From Crime Stats to Courtroom Spin: How Timberwalk Is Misused to Manufacture Foreseeability
When foreseeability becomes a game of statistical gymnastics, justice takes a backseat to spin.
In civil litigation involving wrongful death or serious bodily harm, the concept of foreseeability often becomes the crux of whether a property owner is held liable. The Timberwalk framework—originally designed to help courts evaluate foreseeability—lays out five factors intended to answer a straightforward question: Should this crime have been anticipated by a reasonably prudent property owner?
But in the courtroom, facts don’t always speak for themselves—sometimes they’re sold more than told. Too often, experts tasked with demonstrating foreseeability shift from stating facts to selling stats, trading specificity for scale and relevance for volume. Instead of clarifying risk, the Timberwalk factors get twisted into tools of persuasion, where the goal is not truth, but liability.
Here’s how these distortions typically occur—and what the proper application should look like.
1. Proximity
Misapplied:
Experts often expand the geographic radius far beyond the subject property—sometimes up to two miles—casting a wide net that includes unrelated commercial areas.
Forced Fit:
“A crime occurred within a mile, so the property owner should have predicted this one.”
Proper Use:
Proximity should focus on incidents that happened on the premises or immediately adjacent, not in surrounding zip codes or blocks away in unrelated venues.
Common Misuse Example:
Including a fatal shooting at a nearby gas station two blocks away to argue that a gated apartment complex should have foreseen a similar crime on its premises.
2. Recency
Misapplied:
Some experts rely on stale incidents from two or even three years ago—or string together loosely related events over an extended period.
Forced Fit:
“Because something vaguely similar happened 2.5 years ago, this crime was foreseeable today.”
Proper Use:
Foreseeability should be based on events within the previous 6–12 months that could have put the property owner on notice of a growing or imminent threat.
Common Misuse Example:
Using an isolated assault from three years prior—never repeated and involving unrelated parties—to argue that a shooting today should have been anticipated.
3. Frequency
Misapplied:
Inflated statistics often include every 911 call or service request—regardless of whether they relate to criminal behavior.
Forced Fit:
“530 calls for service prove this location is dangerous”—even if the majority were for noise complaints, parking disputes, or domestic arguments.
Proper Use:
Focus only on verified criminal incidents that are factually relevant to the type of crime in question—not every instance of police activity.
Common Misuse Example:
Bundling together police responses for loud music, dog barking, and medical calls to suggest a pattern of violent crime.
4. Similarity
Misapplied:
Experts may equate theft or vandalism with violent crimes like assault or armed robbery—ignoring the motive, method, and target of the incident.
Forced Fit:
“There were car break-ins, so a drug-related shooting was foreseeable.”
Proper Use:
Only factually similar incidents should inform foreseeability—this includes weapon type, motive, time of day, location, and victim profile.
Common Misuse Example:
Arguing that a domestic violence shooting was foreseeable based on a pattern of bicycle thefts and car burglaries.
5. Publicity
Misapplied:
Anecdotal reports from the media or online reviews are often cited as evidence of “constructive notice,” regardless of accuracy or whether management ever received them.
Forced Fit:
“There were 61 news stories about crime in the area”—none of which involved the property in question.
Proper Use:
Publicity should reflect actual or constructive notice—such as tenant complaints, prior lawsuits, official police briefings, or regulatory citations.
Common Misuse Example:
Citing neighborhood Facebook posts about suspicious activity a few blocks away as proof that apartment management should have anticipated a targeted home invasion.
The Bottom Line
The Timberwalk factors were never meant to serve as a checklist to justify predetermined conclusions. When misapplied, they undermine the integrity of civil litigation and create liability where none should exist. Foreseeability isn’t about the existence of crime—it’s about the predictability of a specific crime in a specific context.
For litigators, understanding these nuances can mean the difference between a persuasive argument and a manufactured one. For security professionals, it’s a reminder that expert testimony must be rooted in relevance, not rhetoric.
Precision—not presumption—is what ultimately wins the case.
About the Author
Spencer Coursen is a nationally recognized security expert and seasoned expert witness with extensive experience in premises liability cases involving wrongful death, negligent security, and the misapplication of foreseeability standards. He has consulted on high-profile litigation across the country and is available to support law firms with expert analysis, rebuttal reports, and courtroom testimony.
To inquire about consultation or litigation support, please reach out via the contact form.