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It's 1990 - do you know how liable you are?


THE THREAT OF PREMISES LIAbility for inadequate security is fast becoming a legitimate business concern. Rising violence and increased third party litigation has forced business managers to reassess loss prevention needs. Educational institutions, supermarkets, hotels, health care facilities, and restaurants are all being held responsible for negligent security practices.(1)

There is a need to provide reasonable protection for business employees and invitees against intruders and assailants; however, not all businesses can afford a full security protection plan. Accordingly, not every business requires elaborate protection schemes. A number of conditions determine the level of security needed. A large inner-city hospital located in a high crime area, for example, has different protection needs than a small, day-operation restaurant located in a low crime area.

This article discusses potential liability problems of public access businesses. A number of court decisions are addressed, and preventive recommendations are offered. The article focuses on why businesses are being held accountable for inadequate protection and what can be done to curtail the threat of liability.

A distinction must be made between reasonable and unreasonable protection standards. A business that provides adequate or reasonable protection but still experiences crime may not necessarily be negligent. Reasonable security does not mean businesses must fortify their boundaries with expensive high technology or employ a battalion of armed guards. Security must be reasonable and realistic. Unreasonable security, on the other hand, is defined as no security or security that is insufficient to meet the protection needs of a particular business, especially when evidence suggests increased protection is warranted.

The importance of security and loss control planning has gained attention in security literature.(2) Vital to any security planning is tort protection. Several tort claims have forced businesses into litigation. Intentional torts such as false arrest, excessive force, and invasion of privacy are just a few examples.(3)

In recent years, another common tort leading to premises liability is inadequate security. In this claim, the elements necessary for a cause of action are a duty or standard of care recognized by law, a breach of that duty or failure to exercise requisite care, and harm proximately caused by such breach.(4) In order for a plaintiff to prevail in a premises liability suit, it must be proved that the defendant acted in a negligent manner and that negligence or duty to act reasonably caused injury to another.

One of the hurdles to overcome in inadequate security cases is the duty of care requirement. In other words, when a crime is committed against a business invitee or employee, liability may not attach unless there is forseeability on the part of the business. As indicated in the following cases, however, courts are increasingly allowing plaintiffs to show forseeability through a number of security breaches or faults. Some of these breaches include facility lighting, inadequate locks, lack of security personnel, criminal history of the premises, and so forth.

In Sharpe v. Peter Pan Bus Lines, Inc., case no. 49694 (Suffolk County, MA, 1986), a $550,000 wrongful death verdict was awarded for negligent security in a bus terminal. The action was brought on behalf of a 16-year-old female who was stabbed to death by a deranged assailant as she was waiting to board a bus. The plaintiff contended the bus company provided no security, and if there was security, this particular incident would not have occurred.

Evidence indicated there was not a security plan, and the only security provided was a janitor and dispatcher who were told to act as security when needed. In addition, the bus terminal was located in a high crime area and was known to be a hangout for deviants and transients. It was further entered into evidence that the assailant attempted to avoid detection while stabbing the victim, suggesting a visible uniformed presence might have deterred the crime.

The defendants argued the crime was totally unforeseeable, since no security could have prevented the killing by a mentally unstable person. The jury, however, agreed with the plaintiff's claim that inadequate security was the proximate cause of the plaintiff's death.

Inadequate security was not the cause of 21 people being killed and 11 others wounded in a restaurant killing. The infamous McDonald's massacre in 1988 is a tragic example of unforeseeable crimes.

Survivors and surviving family members of the massacre brought wrongful death suits against McDonald's for negligent security. The plaintiffs provided evidence that the restaurant was located in a high crime area with nearby incidents of violent crimes, including gang activity. Employees of the restaurant were concerned about the crime problem and solicited a security company to offer protection; however, McDonald's refused to provide a uniformed security officer.

The court ruled, however, that prior criminal activity was not related to the homicidal acts of the assailants. The court further reasoned that reasonable security measures might have deterred ordinary criminals, but not those of a maniacal, suicidal person (Lopez v. McDonald's et al., 238 CA 436, 1987).

In comparing the two cases, the offender's actions (state of mind) were seen as crucial in reaching a decision; thus it may be difficult to rule in favor of a plaintiff if the criminal acts were totally unforeseeable and committed by a motiveless, suicidal person. The court in Lopez suggested liability could attach if ordinary crimes occurred.

In Nelson v. Church's Fried Chicken, 31 ATLA L. Rep 84 (1987), a structured settlement was reached with the defendant. In this case, a man was shot in the parking lot, making him quadriplegic. His suit claimed restaurant management failed to hire a security guard and knew of prior crimes occurring on the premises.

In another fast food restaurant case, the Colorado Supreme Court upheld a lower court ruling in favor of the plaintiff. A customer entered a restaurant and noticed a robbery was taking place. The customer attempted to flee but was shot in the hand by one of the robbers.

The court rejected the defendant's claim that it could not have foreseen the robbery and had no duty to protect the victim. The evidence indicated several prior robberies had occurred at the restaurant, the last one occurring two nights before this incident. The restaurant was also located in a high crime area. Furthermore, several inadequate security measures were noted, such as improper cash procedures, poor lighting, lack of employee training in dealing with in-progress robberies, and a failure to lock nonpublic entrances (Taco Bell v. Lannon, 744 P. 2d 43, 1987).

Plaintiffs have made successful claims in the lodging industry, too. In Doore v. Econo Lodge of America, Inc., No. 86-14174 (Dade County, FL, Circuit Court), a motel guest was shot in the abdomen. The suit claimed the motel was negligent in providing security.

Evidence introduced indicated a number of earlier crimes had occurred at the motel, including a homicide. There were no security guards, no CCTV systems, poor lighting in several places, and a security fence that surrounded the motel had a number of gaps. A settlement for $500,000 was reached.

The foreseeability and duty of care principle was also an issue in Craig v. Circus Circus Hotels, No. 86-4133 (Washoe County, District Court, NV). A casino guest was assaulted by four youths in an elevator. The plaintiff offered evidence of over 200 prior acts of vandalism in the parking garage the previous year. Other evidence indicated the casino reduced its security patrol, falsely advertised a nonexistent television camera in the elevator, and provided poor garage lighting. The casino was also located in a high crime area.

The court took particular notice that the casino earned $14.1 million in profits during the first quarter of 1987 but spent little on security. As a result, the casino was ordered to pay $1 million in damages to the plaintiff.

An innkeeper's duty of care requirement may vary according to the business location. As ruled in Peters v. Holiday Inns, Inc., 89 Wisconsin 2d 115, 278, NW2d 208, 211 (1979), and Crinkley v. Holiday Inns, Inc., 844 F.2d 156 (1988), several factors are considered in determining the level of security response. These factors include industry standards, a security plan and training, community crime rate, and building design.

It must also be recognized that invitees who fail to take basic security precautions may not have a cause of action against a hotel. In McCarty v. Pheasant Run, Inc., F.2d 1554 (1987), a hotel guest did not present sufficient evidence to establish hotel liability for an assault in her room since she failed to lock her door.

Parking lots, particularly multilevel parking structures, pose a serious threat to invitees and employees.(5) The Delaware Supreme Court upheld a lower court decision, which awarded $530,000 in damages to a woman kidnapped, raped, robbed, beaten, and run over by her own car in a mall parking lot (Jardel Co., Inc. v. Hughes, 523 A.2d 518, 1987). Mall management was aware of a number of prior property crimes in the parking lot. The defendants argued they had no duty to protect against crimes of violence. The court reasoned the repetition of criminal behavior, regardless of type, was enough to put the mall owners on notice.

In another case, a woman was kidnapped robbed, and raped after she arrived for work. In this case, the mall had an insufficient number of security personnel.

Evidence was presented indicating the manager had refused requests for two years to increase the security budget. It was also entered as evidence that the manager told security guards not to place reports of sexual offenses at the mall in their records (the purpose being to reduce hysteria and possible profit loss). This type of mismanagement resulted in a $400,000 jury award and a great deal of adverse publicity (Doe v. Tampa Northwest Ltd., Hillsborough County, FL, No. 84017538, 1987).

If there is no evidence of prior crime on mall property or the surrounding area, it may be difficult to argue foreseeability. In Martinko v. H.W.W. Associates, 393 N.W.2d 320, 1986, a young girl was stabbed to death in a mall parking lot. The state supreme court ruled there was no evidence that the attack was foreseeable due to the lack of criminal activity in the area and on mall property.

However, an Iowa Supreme Court decision abolished the need for prior violent acts to establish foreseeability. In Galloway v. Bankers Trust Company and Trustee Midlands Mall, No. 63/86-1879 Iowa Supreme Court, 1988, the court ruled foreseeability could be established by "all facts and circumstances," not just prior violent acts. Thus, prior theft offenses may be sufficient to establish foreseeability since these offenses could become violent.

Twenty-four hour convenience stores are tempting targets for criminals. Convenience stores are often located near interstates and freeways, making getaways easier. Plaintiffs have recovered for crimes committed against them when evidence indicates store employees failed to take appropriate preventive action.

In other words, when employees observe suspicious persons or the presence of street people loitering around a premises, they may have a duty to call the police (Ballew v. Southland Corp. 482 So.2d 890, 1986; Jones v. Kwik Karol and Ginalco, Inc., 490 So.2d 664, 1986; Mitchell v. Pearson Enterprises, 697 P.2d 240, 1985). A California appellate court ruled that if a specific convenience store had only one prior criminal incident, foreseeability would exist because the corporate firm knew its store was vulnerable to robberies (Cohen v. Southland Corporation, 157 Cal. App. 3rd 130, 143, 1988). An employee's failure to notify the police if there is an indication of acts leading to violence, such as arguments between patrons, can result in liability (Gould v. Taco Bell, 722 P.2d 511, 1986; and Kimple v. Foster, 469 P.2d 281, 1970).

In a district court ruling, shopping mall management was found negligent when an invitee's nose was bitten off after he was attacked and robbed. Mall security was inadequate in guard training, supervision, and security equipment. It was further revealed that a policy whereby guards would not intervene in any physical altercations fell below the standard of care (Filosa v. Oliver T. Carr Co., U.S. District Court, No. 85-2910, 1986). This ruling is interesting, since questions are raised regarding the expectations of guards if someone is attacked, yet it is expected that security personnel take some action even if it is merely verbal.

An all-night self-service station located in a high crime area was found to have inadequate security. Failure to provide bullet-proof glass resulted in a huge settlement for an employee shot by a robber (Gross v. Gulf Oil Co., No. 84-3462, U.S. District Court, Washington, DC, 1986). The need for adequate security for businesses that operate 24 hours, have a high cash flow, and are located in high crime areas is crucial; yet, how much security is needed?

A Michigan court ruled stores have no duty to provide armed, uniformed security officers if there is no foreseeability of criminal acts from third persons. The court opined that armed security may create a more hazardous situation to customers (Williams v. Cunningham Drug Stores, Inc., 379 N.W.2d 458, 1985).

As suggested by the Williams case, the use of armed uniformed security guards in some businesses may have little deterrent potential. Hiring security officers to patrol a premises might suggest the business is aware of potential dangers; thus, foreseeability may be inferred from the use of guards (Marshall v. Davids Food Store and A & R Security, 515 N.E.2d 134, 1987).(6)

Lounges and businesses serving alcoholic beverages are often named in third-party suits. There is always the possibility of physical confrontations influenced by alcohol usage. Sudden or spontaneous attacks against patrons by other invitees (barroom brawls), however, do not necessarily create liability on the part of management (Delgado v. Laboueherie, et al., 508 So.2d 956, 1987). What about when two patrons are ejected from a lounge for fighting and one is later assaulted by the other outside the lounge?

In Badillo v. Devivo, et al., 508 So2d 956, 1987, an appellate ruling decided even though defendants knew of the fight inside the bar, they took action by ejecting the participants. They consequently had no duty to protect the plaintiff, who was assaulted by the other participant a half block from the lounge.

A lounge, however, that has a pattern of complaints for assaults, liquor violations, and other offenses raises the issue of foreseeability. In Taylor v. Walker, 360 S.E.2d 796, 1987, the plaintiff recovered $382,400 after being shot in the head outside a lounge. The court noted that the lounge catered to patrons known to carry guns and knives and the owners employed no bouncer or security officer.

Educational institutions can be held to the same standard of care as private landlords. If student housing is provided, schools must ensure buildings are safe from intruders (Miller v. State of New York, 478 N.Y.S.2d 829, 1984): thus, access must be monitored and adequate security provided.

In Duarte v. State, 88 Cal. App. 3rd 473, 1979, a student was raped and murdered in her dormitory room. The court ruled liability can occur if there was a promise of safety to students. The wording of the leasing agreement between the school and students may provide a basis of liability as may an advertisement promising a safe and secure environment.

Public schools have been held liable for injuries to students when evidence of inadequate supervision existed (Broward County School Board v. Ruiz, 493 So.2d 474, 1986). In the Broward case, a student was beaten by other students after school. The court ruled in favor of the plaintiff, stating the school had a duty to supervise students who participated in after-school extracurricular activities.

Schools failing to protect students against sexual assaults in locker rooms have been held liable for damages (Campbell v. Montgomery City Board of Education, 533 A.2d 9, 1987). Many inner-city schools are confronted with gang violence. The knowledge of gang activity and other potential acts of violence should indicate that quality security personnel are needed. Long gone are the days when the amicable school janitor doubled as a security officer.

The banking industry, in its attempt to better serve depositors, has installed automatic teller machines (ATMs); however, these machines also attract offenders. An armed robbery at an ATM resulted in a $1-million award for the plaintiff. The suit alleged the bank had prior notice of robberies at the machine but failed to take any preventive measures (Verran v. Barnett Bank of Pinellas County, 1987). Machines located in secluded areas with poor lighting and abundant foliage should foresee the probability for criminal activity.

The preceding cases represent a variety of business liability suits. Many suits could have been avoided or at least limited if management undertook proactive security measures. Quality security will prevent all third party offenses. Litigation will occur regardless of the level of security. However, defendants will be better prepared to defend their actions if they developed a security plan.

An important issue in any claim for inadequate security is the behavior of the offender. If evidence indicates the offender attempted to conceal himself or herself or avoid detection, questions will be raised regarding the adequacy or deterrent value of security. Alert, visible security officers and the use of quality security measures such as lighting may suffice in deterring opportunistic or novice offenders. To argue that security officers do not deter or are too expensive indicates that management is gambling with the welfare of employees and invitees as well as taking budgetary shortcuts.

Premises liability can occur in any business setting; yet the security needs of a small, limited business differs from that of a large, 24-hour operation.

The reasonableness of security depends on a number of vulnerabilities (See chart.) Business managers should become familiar with these vulnerabilities and initiate proactive security measures.

As depicted in the chart, the level of security will depend on the vulnerabilities. The greater the number of vulnerabilities, the greater the probability of a criminal incident. Loss can be reduced only if there is a capable security plan and a trained security officer present. Businesses with a medium number of vulnerabilities should have a guard presence since well-trained, observant officers are effective crime deterrents.

A security survey can best determine the seriousness of the vulnerabilities and the level of security response needed. If a business is located in a high crime area (that is, with gang or narcotic problems prevalent), a risk of third-party intrusions exists. If the business manufactures sensitive equipment or is a warehouse for expensive merchandise, vulnerabilities increase.

Prior crimes, attacks, or intrusions occurring on business property such as in parking lots indicate security is needed. Managers cannot take a "head in the sand" approach if they have knowledge of previous criminal activity even though the activity appears to be relatively harmless. The parking lot vandal could later turn out to be a violent offender.

If proprietary or contract security services are used, managers must understand security duties and functions. A large urban hospital with several parking lots and public access points would obviously require more than one security officer; thus, security planning must be part of any business decision requiring a budget. If security hardware is used (CCTV, alarms, lighting, etc.), equipment must be monitored and in good working condition. If the business caters to potential troublemakers as found in some lounges and nightclubs, employing bouncers or security officers may reduce the potential for criminal activity.

A 24-hour business with a high cash flow must undertake measures to discourage criminal activity. Employees should be trained in observing suspicious persons, limiting the amount of cash available, and securing private entrances. Stores should be wary of persons loitering, particularly if such persons are known troublemakers. Businesses using security officer services or other security measures may also place businesses in a catch-22 position. If security officers are employed, foreseeability is inferred; thus, security officers must be diligent and competent. If an invitee or employee is victimized by a third party while security is present, questions will be raised about the quality of security (supervision, training, etc.). Illusionary protection may be worse than no protection.

The task of establishing foreseeability and a duty of care can be a slippery process for the plaintiff. A small business such as the corner drugstore, dry cleaners, or car wash, should not be expected to provide special security for patrons or employees unless there are symptoms of criminal activity.

Security protection beyond basic physical measures may not be necessary or practical for some businesses, yet premises protection requires proactive planning, not reactive apologies and excuses. Jury awards can be more costly than proactive security responses.

Security managers should conduct periodic vulnerability studies to assess the risk of criminal intrusion. The use of security officers or other security measures may not deter all criminal intrusions; however, the probability of preventing or limiting losses is possible by providing reasonable, security measures. In the final analysis, the question of reasonableness may be a question only a jury can decide.

(1) Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Black's Law Dictionary (St. Paul: West Publishing Company, 1979).

(2) Andrew J. Anthony and Frederick F. Thornburg, "Liability Lesson: Security on Trial," Security Management, February 1989, p. 40; Norman R. Bottom and John Kostanoski, Security and Loss Control (New York: MacMillan Publishing, 1983); and Robert Gallati, Introduction to Private Security (Englewood Cliffs, NJ: Prentice Hall, 1983).

(3) Arthur Bilek, John C. Klotter, and R. Keegan Federal, Legal Aspects of Private Security (Cincinnati: Anderson Publication, 1981) and F.M. Aspen Inbau and J. Spiotto, Protective Security Law (Stoneham, MA: Butterworths, 1983).

(4) Harold Grilliott, Introduction to Law and the Legal System (Boston: Houghton Mifflin, 1975) and W.L. Prosser and J. Keeton, Law of Torts, 5th ed. (St. Paul: West Publishing Company, 1984).

(5) For a practical analysis of parking lot security problems see Norman R. Bottoms, The Parking Lot and Garage Security Handbook (Columbia, MD: Hanrow Press, 1988).

(6) The deterrent value of uniformed security officers is in need of research. Whether the visible presence of uniformed security officers deters criminal conduct is a matter of debate. However, the presence of well-trained security officers is definitely better than no security, since most offenders avoid detection or recognition. In other words, most crimes are committed through opportunity Studies show homicides, for example, were less frequent where apprehension was relatively certain and where prison sentences were severe (see Jack Gibbs, "Crime, Punishment, and Deterrence," Southwestern Social Science Quarterly, March 1968). Research has supported the claim that the rate of specific crimes went down with the estimate of the probability of apprehension and punishment (see Isaac Ehrlich, "Participation in Illegitimate Activities: A Theoretical and Empirical Investigation," Journal of Political Economy, May-June 1973).

Robert J. Meadows, PhD, CPP, is department head and associate professor of Criminal Justice Studies at Glendale College in Glendale, CA. He is also an adjunct instructor in criminal justice and public administration at California Lutheran University in Thousand Oaks, CA. Meadows is the principal consultant for RJM Consulting, a firm in Moorpark, CA, which specializes in security education and litigation. He is an ASIS member.
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Title Annotation:how business may be held accountable for inadequate security
Author:Meadows, Robert J.
Publication:Security Management
Date:Jan 1, 1990
Previous Article:Keeping watch over mass transit.
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