If you or a loved one has been the victim of a violent crime on someone else's commercial property in South Carolina, you may be wondering about your legal rights. Can the property owner be held responsible when a third party commits a crime? The answer depends on the specific facts of the case and an area of law known as negligent security.

Example of negligent security in a parking garage in south carolinaNegligent security law in South Carolina centers on the issue of premises liability for third party crimes. It addresses when a property owner can be liable if someone is injured by the criminal acts of another person on their property, even though the owner did not commit the crime themselves. Essentially, the property owner failed to protect guests when the property owner owed them a duty of care.

In South Carolina, negligent security cases are governed by the "balancing test" established by the South Carolina Supreme Court in recent decisions. This test balances the foreseeability of the crime against the burden on the owner to take steps to prevent it. Essentially, the more foreseeable the crime was, the greater the property owner's obligation to implement reasonable security measures.

South Carolina Inadequate Security Law and Third Party Crime: Understanding the "Balancing Test"

In South Carolina, when deciding if a business owner should be held liable for someone getting hurt because of a third party violent crime on a commercial property, South Carolina courts apply what's called a "balancing test." This test weighs two main things: (1) how likely it was that a crime could happen or the "foreseeability" of crime versus (2) how hard or costly it would be for the business to implement security measures to try and prevent it.

Picture a seesaw. On one side, you have the chance of crime happening at the business. If the area has seen lots of crimes, or if there’s been a warning about possible crime, this side of the seesaw goes down because the risk is higher. On the other side, you have what the business would have to do to stop crime, like hiring security guards or installing security cameras. Some security measures could be expensive or impossible for the business to afford, so if it’s a lot to handle, this side of the seesaw goes down.

The court looks at both sides to see if the business owner should have done more to prevent crime. If the risk of crime is high and it wouldn’t cost too much or be too hard to reduce this risk, the court might decide the business owner should have done more to keep people safe. This is how the balancing test works, helping to figure out if a business owner was negligent in providing a safe environment.

common SC negligent security issuesNegligent Security Case Law in South Carolina and Cases Dealing with the "Balancing Test"

Two key South Carolina Supreme Court decisions have shaped the state's negligent security law in recent years: Bass v. Gopal, Inc., 395 S.C. 129, 716 S.E.2d 910 (2011) and Lord, v. D&J Enter., 407 S.C. 544, 757 S.E.2d 695 (2014).

In Bass v. Gopal, the court adopted the "balancing test" for determining premises liability for third party crime. This test weighs the foreseeability of the crime against the burden of the duty on the owner. The Supreme Court of South Carolina held that the presence or absence of prior criminal incidents is a significant factor, but even without prior crimes, a duty to provide some security could arise if other factors show a heightened risk. 

The Lord v. D&J Enterprises case further clarified the application of the balancing test. In Lord, a customer was shot at a check cashing business by a robber who had committed a string of armed robberies in the area. Although the business had no prior incidents, the court found the crime was potentially foreseeable because the owner and manager were aware of the recent robberies. 

The court held that the plaintiff's evidence - the owner's knowledge of the area robberies and an expert's opinion that a security guard could have prevented the shooting - was sufficient to create a jury question on both the foreseeability of the crime and the reasonableness of the owner's security measures. Significantly, the court reached this conclusion without actually weighing the owner's economic burden, suggesting a low bar for plaintiffs to overcome summary judgment.

When is a Property Owner Liable for Third Party Crime in South Carolina?

Under South Carolina negligent security law, a property owner may be liable for a third party crime if they failed to provide adequate security measures in light of a foreseeable risk of crime.

Legal Duty and Foreseeability

infographic of the 5 main issues in a South Carolina negligent security caseTo prevail on a negligent security claim, the plaintiff must prove the basic elements of negligence:

  • the defendant owed a duty of care
  • the defendant breached that duty
  • the breach proximately caused the plaintiff's injury
  • the plaintiff suffered damages

The property owner only has a legal duty when the criminal act was legally foreseeable. Foreseeability is key, and a criminal act is foreseeable if the owner knows or has reason to know it is reasonably likely to occur.

Four Tests for Foreseeability

South Carolina courts have developed four tests for establishing foreseeability in premises liability third party crime cases:

  • "Imminent harm" or "specific harm" test - no duty unless owner aware of specific imminent harm
  • "Prior similar incidents" test - foreseeability established only by evidence of previous similar crimes on or near premises
  • "Totality of the circumstances" test - considers all relevant circumstances including nature, condition, location of property and prior similar incidents
  • "Balancing test" - balances degree of foreseeability of harm against the burden of duty imposed

Some key factors that come into play when determining the issue of foreseeability include the following:

Prior Criminal Activity

One of the most significant factors is whether there was prior similar criminal activity on or near the property. For example, if there had been a string of assaults or robberies in a parking lot or apartment complex, that may make future violent crimes more foreseeable to business owners.

Knowledge of Increased Risk

Even without prior crimes on their specific property, a property owner could be liable if they had knowledge of an increased risk in the area. For instance, if the owner was aware of warnings from police about a criminal targeting nearby businesses, failing to take any additional precautions could be negligent.

Adequacy of Existing Security

What security measures the property owner had in place - things like security guards, security cameras, lighting, gates, etc. - and whether those were sufficient in light of the risk is a key consideration in a negligent security case. An experienced South Carolina negligent security lawyer will often work with security experts to analyze what measures the owner had versus what they should have had.

Damages in a South Carolina Negligent Security Case

Crime victims who bring successful negligent security claims can recover compensation for the harm caused by the property owner's failure to provide appropriate security. The types of damages available include:

Medical Bills

Victims of violent crime often face substantial medical expenses for emergency treatment, surgeries, hospitalization, rehabilitation, medication, and more. In a negligent security case, the property owner can be held responsible for paying these bills. Damages can include past medical expenses already incurred as well as future expected costs for ongoing treatment and care.

Lost Wages

Many crime victims miss work due to their injuries, medical treatment, and recovery. In some cases, disabilities from the attack may limit their future earning potential. Lost wage damages compensate the victim for income they have lost and will continue to lose due to the crime and resulting injuries.

Pain and Suffering

The physical pain and emotional trauma resulting from a violent crime can be profound and long-lasting. South Carolina law allows victims to recover damages for non-economic harm like physical suffering, mental anguish, disfigurement, loss of enjoyment of life, and loss of consortium (harm to the victim's relationships with spouses and family members).

Wrongful Death

Tragically, some negligent security incidents result in the victim's death. When this occurs, the victim's surviving family members can bring a wrongful death claim against the property owner. Wrongful death damages serve to compensate the family for losses stemming from their loved one's death, such as:

  • Funeral and burial expenses
  • Medical costs incurred prior to death  
  • The deceased's lost future income
  • Loss of the deceased's care, companionship, and support

Survival Actions

In addition to wrongful death damages, South Carolina law provides for "survival actions" in fatal negligent security cases. While a wrongful death claim is brought by the deceased's family for their own losses, a survival action essentially allows the victim's own personal injury claim to survive their death.

The personal representative of the victim's estate can bring a survival action to recover damages the victim suffered from the time of their injury until their death, including the victim's medical expenses, lost earnings, and pain and suffering. Compensation recovered in a survival action becomes part of the deceased's estate to be distributed to their heirs.

Seeking Help from a South Carolina Negligent Security Law Firm

South Carolina negligent security law is a complex niche. If you have been victimized on someone else's property and believe inadequate security played a role, it's critical to consult with attorneys who have specific experience handling negligent security cases.  

A knowledgeable South Carolina negligent security attorney can investigate what the property owner knew about crime risks, what security systems and protocols they had in place, and whether they failed to meet their legal duties. Many law firms (including ours) offer free consultations to crime victims to help them understand their rights and options.