ISSUE: Jul/Aug 2007

Security And Your Liability

By Alta Walters and Tom Litton

The general rule is that a storage facility is not liable for the criminal acts of third parties. However, there are exceptions to this rule that give rise to negligence liability if the facility premises had a defect or a policy that enabled the criminals. This means that the facility knew about a problem and then failed to correct it or to warn its tenants. In one storage case in Washington state, teens had befriended the facility’s “guard dog,” cut a hole into the fence, and were using the facility to hang out in off hours.

Although the kids weren’t stealing from units, they were vandalizing the facility. Because management was not conducting standard site inspections, the facility did not discover the hole and stop the criminal conduct. When Reggie, one of the teens, started a fire on site and tenants’ goods were lost in the fire, the facility was found liable because it had failed to act reasonably in inspecting and maintaining the fence.

Whenever there is a break-in, there is the opportunity for two investigations to occur. The first, a facility investigation, should always occur as a part of the facility’s standard Incident Report and follow-up procedure used whenever an injury, crime, or altercation occurs on site. If a break-in occurs, the manager should make every effort to determine how the criminals obtained entry so the facility can monitor and improve its security profile. The manager can review security tapes, check computer coded entry access records, and document the conditions found at the site of the crime.

But this does not mean that a facility manager should hunt down the perpetrators. The second investigation is one by law enforcement. Usually it requires a tenant complaint to trigger the police to investigate a unit break-in. Often police see storage theft as a low profile problem and do not conduct a full investigation. However, if the facility has done it’s own investigation and can provide information about the crime, police will be in a better position to follow through and catch the criminals.

If we look again at the general rule for premises liability, that the facility is not responsible for the criminal acts of others, the exceptions begin to make sense. While the criminal should obviously be ultimately responsible, sometimes the facility has created or maintained a situation that puts tenants or their goods at risk. Some cases have found that where there is a known risk of assault, property owner’s can be liable if inadequate lighting creates a risk to the public on site. In addition, If an angry or disruptive tenant threatens other tenants, the facility must take steps to deal with them to minimize the chances that he’ll follow through on his threats. Again, the law does not require the facility manager to act as a police officer, only to take reasonable steps to prevent criminal activity where there is an obvious risk.

This column contains legal information that is generalized to illustrate legal principles and laws, but should not be substituted for the advice of your own attorney.

Tom Litton is President of Lodi, California- based Litton Property Management, Inc.
Alta Walters is an attorney based in Oakland, California, who has practiced self storage law since 1987.