonly liable in negligent security claims. These can include:
- Bars and restaurants
- Night clubs
- Fast food places
- Department stores
- Grocery stores
- Hotels
- Hospitals
- Amusement parks
- Theaters
- Parking garages and lots
- Sports venues
- Music venues
- Apartment complexes
- Stadiums
- Malls
- Schools and universities
Most Frequent Crimes in Negligent Security Claims
There are a wide variety of crimes that could take place in a negligent security claim. However, there are some crimes that occur more frequently in these claims. These crimes include:
- Assault
- Rape
- Battery
- Theft
- Robbery
- Sexual assault
- Murder
- Kidnapping
Potential Compensation in Negligent Security Claims
When someone is injured as a crime victim due to negligent security, they can recover both economic and non-economic damages. Economic damages are those damages that can be easily calculated and proven with evidence such as pay stubs, medical bills, or receipts. Non-economic damages are those damages that cannot be easily calculated because they do not have specific numbers nor do they have evidence to prove them. Non-economic damages are intangible, such as pain and suffering.
Some of the damages that an individual may be able to recover include:
- Emergency room care
- Other medical costs
- Hospital bills
- Lost wages
- Diminished earnings (if the individual is unable to continue earning as they did before the injury due to permanent or temporary partial or total disability)
- Pain and suffering
- Long-term disability
Additionally, if the individual dies as a result of their injuries, their family may be able to file a wrongful death lawsuit. This would allow the family to recover damages that can help reduce their financial losses and compensate them for their emotional anguish due to the loss of their loved one. Delaware wrongful death compensation is based on the circumstances and facts surrounding the death.
Key Evidence in Negligent Security Cases
Other premises liability claims, such as slips and falls, often have similar evidence as a car accident. Photos, video, eyewitnesses, and other tangible evidence help prove what happened in these claims. However, in a negligent security claim, the evidence is often more subtle and can be more difficult to find and prove. There are some key pieces of evidence to look for, though.
Evidence of Prior Incidents
Evidence indicating previous crimes were committed on the property or in the vicinity can be used to prove the property or business owner should have known that there was a risk. This evidence will most often be police reports that were filed when the crimes occurred. However, testimony from the victims of those previous crimes or any witnesses to crimes that take place on the property or in the area may also be helpful.
Signs of Inadequate Security Measures
In premises liability, a negligent security claim is based on the fact that the property or business owner was negligent regarding security measures. Evidence of these inadequate security measures will be critical to the case. This evidence can include photos or videos that show missing or broken locks, poor lighting, or other signs that the security measures were inadequate.
In some cases, once the crime has occurred, the property owner will immediately upgrade their security. Proof of these upgrades, including when they were made, may also be helpful to prove that security was inadequate when the crime took place. Documentation of security maintenance, such as complaints or reports that indicate there were broken locks or missing cameras, may also be useful. These maintenance reports may be particularly useful if there is evidence to indicate they were ignored.
Proof of Ignored Complaints or Reports
If tenants or visitors have complained or warned the property or business owner about security issues and were ignored, this can be beneficial. If these complaints or warnings are in writing and dated, this can be used to show that the owner was aware of their security issues, and how long they were aware, and chose to ignore them. These complaints or warnings can be documented as reports on a form the owner provided, emails or texts to the owner, or handwritten or typed notes given to the owner. Verbal complaints or warnings may be useful if the individuals who made them are willing to testify and confirm that they did so.
Evidence of Foreseeability
Another key component of premises liability claims is foreseeability: the owner must have been able to foresee that what happened was a possible risk. In other words, the owner should have anticipated the type of crime that occurred, given the circumstances. The evidence of prior incidents, inadequate security measures, and any ignored complaints can all serve as evidence that the owner should have been able to foresee what happened. Additional evidence that can also prove the owner should have foreseen the events that occurred include statements from the owner acknowledging criminal activity on or in the vicinity of the property, or that their security measures were inadequate.
Evidence of the Incident
Any evidence of the incident will be helpful in proving a negligent security claim. This can include surveillance footage of the crime or any related activity, witness statements regarding events leading up to the crime or the crime itself, and medical records and bills showing the damages that the victim suffered as a result of the crime.
How a Delaware Premises Liability Attorney May Be Able to Help
Whether it happened in broad daylight or in the shadows at night, being the victim of a crime is always terrifying and traumatizing. Even if criminal charges are not pending against the offender, you may have rights under the law. If the property or business owner’s negligent security measures contributed to what happened to you, they can be held liable. At Zavodnick & Lasky, our knowledgeable Delaware premises liability attorney may be able to help you understand how the law applies to your circumstances, gather evidence, negotiate with the owner’s insurance company, or represent you in court if it progresses to a lawsuit. Call (215) 774-6467 to schedule a free consultation in our New Castle County office and learn more about the rights and options available to you.
