As discussed in previous articles, (see “When Hard Hits of Football Season End Up Between Fans at Your Business” and “South Carolina Hospitality-Related Businesses Have Obligations to Protect Guests”), a retailer or hospitality establishment in South Carolina is not the insurer of the safety of its guests. However, it has also been well settled that such operators may be negligent if they realized “or should have realized” their conduct involved unreasonable risks of harm through the conduct of others, even when such conduct by others was criminal. Bass v. Gopal, Inc., 384 S.C. 238, 244, 680 S.E.2d 917, 920 (Ct. App. 2009). Specifically, the courts have held a business owner “owes to his guests the duty of exercising reasonable care to maintain in a reasonably safe condition those parts of his premises which a guest may be expected to use.” Id.*The following information applies specifically to Columbia businesses, but we have retail/hospitality attorneys in Greenville, Charleston and Myrtle Beach who can advise on ways to better protect businesses and their guests in those areas.*
For Columbia operators, new tools offered free of charge by the City of Columbia Police Department (CPD) could serve as evidence in helping determine whether you – as a business owner – took reasonable action to make your premises safe. The question is: will you make it work for you or against you?
· The first tool is RAIDS online, a website that allows you to search your commercial address online and find out about crimes occurring in your area/district. There are also meaningful analytics on the website, including a time-of-day and day-of-week graph to help you interpret crime activity so you can take action and stay safe. Lastly, automated watch emails keep you up-to-date on recent crime activity near your address.
· The second tool is a free assessment of your business. Upon your request, CPD will send one of their experienced Crime Prevention Officers to conduct the premises survey. They look for target hardening, natural surveillance, territorial enforcement and access control measures. At the end of the process, they provide you a copy of their survey form with their recommendations and also file a copy at their office.
The South Carolina Supreme Court has held the presence or absence of prior criminal incidents is a significant factor in determining the amount of security required of a business owner. The absence of such incidents does not excuse the property owner from the duty to provide some level of security if other factors support a heightened risk. Such factors may include: the type of operation run by the owner; the location of the business; use of the business by guests and patrons at night, etc.
Based on the case law, this is what’s most important:
· properly documenting these actions
If you choose not to use tools that supply this information, we anticipate others may argue your failure to utilize these resources – such as the free ones from CPD – is evidence you failed to take reasonable measures to protect your customers. If you call for an assessment of your business and fail to take the recommended actions from CPD, this evidence, which an opposing party could obtain from sending a subpoena to CPD, will be used to argue you are on the hook for not only actual damages, but also punitive damages (see Court of Appeals Holds Prior Long Term Notice of Premises Defect Creates Punitive Damages Exposure). While evidence of utilizing the resources available and following the recommendations provided will not be conclusive by itself, taking steps to ensure you have evidence that works for you, not against you, is always best.
Special thanks to the Congaree Vista Guild for alerting our firm and other Vista Guild members to these new services from CPD.