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Security Protects Mall
by Ron Davis

Does hiring a security firm fully protect a shopping center owner from liability in cases where one patron assaults another? That question arose recently in Rhode Island after an altercation at Newport Mall in Newport resulted in serious injuries to one of the combatants.

The assault victim sued Newport Mall’s owner—PFL Life Insurance Co.—charging that it was negligent in failing to provide adequate security. In response, the shopping center’s owner pointed out that it had hired a security firm to protect patrons and by doing so was relieved of its responsibilities in that regard.

In fact, the shopping center owner had contracted with National Development Asset Management of New England to be its on-site manager. In turn, National Development contracted with a Rhode Island security firm to provide security services at Newport Mall.

The security firm was therefore an independent contractor, and under Rhode Island law, a property owner who employs an independent contractor generally is not liable for the negligence of that contractor.

That law does have exceptions, however. A landowner must still “exercise reasonable care for the safety of persons invited onto his property.” And the landowner must protect against the risks of a dangerous condition existing on his property.

The assault victim argued that the shopping center owner had a duty to provide safe conditions for the public use—and it cannot evade that duty simply by contracting with a third party to provide security. Otherwise, he added, landowners could contract away their legal duty to provide safe conditions by entering into management, maintenance and security agreements with “fly-by-night independent contractors.”

The Rhode Island Supreme Court nevertheless, in a three-to-two decision, ruled in favor of the shopping center owner, explaining that the assault victim simply did not base his lawsuit on the failure of the shopping center’s owner to maintain the property itself in a reasonably safe condition. Instead, the basis was the role of the independent contractor. That omission, the justices added, means that the shopping center’s owners could not be held liable because any negligence alleged was on the part of the security firm serving as an independent contractor. (Konar v. PFL Life Insurance Co., 840 A.2d 1115)

Decision: January 2004
Published: April 2004



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