TASA ID: 396

After almost 25 years of expert witness practice, my list of cases has recently become overloaded with wrongful death litigation in shopping centers. As a shopping center real estate specialist who has spent his entire career serving both nationally-recognized developers and retail tenants, I have developed some realistic observations about the causes of this new direction and wanted to share it with all interested parties.

Virtually every one of my dozen plus cases of wrongful death and/or serious injury has occurred in troubled, older strip centers that have gone through several different ownerships. Only one case has involved a major mall REIT as owner. This fact alone tells me that these centers are usually not professionally operated or managed. 

Evidence of this lack of professionalism can be seen as the result of limited or absent on-site management, high vacancy rates, selection of tenants without proper due diligence, a total lack of regular reporting to ownership, minimal security and frequent police calls to local police departments. 

For some strange reason, I have yet to figure out why all my cases have occurred in only four regions of the country, North Central Florida, South Texas, South Eastern Maryland, and Southern Alabama. Another interesting side note is that the majority of cases have been due to the presence of a tenant operating illegally and without proper insurance or government permits, such as nightclubs or banquet halls. Invariably, the incident that caused the injury or death occurred after hours when the rest of the shopping center was closed and the landlord’s security, if any existed, was long gone.

Each of my cases would have been easily prevented if ownership was only slightly more involved in oversight or observed proper standards and practices of center management. For example, a simple phone call to the local police department could produce a current list of police calls to all addresses in the center, as well as any traffic accidents in the vicinity of entrances and exits. I have yet to find a single case in which this was done. 

Yet another example of voidability is the lack of regular oversight. Most of the illegal activities in nightclubs or similar venues is flagrant and well-advertised. An occasional personal visit during which each tenant is talked to about concerns or problems could alert ownership to such matters as the center becoming a hangout for local gangs, drug merchants or other illegal activities.

Unfortunately, the litigators I have worked with are not familiar with shopping center standards and practices or even the typical restrictive use clauses in almost every shopping center lease. These clauses invariably dictate what type of tenants are allowed to operate in the shopping center and the procedures that must be followed if a tenant wishes to modify their offering. 

Many centers have an additional document known as a Reciprocal Easement Agreement (REA), or some similar name such as Construction, Operation, and Reciprocal Easement Agreement (COREA). These agreements dictate virtually every management and operational function allowed and prohibited throughout the entire center. Any tenant’s illegal activity can easily be identified by comparing their current operation with the REA restrictions.

I hope these few personal observations will be helpful to any litigators who happen upon a shopping center injury or wrongful death cases.  I also hope they will serve as a reminder to landlords to insist upon property management people observing the basic standards and practices.   

TASA Article Disclaimer

This article discusses issues of general interest and does not give any specific legal or business advice pertaining to any specific circumstances.  Before acting upon any of its information, you should obtain appropriate advice from a lawyer or other qualified professional.

This article may not be duplicated, altered, distributed, saved, incorporated into another document or website, or otherwise modified without the permission of TASA and the author (TASA ID#: 396). Contact marketing@tasanet.com for any questions.

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