Our agency was employed by an attorney that represented a security guard company in a negligence lawsuit. The facts of the case involved a security company that had the contract at a college to provide 24-hour on-site armed security. During registration, a security guard was sitting in a room assisting with taking money as the students paid for their classes. Two men with ski masks entered the building and fired several shots from their firearms. The security guard was struck in the head and killed instantly. Several students were wounded, but recovered from their injuries. As the perpetrators left the building, two additional armed security guards came face-to-face with the perpetrators who were at different ends of the hallway. The security guards were surprised to find guns pointing at them and taking this, along with the safety of other students into account, elected not to pull their weapons. The two perpetrators exited the building, entered a nearby car and fled the scene.
The security company was subsequently sued by students who were present at the time, alleging that the security guards did not act reasonable in this situation. Although the security company was a solely owned company, they petitioned the college to have them listed as employees of the college. This would have enabled the security guard company to be protected due to a government entity having limited liability. The college refused and the lawyers for the security company then counter-sued the college to include them as a defendant in the case. Obviously, from an investigative stand-point, this limited access to college records and personnel.
In cases such as these, there are several issues that must be over-come for a successful defense to be mounted. These include: (1) foreseeability (2) crime rate (3) proper licensing (4) proper training (5) adherence to the written contract (6) reasonable actions of the security personnel (7) physical access and limitations and (8) equipment. Although other issues may evolve during the investigation, these are some of the fundamental building blocks in these types of cases.
Foreseeability: Foreseeability is based on available information from law enforcement agencies, crime statistics, experience, and news sources. In an article entitled, “No Room for Liability,” published in the June 1997 edition of Security Management, the article deals primarily with hotels and the issue of foreseeability. However, the article has implications in this incident. The article indicates that a hotel in Atlanta was sued after an assault. Initially, the court ruled in favor of the hotel but the appeals court reversed the decision finding that the trial court had imposed too narrow a definition of foreseeability. Three nearby hotels had suffered more than 400 crimes in their parking lots in the same period. The ruling indicated that the high crime rate in and around the hotel should have been enough to warrant extra security. The article continues by stating that security cases hinge on four major elements:
1) whether the owner owed a duty to provide a safe environment to the injured party
2) whether the owner breached the duty to provide a safe environment
3) whether the breach constituted the “proximate cause” of the injury
4) whether the plaintiff suffered actual injury or damage.
The duty to provide a safe environment is pretty basic. In the incident in question, the plaintiffs had reasonable expectation that they would be safe from such an assault while on the campus. Whether the security company or college breached the duty is more difficult. In Chapman v ESJ Towers (U.S. District Court, Puerto Rico, 1992), the appeals court ruled in favor of the plaintiffs stating the defendant should have had “reasonable foreseeability.” The court reasoned that, among other things, that only one security guard was on duty, working a 12 hour shift without a break and watching 10-15 CCTV monitors simultaneously. The court also found that cars could get out of the property without going through an access control system. In the case of this incident, there were a reasonable amount of security officers on duty at the time of the incident. However, the surveillance cameras were apparently not functioning properly and no one had been assigned to monitor the cameras. Additionally, the parking lot area did not have an access control system. The article points out that “the property owner’s breach of duty must be the proximate cause of the victim’s damages. Inadequate security alone is not enough to warrant a ruling in favor of the victim..”
The article continues by stating that the case laid out other relevant elements pertaining to foreseeability including:
A) compliance with industry standards in protecting its premises
B) the presence of suspicious people around the premises
C) peculiar security problems of the facility, including the design of the facility
In this incident, contact with other colleges and universities revealed that the security company appeared to operated within industry standards. Most of the colleges and universities contacted revealed that they do not handle registration day any different than any other day as far as security is concerned. In addition, most of their officers are unarmed.
Crime Rate: The crime rate and crime history in the area of the incident played a role in determining whether the college and security company should have foreseen the probability of an incident such as this. In this situation, the security company did not have access to their reports as they were filed at the college and were not readily available. Therefore, interviews had to be conducted to determine the general recollection of the crime rate.
Next, we conducted a neighborhood canvass to find out about crimes and the perception of crime in the area near the college. Outside of a few burglaries and auto thefts, the area appeared to be free of crime, especially violent crime. We then obtained a break down of police calls within a two mile radius of the college. There were only 17 assaults, 3 weapon related calls, 7 robberies and 130 suspicious person calls. We also checked with the local media and the reporters covering the police beat who indicated that they believed the area around the college to be relatively safe. A check of the FBI statistics was then performed and it was determined that the specific city and those around it had experienced an average decrease in crime of 7 %. Compared to cities throughout the U.S. with similar populations, the crime rate was even lower.
To take this a step farther, our investigators contacted other colleges and universities in the state to determine if they had experienced any similar incidents and their crime rate. None of these had reported any incidents where there was a victim of a robbery and/or physical assault with a weapon.
A review of current written material related to the topic of foreseeability was conducted. In a recent court proceeding, Timberwalk Management -v- Cain, 972 S.W. 2d 749 (Tex. 1998), the court stated: “Crime may be visited upon virtually anyone at any time or place but criminal conduct of a specific nature at a particular location is never foreseeable merely because crime is increasingly random and violent and may possibly occur almost anywhere…” In the incident in question, the incident was “specific in nature” as it was obviously a predetermined act of assault and robbery. In addition, the act was “specific in location” and could not have been a random act that could have been foreseeable based on related crime in the approximate area. In this same case, the court continued by stating: “A duty exists only when the risk of criminal conduct is so great that it is both unreasonable and foreseeable. Whether such risk was foreseeable must not be determined in hindsight but rather in light of what the premises owner knew or should have known before the criminal act occurred.” In the incident at the college, “the risk of criminal conduct being both unreasonable and foreseeable” did not appear to exist. Further, there was not any information or other indicators that would have prompted the security company to foresee an event such as this.
Proper Licensing: In this case, a check with the State Board revealed the security company was properly licensed and insured. In addition, the security officers were properly licensed at the time of the incident.
Proper Training: At the time of the incident, the security officers in question had completed the required training set forth by the State Board. In addition, each were also properly trained and licensed to carry a weapon on duty.
Adherence to Contract: A review of the contract between the security company and the college revealed that the contract was weak and little was specified about the actual duties and responsibilities of the security officers. The security company was found to not only have complied with the contract, but exceeded it when appropriate. According to the contract, the security company was only required to have 2 officers on duty for registration. The security company, however, elected to have 3 present.
Reasonable Actions of the Security Officers: According to the author of “Trial by Fire,” published in the Security Management May 1998 edition, San Diego State University had a student who shot and killed three instructors on August 15, 1996. The University’s security personnel approached the shooter and were able to take him into custody. According to the author, “legally, they could have done so, (shot the student), but in the university’s view, the additional bloodshed was not necessary, because the officers were in full control of the situation and would have been able to react to any threatening movement. The officers responded appropriately, displaying judgment and sensitivity while maintaining proper officer safety techniques…. Had the officers been unarmed or poorly trained or supervised, the events following the shooting could have escalated an already tragic incident.” Accordingly, as noted in this article and “Keeping Crisis Cool,” the manner in which security officers react to a potential threat will have a direct bearing on how the situation escalates. In the incident in question, the security officers who were not wounded reacted in an appropriate manner by not drawing their weapons. In the interior of a building composed of brick and concrete, any bullets missing their mark would have ricocheted and may have hit innocent bystanders. Additionally, the security officers reacted properly by not attempting to cut-off the escape route once the robbers attempted to flea.
Physical access and limitations: According to the authors of the textbook Introduction to Security, building design should be considered as a part of security. The authors state, “The cause of security can be furthered simply by making it more difficult (or to be more accurate-less easy) for criminals to get into the premises being protected. And these premises should then be further protected from criminal attack by denying ready access to interior spaces in the event that exterior barriers are surmounted by a determined intruder.” The authors continue by stating, “Yet few such buildings are ever designed with any thought given to the steps that must eventually be taken to protect them from criminal assault. A building must be many things in order for it to satisfy its occupant. It must be functional and efficient; it must achieve certain aesthetic standards; it must be properly located and accessible to the markets served by the occupant; and it must provide security from interference, interruption, and attack.”
In the incident in question, the perpetrators were able to access a parking lot next to the registration building as there was no type of controlled access for the parking lots. The perpetrators parked within 20 feet of the door to the building where the cash was being held. Once out of their vehicle, there were several small trees that prevented anyone from observing the door. In addition, the door was set back in a recessed area. The building where the registration was being conducted did not have any windows. A combination of these factors made access into and out of the property virtually undetectable.
Equipment: According to the contract, the college was supposed to supply all equipment for the security guard company to use at the college. This included CCTV cameras with a monitoring room. However, the contract did not provide for a security officer to monitor the cameras. Additionally, many of the cameras were not functional.
The investigation revealed that the security company provided the right amount of manpower, training and equipment as required by the contract and industry standards. The actions of the security guards were found to be reasonable and prudent, and may have actually prevented additional injuries. The evaluation of the college revealed that they did not adhere to the contract responsibilities, failed to limit access to the college, did not have adequate lighting, and had landscaping and other building design issues that prevented observation of criminal activities. By the end of the investigation, the security guard company was provided with a capable defense, while at the same time, demonstrating that the real liability rested on the college.
Kelly Riddle is the principal of Kelmar and Associates, formed in 1989, and conducts investigations domestically and internationally. A distinguished speaker and author of 10 books, Mr. Riddle has more than 30 years of investigative experience and earned a Bachelor of Science degree in Criminal Justice from the University of North Alabama. He was chosen as the “PI of the Year” by the National Association of Investigative Specialists and the PI Magazine named Mr. Riddle as the “#1 PI in the United States”. He has been designated an expert in surveillance, insurance investigations, nursing home abuse and computer investigations. He was chosen as “One of the Top 25 PI’s of the 20th Century.” Kelly obtained his Texas Certified Investigator designation (less than 50 in TX.) Mr. Riddle is also on the Board of Directors for the Texas Association of Licensed Investigators (TALI).