Question: My insured is a property owner/occupier and was sued due to the violent act of a third-party on its property. The emotional impact of the case is high, but my insured has good defenses to liability. How do I determine litigation risk in advance of settlement discussions?
Supermarkets, restaurants, hotels, apartment complexes, and other similarly situated commercial or residential properties can find themselves as a defendant in a lawsuit for matters which occur on property they own or occupy. Premises liability cases are generally easier to defend than ordinary negligence actions, due to the additional requirement of injuries having to result from a condition on the property, rather than a result of negligent activity. However, there is a distinct category of premises case which can pose unique challenges to the insurance professional’s case evaluation: Cases in which there is a violent act of a third-party on an insured’s premises. An intentional violent act (shooting, rape, assault) by a third-party on the property owned/operated by the insured is often highly emotional and heightens jurors’ desire to send a message to premises defendants that they need to initiate additional measures to protect the public from dangerous individuals.
However, what if liability is questionable and there are good defenses available to your insured? How do you balance the reality of severe damages with a questionable or defensible liability component when preparing your case evaluation? How do you defend against a plaintiff’s attorney who can leverage the inherent emotional aspect (not to mention media coverage) of the case? Should you take the case to trial if the defenses are strong, despite the emotion surrounded by the violent act? Is it better to reach a settlement despite having, in theory, a defensible case? What tools are available to you to value premises cases involving violent acts by third parties? If there has been media coverage regarding the violent acts, what have mock jurors heard and how does this news impact how they evaluate the case?
JURY RESEARCH AS AN EVALUATION TOOL FOR PREMISES CASES INVOLVING VIOLENT THIRD-PARTY ACTS
Question: My insured had excellent security on its premises at the time of the shooting/rape/assault, how will a jury of laypeople view the adequacy of its security measures? Will they agree they were excellent or at least sufficient? Will they think the insured should have done more to protect the plaintiff? If so, what could/should the insured have done?
Response: Jury research will determine whether mock jurors are likely to believe that the insured provided reasonable security measures. In the jury research exercise, mock jurors provide feedback on whether security devices, lighting, layout and other measures were adequate, inadequate, or perhaps irrelevant to the third-party violent act. During deliberations, mock jurors answer verdict questions in which they will determine your insured’s negligence in causing the violent act and the amount of fault, if any, they would assign to your insured. Following deliberations, a litigation consultant will ask specific questions about the adequacy of the security measures and the effectiveness of any additional security measures for preventing the violent act. This information about liability will help you determine what people who are representative of the jurors you are likely to see at trial think about your insured’s security measures. If there is consensus or near consensus that the measures were adequate or even better than adequate, you may want to share this information with plaintiff’s counsel or your mediator to leverage your settlement position. https://www.blueprinttrial.com/single-post/2019/02/14/Mock-Trials-and-Mediation-Why-Should-I-Consider-Conducting-a-Mock-Trial-When-a-Mediation-is-Approaching
Question: My insured and experts thought security measures were more than adequate, but our mock jurors surprised us by informing us their perception of the security was inadequate or poor. What do I do now?
Response: It is always better to receive such feedback from a mock jury than at trial. This information can help evaluate settlement options or prepare for trial. When the jury research results indicate that there is a great deal of risk, the litigation consultant will start by doing two things:
1) Ask POINTED questions; and
2) Look for juror background PATTERNS.
First, if your mock jury deems your insured’s security was inadequate, delve deeper by asking them specific, pointed questions. Mock trial simulations have a breakout session following deliberations in which your litigation consultant has an opportunity to ask specific questions of the mock jurors. This is the time to ask them to articulate the basis for their liability determination. What do they think should have been done differently? Was there anything regarding the presentation of security information that was confusing and could be clarified? Would it help to have security measures explained a different way? Would demonstrative graphics or visuals help at all? Once all pointed questions are asked, you can determine with your counsel and consultant, whether there may be alternative ways to present the evidence to make your theory of the case more understandable and defensible.
If you’ve asked your pointed questions and the security is still deemed inadequate despite efforts to present the evidence in an alternative fashion, look for patterns in your mock juror profiles. Prior to a mock trial simulation, your litigation consultant will be obtaining information about each juror, including employment, education level, income, and many other factors. Is there a pattern which emerges? Do all of the jurors who think security was inadequate have a consistent profile? Are there certain juror characteristics indicative of people who will be much more susceptible to sympathy and emotion? For example, have such jurors been a victim of a crime? This will help inform your jury selection strategy at trial.
Question: My insured has a co-defendant(s) how can I determine allocation of liability (if any)?
Response: During the mock trial, one aspect of the mock jury process involves having mock jurors indicate the amount of fault they would apportion to any co-defendants. This information can inform your negotiation strategy prior to a mediation involving your co-defendants. You may want to include co-defendants in the mock trial exercise or share the results with them. Conversely, if the mock jurors believe that the insured has more responsibility than initially evaluated for the violent acts this will inform your settlement strategy, reserving and authority requests.
Question: How will a jury perceive the plaintiff and the insured?
Response: Juror perception of your insured is critical to the defense of your case. Your insured will likely have a representative/s give deposition testimony. Showing the mock jurors a video clip of his/her deposition testimony will provide you with feedback on his/her credibility, and likeability. Expert witnesses also may be evaluated with regard to their credibility of the insured’s safety measures. The jury research exercise also will provide feedback on the reputation of the insured in the community. Is your insured a pillar of the community or does it have a bad reputation? Jurors’ preexisting views of the insured as well as their own experiences with the insured or similar defendants will impact how they decide fault.
Sometimes there is certain evidence or characteristics that will make a plaintiff inherently more sympathetic (a child, a parent with young children, a person injured or killed while undertaking a heroic act during the violent third-party act). Jurors’ perception should be evaluated to see if these factors influence their verdict determinations. Conversely, sometime a plaintiff is less sympathetic and was performing an anti-social act during the commission of the violent third-party act. Will a jury perceive this plaintiff as less sympathetic and thus award him or her lower damages?
In summary, premises cases involving the violent act of a third-party are often highly emotional. Jurors may blame property owners for not providing additional safety measures that they believe may have prevented a violent act. Plaintiff attorneys will leverage the inherent emotional aspect of the case to enhance their litigation position. However, insurance professionals can use jury research tools to gain information about jurors’ perception of an insured’s exposure. This critical information can assist in making an informed decisions about whether to settle and trial strategy.
Shari E. Belitz, Esq.
Chief Marketing Officer