62 East Pond Meadow Road Westbrook, Connecticut 06498 USA (860) 399-8545 John@Kennish.com © 1999 John W. Kennish, CCP
Expert Advice: Premise Security Litigation __________________________
"It is necessary to remember that the primary purpose of a proactive security program is to deter crime before it occurs, and not to wait, and then react in a traditional reactive enforcement mode. What actions an owner takes, or fails to take, will directly result in an environment that either supports, or does not support, the opportunity the prospective criminal is seeking to act, given that he already has the motive, and means. It is my opinion, that while no single safeguard will build a total barrier against crime, reasonable protective efforts directed toward specific locations, environments, and risks, can in fact be very effective in deterring criminal acts. And likewise, a lack of a reasonable effort will result in a condition that will more likely than not, support future criminal activity."
Introduction A premise security civil lawsuit often involves a claim against the owner of a property. The plaintiff usually contends that security measures in place at the time of the incident were inadequate and, as a result, did not protect the plaintiff, who is usually classified as an invitee, or business invitee, from a criminal act and resulting injury or damage. Such litigation often follows a tragedy which may have been preventable, and seeks to hold accountable those parties who negligently failed to prevent it. Only too often this negligence represents an environment of opportunity, and a perfect scene for a crime. For example, this could involve a criminal attack against the customer of an automatic teller machine (ATM) that is on-premises, in a vestibule or foyer, or off-premise, or an attack on a night depository commercial customer. These are realistic, predictable, and inherent threats since criminals may identify ATM or night depository customer operations as a weak link in a bank's total security program. Similar inadequate security issues can be raised in many other environments such as shopping malls, college campuses, high schools, theme parks, medical centers, commercial buildings, parking lots, restaurants, taverns, apartment buildings, common or public carriers, convenience and other retail establishments, arcades, motels and hotels, and service stations. And while each environment is unique, the security principles are the same, whether representation if for the plaintiff, or defense. When evaluating a potential claim for inadequate security, there are numerous variables of premise security that need to be considered. Several of these variables can be explored by using ATM or night depository locations, and customers as examples. Litigation Principle In general, the owner of a property is responsible for any foreseeable event that involves third party conduct on the property. This scope of legal duty and responsibility to protect patrons has grown in recent years with an increased expectation on the part of the public for improved levels of security and safety, and for the accountability of property owners to provide adequate security for hazardous environments, and alter any attitude of indifference. Following a criminal act, a victim may be able to recover civil damages due to negligence if it can be shown that:
Foreseeability A critical element in assigning fault in such a suit involves the determination of foreseeability. Just how reasonable was it to expect that a crime of this nature could have occurred ? The principles of foreseeability vary considerably by state, community, and neighborhood depending on legal protocol, demographics and criminal intensity. Standards for care also vary by organization, but are similar for like organizations. For example, the standard of care for an armored car operation would be significantly different than the security standard among fast food restaurants, motels, apartment houses and night clubs. However, within each of those types of organizations, the appropriate standard of care should be consistent. In some instances, this standard may be defined by legislation, compliance mandate, corporate policy, industry association, or government agency. The appraisal of standard usually takes one of two directions. The first is to measure the probability of such a future occurrence based upon previous incidents in which the owner had specific knowledge about crimes of the same nature. In other states, the test more likely is based upon a statistical likelihood that such a crime could have occurred due to an evaluation of an expanded area. The trend in the courts is toward this second philosophy and increasingly measures the "totality" of the environment, and circumstances to include a radius into the neighborhood surrounding the crime location. This approach also increasingly charges owners with the responsibility for taking the initiative to learn about criminal activities in the area of their properties. Evaluation Data Data regarding past criminal acts can be obtained by analyzing records of calls for police service into specific geographical areas, or to specific addresses. It may also be available from other governmental agencies or private firms. Former employees of the defendant are also an excellent source, as are records of patrons' complaints, or suggestions. Such an analysis will establish patterns and, in turn, the foreseeability of future crime. With the objective of identifying a "window of expectation of crime," this data can be studied to establish the month, day of the week, time of day, location, intensity, and specific types of criminal events in relation to one another. The result can be used to compare the event in question with crime patterns to support, or deny, a contention of foreseeability. There is also a question of inherent risk, which might reasonably be expected to be present in a secluded stairwell, isolated parking garage, motel room, elevator, or a darkened college campus, below-level parking lot, or after-hours ATM or night depository location. Adequate Security Only a jury can define or determine what is reasonable or adequate for any set of circumstances. Given a different sets of facts for each case --- a unique jury, different lawyers, and the possibility of negative, or positive bias --- each test will turn out differently. However, if there is evidence to establish that the crime was reasonably foreseeable in nature, the owner of the property must be able to show what actions and steps were taken to reduce the risk and probability for similar future criminal acts to occur. An effective security program requires a systems approach. This means that while no one variable in and of itself may be sufficient, several can coordinate to attain the desired result. Generally, these efforts should include administrative controls, proper facility designs with security and customer safety issues as objectives, effective equipment combinations and applications, and the use of security personnel when warranted. All of these protective efforts should overlap and compliment one another. It is necessary to remember that the primary purpose of a proactive security program is to deter crime before it occurs, and not to wait, and then react in a traditional reactive enforcement mode. After-the-fact enforcement is a police function, while prevention is a security function. Risk Analysis A commercial proprietor with security-based liability exposure should conduct a risk analysis to measure the probability of a future criminal act to occur, and its severity, as well as to determine the need for an effective security program. Whether such an analysis has been conducted and the conclusions reached can be obtained through the discovery process. If no such analysis has been conducted, the plaintiff's security expert may conduct the analysis to determine the foreseeability of the risk and whether the proprietor met the appropriate standard of care. Before an event, this analysis can also be fulfilled by an objective and experienced professional security consultant, or by the crime prevention unit of the local police department, at no cost. Even though internal security personnel or an outside consultant may be used in the survey role, law enforcement should also be involved to provide information on criminal history, and trends in the area. Although there is no right or wrong formula, the study should, at a minimum, cover the previous two years and a radius of one mile around the facility under study. A survey of similar businesses in the area, around the state, or nationally may develop additional information. Susceptible organizations should collect, monitor, and evaluate their own security incident data very closely. They should develop a policy that requires certain types of security-related information to be reported to a specified central location immediately. This information should be subpoenaed by plaintiffs as it could reveal whether the proprietor had actual knowledge of the risk. The failure to collect and monitor such data, and then to act in a proactive fashion may suggest a breach of the standard of care. Plaintiffs should subpoena both the most current security analysis and as much historical documentation as possible. Proprietors should repeat the risk survey process periodically to assure that the protective program continues to be adequate and current with changes in that environment, so there should be more than one analysis for any business that has been established for any significant length of time. The survey process is often repeated immediately after any significant new criminal problems occur in the area, annually if the facility qualifies as a higher risk location, or biannually at all lower risk locations. If surveys are being conducted at irregular intervals, look for evidence of a security breach or other precipitating event. A security survey being completed on behalf of a crime victim during active litigation should be divided into two parts. First, if there is uncontrolled public access to the site, such as an ATM, the location should be visited unannounced at night when the highest levels of risk are present. To continue the banking example, this is when concealment opportunities can best be identified, such as bank vehicles left parked in close proximity to ATMs; lighting systems that might not be in proper operating order; shrubs that have been allowed to grow too large. To be effective, the survey taker should take on the imaginary roles of a customer, and a prospective attacker. Second, the facility should then be visited during normal business hours to observe the operations and walk around the property. Employees should not be casually interviewed, but rather must be formally deposed with notice to their employer. However, observing the operations may be useful in developing areas of inquiry when those employees are deposed. Security Manager Ask in interrogatories if the owner designates an employee as the security manager. This person should be responsible for documenting the findings of the security evaluation efforts, and all recommendations made, to senior management. This person may become a critical deposition witness. The company owner should take a proactive role and document all associated efforts by maintaining complete records of all security efforts from planning to customer educational efforts. Property Line A plaintiff's attorney should also evaluate the outermost ring of protection which begins at the property line. What risks are associated with adjoining properties, or buildings, businesses, alleys, grounds, parking lots, or walkway areas ? Of special concern should be concealment opportunities from which an attack could be launched, such as parked vehicles, trash containers, trees, shrubs and wooded areas, embankments, utility units, indented doorways, fencing not designed with security as an objective, and areas where trees block lighting. Lighting systems are very important as adequate levels of light deter crime, while darkness attracts criminals. Site-Specific Risks Since security efforts for each property vary depending upon the risk site-specific risks, there is no blanket approach, and each site must be judged closely to evaluate effectiveness. In the bank example, variables to explore might include adequate levels of night lighting around outdoor and foyer locations, the parking lots and interior portions of buildings where customers may be expected to be during their use of the ATM or night depository; signs to advise against trespassing, non-customer parking, and other restricted activities that should then be bolstered by an effective enforcement program; fencing and barriers to restrict unwanted access from adjoining property areas; a closed circuit television system on the property; an emergency notification system; and possibly the presence of some form of police or security personnel during, and after normal business hours. In addition, has the owner requested special police patrols, or, in a small community, considered contracting with the police or sheriff for extra and random patrols during nonbusiness periods ? In larger communities, has a commercial security firm "roving patrol" been hired, or in the case of banks that have their ATMs serviced by a commercial vendor, are uniformed and armed security person on the property periodically ? If security personnel were used, that aspect must be thoroughly evaluated. Where security-related lighting systems are in place, have photo-electric switches been installed and properly maintained to replace the older, clock-type timer switches ? Where enhancements in technology are available, such changes should have been made. A "false sense of security" may be created if proprietors employ measures such as fake cameras, awareness stickers advising of the presence of cameras, or guards, or other security measures that are not actually in place, and operational. Closely evaluate the security budget to determine if protection was compromised to save money. Middle Ring Continuing with the bank example, what security measures have been taken in the immediate proximity of the ATM and night depository ? This would include the exterior of the building, which is referred to as the middle ring of protection. Have customer awareness signs been posted and other customer safety education means implemented, such as placing ATM and night depository security and safety awareness literature in customer mailings ? There also can be software-driven awareness reminder messages on the transaction screen while the ATM customers conduct their business. Lines of vision should remain open and not shielded by window drapes, marketing posters, tinted or mirrored windows, shades or large plants. Any indoor ATM location should include a minimum of one exterior glass wall. Reflective mirrors also can be positioned to allow customers a view of the surrounding area. If a foyer is present, has access been controlled by the use of current equipment technology ? Inner Ring The inner protective ring refers to security safeguards within the facility itself, and although not relevant to ATM and night depository customer attack situations, they are very relevant for apartment buildings, shopping malls, college dormitories, etcetera. These safeguards can include all of the previously mentioned items in varying combinations plus additional security measures in lobbies, entrances, hallways and stairwells, such as alarm and intercom systems; doors, locks and other hardware; integrity-proof key systems, see-through devices in doors, elevator and other access control and identification systems; and glass wall barriers. Conclusion There is a clear duty for property owners to provide a reasonable level of protection for invitees, especially when risk is inherent, or anticipated. While no one safeguard will build a total barrier against crime, reasonable efforts directed toward specific locations, environments, and risks, can be very effective in deterring criminal acts. And these security variables can be defined and measured against standards of duty, foreseeability, reasonableness, and, all too often, negligence. A crime victim's attorney must ensure that a careful security analysis has been undertaken to identify any breach of the standard of care that will support a recovery of damages by the client. The area of premise security litigation can be emotional, and challenging. Although these cases can be among the most difficult to accomplish, they can be won from either side of the bench. What is required to fulfill the objectives of either side is a team approach to include the effective reading of the law, in combination with strategic input from a security expert, and then good planning, logic, understanding, coordination, perception of the nature of the elements of the case, inquiry, attention to detail, and hard work.
62 East Pond Meadow Road, Westbrook, Connecticut 06498 (860) 399-8545 Kennish.com E-Mail John Kennish © 1999 John W. Kennish, CPP
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