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Avoiding the pitfalls of private security.

JOHN BURTON'S STOCK CAR INcreased speed on the straightaway as he headed for turn number three at the Saturday night amateur race in central Florida. As he maneuvered for the rail position, a competing car moved between his car and the rail, causing John to veer right suddenly. John was unable to bring his car into the turn; he lost control and careened to the right.

His car struck the last of five six-inch round timbers extending four feet out of the concrete foundation at the end of the straightaway. The car flipped onto its back and rolled four times before coming to a stop.

Just before the race started, a crowd of people had gathered at an open, unprotected grassy area at turn number three. Cars were known to leave the track at this location frequently, and over the years a number of serious accidents had occurred there.

The onlookers were not supposed to be there; in fact, the security officer on duty told them to leave just before the race started. He made it a routine to be at the third turn prior to each race to move people away, but he had the entire east side of the track to patrol and couldn't stay in one area. The security officer had orally brought this to the attention of the racetrack's management, but no money was available in the budget for more security officers.

Just before John's race the crowd at turn three backed off at the security officer's direction, but as soon he moved away they returned. This was the way it was for each race. People knew the security officer would chase them, but they also knew they could return to a favorable vantage point as soon as he left. People who came to the track regularly would never watch from there because they knew it was a dangerous place.

Two of about 25 newcomers that night were Marie and Tony Scarlatta; they had no idea of the risk. They were watching their son, who was competing in his first race. Plenty of other people were in the area, so why shouldn't they be there too? They wanted a perfect viewing spot.

Tony was filming his son with his camcorder. The camera was found alongside Marie and Tony. Both were crushed to death under the car when it finally came to rest.

Sheila Monroe volunteered at the religious university at least once a week. The school was situated in an old part of the city where crime was no stranger to the residents and businesspeople.

On this particular day the university was preparing a large mailing. Sheila and another volunteer, Lucy Hutchins, were the only volunteers working that day in the faculty lounge.

Lucy had just left the lounge to get some water when Sheila heard a noise and looked up. A boy she had never seen before was standing in the room, and he had his hands on Lucy's purse.

Without thinking, Sheila challenged the intruder and walked over to him. Without hesitation he viciously punched Sheila in the face. Lucy returned just then. She walked into the room as his fist made contact with Sheila's face. Lucy screamed. The boy spun around suddenly, seized her neck, and strangled her to death. Sheila's last memory of the incident was the boy casually leaving the room with the contents of Lucy's bag in his hands.

The boy had entered the building by the front entrance, which was supposed to be guarded by a contract security officer. At the moment Lucy's killer entered the building the officer was outside, escorting a faculty member to her car.

Both the officer and his supervisor had on several occasions discussed their frustration at not being able to secure the front entrance properly and still provide escort service. Both knew from prior experiences of theft and vandalism at the school that the front door needed tighter control and that what they were doing was not enough. But the school couldn't afford another officer.

Common threads join these stories and many others like them. These particular stories resemble actual civil suits brought against property owners and managers and contract security officer companies. In each case, the plaintiff's estate or spouse was successful in securing compensatory and large punitive damages.

This article has presented circumstances denoting the interpretation taken by liberal courts. It is important to review this analysis within the framework of the applicable state's laws and history with this type of litigation. But for now let's look at these common threads:

Foreseeability. In both of these cases, the plaintiffs were able to show that similar incidents or potentially violent crimes had already occurred on or near the properties. They also were able to demonstrate that the defendants had or should have had reasonable notice as they had prior knowledge of similar incidents.

Adequacy. The evidence indicated that the level of security provided was inadequate to deter the incidents from occurring. This inadequacy was further illustrated by the fact that each contract security agency had discussed security shortcomings with its client when recommending additional security measures.

Causation. Finally, the plaintiffs linked the action or inaction of the contract security service companies to the injuries suffered by the plaintiffs. This linkage doesn't have to be obvious. The "but for" test, often used to explain this linkage, states that but for the improper actions of the security officer company, the injuries suffered by the plaintiff may not have occurred. Linkage this thin may be all the plaintiff needs to connect the actions of the security officer company to his or her injuries.

WHY SHOULD A CONTRACT SECURITY agency be responsible when a client refuses to provide the resources to defend itself adequately? What is the legal, moral, and ethical responsibility of a contract security company in such situations?

In both scenarios, the companies knew that the level of service they were hired to provide was inadequate. Each had discussions with its client, but in neither case did the contract security company give written notice of the problems or provide written recommendations for improvement.

Both clients were able to convince (by inference or instruction) the contract security agency that written notice was tantamount to losing the contract, and neither contract agency was thrilled with the idea of losing a lucrative contract.

There probably isn't a security officer company in business that can't relate a similar situation. If the contract security company takes the high road and provides a written warning, plenty of other companies will take the low road and, to get the business, avoid advising the client.

If a plaintiff's attorney can bring the contract security company into the civil action, some trial strategies will allow the plaintiff to place most of the security operations under close examination, especially if they relate to the incident.

Few contract security companies can withstand this type of scrutiny without appearing negligent. However, certain security officer management practices can mitigate these impressions and the likelihood of punitive damages or, at the least, provide damage control against excessive verdicts.

If you don't want to give up lucrative contracts, then you must find ways of managing risks and doing the best job you can with the resources you have. After all, you are asked to provide security because there are risks. Here are some steps to take to avoid potential litigious situations:

Measure foreseeability. Don't wait for the client to do what it won't. At each security site develop adequate and detailed statistical data from local police departments and your own loss-incident tracking system. Construct a data base of your incident reports, and assign field supervision on the basis of the queuing of your clients and the risks you evaluate.

At the very least, make sure your clients receive an original copy of all incident reports on a regular basis. The argument that the client doesn't want to know the risks is nonsense. If the client has a duty to protect business invitees, then it also has a duty to know what it is protecting them from.

Clients may also have a duty to report these data to residents or occupants of the buildings they own or manage. Ignorance of risks is equal to ignorance of the law, and neither position is defensible. Tell your client this, and provide the data.

Shift supervisors should not only inspect the performance of their officers but also regularly document surveys of client facilities with improved loss prevention in mind. Queuing for surveys should be based on these analyses.

Make these reports available to site officers. Supervisors and managers from the contract security company should add their analysis to incident reports as a separate addendum. They should also carefully document their response to the statistical analysis.

Security officers who have completed a report for a serious incident would greatly benefit if they received a response that suggested what they could do to prevent the occurrence of that incident in the future or were thanked or complimented for their action.

Manage adequacy. You can't provide extra personnel or install an access control or CCTV system unless your client pays for it. But you can give your staff additional preservice and on-the-job training. Training has a cost, but the benefits of providing a better service, reducing poor performance, being less vulnerable to punitive damages, and reducing your turnover far outweigh that cost.

Look for nontraditional answers to security problems and for solutions that don't involve asking your client for more resources. For example, in the case of the racetrack, the announcer could have announced periodically over the public address system that people must leave the dangerous area. The area could have been economically roped off, with warning signs hanging from the rope.

In the second scenario, the officer at the university could have arranged for others in the building, such as maintenance personnel or students, to stand in for him during his absence from the front door. Or, he could have locked the front door momentarily, with free emergency egress, and left a sign on the door noting his return time.

Other options. Develop tighter local police liaison. Reduce your exposure by training your officers better and raising security awareness among your clients' employees.

Contract security companies should manage each client site as if they were the site's in-house security department. All constructive actions taken, no matter how minor, should be carefully documented.

Contract security companies also have a moral and ethical obligation to provide their clients with written warnings of dangerous situations. Insurance companies will insist that the contract security services they insure provide this warning to their clients where applicable.

Exculpatory language in the written agreements of contract security officer services may not be enough. If contract security companies wish to remain insured in the future, they will tell their clients the nature of the risks and the degree to which those risks are predictable and provide a security service that delivers definable and reasonable security practices.

Warning letters that simply recommend that more security officers be used won't cut it. Letters should quantify the risk and recommend that an independent analysis be conducted. This approach takes the contract agency off the hook of offering self-serving advice and makes its recommendation credible.

Contract security services will be challenged as never before to meet the needs of corporate, institutional, and government clients. Security service companies that accept and emulate the in-house consultative role, find a way to get the job done within their client's limitations, and demonstrate their capability better than their competition will grow as never before.

Ira S. Somerson, CPP, is the president of Loss Management Consultants in Plymouth Meeting, PA. He is a member of the ASIS Standing Committee on Safeguarding Proprietary Information.
COPYRIGHT 1991 American Society for Industrial Security
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1991 Gale, Cengage Learning. All rights reserved.

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Author:Somerson, Ira S.
Publication:Security Management
Date:Apr 1, 1991
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