Premises Liability for Terrorism – A New Worry For Landlords

Landlords have the duty to protect tenants and visitors from the misconduct of other tenants and outsiders. Failure to execute that duty, including negligent exercise of duties can expose them to great liability. Landlords can be liable as the result of breaching the duty to prevent foreseeable risks by failing to implement security measures. Landlords and property managers are usually not liable for harm that occurs in areas under the exclusive control of tenants. But landlords have a duty to exercise reasonable care in maintaining common areas, e.g. lobbies, stairwells and ventilation systems. In addition to harm that occurs on their premises, landlords are also liable for harm off the premises resulting from conditions or activities on the premises. For example, the World Trade Center disaster caused neighboring buildings to collapse and be exposed to asbestos contamination. Terrorists could target HVAC systems in large buildings to disperse chemical or biological agents. Without carbon and HEPA filters, external air intake systems are very vulnerable to attack from contaminants such as toxic gas (e.g. hydrogen cyanide or chlorine) or aerosolized toxins (e.g. ricin or anthrax). Landlords must exercise reasonable care under the circumstances in maintaining their property in a sage condition. They should take fire safety precautions and provide security depending on the use of the premises and foreseeability of particular risks. The World Trade Center 1993 plaintiffs argued that the Port Authority breached its duty to prevent foreseeable risks by failing to implement security measures, i.e. restricting access to the parking garage which could have prevented the bombing. Factors to determine due care are failure to abide by past practices and policies and industry standards: e.g. every other downtown office building restricted access to parking garages. Landlords should update their policies and procedures to include:
  1. guidance on the signs of terrorism;
  2. comprehensive policies to safeguard residents and facilities;
  3. contingency plans for disaster response;
  4. emergency training of staff;
  5. crime prevention and resident safety awareness programs; and
  6. anti-terrorism insurance coverage.