Petrogram - Summer 2009 - (Page 27)
FEATURE Crime Doesn’t Pay – Neither Should You Crime-proof your leases Dan Kuhn I n the winter 2008 Petrogram, we discussed liability exposure on an owner of a retail outlet that leases the premises to a dealer where one of the dealer’s customers slips and falls. In that article, we explored the case in which an owner, who doesn’t adequately protect themselves in a written lease, could defend a lawsuit because the dealer failed to adequately maintain the premises. Are the rules the same if a third party enters onto the premises and commits a crime that injures one of the dealer’s customers? Consider this example: You lease a retail outlet to a dealer under the terms of a written lease and supply agreement. You do not trust the dealer to properly maintain the exterior of the premises to the standards required by your brand supplier. As such, you charge the dealer a maintenance fee and retain the services of a maintenance company. One day, you get a call from the dealer informing you that one of their customers was shot in the parking lot during a robbery of the convenience store. The dealer tells you that you are responsible for the injuries because his cousin, who is a lawyer in Wyoming, told him that you failed to provide adequate security on the premises. There had never been any prior criminal activity at the premises or in the vicinity of the premises. Further, you think to yourself that the dealer is crazy because you did not have any employees on the premises, and you certainly did not agree to provide security although the written lease is silent with regard to security. A month later you get served with a lawsuit from the victim’s family alleging that you failed to provide adequate security to protect the victim. Under Florida law, a landowner has no duty to protect an invitee on the premises from a criminal attack by a person over whom the landowner has no control unless the attack is reasonably foreseeable. Whether you have legal exposure for failing to provide adequate security is going to depend on the language in your lease and supply agreement, and whether the criminal attack was foreseeable. Speciﬁcally, under the terms of the lease (or through your actions), have you retained substantial control (For a more detailed discussion on what constitutes “substantial control,” see the article in the (continued on page 28) Avoid Liability Fortunately, as with premises liability cases, you have the ability to avoid liability in negligent security cases by doing the following: • ALWAYS have a written lease. • Include language in your written lease that the dealer is responsible to provide all security at the premises and is required to comply with all applicable provisions of the Convenience Business Security Act. (Signiﬁcantly, an owner or operator that substantially implements the applicable security measures under the Convenience Business Security Act gains a presumption against liability in connection with criminal acts of third parties on the premises.) • Include language in your written lease that the dealer is responsible to perform all maintenance and repairs at the premises (both inside and outside the building). • Include language in your written leases speciﬁcally stating that the dealer is an independent contractor and is not your agent, and that you have no control over the day-to-day operations of the business. • Include an indemnity provision in your written leases requiring the dealer to indemnify you from any claims brought by a third party relating to the dealer’s operation of its business. • Require the dealer to carry suﬃcient general liability insurance that names you as an additional insured, and require the dealer to give you proof that such insurance is in eﬀect. Petrogram | Summer 2009 | 27
Table of Contents for the Digital Edition of Petrogram - Summer 2009
Petrogram - Summer 2009
2009 Convention and Trade Show Information
What, Another Deadline?
Out & About the Industry
The Un-Comfort Zone with Robert Wilson
FDOT’s Attack on Business Damage
Crime Doesn’t Pay – Neither Should You
The HR Advisor
Meet New Member: WatchDog Calibration
Keep It Local
Index to Advertisers/ Advertisers.com
Petrogram - Summer 2009
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