Keywords

casino security; daily logs; discovery; negligence; security department; robbery; summary judgment; state supreme court decision

What happened?

A gambler left the Silver Mine Hotel and Casino with over $5,000 cash in his pocket, entered his motorhome in the parking lot, and was surprised by a man who had forced his way in, then attempted to knock the owner unconscious for the purpose of robbing him. During the ensuing scuffle, the owner was shot and seriously wounded.

Who was being sued, and why?

The Silver Mine Hotel and Casino was the named defendant in this action alleging their security department failed to provide an adequate level of protection for guests and visitors, particularly in the parking lots, and was negligent in the overall supervision and deployment of security personnel throughout the complex. It was a premises liability and negligence case, and I was retained as the plaintiff’s security expert.

Who was involved?

When did it happen?

February 22 at 10:10 p.m.

How did it happen?

Hank Fiske was known as a “regular” in the casino’s sports book area. Every winter for the past three years, he spent his days watching the various television monitors always tuned to a variety of sporting and athletic events, including football, basketball, thoroughbred horse racing, hockey, and boxing. Hank was a sport’s “nut;” he lived for sporting and wagering on athletic events. Any contest on which one could wager on the outcome, Hank would wager. Not only was he an ardent fan, he was viewed as a “high roller” in the sports book area. Basketball, both collegiate and professional, was his favorite sport.

Hank placed bets in increments of $100, with $100 being the minimum wager. He had nowhere else to spend his money; he lost his wife several years back and had no other family, and he had money after the sale of his farm. He was also known as an avid Corn Husker supporter and his wardrobe was replete with University of Nebraska red shirts, sweatshirts, and jackets. No one saw him without his red cap. Hank stood out among the daily crowds of hundreds, if not thousands, who came through or played in the casino’s sports book area each day.

A note about sports book, variously called sport book, sport books, or sports books: not all gambling casinos have a sports book; those that do usually set aside this gaming area, apart from table games and slot machines. The area is arranged in a theater setting with customers seated at narrow or small tables, while watching a large display of television sets tuned to live athletic events. Normally, except for major sporting events, two to four events could be displayed simultaneously for the customers’ enjoyment, depending on his or her preference. Somewhere in the midst of all the televisions is a large display of events and wagering “odds,” which reflect which team is favored to win and by what margin, as well as a listing of entries of horses in a given race and the odds on each horse to win, place, or show. In the front or to the side of the rows of seats is a counter where attendants accept wagers and pay winners.

Not only was Hank recognized as a permanent fixture in the long rows of tables where gamblers could lay out the sports section of their newspaper or National Daily Reporter (commonly known as the scratch sheet), he was known as a walking encyclopedia of college football and professional basketball knowledge. If you couldn’t remember who the right forward was for the L.A. Lakers in 1983, Hank could tell you.

Several security officers also knew Hank. They suspected he slept in his Winnebago while parked in the parking lot that was immediately adjacent to the entrance of the sports book area of the casino. In fact, twice before the robbery and shooting they hung a courtesy citation under the windshield wiper blade reminding him of the hotel’s policy of no overnight “camping” in the various parking lots that surrounded the hotel–casino complex. Other major properties in the area specifically attracted and accommodated campers and motorhomes, but not the Silver Mine. Hank sought out these officers and protested he was not sleeping there. “Okay,” one said, “just don’t.” It annoyed Hank they’d get on his case over such a trivial issue considering the fact the casino was constantly offering him free rooms in the hotel in appreciation for his patronage.

It was known among the other “regulars” and “hangers-on” that Hank always carried a lot of money in his right front pocket, in a roll with a rubber band around it. Hank knew a wide rubber band around a roll of paper money tends to snag on the cloth pocket and it takes some effort to pull it out, a known anti-pickpocket strategy. Employees of the sports book and his friends knew how and where he carried his money. He couldn’t fit the bills into his wallet, and wouldn’t carry money in a back pocket anyhow for fear of a pickpocket. He knew pickpockets avoided front pockets.

A word about the sports book area and its uniqueness in this casino: Most casino operations include table games (i.e., 21 or blackjack [with variations], crap tables, a baccarat section, a poker room or designated poker area, and machines [slots and poker]) and a few casinos carve-out a sports book area. Except for the slots and other machines, which are usually scattered throughout the casino, the other attractions have their own geographical location. In the Silver Mine, the sports book area was at the very far end of the casino, furthest away from the hotel’s front desk and lobby. Because of the huge size of the complex, this end of the casino had its own exterior set of glass doors leading out onto its own parking lot. Normally a guest would not park in this lot unless he or she was a sports book player. This little lot had parking spaces for approximately 250 cars. The other lots included the employee parking lot, the north lot, the west lot, the south lot, and the front valet lot. The combined lots had parking spaces for approximately 5,000 vehicles.

On February 22, Hank pulled into the sports book lot just before noon. He parked diagonally, in an end stall. He locked the doors, including the door leading into the interior of the living space of the vehicle, and walked the length of that row, past a dozen cars, toward the entrance of the casino.

February 22 was like any other day, filled with the noise of television sportscasters and roaring crowds at the televised events buttressed by the shouts and clamor of the casino patrons who, because of their financial “investment” in a given contest, are emotionally involved in each point scored or any incident that might bear on the final outcome, win or lose.

During the evening Hank went to the payout window with a big winning ticket. His cronies were jubilant over the win. A number of the patrons had long ago learned if you knew what Hank was betting on, there was a good chance you could win too. Their wagering, however, was in significantly smaller amounts. But big bets mean big wins, or big losses, and Hank often won. The exhilaration of winning is the stuff of addiction, and brings bettors back time after time. There was no secret about this day’s end results. Hank was the big winner!

Among the crowd was Eddie Cunningham, always eking out a living on little jobs here and there or drawing unemployment. He too was a “regular,” but wasn’t included in the circle around Hank. He was, however, ever-vigilant for any tip that might help him win. February 22 was a good day for Hank, but not for Eddie. Sometime after Hank cashed in this ticket, Eddie left the sports book area.

About 10:00 p.m., there was no more interesting action and Hank was getting tired after a long day. He left the casino and headed out toward his motorhome.

Rather than getting in the driver’s side of the cab he unlocked the door into the motorhome on the passenger side. As he stepped up into the vehicle and reached for the light switch he saw a dark figure lunging toward him. He instinctively raised his hands up around his face and head, just in time to partially deflect an instrument that was meant to strike him on the head. The blow struck his wrist, causing an excruciating pain, but the flow of adrenaline in a healthy and strong body ignored the blow and a violent struggle ensued. The only sound was that of grunting and gasping and an occasional curse, uttered under the breath. Two patrons on their way to their cars saw the motorhome rocking and smiled at each other without commenting.

Eddie had plenty of time, prior to Hank’s arrival, to search the motorhome. He had pocketed a handful of old coins that Hank had in a jar by the bed, and found Hank’s old revolver stuffed under the mattress. The gun was now tucked down into the front waistband of Eddie’s pants; during the struggle, the gun fell to the floor. Eddie freed his right hand, grabbed the gun, and fired twice, hitting Hank in the head and chest. Hank went limp. Eddie jumped for the still open door, gun in hand, fell down the steps onto the surface of the parking lot, rolled over, got up, and ran across the lot in a westerly direction. Hank staggered to the doorway shouting “Stop him! Stop him!” pointing toward the fleeing assailant, with blood streaming down his face while clutching his chest. A patron in the lot took up the chase, not really knowing why, but soon gave up when Eddie disappeared.

Two other patrons on their way into the sports book area saw and heard part of the event, dialed 9-1-1 from a cell phone, and, once inside the casino, sought out the first security officer they could find. They informed her there was a serious problem and someone may have been shot in the lot. That officer used her radio and informed the security dispatcher of the report. She went to the glass doors, out onto the porch, but couldn’t see anything. She used her radio to call the other officer assigned to the sports book area. The two went out and were the first security officers on the scene. There they saw a man covered with blood, stooped over on the parking lot, surrounded by several patrons.

The security dispatcher spoke with the shift supervisor, a lieutenant, who instructed her to dispatch the mobile patrol to the scene while he and one sergeant ran to the parking lot. Just as they approached the scene the first police car arrived, red and blue lights flashing. Hank, at the bottom of the motorhome steps, was now rolling over flat on his back. The police immediately summonsed the fire department’s medical emergency unit.

At his time, Security Officer Shawn Carlisle arrived in the security department’s patrol car. Because Hank was gasping for air, the lieutenant went to the trunk of the hotel’s patrol vehicle for the oxygen equipment, but it was not there, as required. The first police officer obtained enough information about the assailant’s description from Hank and one witness to send out a broadcast to other units to surround the hotel–casino complex and commence a search for the culprit. The medical emergency unit, along with three more police cars, arrived on the scene and the flashing colored lights illuminated the area. Hank was taken to a nearby hospital emergency room.

Responding police units included two police dogs that, within the hour, located Eddie buried in garbage in a trash dumpster behind the church that bordered the hotel–casino’s property. A careful search of the dumpster located what appeared to be valuable old coins and a .38 caliber handgun. Eddie was wearing Hank’s old brown leather jacket, something Hank had not realized during the struggle.

Assessment of the history of crime on premises

This was a premises liability case in which the plaintiff alleges the parking lots are dangerous, especially the sports book lot, and that management was on notice it was dangerous by virtue of a long history of crimes against property and persons, but failed to provide an adequate level of security.

In the pretrial discovery process, during which both sides must surrender any and all documents and records requested by the opposing side, Silver Mine Hotel and Casino produced their daily logs (which reflect line entries of all security activity, minute by minute); all security reports of crimes for the two years prior to this event; post orders (the specific instructions for each assignment) for the mobile unit; security policies and procedures; work schedules indicating who was working at the time of the event and where; and performance records of the key security officers in the matter at hand. In addition to the records of crimes on the property memorialized by security officers, the local police department’s “calls for service by location” was obtained. This is typically a computerized line item printout of every time a police unit is sent to a specific location, by date, time, reason the police were requested, and the disposition.

With respect to the history of crime on the premises, using the “calls for service by location” and security records I determined there had been 85 crimes and arrests on the property, 78 of which occurred in the parking lots, and, more specifically, nine in the sports book lot. Those crimes included assaults, thefts from and off vehicles, auto thefts, robberies, and attempted robberies. A murder had been committed in that very lot several years before, when the lot was used for employee parking. In fact, because of crimes against employees and their cars in the lot, the union insisted a security officer be permanently assigned to the employee lot 24 hours a day. Clearly, the likelihood of crime occurring was high.

The next thing I had to do was determine if the security department recognized and understood this danger and provided a reasonable level of protection.

Assessment of the security department’s program

Dozens of security officers worked each shift. Various security assignments and posts included the patrol of the hotel towers, the employee entrance, the dispatch desk, random patrols, lobby and front door post, gaming areas, and the exterior lots. Of all the security officers working each shift, only two were assigned outside to patrol, monitor, and protect the parking areas. One officer was in a patrol car and one in a tower overlooking the employee parking lot. However, 93% of all crimes occurred in the parking lots, yet less than 5% of the department’s resources were allocated there. That didn’t make sense.

The officers who were not on a fixed (stationary) post, including the outside mobile patrol, were required to report events and locations of patrol via their radios, so security management could keep track of what they were doing and where they were. Certain specific duties, such as patrolling the sports book lot and checking the pump room in the receiving dock area (tasks specifically defined in the post orders), were to be radioed in as they occurred. The post orders for the mobile patrol required the officer to drive through the sports book lot at least once an hour. The dispatcher would make a handwritten note of the call and, when radio traffic was slow, type the entry into the Daily Log, which was the official record of all events and activities occurring throughout the complex, minute by minute, hour by hour. One eight-hour shift could take several 8½×11 inch sheets of paper.

My examination of the Daily Log for the swing shift of February 22 revealed there were no entries made regarding a patrol of the sports book lot. My check of the preceding day shift reflected only one entry for a patrol of the lot. In going back in time, shift by shift, for days, inspection revealed very few entries regarding this lot. That could only mean the lot in question was not being patrolled hourly, as required.

I wasn’t the first person to examine the logs for evidence the lot was being properly patrolled and protected. Right after the incident, security supervisorial personnel examined the Daily Log and called Carlisle in to explain why he hadn’t patrolled the lot. He claimed he did, but the dispatcher must have failed to log it. Carlisle further claimed the log entry that read “1710 (5:10 p.m.) Unit 7 (outside motor patrol) completing perimeter patrol” really meant it included the lot in question. There were two such entries on the log prior to the assault. Yet, other entries for Carlisle specifically reflected his checks in other lots, such as the employee lot and valet parking lot. Of further interest was the fact the log reflected no entries whatsoever on this swing shift for a period of over 90 minutes! Daily Logs on prior dates when Carlisle was in the patrol car also revealed long periods of time with no call-ins or reports made by him. Where was he, and what was he doing?

Not only did the sergeant and lieutenant challenge Carlisle about not patrolling that lot, he was asked to explain why the oxygen gear wasn’t in the trunk of his patrol car. Post orders for the patrol vehicle specifically require the tanks be checked at the beginning of each shift to ensure they are full and ready for use in the event of an emergency. Carlisle said he forgot to check them, and if they were missing from the trunk it wasn’t his fault. Indeed, Carlisle felt like he was being singled-out as a scapegoat because of the shooting. He walked out of the discussion and quit his job.

The security department also had specific orders for an hourly check of the sports book lot by one of the two security officers who were always posted in the sports book area. Both officers on that shift, Daniel Henderson and Kathryn Escalante, testified they would walk out onto the porch, every hour as required, make a visual inspection of the lot, and inform the security dispatcher each time. The porch was several steps up from the surface of the lot and, because of the elevation, the officers felt a visual survey was sufficient. But the Daily Log did not reflect the number of checks required. I stood on that very porch and the view afforded would not allow a person to really see or understand what was going on unless the activity was near the porch. I concluded a visual check fell short of an adequate security patrol. For example, that check could not and did not see the broken glass on the pavement behind Hank’s motorhome. Eddie had taken an old rusty hammer and had actually broken out the rear window. He climbed in to ransack the vehicle and await its owner’s return to commit a robbery (he used the same hammer on Hank in the initial assault). My contention was, had Carlisle actually patrolled that lot, he couldn’t help but see the obviously busted-out rear window of a motorhome and the glass all over the pavement, and would have investigated. Such investigation surely would have discovered the criminal inside the motorhome.

The results of my assessment

It was clear to me the director of security knew that specific lot was dangerous and developed a reasonable security strategy to ensure it was frequently monitored. His requirement that the patrol car drive through at least once an hour was ignored by the patrolmen. Such employee failures are predictable. There’s an old adage: employees don’t do what you expect them to do; they do what you inspect. That being said, the real failure was at the supervisor level. Daily Logs are a management and supervisorial tool. Had either the sergeant or the lieutenant been reading the logs they would have found officers were not patrolling the sports book lot and could have corrected that. The truth was, no one really was paying attention to or knew what was happening in the lot and the quality of security out there was poor indeed. The truth was the check of the lot by the officers assigned to the sports book area started out as a walking tour of the lot, which would have been sufficient, but somehow it evolved into just a look-see visual check from the porch, which was easier. The security director’s key staff failed him, and consequently failed the hotel–casino and, most importantly, failed a patron, Hank Fiske.

The Silver Mine Hotel and Casino filed a motion for summary judgment in the district court claiming, essentially, their security was adequate and the lawsuit lacked merit. The court agreed and dismissed the case. The plaintiff appealed to the state supreme court. The court, following its thorough review, stated, in part:

Fiske’s expert testified by way of affidavit that the security on the night of the attack was inadequate. He based his opinion upon documents produced by the Silver Mine and concluded that: (1) the prowl vehicle assigned to the Sports Book Lot had not patrolled at all during the shift in which Fiske was attacked; (2) a prowl vehicle would have discovered the broken glass outside Fiske’s motorhome and could therefore prevented the assault on Fiske; (3) the visual security checks of the parking lot were ineffective substitutes for patrolling the parking lot; and (4) the Silver Mine security supervisors lacked the requisite training to properly supervise these security guards. Fiske also contends that the Silver Mine security violated its own security policies by failing to perform the required number of visual checks of the Sports Book Lot on the night in question.

The court continued saying how the hotel contended the security was adequate. It concluded by saying, in part:

Because there are significant issues of material fact in dispute with regard to whether the Silver Mine breached its duty to provide adequate security on the evening of Fiske’s attack, summary judgment on this element was in error.*

The last sentence of the conclusion of the state supreme court’s decision reads:

The summary judgment in favor of the Silver Mine is reversed, the award of costs is vacated, and this case is remanded to the district court for a trial on the merits consistent with this opinion.

The state supreme court decision regarding the foreseeability of crime remains viable case law to this day.

Following that decision my deposition was taken. I reiterated my opinions in sworn testimony. The case settled without going to trial.