Keywords

arbitration; burden of proof; decedent; foreseeability; mental illness; search warrant; settlement

What happened?

A man walked into the Sky-High Casino, approached a total stranger playing a nickel slot machine, pulled out a .38 caliber revolver from a holster covered by his sweatshirt, and shot the player in the head, instantly killing him. The shooter then turned and walked out of the same doors through which he had just entered moments before.

Who was being sued, and why?

The decedent’s surviving family members, who were present and playing slots next to the victim, filed a lawsuit against the Sky-High Casino, a small local casino and restaurant, on the grounds the casino was a dangerous place based on prior criminal incidents, that the security staffing was inadequate, and the security officers were negligent in allowing an armed man to enter the casino without being challenged.

Who was involved?

Where did it happen?

Sky-High Casino, a single-story wood-frame building, is located in a small community 20 miles from the nearest metropolitan area. The primary clientele are locals. Meals served in the casino’s restaurant are old-fashioned home-cooking and are inexpensive. It’s where the local police eat or stop for coffee. The building faces a main east–west thoroughfare, but the front door is seldom used. The south, or back side, of the building faces onto a parking lot and most people enter through that back door. Upon entry through the first set of double glass doors, there’s a small game room to the right for those under age who are not allowed into the gambling area. Immediately thereafter is the second set of double glass doors opening directly into the casino.

The parking lot has a maximum capacity of 500 vehicles. South, across the street from the parking lot, is a rundown motor court of the 1930’s and 1940’s era. At the time of the shooting, each bungalow was rented to people of low income, most of whom were on some form of government assistance.

When did it happen?

Based on the security videotape’s date and time generator and the patrons’ reactions to the exploding sound of the gun shot, the shooting occurred at 1:37:30 p.m. on a Tuesday afternoon in June. The exact time will be an important factor in this litigation.

How did it happen?

Harold Hauffman, age 39, lived in cabin #6 in the motor court just south of the casino complex. His cabin is the third and next-to-last unit on the left of the two rows of eight cabins that comprise the rental property. He was unemployed and lived on his monthly disability check.

Harold was dressed in a filthy gray sweat suit and wearing rubber thongs. Strapped on his waist was a leather belt and holster with a .38 caliber revolver in the holster. Just prior to the shooting, Harold proceeded up and north between the two rows of cabins, crossed the street to the casino’s parking lot entrance, walked north toward the back door of the kitchen section of the casino, then west along the back side of the building toward the back-door entrance. Along that route he passed a black-and-white Duncan Police Department patrol car parked in the “no parking” zone by the kitchen’s door. His route brought him to the sidewalk that continues out of the casino and along the handicap parking zone. Harold walked along the front of those cars parked in the handicap stalls, each car facing the wall of the building, then turned right on the sidewalk to the first set of glass doors. He pulled the right door open and entered the foyer. Just as he entered, the Millers and Ochoas entered the foyer as they were leaving the casino on their way to the parking lot. As Harold passed this group he bumped into Betty Miller, somewhat jolting this senior citizen to the point she gasped in disbelief as to the rudeness as well as the apparent filthy condition of Harold, who appeared to be in a rush to get into the casino.

“Goodness! Did you see that man? Did you see how dirty he is? Disgusting!” commented Betty as they entered the parking lot, now headed in an easterly direction along the same route Harold had followed in the opposite direction.

“He looks just like Charles Manson,” observed Mrs. Ochoa.

Harold entered the casino, stood there for a “moment,” then turned to his left facing the end of a long row of slot machines banked along the south wall of the building. All the machines were being played. Seated at the end machine, closest to Harold, was Carl McCortney. To Carl’s right was his brother, Dean; to the right of Dean were Carl’s wife, Millie, and other members of the family, a party of six in total.

Harold suddenly pulled out his revolver and, at point-blank range, fired the weapon at Carl’s temple, instantly killing him. Not a word had been spoken. The bullet traveled through Carl’s head and fell harmlessly on Dean’s shoulder. Carl immediately slid forward off the stool and fell in a heap on the floor in front of the machine. At the sound of the explosion, Dean looked in the direction of the sound, to his left, to see and feel Carl slipping off the stool, and at the same time saw Harold reholstering the gun as he turned and walked through the first set of glass exit doors. It took a few seconds for Dean to process what had happened and realize the shooter was leaving the scene. He ran to and through both sets of doors in time to see the shooter walking on the sidewalk, not 30 feet away, toward the lot. As he ran through that small foyer and out the exterior doors he was shouting, “Stop! Stop!”

About five minutes prior to the shooting, Security Officer Jim Hutchinson reentered the casino from the cafe holding a Styrofoam cup of coffee. He had left the floor for a couple of minutes to get the coffee. Hutchinson was standing in the “pit area” and had stopped to watch a blackjack game. From that location if he looked to his right he could see the back doors, which were 80 feet away. In fact, he could see out into the lot through the doors. When the shot rang out he looked in the direction of the doors and saw people ducking. He first thought it might have been a car backfiring. He started walking in that direction and then saw a man run to the doors shouting “Stop!” That man exited running, apparently after someone. Hutchinson started running, too, through the casino toward the doors, after the man who shouted “Stop!”

Sergeant Robert Cassidy and Police Officer Robert Bennington were seated at the lunch counter when they heard the shot. They looked at each other, but both assumed it was a car backfiring. Someone at the restaurant door leading into the casino shouted “Someone’s been shot,” and both men bolted toward the back kitchen door to get out into the lot and approach the casino from the south side. Cassidy knew the way through the kitchen and was followed by Bennington.

The Millers and Ochoas were still walking together slowly. They left the sidewalk and were walking behind the handicap parked cars talking about this rude man and how he even had Manson’s wild hair and beard. As they walked, their conversation was interrupted by shouting coming from behind them. They turned to see Harold running toward them as he pulled out his gun. The group watched in stunned silence as another man tackled him to the pavement and the gun went flying and skidded along the surface of the lot. A uniformed guard, who looked like he was chasing the man running behind Harold, jumped on the two entangled on the ground. Now three were struggling and scrambling for the gun. As the two couples stood there in utter disbelief, two more uniformed men came up from their rear, from the kitchen area. One picked up the gun and the other helped the other two restrain the wild-looking man wearing a gray sweat suit. The two elderly ladies both had their hands covering their mouths. Then, running toward them from the eastern portion of the lot, came yet another guard. Suddenly, a police car with red and blue lights careened to a stop near the police car that had been parked by the kitchen. Within the next several minutes two more police cars arrived, as did a fire rescue unit.

Charlie Miller told every policeman who walked or ran by that he and his companions had witnessed everything. Their statements were eventually taken.

Harold was handcuffed, escorted back into the casino, and taken into the employees’ lounge. After he was advised of his “rights” he was asked why he shot the man. He said he didn’t shoot a man, he shot the “source.”

“Source of what?” asked the detective.

“The source of the vibrations that were driving me mad,” replied Harold.

Harold explained he had been having a problem with vibrations and earlier he was watching television and the vibrations returned, hurting his head. He followed the vibrations out of his cabin, across the street and into the casino, where he found the source. Harold shot the source. He looked and sounded mentally ill.

The area around the body of Carl McCortney was cordoned off with yellow crime scene tape. Other than this 200-square-foot crime scene zone, the balance of the casino returned to business as usual. A few stood by and watched the police photographer taking her shots, crime scene technicians taking measurements and sketching the scene, officers interviewing witnesses, and the eventual removal of the body, but most patrons returned to their slot and video poker machines.

At the police station the investigators had the unpleasant task of questioning Harold. He had a strong, unpleasant body odor and terrible bad breath. His toe nails were long and dirty, as were his fingernails. Harold kept talking about the maddening vibrations and how he followed them right to the casino and to the source. He said he had to bring to an end this evil source. Detectives obtained a search warrant and went to cabin #6 later that afternoon. The door was still ajar and the television set was still on, but the channel only reflected a test pattern. The interior of this cabin was, not surprisingly, filthy. Even veteran police officers were shocked to find 14 plastic gallon jugs filled with urine. Harold wouldn’t explain why he was saving it. Clearly, he was mentally ill.

Harold was transferred to and incarcerated in an institution for the mentally ill where he remains to this day. The state considers him incapable of standing trail for the murder of Carl McCortney.

The family felt justice was denied by the criminal justice system, so they looked to the civil process for satisfaction. A multimillion-dollar lawsuit was filed against the casino.

Assessment of the plaintiff’s theory of liability

The plaintiff had the burden to prove the following:

The plaintiff retained a security expert, who testified in deposition that one important contributing factor of proof that the security was inadequate was the numerous calls for police service at that casino. Clearly, the mere volume of requests for police indicated an extraordinary crime problem at that location.

A careful examination of each call revealed four general categories of calls:

The expert for the plaintiff claimed these incidents indicated the casino was dangerous. I disagreed. In my view it was no more or less dangerous than any other similar property.

The plaintiff’s expert testified two security officers were not enough to provide an adequate level of security. He felt five would have been a sufficient number. The focus on the fact that only two were “working” was buttressing the impression that only two were on the premises. The third officer in the restaurant was as much a part of the protection force on duty as was the police officer having lunch at the counter a part of the police deployment for the city that day. And not only did the casino have three security officers on duty, there was a police officer on the premises!

One must be reasonable in terms of the number of security officers on duty at any given time; for example, five security officers were indeed assigned to the evening shift on weekends and holidays because of the anticipated number of patrons. A Tuesday afternoon has substantially less traffic and less need for security manpower. Two officers, one inside and one outside, on a weekday in this small casino was adequate in my view. I walked the casino floor at a casual pace and could cover the entire area in five minutes. I then walked the parking lot in the same fashion and could cover the entire lot, easily, in less than 15 minutes. The third officer served as a relief and extra coverage, including typical gaming area security needs, such as “fills” for machines and escorts.

The plaintiff’s expert testified (in deposition) that this crime was foreseeable, not only because of the history of crime, but because the casino was located in a neighborhood in which crime generally was “highly foreseeable.”

Interestingly, prior to this case, the plaintiff’s expert had defined crime foreseeability into four levels or categories: (1) a crime was not foreseeable, (2) the crime potential was low, (3) the likelihood of a crime was moderate, or (4) the likelihood of a crime was high. In his definition of high-crime areas, he described how one could tell if a neighborhood was of high-crime foreseeability by a pattern of assaultive crimes and that the buildings and structures had to exhibit evidence of security precautions like bars on the windows, alarm boxes, perimeter fences, abandoned autos with broken windows, graffiti, and a general bad reputation.

The neighborhood in which this casino was located had none of these characteristics. The motor court behind the casino was in need of paint and renovation, but it was the only property in the area that needed attention.

When my disposition was taken I mentioned this contradiction between what he wrote and what he testified to in this case. “I just wish your expert would practice what he preaches,” was my testimony.

So, in this matter, I testified the security strategy for this property was adequate, the property was not a dangerous place, the neighborhood and area was not a high-crime area, and this bizarre event was not foreseeable. Lastly, the time it took for this tragic event to unfold was measured in seconds. There could have been ten security officers on duty and it still could have occurred.

There was a dispute over whether the holster and gun was visible as Harold walked across the lot and into the casino. Those who saw him prior to the shooting made no mention of seeing a gun. Had the Millers and Ochoas seen a gun they surely would have mentioned it. The wearing of a large leather belt and holster on top of the solid gray sweat suit would be conspicuous. Absent anyone seeing that, I was of the belief he had the sweat shirt pulled down over this gear and only revealed his intentions at the last second.

But even if Harold had walked into the casino with the gun and holster in plain view, which some people did from time to time, a security officer would approach that person and advise him or her that the carrying of a weapon was against casino policy, and that it would have to be checked or removed from the premises. This was written policy and practice. Nor would such an event cause any alarm. Although Harold would be recognized as a “low-life” character dressed as he was, with wild and wooly hair and beard, it doesn’t suggest he’s dangerous and about to kill someone, let alone a stranger. Indeed, the investigation of Harold’s background disclosed he had entered a major upscale hotel casino in the state conspicuously wearing his holster and gun and he was stopped and questioned by security. They checked with the police in that city and verified that Harold had a valid and current permit to carry the weapon (but not concealed). In that instance, he was asked to leave the property or have the weapon checked and he chose to leave. That occurred a year prior to this shooting.

There were 10 cameras mounted around the casino. The cameras were part of a sequencing system, all recorded. Sequence timing was on a one-minute cycle, meaning each camera scene lasted five seconds until the next appeared, taking one second between each scene. It took 60 seconds to complete the full cycle. Camera #1 viewed the door through which Harold entered. Camera #2 focused on the south wall, including the location of the shooting. So if the camera monitor displayed the door at 1:36:00, it would view the door until 1:36:05, then switch to camera #2 from 1:36:06 to 1:36:11, and so on for the various camera locations. The best evidence as to the actual time of the shooting was on camera #8 when a dealer ducked below her table at 1:36:46.

Careful examination of the videotape disclosed that Harold was not in view of cameras #1 and #2 between 1:36:00 and 1:36:11, nor was he in view of those two cameras when the cycle came full around to 1:37:00 (at the door) and 1:37:11 (at the crime scene). That meant he could only have been inside the casino between 1:36:11 and 1:37:00, or a maximum of 49 seconds. Remember, the plaintiff was critical of the fact security did not approach the murderer and either eject or disarm him once he entered the casino.

This incredibly short timeframe was further confirmed by the elderly foursome who had encountered Harold when he bumped into them on his way in. They walked, uninterrupted toward their car in the parking lot until their attention was attracted to the pursuit behind them. They had covered approximately 50 yards from the back door. Twice I retraced their steps, slowly, and timed how long it would take me to get to where they said they turned and witnessed the tackling of the shooter. Each test was just over 80 seconds. Of course my speed could not be confirmed and was speculative at best, but, nonetheless, it confirmed how quickly the entire event unfolded, and the unreasonableness of the plaintiff’s criticism of no reaction and intervention by casino security.

Following the discovery and taking of the expert’s depositions, several settlement conferences were held. Resolution of civil lawsuits comes through a trial by the court (judge only, no jury), trial by jury, binding arbitration (the matter is presented to an “arbitrator,” a jurist or attorney agreed to by both sides) who renders his or her irrevocable decision, or by settlement. Settlement is simply the process whereby the plaintiff and defendant agree to an amount of money that will satisfy both entities, which brings the lawsuit to its conclusion. Oftentimes the amount of settlement is confidential and may not be revealed.

This lawsuit reached a settlement.