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Introduction

It may be helpful to provide some context for this book by beginning with a brief summary of the discipline of security law and a description of the historical, theoretical, and situational factors that have led to our current circumstances in security and policing.

SECURITY LAW AS A DISCIPLINE

The concept of security law requires an understanding of many diverse legal disciplines. These disciplines range from negligent and intentional torts to contract and insurance provisions, agency and vicarious liability theories, and constitutional and criminal laws. Despite their obvious diversity, these disciplines are linked in this context by the impact of crime and misconduct. Hence, this legal analysis should be supplemented with “security sense” and experience.

As with any discipline or endeavor, experience in private security law is critical. In my hundreds of contract negotiations involving security matters, I have often been struck by the attorneys’ unfamiliarity with security issues and with the security industry in general. This should not surprise anyone. Indeed, attorneys, like most other professionals, typically develop a niche or an area of practice that focuses on a particular legal discipline. For example, family law attorneys focus on divorce, support, child custody, and like matters. Similarly, personal injury attorneys litigate negligent and intentional torts. In this sense, I advocate thinking about security law as a discipline.

As recently as three decades ago, there was little interest in the notion of elder law. Those who practiced family law were relegated to the category of “divorce lawyers.” Similarly, the discipline of environmental law had not yet been conceived. Since then, new legal disciplines have emerged to serve the changing needs of the marketplace and of society. Currently attorneys practice in niches devoted to the aging population, to changing family norms, and to the protection of the environment.

In post 9/11 America, the emphasis on security has been heightened. While some people continue to question the extent of the threat facing this country, those who study terrorism and security know that the threat remains real. Indeed, the threat of violence, particularly from terrorism, violent gangs, and lone psychopaths, is likely to persist. Violence is as old as human nature. I see no end to violence as long as human nature exists.

As with any trend, those who are closer to the issue see the picture with more clarity. In addressing this area of the law, I have been blessed with a rather unique set of skills and experiences. As a young police officer in the early to mid-1980s, I attended law school with the intention of focusing on public safety and security. While I did not fully realize the importance of this legal training at that time, it enabled me to be a better police officer. As a tactical police officer in the gang crime unit, I patrolled the South Side of Chicago on “missions” designed to actively seek out crimes committed by gang members. I arrested hundreds of gang members, mostly for crimes involving drugs, illegal gun possession, and violence.

My law school experience helped me understand the legal limits of my role as a police officer. It helped me grasp the legal principles surrounding search and seizure, the nuances of warrant requirements, and other police procedures. In this sense, being a good police officer requires knowledge of the law. The better a police officer understands the law, the more effectively he or she can perform the job.

The same holds true for the security professional. In many ways, the issues confronting security personnel are actually much more complicated than those facing the average police officer. Unlike the typical police officer, the security professional must be equipped to prevent as well as temper the consequences of occurrences such as workplace violence, sexual harassment, internal theft, and threats from criminals and even terrorists. Simply put, to deal appropriately with the many diverse and complex legal issues within this field, the security professional needs to possess expertise that extends beyond the rather narrow confines of criminal law.

This maze of legal issues is further complicated by the unfortunate, but inevitable, lack of consistency created by differing state laws. Unlike criminal law, which involved numerous U.S. Supreme Court decisions, the subject areas within security law are largely based on state court decisions. Because so few U.S. Supreme Court decisions relate to security law, security professionals, and their legal advisors, tend to focus much more on state laws within their particular environment. The many variations in security laws among different states present a real challenge to corporations with properties and service provisions in different states. This situation also complicates the task of developing a comprehensive book on security law.

By now some readers may be asking: Why should I care about court decisions—made by judges and juries—who have little understanding of security methods and principles? The short answer is liability. Liability often drives the implementation of security methods. Stated another way, the exposure of potential liability—often in damage awards reaching six, seven, or even eight figures—has motivated many corporations; either private, public, or municipal, to worry about security. Of course, some organizations continue to insist that it “won’t happen here.” Nonetheless, many unfortunate businesses and property owners find themselves on the wrong end of a lawsuit, faced with substantial potential exposure or actual liability. Hence, court decisions have provided substantial incentive for organizations to face the impact of crime and misconduct. The old adage of “pay me now or pay me later” has been a powerful motivator to take the threat of crime and misconduct seriously.

Let me clarify a key point. I do not advance or subscribe to the notion that security methods are directly related to liability exposure. To do so would equate life with money. This is not my intention. My point is that the legal system has shaped security methods and even, to a large degree, the security industry. This is so in a number of ways. Since the consequences of security breaches vary, or are not directly quantifiable prior to the incident, the typical property or business decision maker may believe that little or no security is sufficient. When no crime is committed, the decision proves correct. This mind-set gives rise to the inevitable questions: Why spend money on security? Why inconvenience your employees, tenants, or customers with security protocols that seem unnecessary? Coupled with the natural human tendency to believe that bad things happen only to others, this attitude leads many to assume, often incorrectly, that their environment or workplace is safe.

Now add hefty and highly publicized court decisions to the mix. At this point, many people will sit up and take notice. While some may still cling to a false sense of security, reasonable and prudent decision makers now see the implications much more clearly. The implications, of course, are more than just money damages. Loss of reputation, goodwill, business continuity, and of course, the lives and property of those affected by a workplace crime are also involved. The need to prevent such losses is a strong incentive to pay attention to security. With these implications in mind, I will provide an overview of the historical and theoretical underpinnings of this book.

HISTORICAL PERSPECTIVES

Centuries of history related to security and policing can be summarized in one overriding human theme: survival. The security of the individual, the family, the community, and even the nation-state are all tied to this basic need. As an indicator of its importance, Maslow classifies security as a second-tier need in his hierarchy of needs, just above food, clothing, and shelter.¹ Given the importance of security, it is understandable that humans have developed various mechanisms designed to foster this goal. While this summary represents only a cursory view of the historical complexities of security, the issues raised in this overview are intended to provide a pointed and appropriate framework for private security law.

For centuries, people in the community have acted as the security force within the community. Indeed, the “job” of security was not even a job. It was the duty of all able-bodied men to protect their homes and their community.² There were no police to call. Instead, the people acted in self-defense or in defense of their community. Through much of history, security was seen as the province of the people. This viewpoint was so entrenched that it even served as one of the guiding principles of the founder of Britain’s first professional police force, Sir Robert Peel, who asserted: The people are the police, the police are the people.³

Before the formation of public police, self-help and self-protection were considered the foundations of law enforcement and public order.⁴ Throughout much of recorded history, kings were primarily concerned with conducting warfare and protecting their land from invaders. This changed when the legal system or the justice process came to be regarded as a cash cow.⁵ The subsequent expansion of the internal justice process was justified by the concept of the king’s peace. The term king’s peace equated to law and order.

As the power of the king evolved, many offenses that were previously regarded as intentional torts (wrongs subject to civil action) were deemed crimes against the king’s peace.⁶ Reynolds observes this key fact: “Whereas the spoils of tort law belonged to the victims, the spoils of criminal law went to the king.”⁷ Based on this principle, acts previously considered torts such as arson, robbery, and murder could be declared crimes. The incentive to expand the king’s peace was clear. If people could be declared criminals, their property could be confiscated by the king.⁸ Such declarations allowed the king to collect property or revenue from the “criminal.” Likewise, the criminal could be punished (or even executed) for deeds against the king, his sovereignty, and his people.⁹

The change from a tort-centered to a crime-centered system directly affected those who were to be compensated. Traditionally, the injured person (or his or her family) was to be financially compensated by the person who caused the injury. Many victims favored treating offenses as civil torts, because this provided them with a way to collect financial compensation.¹⁰ The typical compensation involved some financial or property transfer to the victim or the family of the victim from the person who caused the injury. However, once the act was declared a crime, the financial benefit through fines, confiscation of property, and the like was transferred to the king.

It is important to note, however, that this increasing expansion of the criminal law was not without justification. Those who favored increasing sovereignty of the king believed it would reduce the incidence of retribution by private citizens, as well as provide for legitimate sanctions by government.¹¹ Government sanctions against criminals were deemed legitimate because they removed the need for the victim (or his or her family) to retaliate against the offender.

Traditional codes of family honor could lead to bloody feuds that persisted for generations. By assuming the right to avenge harm on behalf of all the people, the state (or king) also assumed the obligation to ensure swift, sure justice, as well as to protect the rights and safety of the public. This type of system promised not only to limit the scope of retributive violence, but also to transfer the costs of seeking justice to the state, while assuring victims that they could rely on state’s vast powers to redress their grievances.

The desire to limit the use of power or coercion to the government rested on sound reasoning. Naturally, there was a desire to reduce the amount of violence. Many believed that responding to violent acts based on the “eye for an eye” code of justice served only to perpetuate violence. Notwithstanding the potential for deterrence, or even the justification of retribution, the notion that government should be the arbitrator of violence had compelling logic. According to this way of thinking, putting the government in charge of retribution would help limit the use of violence by private citizens. As a consequence, government was increasingly saddled with the burden of controlling crime and capturing and punishing criminals.

Notwithstanding this gradual transfer of authority to government (or to the throne), the burden of law and order rested on the citizenry for a large part of recorded history. In early times, crime control of the town or community was provided by people through the use of the “hue and cry.”¹² A hue and cry was a call to order. It was designed to alert the community that a criminal act had occurred or was occurring. Upon this call to order, able-bodied men responded to lend assistance, or to pursue the criminal. This ancient crime protection system is remarkably similar to the “observe and report” function of private security, absent the pursuit and capture of the criminal. The theory behind observe and report is that the security officer should act as a deterrent to crime. When a crime is observed, the task of the security officer is to gather information about the criminal (or the crime), and then immediately report such to the public police—in effect, serving as the “eyes and ears” of the police. ¹³

Over time, however, the custom of hue and cry gave way to a more defined system of crime prevention. This system, known as “watch and ward,” entailed more formalized crime prevention methods. It was headed by shire reeves appointed by the king.¹⁴ The shire reeves, in turn, appointed constables to deal with various legal matters. Both the shire reeve (later shortened to sheriff) and the constable were the forerunners of modern sworn law enforcement officers.¹⁵ This system furthered the legitimacy of public officers in crime prevention and control, with the appointment of individuals who reported directly to the king.

Early American colonies adopted this watch-and-ward system. Partly due to the deficiencies inherent in this system, however, some towns supplemented this method with night watches conducted by citizens appointed by the local government.¹⁶ Unfortunately, these unpaid, ill-trained, and ill-equipped constables often failed to control crime. As a result, businessmen hired their own security to protect themselves and their business or property.¹⁷ These early security providers, however, did not protect the general population. Most people had to fend for themselves. Towns and villages were largely unprotected, except by those who lived there.

Based on these circumstances, some criminologists and historians believe that the emergence of municipal police forces were a direct result of the growing levels of civil disorder within society.¹⁸ Indeed, Miller emphasized that in 1834, known as the “year of riots,” legislators in New York decried the need for order. This outcry for order translated into more “security” forces. It became increasingly clear that the established system of crime prevention was not working. In this sense, the riots acted as a trigger, helping to bring about the institution of municipal police departments.

The emergence of public police, as with any societal initiative, was not without its problems and detractors. Many people argued that a full-time police force was too expensive. Certainly, the traditional methods were less costly because the major portion of these protective services was provided by unpaid volunteers.¹⁹ Another economic objection was based on the argument that the newly created public police agencies were unable—or unwilling—to provide for the security needs of the commercial sector.²⁰ To support this assertion, critics of public policing could point to the situation in America’s “Wild West.” The western territories had few government-employed police officers. This lack of police officers was especially problematic for newly developing mobile commercial enterprises, such as the railroad industry. Labor unrest, especially in the steel, coal, and railroad industries, further drove the demand for security.²¹ Not surprisingly, this growing need for security significantly drained resources from already overextended municipal police departments.²² In order to serve this growing market, Allan Pinkerton formed the first contracted private security firm in America.²³ This occurred in 1850, at a time when many municipal police departments were in their infancy. Thus, paid security forces were developing even while the growth of public police departments was still in its early stages.

Other criticism of early policing pointed to the dangers of a government monopoly on policing,²⁴ fearing that it could lead to the development of excessive police power.²⁵ To these people, the cop on the beat represented an “ominous intrusion upon civil liberty.”²⁶ To others, the concern for security overrode the integrity of constitutional provisions. Thus, the tension between the desire for security and the desire to maintain constitutional protections became critical in the debate over this policing initiative. Likewise, the difficulty of balancing public safety with individual rights continues to fuel controversy over current security initiatives—whether public or private.

As public policing began to take hold, certain legal decisions carved out the specific duties of the government in regard to the safety and security of its citizens. As noted earlier, the historical roots of policing stemmed from the notion that citizens were obligated to maintain law and order. This notion was consistent with the ideals of the framers of the U.S. Constitution. They assumed that law-abiding people would be largely responsible for their own safety.²⁷ As a result, the framers of the Constitution did not define any specific governmental obligation to protect citizens from crime. The U.S. Supreme Court upheld the principle that government does not have a specific duty to protect individuals in the famous case entitled South v. Maryland (1856). In its decision, the Court refused to create this duty based on the belief that it would “impose a crushing economic burden on government.” Instead, the Court held that government had a general duty to enforce laws, but not to protect any particular person. Significantly, the South v. Maryland Court held that:²⁸

There is no constitutional right to be protected by the state against being murdered by criminals…. The constitution is a charter of negative liberties, it tells the state to let people alone, it does not require the federal government or the state to provide services, even so elementary a service as maintaining law and order.²⁹

This decision provided the intellectual principle that the government is not responsible for the safety of its citizens—as it related to criminal activity. Accordingly, citizens are expected to secure their own safety from criminals, independent of the protection from government. This basic principle has not changed. Absent the duty from a third party, usually imposed on a corporation or a property owner, the burden is on each individual to provide for his or her own safety and security.³⁰

This brief historical perspective illustrates the impact of crime on civilized society. In days of old, security was the province of the people. In contemporary times, “the people” typically pay others for protection. Citizens pay taxes for municipal policing. Clients pay contracted fees to security firms. Both of these methods of maintaining public safety and providing security services are accepted as contemporary norms. However, as will be more fully articulated later, there is a growing trend for citizens to pay security firms for protection within the public realm. This creates a sort of back to the future circumstance, where “the people” are taking more responsibility for their own security.

The payment of monies for private security services raises an important question: Is it appropriate for clients, who are citizens of a governmental entity, to pay a private firm for security, or even public safety services? My answer is yes. To answer this question for yourself, you might begin by asking yourself these questions: Is it wrong to pay for personal protection? If public police cannot or will not provide for your personal protection, is it inappropriate to pay a security firm to do so? Viewed from this perspective, affirming the individual’s right of self-defense seems the only reasonable approach.

Because the job of private security professionals involves the imminent threat of violence, their effectiveness almost inevitably depends on their ability to use appropriate tactics, including the use of force. Regardless of the situation that prompts the use of force or the mere imposition of verbal commands, the use of coercive measures is subject to monitoring by the legal system, either through judicial and legislative pronouncements. Thus, those who are in the business of security have a responsibility to stay informed about the legal limits of their power and authority. As the role of security providers in society continues to expand, the need to understand private security law becomes increasingly important. This book attempts to address that need.

CRIME, CRIMINOLOGY, AND SECURITY LAW

Security personnel seek to prevent crime by attempting to predict reasonably foreseeable crime and develop precautions against it.³¹ Whether a crime is foreseeable and whether it can be prevented is often based on an understanding of the environment and of the offender.

A substantial body of law has grown around the notion of the environmental aspects of crime. Many researchers believe that an area often undergoes a transition from relatively few crimes toward a high incidence of crime or a heightened fear of crime, caused in part, by lack of order.³² For example, order maintenance theories contend that crime problems initially arise from relatively harmless activities, such as drinking on the street, graffiti on buildings, and youths loitering on street corners. If these activities go unchecked, the level of fear and incivility in the area begins to rise and more serious crimes, such as gang fights or even drive-by shootings, may take place. The underlying theory is that the presence of disorder tends to reduce the social controls previously present in the area. This results, at least in theory, in the increased incidence of crime, particularly serious crime. Increased crime, in turn, contributes to the further deterioration of the physical environment and economic well-being of the community.

The development of order maintenance theories can be traced to a line of thinking that developed over time. These theories focused on conditions in cities, particularly in the slums. In these areas of the city, conditions included “physical deterioration, high density, economic insecurity, poor housing, family disintegration, transience, conflicting social norms, and an absence of constructive positive agencies.”³³ Over time, researchers began to focus less attention on socioeconomic factors, and more on the physical characteristics of the community, or on the environment. The focus on the physical characteristics of the space where crime occurred resulted in a substantial body of scientific research, including that of Cohen and Felson. They argued that the completion of a crime requires the convergence in time and space of an offender, a suitable target, and the “absence of guardians capable of preventing the violation.”³⁴ The guardians include police, security, citizens, and “place managers” who are either formally or informally responsible for a particular property or location.³⁵

This focus on environmental factors is seen in a number of studies. For example, Gibbs and Erickson found that the daily population flow in large cities “reduces the effectiveness of surveillance activities by increasing the number of strangers that are routinely present in the city, thereby decreasing the extent to which their activities would be regarded with suspicion.”³⁶ The implication was that the more crowded an area became, the less likely it was for strangers to be noticed. Thus, with less natural surveillance from community residents, more crime might develop. Consequently, Reppetto concluded that the social cohesion and informal surveillance declines with the large number of people living in a given area.³⁷

Similarly, Lewis and Maxfield focused their research on specific physical conditions within the environment. They sought to assess how the environment affected the level of crime and the fear of crime. Their research design took into account such factors as abandoned buildings, teen loitering, vandalism, and drug use. They believed these factors draw little attention from the police partially because the public police have limited resources to effectively deal with these problems.³⁸ The researchers noted that such problems, nonetheless, are important indicators of criminality within any community.

These problems are considered indicators of the “level of incivility” in an area and are thought to contribute to a sense of danger and decay. The presence of danger and decay, in turn, increases the perceived risk of victimization.³⁹ In this sense, the presence of incivility may lead to crime, or it may simply cause an area to seem dangerous. Indeed, while some incivilities are not even criminal, they are disconcerting nonetheless. For example, groups of teens walking through a neighborhood may be legal but still raise fears within the community. As such, these studies concluded that policymakers should focus on “neighborhood level” approaches to reducing crime and fear.

This research was supported and further validated by subsequent studies. Covington and Taylor conducted research into what they termed the “incivilities model.” They argue that people perceive “cues” to the underlying level of disorder in their immediate environment. When people sense negative cues in their environment, they feel more vulnerable and fearful.⁴⁰ In essence, they become more aware that they may be at risk of being criminally victimized. Consequently, cues representing incivility may serve as an early warning or an indicator that the environment may be ripe for serious crimes.

What are these cues, or the signs of crime? According to Covington and Taylor, there are several indicators or cues. They fall into two distinct categories: social and physical. Social cues include public drinking, drug use, loitering, and disturbances such as fighting and arguing. These activities may be deemed disturbing to some people, and dangerous to others. Physical cues include litter, graffiti, abandoned buildings and vacant lots, and deteriorating homes and businesses.⁴¹ While these conditions may not be inherently dangerous, they create the impression that the neighborhood is declining. This impression, in turn, may foster an attitude that the people in the neighborhood do not care about their homes or their community. As a consequence, those intending to commit crime may view the perceived lack of care as an invitation for criminal activity.

Subsequent research by Fisher and Nasar further validated this logic. They studied the effects of “micro-level” cues. Micro-level clues involve a specific place or location. The authors found that such cues relate to fear in three specific criteria:⁴²

• Prospect—openness of view to see clearly what awaits you.

• Escape—ease of departure if you were confronted by an offender.

• Concealment—extent of hiding places for an offender

Based on an analysis of these criteria, the authors concluded that areas that lack open views and avenues of escape for potential victims while offering criminals effective hiding places are ripe for crime. When faced with these conditions, individuals tend to feel a greater exposure to risk, lose their sense of control over their immediate environment, and are more aware of the seriousness or the consequences of attack.⁴³ This conclusion further advanced the concept of “situational crime prevention.” This approach advocates the examination of the actual criminal event or incident. When doing so, it is considered key to assess how the “intersection” of potential offenders connected with the opportunity to commit crime. This level of analysis focuses on how to prevent this “intersection” from occurring. According to this way of thinking, reducing the criminal’s opportunity to commit crime should enable individuals to avoid crime. Consequently, the commission of a particular crime could be prevented through specific measures designed to reduce the offender’s ability (or even propensity) to commit crimes at a specific location.⁴⁴

The conclusions from these studies have been echoed by a number of other authors, including Kelling, who asserts that citizens regularly report their biggest safety concerns to be activities such as “panhandling, obstreperous youths taking over parks and street corners, public drinking, prostitution, and other disorderly behavior.”⁴⁵ All of these factors have been identified as precursors to more serious crime. Moreover, the failure to correct these behaviors is often perceived by potential offenders as a sign of indifference—which may lead to more serious crime and urban decay.⁴⁶ According to this thinking, the most effective way to reduce crime is to address both the physical and social conditions which foster criminal behavior and to prevent such conditions from festering into more serious levels of incivility and decay.

The logic behind and conclusions derived from these studies have been embraced by both public police and private security. The key component of these studies, in both the public and private sectors, is order maintenance. Order maintenance techniques are designed to improve physical conditions within a specific geographic area. This can be accomplished in a number of ways, including the rehabilitation of physical structures, the removal or demolition of seriously decayed buildings, and the improvement of land or existing buildings by cleaning and painting. Other environmental improvements, such as planting flowers, trees or shrubs, and various other methods to enhance the “look and feel” of an area are also recommended.⁴⁷ These physical improvements are then coupled with efforts to reduce or eliminate certain anti-social behaviors. The reduction or the elimination of problematic social behaviors is at the core of an order maintenance approach to crime prevention. The objective is to address these behaviors before more serious crimes occur.

Viewed from this broad environmental perspective, the topic of security becomes wide ranging. It can encompass services as seemingly diverse as trash collection and private police patrols that are in fact linked by the common goal of improving conditions within a neighborhood. Given the important role of the environment in the development of crime, the need to control physical conditions and public activities within a particular environment is paramount. The advent of terrorism will only magnify this environmental focus. In today’s world, many formerly unremarkable occurrences can seem ominous. An unattended package left on a street corner might turn out to be a lethal bomb. The illegally parked vehicle in your neighborhood could be a tragedy in the making. In this new reality, the importance of an orderly and clean environment cannot be understated. Of course, these perceived or potential threats are difficult to remedy. Nonetheless, this growing emphasis on the environment has been echoed by Kaplan, who views the environment as the security issue of the early twenty-first century.⁴⁸

In public policing, these order maintenance techniques are encompassed in the concept of “community policing.”⁴⁹ The core of community policing is for policing efforts to extend beyond the traditional goal of crime fighting. It is to focus on fear reduction through order maintenance techniques.⁵⁰In this way, crime and fear reduction through order maintenance are in accordance with the environmental theories articulated above.

This focus on prevention has traditionally dominated the decisions of security industry officials.⁵¹ Indeed, the similarity of private security techniques and community policing techniques can be narrowed to one core goal: both are intended to utilize proactive crime prevention that is accountable to the customer or the citizen.⁵² Private security’s traditional “client focused” emphasis on preventing crime—not merely making arrests after a crime has occurred, directly relates to this approach. With community policing seeking to achieve this same goal, the functions of police and security have or will inevitably move closer together. Of course, private security is particularly well suited to serve in a crime prevention or order maintenance role. This has been its role for generations. At least partly because of its focus on the property and financial interests of their clients, private security has long since replaced public police in the protection of business facilities, assets, employees, and customers.⁵³ This is because private security personnel provided what the public police could not accomplish. Specifically, the industry provided services for specific clients, focusing on the protection of certain assets, both physical and human, as their primary and even exclusive purpose.

The increase in tort causes of action, known as either premises liability or negligent security, has fueled explosive growth in the security industry, and in the business of personal injury attorneys.⁵⁴ These lawsuits stem from negligence based legal theories, which question whether the business or property owner knew or should have known that a criminal would come along and commit a crime within the property. Hence, the crime victim could sue the business or property owner (and indirectly its insurance company) for the actions of the criminal. The logic of this cause of action rests on the theory that the owner contributed to the crime, or at least, allowed the crime to occur by failing to take remedial action. According to this logic, the property or business owner, who did not commit the crime, is nonetheless guilty of negligence by allowing the conditions conducive to crime to occur or to fester. Thus, the failure to cure the conditions served to “invite” the criminal act.

These causes of action are based on two contemporary developments. First, the impact of crime has created substantial damage—in human and economic terms. Faced with these financial and human tragedies, courts began to develop the logic and reasoning to support these lawsuits. Second, these lawsuits were intellectually justified by the previously described body of knowledge relating to crime. This thinking was further supported by the Restatement of Torts 2nd, Section 344, which provides the crime victim (plaintiff) must prove both of the following conditions:⁵⁵

1. Owner knew (or should have known) the premise was not secure.

2. Negligent features of premises allowed the crime to occur.

Scientific studies relating to the relationship between crime and the environment are compelling. As noted previously, numerous studies have provided a wealth of evidence that criminals do not act arbitrarily and randomly. Indeed, despite the public’s abhorrence of criminal conduct, criminals tend to view the decision to commit a crime as a rational choice. The offender may weigh the risk of being caught versus the benefit from the crime. If the potential gain outweighs the risk, then it is more likely the crime will occur. Based on this logic, it seems reasonable to infer that crimes tend to occur in locations that minimize the criminal’s risk of being caught while maximizing his or her advantage. Indeed, criminological research has demonstrated that certain factors may lead to crime. These factors include: disorderly conditions, diminished lighting, high prospect for escape, increased ability to conceal the crime, and various other factors related to the criminal decision process.⁵⁶ Such factors may even invite crime. For example, Gordon and Brill argue that poor lighting not only fails to prevent crime, but acts as a “crime magnet.”⁵⁷ For these reasons, it was not a great leap for courts to begin to accept the counterintuitive notion that the property or business owner should pay for the actions of the criminal.

A significant consequence of this thinking was to extend legal exposures to a new class of defendants: property and business owners. This exposure, in turn, became a motivator for many owners to institute security measures within and around their property or business location. In this sense, potential liability served as both a carrot and a stick. The carrot was the advantage that promised to accrue to property or business owners who established a safe and secure place in which to do business, and to live or work in. Certainly, maintaining a safe and secure environment could not hurt the reputation of the business, or the viability of the property. Conversely, the stick was substantial potential liability, with large jury awards, that could occur in the event of a crime on their property. In addition, media exposure stemming from such incidents could create a reputational and public relations nightmare for the owner of the business or property where the crime occurred. Clearly these factors provided substantial negative motivation to secure the premises from criminals.

This carrot and stick approach led to the growing use of private security personnel and methodologies. This boded well for the security industry. Business and property owners started to think and worry about security. They became more proactive in their approach to a safe and secure environment. For security firms, the need for increased vigilance created a larger and larger market of potential clients. It brought security further and further into the realm of the average citizen. Security personnel began to be routinely used at businesses and large corporations, now often focusing on the protection of employees and clients, instead of simply preventing them from stealing. In this sense, security became more mainstream. It is part of the hospital you visited, part of your workplace, and part of the apartment building you live in. Consequently, the security industry moved into the lives of average people. No longer was it just the public police who serviced the people; now there was another service provider, this one operating out of the private realm. Now private security was “the people.” This closeness to mainstream society also increased the scope of the services provided by private security.

As premises liability and negligent security lawsuits developed, the liability of business and property owners extended farther and farther beyond the “protected facility.” The seemingly ever-expanding perimeter was the result of court decisions. It was not uncommon for incidents in parking lots to create liability exposure. Indeed, liability exposure may even be claimed to apply to attacks that occur beyond the perimeters of the property or business.⁵⁸ In fact, lawsuits have succeeded in cases of criminal attacks that occurred down the street from the property or business held liable. As liability exposure expanded, so did the security perimeter and methodologies. Consequently, it is now common for security patrols and hardware for properties and businesses to extend into the streets and other public areas, in the quest to prevent crime and to provide a safe and secure environment.

Conversely, public police have a much more difficult task incorporating crime prevention into their organizational structure as a result of the broader societal mission to universally enforce laws throughout society, as well as to preserve democratic and constitutional ideals. Considering that the already overburdened public police are also faced with economic and operational constraints, it is not unreasonable to conclude that the role of private security will continue to increase. This relationship between crime and security has been pointedly summarized by Thompson. In addition to the criminological theories summarized previously, he outlines the increased incidence of security liability to the following factors:⁵⁹

• Growth of private security

• Greater public awareness of litigation

• Greater number of attorneys

• Increased publicity about criminal incidents

CONTEMPORARY CIRCUMSTANCES

The relative size and scope of policing and security are well known in industry circles. Much of this data is derived from the groundbreaking Hallcrest studies. These studies reveal that in 1981, the security industry spent approximately $21.7 billion, compared to the $13.8 billion spent on public policing. In 1991, these expenditures rose to $52 billion for private security, compared to only $30 billion for public policing.⁶⁰ By the year 2000, private security spent approximately $104 billion, while public policing spent only $44 billion.⁶¹ This ratio of expenditures reveals that about 70 percent of all money invested in crime prevention and law enforcement is spent on private security. Furthermore, statistics reveal that the annual growth rate for private security is about double the growth rate of public policing.⁶² Through the year 2004, private security grew at a rate of 8 percent per annum.⁶³ Most of this growth was prior to September 11, 2001. These figures illustrate that private security is one of the fastest growing industries in the country.⁶⁴

Following the terrorist attacks of September 11, 2001, some security firms predicted revenue growth in the range of 10 to 12 percent per year.⁶⁵ One verifiable example of this growth is the increased presence of private security officers in New York City since 9/11. In September 2001, there were 104,000 security officers in New York City. By October 2003, the number of security officers there had risen to 127,006.⁶⁶ This level of growth is not atypical of the expansion of the security industry in other parts of the country.

The number of security employees in relation to police further emphasizes the growing predominance of the security industry in the crime reduction arena. Consider some historical trends. From 1964 to 1991, employment in private firms increased by an astonishing 750 percent, with the number of firms providing security and investigative services increasing by 543 percent.⁶⁷ Public policing agencies also grew their number of full-time sworn police personnel to about 700,000. The number of police personnel, however, pales by comparison of recent security industry estimates of 2 million people employed by security firms.⁶⁸ In some urban areas, such as El Paso, Texas, the number of private police is estimated to exceed that of public police by a ratio of 6 to 1.⁶⁹

The growth of private security is reflected in recent financial and hiring data from two huge international firms that dominate the security industry. Securitas, a Swedish based firm, had revenues of $5.8 billion with a net income of $115.2 million in 2001.⁷⁰ It employs 220,000 people worldwide, with 98,000 in the United States. Since 9/11, they have hired more than 10,000 additional guards to serve U.S. accounts. Similarly, the Danish firm Group 4 Securicor had revenues of $2.81 billion dollars, with a net income of $3.7 million dollars in 2001. This firm employs 400,000 full- and part-time personnel worldwide, with 53,000 in the U.S., of which about 3 to 5 percent are directly attributable to 9/11.⁷¹ By any account, these are impressive numbers, both in terms of revenue and employee growth. Overall, the data suggest that the private security is so disproportionately large compared to that of public policing, some observers argue that private security is now the primary protective resource in the nation.⁷² Based on expected additional terrorist incidents, these numbers will likely grow—possibly substantially.

Likewise, the ratio of public police officers to reported crimes has undergone a dramatic change. In the 1960s, there were about 3.3 public police officers for every violent crime reported. In 1993, there were 3.47 violent crimes reported for every public police officer.⁷³ While crime levels have decreased since then, these statistics illustrate that each public police officer in contemporary America must deal with 11.45 times as many violent crimes as police from previous eras. Walinsky notes that if this country were to return to the 1960s ratio of police to violent crimes, about 5 million new public police officers would have to be hired by local governments.⁷⁴ This has not occurred and will not occur. Instead, the security industry has stepped in to serve this growing market need.

Justice Department data reveal that despite the decreasing ratio of the number of police to that of violent crimes, the economic costs of public policing increased from $441 million in 1968 to about $10 billion in 1994. This represents a 2,100 percent increase in the cost of public policing, while the number of violent crimes exploded 560 percent from 1960 to 1992.⁷⁵ Thus, as crime rates increased, the tax monies used to “combat” crime also dramatically increased. While more recent Justice Department data reveals that crime has decreased from 1994 to 2004, one obvious question begs to be answered: Would spending additional money on public policing, in fact, reduce crime? Based on this short historical and statistical overview, the answer appears to be no. The most obvious conclusion to be drawn from these statistics is this: Over the last generation, the relationship between the amount of crime and the amount of money spent on public policing has changed radically.

As dramatic as these statistics may seem, numerous authors assert that the security industry should not be assessed on data alone. Indeed, the sheer and undeniable growth of the industry can be viewed by its involvement in businesses, homes, and communities throughout the country.⁷⁶ This involvement stems from such diverse services as alarm systems, security guard services, and investigative and consulting services. Indeed, the impact of the security industry may even be more substantial than what this data suggests. For example, one observer noted, “We are witnessing a fundamental shift in the area of public safety. It’s not a loss of confidence in the police, but a desire to have more police.”⁷⁷ Indeed, there are appropriate comparisons being made of the security industry in relation to the advent of public policing in the mid-1850s. In light of the historical summary, this comparison of private security to the advent of public police seems right on the mark.

Numerous authors have argued that there is a need for more police, or at least more protective services.⁷⁸ Other authors have a more critical view. They doubt the capability of the public police to provide an appropriate level of protection.⁷⁹ In either case, private policing may be seen as the “wave of the future.”⁸⁰ Similarly, another author observed, “People want protection, and what they cannot get from the police, they will get from private security companies.”⁸¹ This statement has particular significance in light of the current increased terrorist threat. The authors of the National Policy Summit suggest a connection between this threat and the conflicting roles facing modern police departments. In their analysis, police are finding that in addition to the crime-fighting duties, they now have significant homeland security duties.⁸²

The impact of crime on average people suggested by a 2004 survey conducted by the Society of Human Resource Managers (SHRM) is worth considering. The researchers asked, “Do you feel safe at work?” The majority of respondents answered no. Indeed, for almost every demographic and industry category, safety at work ranked at the top or near the top in terms of employee priorities. Specifically, safety was the number one issue for women, and tied for first with benefits for older employees. Overall, “feeling safe at work” was ranked “very important” by 62 percent of the respondents, up from about 36 percent two years previously.⁸³

Business leaders also need to assess the current threat environment and consider security countermeasures. A Booz-Allen Hamilton study conducted in 2002 surveyed seventy-two CEOs from firms with more than $1 billion in annual revenues. This study revealed their post-9/11 security concerns. This survey found that 80 percent of respondents believed that security is more important now than it was prior to 9/11, with 67 percent actually incurring or anticipating substantial new security costs.⁸⁴ In addition, expenditures for security-related personnel and hardware were tracked and summarized in another study (see Table I-1).⁸⁵ The data in this table reveal an increase in the use of various security methods as well as a reduction of security expenditures by some firms. This trend in the data seems to suggest that despite the threat posed by crime and terrorism, some organizations still remain content to believe that “it won’t happen here.”

Other more recent studies conducted after the London train bombings and Hurricane Katrina reveal that “there is an increased focus on domestic safety and security.”⁸⁶ One study revealed that 56 percent of companies have revised their disaster preparedness plans, while 44 percent have not. Again, the statistics suggest that while some people will seek to prepare for or prevent a disaster, others prefer to merely to hope for the best.⁸⁷ As previously asserted, this mind-set will always exist in some measure—despite the liability exposure and security threats facing society.

Considering the impact of liability exposure upon business, the incentive to provide security is substantial. In 2004, the U.S. Chamber of Commerce reported that small businesses incurred more $88 billion annually in litigation expenses.⁸⁸ An employment law firm’s annual survey in 2003 reported that 57 percent of companies had an employee file a lawsuit against the company, up 8 percent from 2002.⁸⁹ The EEOC itself collected more than $420 million dollars from employers who had violated discrimination laws. Of course, regardless of whether a lawsuit has any legal merit, litigation has both direct and indirect costs to the employer. These costs may include attorneys’ fees, lost productivity, decreased employee morale, increased turnover, and poor public relations. Clearly, it is important to provide a secure workplace environment, since crime prevention and misconduct reduction have wide-ranging implications.

NEGLIGENCE ELEMENTS AND PRINCIPLES

In order to assess the liability exposure related to crime and misconduct, one must consider the tort of negligence. Negligence can be defined as the failure or omission to do something that a reasonable and prudent person would do, or doing something a reasonable and prudent person would not do. Negligence causes of action have four elements: duty, breach of duty, causation, and damages. As was explained previously, government has no constitutionally defined duty to prevent crime. Crime has traditionally been considered a superseding cause that broke the causation connection in a negligence-based claim. This superseding cause in a negligence action is illustrated in Figure I-1.

Duty

Duty is the standard of care that a reasonable and prudent person is required to maintain. This standard is objective. Unfortunately, it is difficult to definitively determine an objective standard. It is based on what a reasonable and prudent person would do or not do.⁹⁰ The logic is that the imposition of a duty often affects an individual’s behavior, since people tend to conform to the duty in order to avoid potential liability.⁹¹ In the context of crime, the imposition of a duty is designed to keep people safe from crime. This does not require preventing the crime from occurring. Sometimes crime cannot reasonably be prevented. In a perfect world, no crime would occur. Of course, this world is far from perfect. It is clear all crime cannot be prevented, even if the property and business owner tried to prevent it. Indeed, courts do not require perfection. What is typically required is the institution of reasonable security methods in order to diminish the probability that crime will occur. In achieving this standard, security methods can stem from a brighter light bulb to Fort Knox—and anywhere in between. How then does a reasonable and prudent person assess what security methods would be sufficient? The answer is the proverbial million dollar question. Indeed, in security litigation, it is often a multi-million dollar proposition.

Figure I-1 Crime as a superseding cause in negligence.

First, the notion of a special relationship imposes a duty on the business or property owner. Such relationships include that of common carriers, such as trains and buses, to their passengers. The relationship between hotels and their guests is another example. Implicit in these relationships is a circumstance in which the safety and security of the subordinate party (the passenger and the guest) are in the hands of the business owner and proprietor. In the logic of this relationship, the superior party (owner and proprietor) has an increased or enhanced duty to protect those who depend on that party for their safety and security. Since the existence of a special relationship is often posed in security litigation, these issues will be developed throughout this book.

The second aspect of duty relates to the terms and conditions of the contract, if one exists. This assessment is typically straightforward. Generally, what is articulated in the contract is what is required by the respective parties. In this way, the duty is based on the language of the contract, or the agreement of the parties. These issues will be more fully developed in Chapter 9.

The third aspect of duty is the most difficult to assess because it is based on the circumstances surrounding the incident. With this assessment, the operative facts often dictate whether a duty exists, or the extent of the duty imposed. In this thinking, a general principle is relevant to the assessment. As danger increases, the actor (owner or proprietor) is required to exercise caution commensurate with the risk. For example, if the risk of crime is particularly great, then the required security measures to prevent crime may increase. The appropriate relationship between the risk of danger and the commensurate duty, however, is tricky to definitively define. Indeed, doing so can be construed as both an art and a science. This is what makes the analysis contained in this book pertinent and relevant. Performing a reasonable and prudent analysis to determine the appropriate security precautions for addressing a particular level of risk requires an understanding of both legal principles and security methods.

The typical approach to such an analysis is based on foreseeability.⁹³ The concept of foreseeability can include what the actor (owner or proprietor) actually knew, as well as what that actor reasonably should have known. Thus the actor may be required to anticipate the risk of harmful acts of third persons. This thinking mirrors the description of a landowner’s duty of care in the Restatement (Second) of Torts, which provides that reasonable care must be exercised to discover what harmful acts are being committed or are likely to be committed, give an adequate warning, or otherwise protect the visitors against the harmful acts.⁹⁴ In this sense, foreseeability may be determined in terms of past experience and future probabilities. It is based on whether the likelihood of conduct by third parties will endanger the safety of those within the particular environment. This assessment takes into account a number of factors, including the following:

3. Statutory violations (repair or maintain building)

4. Nature of the business

5. Area or neighborhood where the business is located

6. Standard of security methods in the particular industry

7. Hours of business operation for the business

8. Specific complaints about crime, misconduct or suspicious behavior at the location

9. Expert advise from police or security consultants 10. Relationship between owner’s conduct or action and the injury incurred

11. Extent of injury incurred by the victim (plaintiff) 12. Moral blame attached to the conduct or inaction of the business proprietor

13. Public policy considerations related to preventing harm, including the magnitude and consequence of burden of preventing such harm

14. Availability and cost of insurance for the risk involved

There are various tests that courts use to determine foreseeability. Specific tests include: (1) the specific harm test, (2) the prior similar incidents test, (3) the totality of the circumstances test, (4) the balancing test, (5) the known aggressor/imminent danger test, (6) the actual or constructive knowledge test, (7) the special relationship/special circumstances test, and (8) blending of various tests. While these tests have some overlap, their basic characteristics can be described.

Under the specific harm test, a landowner owes no duty unless the owner knew or should have known that the specific harm was occurring or was about to occur. As this is a very restrictive standard, most courts are unwilling to hold that a criminal act is foreseeable only in these situations.

Under the prior similar incidents test, a landowner may owe a duty of reasonable care if evidence of prior similar incidents of crime on or near the landowner’s property shows that the crime in question was foreseeable.⁹⁵ Although courts differ in the application of this rule, all agree that the important factors to consider are the number of prior incidents, their proximity in time and location to the present crime, and the similarity of the crimes.⁹⁶ Courts differ in terms of how proximate and similar the prior crimes are required to be as compared to the current crime. Courts can apply more liberal or more conservative standards for this test. For example, in a gun assault case, one court held that although there were 57 crimes reported over a five-year period, only six involved a physical touching. In this conservative jurisdiction, the assault with a gun was deemed unforeseeable. Conversely, in a liberal jurisdiction, two prior burglaries of apartments were sufficient to make a rape in an apartment foreseeable. Notwithstanding this difference, this test typically depends on the location, nature, and extent of those previous criminal activities and their similarity, proximity or other relationship to the crime in question.

While this approach establishes a relatively clear line when landowner liability will attach, some courts have rejected this test for public policy reasons. The typical public policy criticism is that the first victim in all instances is not entitled to recover. As such, if there were no prior similar incidents, landowners have no incentive to implement even nominal security measures. Hence, some argue this test incorrectly focuses on the specific crime and not the general risk of foreseeable harm. Indeed, one can make the logical argument that the lack of prior similar incidents relieves a defendant of all liability. This is so, even when the criminal act was, in fact, foreseeable due to generalized crime within the community. However, advocates of this standard argue that merchants should be responsible only for the dangerous conditions they created. In this sense, prior similar incidents would act as “constructive notice,” which protects the interests of the customer, while giving the property or business owner a fair opportunity to take steps to shield them from liability.⁹⁷

Under the totality of the circumstances test, a court considers all of the circumstances surrounding an event to determine whether a criminal act was foreseeable. This may include the nature, condition, and location of the property and the larger community, as well as prior similar incidents in and around the property in question.⁹⁸ Courts that employ this test may do so out of dissatisfaction with the limitations of other tests, such as the prior similar incidents test. The thinking behind this test is that all relevant factors associated with the crime should be taken into account. The wide scope of this test is favored by those who seek to prevent crime—and by those who advocate liability for those who fail to prevent crime.

A frequently cited limitation of this test is that it tends to make fore-seeability too broad and unpredictable, effectively requiring that landowners anticipate crime. Indeed, the numerous factors cited above are difficult to assess and predict. Sharp argues that foreseeability alone does not create a duty. Rather, the ability to have foreseen and prevented the harm is the key determinative of responsibility inherent in this duty.⁹⁹ Nonetheless, this test is very popular with courts as it gives a wide-ranging analysis to all relevant factors related to the incident. Hence, this test is useful because it can incorporate all relevant factors. However, it is difficult to apply for the same reason.

Under the balancing test, courts balance “the degree of foreseeability of harm against the burden of the duty to be imposed.”¹⁰⁰ In other words, as the foreseeability and degree of potential harm increase, so does the duty to prevent it. However, the burden of preventing foreseeable crime must also be considered. For example, in high-crime areas, the burden of preventing crime may become too onerous as to drive away all commerce. Hence, this test seeks to balance the foreseeability of crime against the burden of preventing crime. In this assessment, the burden is considered in various ways, including the cost of security measures, the economic impact of a “hardened” business environment, and the feasibility of security measures to actually prevent crime. Because this is a difficult “balancing act,” this test still relies heavily on prior similar incidents in order to ensure that an undue burden is not placed on business or landowners.

Under the known aggressor/imminent danger test, courts assess whether the owner or proprietor had reason to know that a particular assailant is aggressive, belligerent, or prone to violence against customers or patrons. This is a very factually specific test, where knowledge of the particular offender’s actual violent propensities is critical to imposing liability. If this knowledge is not shown, then liability for the crime will not attach.

In a similar test, the actual or constructive knowledge test, the owner or proprietor must have knowledge, either actual or constructive, of the threat posed by an offender or of the crime that was likely to occur. As with known aggressor/imminent danger test, this is a very restrictive test. It requires a high level of knowledge and specificity of the offender or of the crime. One distinction between this test and the known aggressor/ imminent danger test, is that actual or constructive knowledge test provides for a longer temporal assessment. In order for liability to attach, the former focuses more on the time frame between the knowledge and the crime. The latter allows for liability with less emphasis on time considerations, with more emphasis on what the business or property owner knew—or should have known—about the potential for crime to occur. While this is not a definitive distinction between the two tests, it is a way to frame the logic of both.

As mentioned earlier, the special relationship/special circumstances test focuses on the relationship of the parties, such as hotel-guest, carrier-passenger, and the like. This test, however, also looks at the circumstances surrounding this relationship. In this way, the status of the parties (special relationship) is coupled with relevant factors (special circumstances) in the assessment of liability.

As shown by the short descriptions of these different tests, there is substantial variance in how liability assessments are made. The fact that different states use different tests further complicates the task of assessment. Consequently, the following table was developed as a reference to facilitate the process.¹⁰¹ Before using this table, a few caveats are in order.

First, the table lists tests applied in each state. While this information appears straightforward, the fact that some states have developed standards that are difficult to characterize in any definitive manner creates some ambiguity. For example, some states will use a defined test, such as prior similar incidents, but will differ in its application. In this way, a particular state may use a more liberal view versus others that may use a more conservative approach. Hence, even when the test is defined, the application of the test may vary based on a liberal or conservative bend or mind-set of the court.

Second, the chart lists tests that are sometimes adaptations from several different tests that are often also difficult to characterize in any defined way. For example, when one compares the actual or constructive test to the aggressor/imminent danger test, the distinctions are fine or slight. In the former, the test seems to combine knowledge of the offender and of a particular crime, while the latter focuses much more directly toward the particular offender who may commit a particular violent crime. This assessment also takes into account the temporal factor discussed previously. In fact, the distinctions between these tests may be so fine as to be legally and factually meaningless. Notwithstanding this assertion, the test articulated by the court is the one listed in the chart.

A third issue related to this caveat is that sometimes a particular state will not articulate a particular test or it will change from one test to another. Since legal standards are very fact specific, courts may tend to frame the legal analysis around the facts of a particular case. Hence, sometimes there is a “chicken and an egg” scenario. Stated another way, it is difficult to assess which is paramount, the legal standard or the facts. The interrelationship between the two sometimes makes it hard to distinguish which has first priority.

Given these complicating factors, the reader should review Table I-2 with some caution. Despite these caveats, this table nevertheless remains a valuable tool. Indeed, the value of this table is that it attempts to define a difficult, often fluid, area of the law. To the best of my knowledge, no other author has developed a table of this type. Hopefully, the attempt to place clear distinctions between the varying state laws into an easily reviewable table can be a useful tool for those who need to get a sense of the law in a particular state, or of the broader concept of security law. While it may appear that the caveats mentioned above “swallow” the table, the reality is that the chart reflects the difficulty in assessing security law generally. That is, security standards, just like legal standards, are very fact specific. Sometimes facts are difficult to neatly categorize. As a result, security and legal standards are also hard to categorize. This is one of the reasons why books such as this one are useful and necessary. Stated another way, the value of the table (and this book) are that they shed light on difficult and fluid subject matter.

The table includes three general categories: the state, the legal test, and the legal authority. When using the table for litigation or security purposes, please check the case authority and research the law of the state to assess its current legal standard.

Breach of Duty

Breach of duty is characterized by a failure to act or by conduct that falls short of the applicable standard of care. In essence, the actor failed to do what a reasonable and prudent person would do in the circumstance. Alternatively, the actor did something that a reasonable and prudent person would not do in the circumstance.

For example, consider the hypothetical case of a security officer assigned to guard a movie theater. If a fire started in the theater, the security officer would be required to take some affirmative act, such as calling 911, notifying supervisory personnel, or escorting patrons from the facility. If the security officer failed to carry out any such act, this omission would likely be deemed a breach of duty by a court. Alternatively, if the security officer yelled “fire” in the crowded theater and then ran out of the facility, this conduct would also likely be deemed a breach of duty by a court. In either case, there is an affirmative duty to act in a reasonable and prudent manner under the circumstances. The failure to do so may result in the breach of the duty of care.

Generally, in the context of security personnel, the standard of care is based on how a reasonable officer confronted with a similar situation would act. Absent some affirmative misconduct by a security officer, the failure to prevent a criminal act is usually not considered a breach of duty. The key issue is whether the security officer promptly reported the incident, and took other appropriate measures to secure people and property in and around the crime scene. In the context of property or landowners, the standard of care is the duty described in the discussion and in Table I-2. If this duty is not adhered to, it is deemed breached.

The legal term for causation is proximate cause. This element imposes rational limits on liability based on some cogent connection between the conduct and the harm suffered. Generally, the closer the connection between the conduct and the harm (damage), the most likely the conduct will be deemed the proximate cause of the harm. This connection is assessed in terms of time, space or distance, sequence of events, and the like. A typical assessment of causation is through the substantial factor test. In this test, the question is whether the defendant’s conduct (or omission) was a substantial factor of the incident causing (or contributing) the injury or the harm. For example, if a crime would have occurred despite any reasonable security precautions, then the causation element was not satisfied.¹⁰² The question of causation in security cases typically involves two key issues:

2. Even if the offender would not have been deterred, whether certain security measures would have enabled security or police officers to interdict the offender

The damage element stems from the breach and is connected by causation to the harm or injury. In the elements of negligence, the harm or the injury is called damage(s). There are many types of damages and many ways to calculate damages. Types of damage claims include:

a. Mental anguish

b. Emotional distress

c. Pain and suffering

d. Loss of enjoyment

2. Special (economic) damages entail the tangible impact, including:

a. Medical expenses

b. Lost earnings

c. Lost earning capacity (future earnings)

d. Rehabilitative expenses

e. Future medical expenses

3. Exemplary (additional) damages entail supplementary penalties, including:

a. Punitive (for punishment and deterrence)

b. Treble (three times)

4. Wrongful death relates to the damages created by the death of the person

Using this figure as a baseline, the formula requires this amount be multiplied to represent the general (non-economic) damages. This calculation is as follows:

$80,000 (economic damages) × 3 or 5 or 7 (general damages) = Total demand or total value of claim.

Here the intangible aspect is the appropriate multiple to be used in this equation. If the multiple is three (3), then the equation is: $80,000 × 3 = $240,000. If the multiple is five (5), then the equation is: $80,000 × 5 = $400,000. If the multiple is seven (7), then the equation is: $80,000 × 7 = $560,000. The numbers would change depending upon the multiple used in the formula. In this way, the higher the multiple, the higher the recovery. In my experience, it is unusual to obtain a multiple in double digits. While this does occur, it is not very frequent. The key to the amount of the multiple depends on a number of factors, including the negotiation or litigation skills of the attorneys, the sympathy generated by the plaintiff (or lack thereof), the ease of demonstrating liability (or stated in the opposite way—the difficulty in proving liability), the forum where the case was filed, the existence and amount of insurance coverage, and the other factors which are relevant to the particular case.

Finally, if punitive or treble damages are relevant, these would be applied as a separate category. For example, treble damages are three times the total damages. Treble damages are damage provisions derived from specific statutes. They are designed as incentives to increase the likelihood that the statute would not be violated. In essence, treble damage clauses triple the value of the claim. This can be a real motivation in potential litigation.

Punitive damages are designed to punish the bad conduct of the defendant, and act as an example to deter others from similar bad conduct. Two key U.S. Supreme Court cases govern the standard of punitive damages.¹⁰³ These cases provide that punitive damages should be framed within three “guideposts.” These are the degree of reprehensibility, the ratio between compensatory and punitive damages, and of awards in similar cases. These guideposts were summarized by Stamatis and Muhtaris.¹⁰⁴ As to the degree of reprehensibility, it is generally considered the most important indicator. This indicator has great significance in security law claims, as it looks at the defendant’s conduct in light of the following:¹⁰⁵

2. Whether the defendant showed indifference to or reckless disregard for health or safety of others

3. Whether the defendant was involved in repeated acts or omissions

4. Whether the injury or harm was caused by an intentional act, not simply an accident

Whatever the “correct” amount is deemed to be, the key in this regard is to understand the formula used to assess the “value” of these cases. Of course, value does not just equate with money. The damage done to crime victims often is not corrected by money. What is the value of losing a loved one? Can a woman who was brutally raped be adequately compensated? What about the victim of an armed robbery who has to return to work—the scene of the crime—to continue to serve his clients? Can these people be “fixed” by money? Many, if not most, would answer no. Unfortunately, the legal system can do little more for these victims other than to award money damages. Money is intended to make the victim whole. As inadequate as this may be, this is the best that the system can achieve. Of course, the better answer is to prevent the crime from occurring. Hopefully this book will help serve to achieve this goal, even in some small measure.

When considering how to limit crimes by third parties, or at least limit the liability exposure from such, there are three basic approaches: pre-incident assessments, post-incident investigations, and legal defenses and theories. Each approach is distinct. Each approach, however, is interrelated to the others. For example, if there was no pre-incident assessment, then this will affect the post-incident investigation, which in turn relates to the legal defenses and theories tied to the case. Each of these approaches will be presented independently, but keep in mind that they are interrelated. This will become more obvious when the legal defenses and theories are presented.

PRE-INCIDENT ASSESSMENTS

Specific security assessment techniques have been advocated for many decades. In the past few decades, however, the amount of attention paid to this issue has significantly increased. Thompson, for example, has proposed various measures for avoiding liability. These include the following:¹⁰⁷

2. Maintain security personnel training standards and document training sessions.

3. Become familiar with the neighborhood and crime data of the surrounding community.

4. Maintain close working relationships with local police officials.

5. Emphasize that security officers must remain active and visible at all times.

6. Develop comprehensive security plans.

7. Maintain extensive record keeping and documentation of complaints and crimes within the facility.

8. Document every step in the security process.

In general, the desire to manage risk is a baseline goal. Risk management can be defined as a “systematic, analytical process to determine the likelihood that a threat will harm physical assets or individuals and then to identify actions to reduce risk and mitigate the consequences of an attack.”¹⁰⁸ The first aspect of the assessment regards the sources of threats, which can be either internal or external.¹⁰⁹ Sources of threats can be generally categorized as human errors, system failures, natural disasters, and malicious or violent acts. This last threat is the source of the security exposures addressed in this book.

It is important to assess the assets within the organization that are subject to these threats. A typical analysis would categorize assets to include the following broad areas:

2. Money or other liquid capital

3. Information

4. Equipment

5. Finished/unfinished goods

6. Processes

7. Buildings/facilities

8. Intangible assets such as intellectual property

• Uniform Crime Reports (UCR) complied and published by the FBI

• Internal security incidents and crime reports

• Demographic data such as economic conditions, population density and transience, and unemployment rates

• Prior criminal and civil complaints brought against the enterprise

• Data and information from professional associations related to industry specific problems or trends in criminal activity

• Other environmental factors such as climate, site availability, and the presence of “crime magnets”

• Moderate—survivable

• Insignificant—inconsequential

Of course, any threat that results in harm to an employee, customer, or any individual cannot be deemed as insignificant or inconsequential. Even the lowest-paid employee, who may be readily replaced by the pool of prospective employees, is a critical asset in terms of security liability. Indeed, the costs of not protecting the employee may be substantial. These include not only tort-based damages, but also public relations and reputational damages, adverse employee morale, and disruption of operations.¹¹⁵ Consequently, all people on the premises—whether employees, customers, vendors, agents, and possibly even trespassers—must be considered a critical factor in this analysis.

While it is impossible to protect all people at all times, the typical legal standard is to provide reasonable and prudent security methods based on the circumstances. Generally, the level of security methods should be commensurate with the level of risk. The greater the risk of harm, the more security methods deemed necessary. In security parlance, when security methods are implemented, it is termed “mitigation of risk.”¹¹⁶

A more specific threat assessment tool is known as a Predatory Prevention Matrix. This matrix has four components: Policy, Control, Risk, and Phases of Attack.¹¹⁷

2. Control: Once the policies are articulated and implemented, the key here is to show the interaction between the policy and control mechanisms. Stated another way, the goal is to show that the policy was developed and revised. This is shown through the documentation and assessment measures, which include the following:

a. Documentation that explains the nature of the security problem or exposure

b. Measures used to track the problem, such as reports, surveys, audits, and liaison with policing agencies

c. An assessment of how this information is actually used, and a plan for updating the policies and procedures in light of the assessment measures mentioned above

3. Risk: With this component, it is important to show that the policies and documentation were used to determine risk and to attempt to reduce criminal opportunities. In this way, the key is to demonstrate that preventive methods were used to assess and reduce risks, including crime. In order to do this, it is important to use the logic from criminological theories summarized earlier. Specifically, there are three elements of risk:

a. Criminal intent

b. Criminal capacity

c. Opportunity (this is the only controllable factor): The opportunity element of risk is typically broken down further into either random or nonrandom opportunity. In order to reduce liability, the defendant should show the crime was random. Conversely, if the crime was not random, a premeditated opportunity by the offender is implied. If the crime was premeditated (nonrandom), one may infer that the offender took advance notice of the security weaknesses of the environment, and committed the crime at the location because of that weakness.

4. Phases of Attack: An assessment of this helps to determine if the crime was random or premeditated (non-random). There are three phases to an attack:

a. Invitation: This is defined as any situation that prompts a criminal to initiate the crime. Any number of factors, such as poor lighting, broken window(s), lack of security hardware or controls, and even an open door may constitute an invitation.

b. Confrontation: This is anything that makes the invitation less attractive. The logic for considering this factor is based on the fact that if the criminal does not face sufficient confrontation, then the opportunity will not be reduced or removed. Without some level or type of confrontation, it then becomes probable that crime will occur. Here a confrontation can be something as simple as a light turning on (or being on), a security officer (or other “guardian”) turning the corner, or even a locked door.

c. Time: This phase entails a time sequence. If there is sufficient time for security to intervene, then crime was not spontaneous or random. Generally, if all three phases of the attack occur within a few seconds, then it follows that there was insufficient time to prevent the event, making the crime unpreventable and probably spontaneous or random.

In assessing the viability of this matrix in terms of its ability to affect crime decision making, it is important to ask certain questions: Are security policies and methods in place at the property or business? If they are in place, are they fully implemented and assessed? Is there documentation to support the adherence to these policies and methods, along with their continued viability? These questions go to critical principles. For example, simply having a security policy or a security method may not be an effective defense. It must also have been fully implemented and communicated. In addition, the mere existence of security personnel is not an effective defense. Instead, the key is whether the security officers were properly trained and continuously informed, with their feedback considered. These factors must be supported with ongoing documentation.

Most security surveys and risk assessments entail extensive use of checklists. In order to get more sense of the scope of these tools, the following items are typically assessed. Keep in mind that these items are also often assessed in post-incident assessments, because this information is critical in determining whether a property or business owner contributed to a reasonably safe environment.

One key factor in conducting a security survey or risk assessment is to think of the protected property in terms of its threats and corresponding risks to assets within the environment. In order to protect assets from known threats, it is necessary to implement controls to counter the threats. These controls typically are subdivided into three general categories: personnel management, technology and information security, and physical security. Each of these categories has its own set of applicable controls. However, as with other aspects of security, these controls must be integrated into a cohesive mixture of policies, personnel, and technology. This integration is often pictured as “layers” of security. These layers are designed to provide protection for diverse assets against different threats.

When assessing physical security, the goal is to provide layers of security. These layers can be pictured as circles that extend progressively inward from the perimeter of the property. Indeed, as the threats become more lethal, the desire may be to expand the perimeter even beyond the property line. As will be articulated in subsequent chapters of this book, one of the ways that the outer perimeter is being expanded is to employ security personnel and security technologies in the public way. Suffice to state at this point, the more the perimeter is expanded with security controls, the greater the ability to control threats to the protected facility. Hence, think of the perimeter in terms of the classical historical example, where the thick and high walls of the castle were encircled by a mote filled with water and even predatory fish. While this perimeter does little to prevent crime from those who belong within the environment, such as employees, clients, customers, and vendors, it does provide the initial layer of protection for the environment. Consequently, it is often critical to expand the perimeter as far beyond the protected facility as possible, and to control access within this perimeter to only allow people who have a legitimate purpose for entrance.

This perimeter of the property represents the first layer or the large concentric circle. As one moves inward from the perimeter, there should be various security methods used to control access to protected assets. These security methods include security personnel and personnel policies. These aspects will be addressed in other chapters. As to the physical security methods, the following should be inspected. In this inspection, the condition and functionality of each aspect must be thoroughly documented.¹¹⁸

2. Doors/locks have a wide variety of designs and application, including:

a. Combination locks

b. Dead bolts and chains

c. Electronic door contacts

d. Panic bars

e. Card access

f. Peepholes

g. Revolving door/man trap devices

3. Windows—protective and privacy designs include:

a. Glass break detectors

b. Shades/curtains/blinds

c. Bars

d. Shatter resistant coverings

e. Bullet/bomb-resistant glass

4. Cameras and video surveillance systems—including recording procedures and capabilities

5. Lighting—including standards for different areas, such as parking lots and common areas

6. Motion detectors—including infrared, heat-detecting types

7. Metal detectors—including handheld and walk-through models

8. Explosive detectors—including dogs and various technologies

9. Communication devices—including the following:

a. Phones (cell, hardwire, satellite, walkie-talkie)

b. Emergency call-boxes and intercoms

c. Burglary and holdup alarms

d. Door buzzers

e. Pendent devices

f. Central station or control center

10. Access control devices and methods—this entails a climate of watchfulness, including:

a. Guard/reception desk

b. Exterior door controls (piggybacking)

c. Positioning of furniture, aisles, displays, etc.

d. Resistance barriers

e. Height/depth of counters

f. Number of access points

g. Signage (trespassing and other notices)

h. Shrubbery types and placement

i. Natural barriers designed into landscape

j. Jersey barriers and other structural barriers

k. Visitor/patient/client/ escort policies and procedures

l. Identification and badging policies and technologies

11. Assess the adequacy of security personnel, including:

a. Number of guards on staff and on duty during typical shift

b. Background of security personnel and extent of background check

c. Age and physical condition of the security personnel

d. Wage levels of security personnel by rank

e. Nature and scope of training and related documentation

f. Area patrolled plus the frequency of patrols and the functions involved g. Equipment used and carried by security personnel h. Uniform type and condition

POST-INCIDENT ASSESSMENTS

In the event of a crime or other misconduct within the protected facility, it is critical that proactive assessments be part of the response plan. Particularly if the crime is of a violent nature, there is often much confusion and disruption associated with the incident. This can create stress for the organization’s employees, customers, and decision makers. Indeed, the involvement of police, media, and prosecutors is likely to exasperate an already stressful situation. Thus, confusion will typically rule the day. As a result, it is critical that decision makers take an active role in the response. While it is obviously necessary to tend to the needs of the people affected, it is equally vital to consider the effect of the incident on business continuity, organizational morale, and public relations, to name a few key concerns. Unfortunately, even while these issues are being addressed, the liability exposure related to the incident must also be considered.

The extent and scope of the response will depend on the situation at hand. When this response is being considered, it is useful to think in terms of what a jury would see at a trial. Some readers may see this as a rather clinical or even callous view of a response plan, particularly when the incident involves injuries or deaths. However, from my perspective, the sooner one places the matter into a civil liability context, the more professional and appropriate the response is likely to be. This assertion requires further elaboration.

Suppose that a robbery at the business results in the murder of an employee. As tragic as this event is to the employee’s family, friends, and coworkers, it also represents substantial potential for liability exposure. The sooner the event is viewed as a liability, the more likely that rational thinking will prevail over emotion. Granted, it is necessary to accept and endure some measure of emotion and grieving. Emotion is indeed necessary and appropriate for the grieving process. This being said, corporate decision makers must relatively quickly begin to assess the crime from the perspective of a trial.

In this scenario, of course, it is critical that the business work closely with police during the initial and investigative stages of the crime. It is suggested that corporate security personnel, or even security consultants, participate at some level with the police investigation. While the level of cooperation often depends upon the seriousness of the crime and the skill levels of the parties and agencies involved, some basic principles may help guide the response plan.

The first principle is to treat all parties affected by the event with dignity. Obviously, this entails sympathy and care for the injured or the family of those who died. This empathy should be sincere and manifested in personal, humane, and financial ways. It is important to include coworkers, customers, and others who may have been affected by the crime. Showing empathy enhances the sense of dignity for all involved. Empathy can be shown in any number of ways from personal visits to providing food and flowers; giving employees time off from work; paying for medical, rehabilitation, or burial costs; and by genuinely respecting and caring for the needs of those affected. This level of concern should be shown regardless of whether litigation is anticipated or even if it is threatened. In other words, do the right thing not because it may help avoid litigation, but rather simply because it is the right thing to do.

Indeed, even if the incident results in litigation, demonstrating empathy and respect to all those affected is likely to have a positive impact on the jury. The jury will know that the company cared about those affected by the crime. It is not a far stretch to connect this post-incident approach with the attitude taken by the company prior to the crime. In this sense, if you care about people after the crime, a jury will be more willing to accept that you cared about the well being of people prior to the crime. This has a positive effect on both the liability assessment and on the damage phase of the trial.

The second principle is to attend to the dignity of those involved without getting enmeshed in the cause(s) or the blame for the crime. This is particularly relevant to the victim and the family of the victim. It is inevitable that during the trauma and grieving related to the crime, emotions will turn to assign blame for the crime. Company representatives must not get involved in discussions about who was to blame, what “caused” the crime, or how it could or should have been prevented. It is critical to stay away from these issues. However, if some response is impossible to avoid, then the blame for the crime should be placed on the perpetrator of the crime. If this is deemed appropriate, it should be firmly asserted and then dropped. Do not dwell on this issue. Instead, focus the conversation and attention to the needs of the victim, and the well-being of those affected. It is unwise to dwell on the “blame game.” It can be problematic to both the potential for and the implications of future litigation. Consequently, the best practice is to focus on human needs, not human emotions.

The third principle is that the response should mirror the methods and theories of the potential lawsuit. Indeed, whether or not a lawsuit is anticipated, the best practice is to prepare for one as soon as professionally possible. This assertion holds true for the company where the harm occurred as well as for the injured party. Whether the party involved is the potential defendant or the potential plaintiff, I recommend engaging a security expert to investigate and systematize the relevant facts of the incident as soon as possible. This assertion is almost the exact opposite of what is typical. More often than not, both sides typically wait until the last possible moment to engage an expert. Often, the reason for the delay is financial, since both sides do not want to spend money until they have to. The natural human tendency to hope that litigation will not be necessary is often involved. Unfortunately, both justifications are illogical and are generally unrealistic.

The failure to engage an expert immediately after the incident almost inevitably results in a tactical and strategic failure. From a tactical perspective, a prompt and professional response strongly demonstrates that the event is being taken seriously. Ironically, when a party fails to engage professional resources to deal with the situation, this lack of response sends the worst possible message. The other party will read this message either as “you do not care how this occurred” or “you are not willing to prevent this from happening again.” Conversely, the party that responds promptly and professionally, sends a message that speaks from a position of strength: If a lawsuit is filed, the defendant or the plaintiff (depending upon who is initiating the response) will have a decided advantage. This advantage is based on the evidence and analysis that will be in place to defend or prosecute the case.

From a strategic perspective, the collection and analysis of the facts and circumstances immediately following the incident is critical for evidentiary purposes. For example, the more time that passes after the incident, the less value photographs, interviews, and site inspections will be. Indeed, a direct counter to these untimely investigative techniques will inevitably be made. Even if the police use and document these same investigative techniques, the expert will be required to defend his or her opinions when based on such evidentiary material. Of course, experts are often forced to base their opinions on these secondary sources, such as police investigative material. From the perspective of the expert, and of “best evidence” practice as articulated in civil procedure, it is certainly advantageous for experts to base opinions on their own work product and on firsthand observations.¹¹⁹ Consequently, the engagement of the expert immediately following the incident will facilitate the timely collection and documentation of facts and circumstances as they existed at the time of the incident in question, or shortly thereafter.

With these principles articulated, there are numerous investigative or consultative methods that can be addressed. Depending upon the specific facts and circumstances, some of the items that follow may be irrelevant, while others may need to be delved into more extensively. In any case, these items are listed to provide more specific guidance beyond the underlying principles. Included in these techniques are the physical security measures itemized above in the pre-incident assessments. These techniques coupled with the following items should be considered:¹²⁰

1. Conduct title searches of the property (vehicle, real, and personal) involved in the incident. These title searches should also include inquiries into prior ownership and recent transactions, prior criminal incidents, security measures previously used, and any other information related to the property.

2. Collect and analyze police reports and crime information. This entails the following:

a. Police case, arrest, investigative supplementary reports

b. Crime scene sketches and photos

c. Dispatch logs and 911 tapes

d. Copies of witness statements

e. Crime data for the location and surrounding area

f. Police case, arrest, investigative and supplementary reports for prior crimes at this location and similar crimes in the surrounding area

g. Uniform Crime Reports (UCR) for crime data in area

h. Crime reporting and trend analysis through CAP Index or a similar firm

i. Policies and procedures of the company, particularly those relating to security

j. Security incident reports or documents related to prior crimes or complaints of misconduct or security concerns

k. Any other relevant information and data related to the incident

3. Collect newspaper articles related to the incident (headlines or news reports can be excellent and powerful exhibits for a jury)

4. Obtain census data on relevant factors including the following:

a. Unemployment rates

b. Poverty levels

c. Property values, businesses, and locations in the area

d. Demographic makeup of the community

5. Obtain industry/trade journals and periodicals that contain the following:

a. Crime prevention articles

b. Past articles on crimes similar to the incident in question

c. Industry standards for security and crime issues

6. If security personnel were employed at the location, consider evidence of their security practices and standards, such as the following:

a. Hiring policies and practices (including background checks and employment criteria)

b. Training policies and standards (including any related documentation)

c. Personnel file of security officers and supervisors present at the scene

d. Company policies and procedures relating to the administration and operation of the firm (contract security) or of the security department (proprietary security)

e. Post orders and other site-specific security methods (including any related documentation)

f. Time and attendance policies and related documentation g. Crime and incident reporting policies and procedures (including any related documentation) h. Contract and related legal documents (if contract security firm)

i. Bargaining unit agreement and related documents (if unionized employees)

7. Assess whether any building or health code violations or deficiencies are present at the location or have previously been filed at this location

8. Obtain blueprints, surveys, and/or aerial photos of the location

9. Conduct site surveillance, record and note the following:

a. Type and method of security measures used

b. Hours and methods of security posts and patrols

c. Number and appearance of security personnel

d. Relative visibility of security personnel and measures in light of the traffic patterns and frequency of visitors, customers, and employees

e. Presence of loitering teens, suspected gang members, or drug transactions

f. Presence of disorderly conditions such as noisy individuals, loud music, reckless or excessive vehicle use and operations

10. Conduct site inspection, record and note the following:

a. Initial walk-through to gain perspective

b. Photo and/or video record the property and crime scene

c. Consider blind spots, hiding areas, and design features of the property

d. Assess appearance of the property, including presence of graffiti; alcoholic beverage containers; containers and wrappers commonly used for illicit and illegal drugs; broken windows, trash, or other evidence of disorderly conditions

e. Record the activity in adjacent and surrounding areas, including any commercial activity, any disorderly conditions, and the security measures and personnel used (if any)

f. Create site plan and note all relevant features

11. Interview all relevant parties including the property managers and previous owners, reporting and investigating police officers, security officers and supervisor present at time, and any witnesses and the victim(s) (if possible), seeking the following information:

a. The sequences and circumstances of the crime

b. Prior criminal activity

c. Prior security-related complaints

d. Prior security-related incidents

e. Knowledge of any previous lawsuits

f. Information of any changes in security methods or personnel (prior to crime)

g. Information of any changes in security methods or personnel (subsequent to crime)

h. Information relating to former owners, tenants, or businesses at location

i. Any concerns about security or personal observations prior to the crime

12. Interview offender(s) if possible, asking the following questions:

a. Did you act alone or with others (who were the others)?

b. What factors influenced your decision to commit the crime (victim perceived as easy mark, ease of escape, remote or isolated location, site lines, lack of security, or lighting, etc.)?

c. Were you loitering on the premises before crime (how long, who present, where, etc.)?

d. Had you visited the location previously (day, week, month—frequency)?

e. Did you notice any security measures, such as cameras, guards, cash handling, access controls, etc?

f. How long did it take to commit the crime, how long did you think about committing the crime?

g. What is the frequency of crime in the area?

h. Have you committed any previous crimes at that location?

i. Have you committed any similar crime at another location?

j. Is there any other relevant information that would shed light on the incident and the decision to commit the crime at this location?

LEGAL DEFENSES AND THEORIES

This section will complete the analysis related to premises liability or negligent security. As articulated above, the assessment of these claims requires a pre- and post-incident analysis that considers the facts of the case in light of the legal standards used by the relevant state court to determine liability. While there is no perfectly objective way to accomplish this challenging task, the more one can articulate relevant facts to applicable legal tests, the better the chance of a successful litigation. Indeed, the better you understand the legal standards of your state, the more suitable your security methods should be. This interrelationship between the facts, the law, and security methods manifests itself throughout this book. The effective application of these principles and this interrelationship in real life circumstances requires a delicate balance between the art and the science of security law.

In this assessment, the difficult question is how to assess the applicable legal standard in relation to the crime versus the duty of care imposed upon property owners to protect those who are affected by the crime. In legal terms, this is often decided based on the concept of foreseeability. Most people would agree that this is both an objective and subjective consideration. The objective aspect is to use one’s life experiences to determine what a reasonable person would do in any given circumstance. The subjective aspect is the particular bias or “worldview” each person possesses. While the legal system seeks to limit, if not negate, subjective considerations in favor of an objective standard, it is virtually impossible to completely eliminate the bias contained in all people. Indeed, the system tacitly acknowledges the implications of subjective considerations when it allows jury consultants to help litigation attorneys select a jury. Of course, these consultants attempt to populate the jury based on personal characteristics favorable to the particular litigant (either plaintiff or defendant). Further, procedural techniques such as venue and forum can be used to steer the trial toward a particular demographic (e.g., socioeconomic, racial, cultural, etc.) that reflects characteristics of one of the parties to the lawsuit. Finally, jury selection techniques such as pre-emptory challenges and jury questionnaires are also designed to screen juries with actual or potential biases from the trial. In any event, the key here is to understand that the legal system seeks to facilitate objective standards, but it cannot completely eliminate subjective considerations.

This issue of objective versus subjective often becomes relevant in security-related claims, particularly in the application of the legal standard and of legal defenses. In terms of foreseeability, which is a critical component of duty, there are many in urban America who deem crime as a natural result of human interaction. These people often see and hear of crime, particularly in new reports, on a daily basis. To those with this worldview, crime is foreseeable because it is around them every day. In terms of foreseeability, this cuts both ways. Those who see almost all crime as “foreseeable” generally view the use of security methods to counter crime from one of two extreme perspectives. Either they regard security methods as useless (since crime is inevitable) or their demand for them is limitless (in a desperate attempt to control crime). The “proper” amount of security, of course, is somewhere between none and Fort Knox. This determination is at least partly dependent on one’s worldview.

Conversely, there are still people in this country who are “shocked” when a crime occurs on their block or in their work site. These people tend to live their lives with the subjective notion that crime does not happen here. Indeed, crime is something that will “not happen to me.” To these people, crime is the plight of others, typically the downtrodden, the poor, and the lower classes. While it is statistically true that crime, particularly violent and predatory crime, occurs in poor communities at a higher rate than other socioeconomic areas, the threat of crime is not limited to poor areas. Indeed, some criminals target more affluent communities and businesses because the assets are greater and are more commonplace. Consequently, the relationship between worldview and the legal standard of foreseeability must be considered.

This relationship is minimized in civil litigation because the issue of foreseeability is often a legal question for the court. This means the judge may be asked, through either a motion to dismiss or a motion for summary judgment, to assess this question as a matter of law. Hence, each of the legal standards articulated in this chapter can be initially decided by the trial judge. In practice, the trial judge is to assess the facts derived from the lawsuit (such as deposition testimony, affidavits, and documentary evidence) along with the assertions in the complaint in making this determination. This question is most typically determined in the summary judgment stage of the litigation. The standard for summary judgment is whether “any genuine issues of material fact exist.”¹²¹ The court is to rule as a matter of law to determine whether the plaintiff has presented enough evidence to allow the case to go to the jury. This is designed to filter out cases that are not supported by the requisite amount or scope of facts compared to the legal standard in the state. In legal parlance, this is known as “surviving summary judgment.” The key assessment in premises liability or negligent security cases is whether the legal standard of duty—usually through foreseeability—has been demonstrated by the plaintiff. Indeed, it is the plaintiff’s burden to show this.

In theory, the judge makes this determination without personal bias, and in accord with the legal standards established in the state. However, there are dilemmas that arise when one compares theory with practice.

First, as evidenced by the legal standards presented earlier, the application of legal standards is somewhat fluid and artful. It is fluid because courts are still crafting standards to reflect the “public policy” of the state. In this way, the legal standard operates as a baseline for courts to determine when and how business and property owners are liable for the crimes of others. This determination encompasses a myriad of potential factors. Indeed, what constitutes “sound” public policy is a rather nebulous combination of politics, economics, education, urban planning, and a host of other disciplines. In this sense, the worldview and biases of the decision makers are inevitably attached to this policy determination.

The legal standard for liability from crime may be lower in a liberal state. In this mind-set, public policy and legal decision makers would be more inclined to accept the notion that responsibility should be shifted to others who have the financial resources to care for others—particularly innocent victims of a crime. Conversely, in more conservative states, public policy considerations and the applicable legal standard may focus on the notion of personal responsibility and accountability. This may be extended to those victims of crimes, even if they may not have been able to prevent the crime by their own devices. From this point of view, those who have contributed to the occurrence of the crime, through their own negligence or improper decision making, are less apt to find “public policy” reasons to provide them with a legal benefit. Consequently, the appropriate application of legal standards based on public policy considerations is a very difficult assessment, replete with a complicated mixture of sophisticated disciplines and personal and judicial preferences. As will be demonstrated throughout this book, a similar combination of diverse and difficult assessments must be made on the “proper” application of security methods.

Second, the assessment of appropriate legal standards may be ambiguous because these cases are very fact-specific. As with any discipline that is fact-specific, the ability to discern definitive standards is complicated by the mix of facts involved in the assessment. Since facts do not always line up clearly, they are often hard to classify according to a legal standard. By way of example, consider the question of foreseeability. Aside from the different standards used by different states, typically the answer to this question requires the court to consider the number and types of prior crimes, the extent of crime in the larger community, the difficulty involved in preventing the particular crime, the nature of the business, the security methods typical in the particular industry, and numerous other factors. Getting an accurate assessment of all these factors, and then cleanly articulating them into an objective legal standard, is an intellectual challenge for courts and for the legal system.

Going beyond this challenge, another consideration in security cases relates to legal defenses. Legal defenses are factual assertions designed to limit or negate liability. In essence, they are affirmatively pled facts that go to the question of the existence or the amount of liability. In order to have a legal defense available, the defendant would have to plead the specific defense in its answer to the plaintiff’s complaint. The timing of this assertion typically occurs at the filing of the answer, or later in an amended answer. While the procedural requirements of legal defenses are beyond the scope of this book, it is sufficient to understand that legal defenses must be affirmatively pled in order to be applicable. The most common defenses in security-related claims are contributory negligence and assumption of risk.

Contributory negligence is the failure of the plaintiff to exercise due care for his or her own safety. This defense is similar to the duty imposed on the defendant. In each instance, the actor is required to exercise the requisite care as a reasonable and prudent person under the circumstances. As we have seen earlier, the defendant has a duty to the plaintiff based on this standard. In the defense of contributory negligence, the plaintiff has a duty to exercise caution for his or her own safety, as any other reasonable and prudent person is required to do. In this sense, the plaintiff has a duty to protect him or herself. When the plaintiff fails to do so, the defense may be applicable.

In contributory negligence states, if the plaintiff is deemed more than 50 percent negligent, then he or she is barred from recovery. In making this assessment, the difficult question is how to assess the respective degrees of fault. For example, in a litigation resulting from a robbery in an isolated section of a public parking facility, the question of contributory negligence may manifest itself in various ways. In this assessment, the actions or inactions of the plaintiff may be relevant. Did the plaintiff pay attention to the circumstances as he or she approached the vehicle, or was the plaintiff blissfully ignorant of the approaching offender? Did the plaintiff have the vehicle keys ready to enter the vehicle, or was he or she fumbling through pockets and purse compartments for keys? Did the plaintiff ask for an escort from security personnel or parking attendants? Did the plaintiff park in an isolated section of the facility because that was the only spot available, or was it a decision based on the desire to keep the vehicle from being dented by others entering and existing their vehicles? These questions, and may others, illustrate that there is no “clean” way to differentiate, for example, whether the plaintiff may have been 40 percent or 60 percent negligent in any given fact pattern.

With this analysis, the degree of negligence assigned to the plaintiff is then deducted from the jury award. For example, if the jury finds liability totaling $100,000.00, with a finding of 30 percent contributory to the plaintiff, then the award will be reduced by this amount ($100,000 minus $30,000 [30 percent] equals $70,000). In this formula, the finding of contributory negligence of 30 percent acts as a setoff from the total damage award. Remember, if the plaintiff is more than 50 percent negligent (in contributory negligence), there is no setoff, because any degree of negligence beyond 50 percent would negate any recovery by the plaintiff. If, however, the defendant is deemed to be willful and wanton, the plaintiff’s contributory negligence will not be considered, as willful and wanton conduct serves to bar evidence of plaintiff’s negligence.

Closely related to contributory negligence is comparative negligence. Comparative negligence also proportions liability based on respective fault. Unlike contributory negligence, however, there is no cutoff for degrees of negligence beyond 50 percent. Here the damage award is divided based on the degree of fault assigned to the plaintiff. In this way, the plaintiff could be deemed 70 percent negligent and still recover based on this proportional formula ($100,000 recovery minus $70,000 [70 percent] equals $30,000 award).

Another legal defense is known as assumption of risk. In this defense, the court considers whether the plaintiff voluntarily consented to encounter a known risk. Generally, in order to assert an effective defense, three elements must be shown:¹²²

2. Plaintiff appreciated the risk of harm

3. Plaintiff willingly encountered or accepted the risk

Going beyond consideration of these defenses, the final aspect of a security law case requires some assessment of the specific legal tests within the particular jurisdiction. For example, if the case occurred in a state with a totality of the circumstances test, then the plaintiff and the defendant are required to analyze the facts in a broad light. Since this test is designed to take into account all the factors associated with the incident, any and all factors deemed relevant should be assessed. Of course, in this analysis, the plaintiff would seek to emphasize each factor that would make the crime foreseeable and preventable, while the defendant would emphasize factors that appear to make the occurrence of the crime remote, unusual, and unpreventable.

Similarly, in a known aggressor and imminent danger test, the plaintiff would emphasize factors that demonstrate the offender posed a known danger, either by past incidents, verbal threats, criminal history, or even violent propensities. On the other hand, the defendant would seek to show that any threat posed by the offender was unknown, speculative, or unconnected to the crime. In this way, both the plaintiff and the defendant must be prepared to present the facts in accordance with their position. This is so regardless of what legal test is used.

Generally speaking, the plaintiff seeks facts to illustrate that the crime was foreseeable and preventable. The defendant, conversely, seeks facts to illustrate that the crime was not foreseeable and was not preventable. In each case, both parties must be prepared to fully investigate the facts surrounding the incident. Both parties must then articulate and present the facts in light of their respective interests. This, in essence, is the nature of the adversarial system. Depending upon the position one takes of this system, the approach can be viewed as either fortunate or unfortunate.

Regardless of your particular viewpoint, one feature that is not subject to much debate is that crime creates tragic and far-reaching implications in society. The “correct” way to remedy the impact of crime poses extraordinary legal and public policy questions.

There are reasonable people and arguments on both sides of the issue. Some people desire to provide crime victims with the benefits of a liberal system designed to transfer the costs and responsibility of crime prevention to property and business owners. In this way, the costs of increased security methods are then further transferred to customers, clients, and even to insurance carriers. With this mind-set, crime victims should be provided legal remedies. These remedies, in turn, provide the incentive for the property and business owners to institute appropriate security methods. These security methods, in turn, are designed to reduce crime in and around the property or the business. The costs of this increased crime prevention, in turn, are passed on to the customer and client of the property or business. The reduced incidence of crime from these security methods, in turn, results in lower insurance claims, due to the reduction in the number and seriousness of claims. The reduction costs of insurance claims, in turn, results in lower premiums to the property and business owner. In essence, those who share this perspective believe that markets forces will serve to reduce the incidence of crime, without adversely affecting the legal and economic system. This, they would argue, is good public policy!

As evidenced by these contrasting arguments, there are compelling points to be made on both sides of the debate. Notwithstanding the merits of either argument, this book seeks to present the subject of security law in an even-handed, comprehensive manner. Given my background, I tend to be more aware of the need for security than others. Indeed, many in this society have not experienced the effects and implications of crime firsthand. Many, if not most, have not studied the issues surrounding crime and security. As such, I come at this subject with a worldview and bias toward security.

This worldview, however, has been tempered by years of study and thoughtful analysis. In developing my understanding of crime and security, I have tried to deal with the issues and implications involved in a dispassionate, almost clinical manner. My use of the word dispassionate here reflects my efforts to remain impartial about security issues rather than a lack of passion for the subject. In fact, I have a passionate interest in keeping people safe and secure. Nevertheless, the study of crime and security requires the ability to step away from the emotions prompted by the effects of crime on its victims and its implications for society. This clinical understanding of the issues and implications involved in security is the key to dealing with them effectively. This is not to say that the plight of the crime victims does not matter. Nothing could be further from the truth. It is to say, however, that decisions about crime and security should be made with reasoned, prudent analysis—with logic and facts—instead of emotion and fear. As will be made plain in this book, the threat of terrorism only further emphasizes the truth of this assertion. Indeed, terrorism is designed to promote fear and emotional responses. Hopefully, this book will enable the reader, and a future generation of leaders, to effectively deal with the notion of security and crime, including the implications of terrorism.

NOTES

1. Robbins, Stephen P. (2003). Organizational Behavior (10th ed.). Upper Saddle River, NJ: Prentice Hall; and Clifford, Mary (2004). Identifying and Exploring Security Essentials, Upper Saddle River, NJ: Prentice Hall.

2. Pastor, James F. (2003). The Privatization of Police in America: An Analysis and Case Study. Jefferson, NC: McFarland and Company.

3. Oliver, Willard M. (2004). Community-Oriented Policing: A Systematic Approach to Policing (3rd ed.). Upper Saddle River, NJ: Prentice Hall.

4. Pastor op cit. at 33. Also see Nemeth, Charles P. (1989). Private Security and the Law. Cincinnati, OH: Anderson Publishing Company; and Shearing, Clifford D., and Phillip C. Stenning (1983). Private Security: Implications for Social Control. Social Problems 30 (5).

5. Pastor op cit. at 34. Also see Reynolds, Morgan O. (1994). Using the Private Sector to Deter Crime. National Center for Policy Analysis, March; and Benson, Bruce L. (1990). The Enterprise of Law: Justice Without State. San Francisco, CA: Pacific Research Institute for Public Policy.

6. Pastor op cit. at 34. Also see Johnston, Les (1992). The Rebirth of Private Policing. London: Routledge.

7. Reynolds op cit. at 2.

8. Johnston op cit. at 2.

9. Pastor op cit. at 34.

10. Ibid at 34.

11. Pastor op cit. at 34–35; Nemeth op cit. at 2; and Benson op cit. at 12.

12. Pastor op cit. at 35; and Nemeth op cit. at 2.

13. Pastor op cit. at 35.

14. Pastor op cit. at 35; and Nemeth op cit. at 3.

15. Pastor op cit. at 35; and Nemeth op cit. at 3.

16. Pastor op cit. at 36; and Reynolds op cit. at 3.

17. Pastor op cit. at 36; Nemeth op cit. at 3; and Benson op cit. at 74. Also see Warner, Sam Bass (1968). The Private City. Philadelphia: University of Pennsylvania Press.

18. Warner op cit. at 78; and Pastor op cit. at 36. Also see Spitzer, Steven and Andrew T. Scull (1977). Privatization and Capitalist Development: The Case for Private Police. Social Problems 25 (1): pp. 18–28; and Miller, Wilbur R. (1977). Cops and Bobbies: Police Authority in New York and London, 1830–1870. Chicago: University of Chicago Press.

19. Warner op cit. at 80; and Pastor op cit. at 36.

20. Pastor op cit. at 38; and Nemeth op cit. at 6–7.

21. Nemeth op cit at 6–7; and Pastor op cit. at 38.

22. Pastor op cit. at 38; and Spitzer and Scull op cit. at 21.

23. Spitzer and Scull op cit. at 45; and Pastor op cit. at 38.

24. Pastor op cit. at 36; Johnston op cit. at 24; and Miller op cit. at 3.

25. Miller op cit. at 3.

26. Miller op cit. at 3; and Pastor op cit. at 36.

27. Reynolds op cit. at 1; and Pastor op cit. at 68.

28. Reynolds op cit. at 1 and Pastor op cit. at 68.

29. Reynolds op cit. at 1 and Pastor op cit. at 68.

30. Pastor op cit. at 69.

31. Gordon, Corey and William Brill (1996). The Expanding Role of Crime Prevention Through Environmental Design in Premises Liability. National Institute of Justice, April.

32. See Covington, Jeanette and Ralph B. Taylor (1991). Fear of Crime in Urban Residential Neighborhoods: Implication of Between and Within Neighborhood Sources for Current Models. The Sociological Quarterly 32 (2): pp. 231–249; Lewis, Dan A. and Michael G. Maxfield (1980). Fear in the Neighborhoods: An Investigation of the Impact of Crime. Journal of Research in Crime and Delinquency, July, pp. 160–189; and Kelling, George (1995). Reduce Serious Crime by Restoring Order. The American Enterprise, May/June.

33. McLennan, Barbara N., ed. (1970). Crime in Urban Society. London: Cambridge University Press.

34. Cohen, Lawrence E., and Marcus Felson (1979). Social Change and Crime Rate Trends. American Sociological Review 44: pp. 588–607.

35. Felson, Marcus (2002). Crime and Everyday Life. Thousand Oaks, CA: Sage Publications.

36. Gibbs, Jack P. and Maynart L. Erickson (1976). Crime Rates of American Cities in an Ecological Context. American Journal of Sociology 82: pp. 605–620.

37. Jackson, Pamela Irving (1984). Opportunity and Crime: A Function of City Size. Sociology and Social Research 68 (2): pp. 173–193.

38. Lewis and Maxfield op cit. at 187; and Pastor op cit. at 54.

39. Lewis and Maxfield op cit. at 162; and Pastor op cit. at 54.

40. Covington and Taylor op cit. at 232; and Pastor op cit. at 55.

41. Pastor op cit. at 55.

42. Fisher, Bonnie and Jack L. Nasar (1995). Fear Spots in Relation to Micro-level Physical Cues: Exploring the Overlooked. Journal of Research in Crime and Delinquency 32 (2): pp. 214–239.

43. Fisher and Nasar op cit. at 234–235; and Pastor op cit. at 56.

44. Pastor op cit. at 56.

45. Kelling op cit. at 36; and Pastor op cit. at 56.

46. Pastor op cit. at 56.

47. Pastor op cit. at 57. Also see Bazyler, Michael J. (1979). The Duty to Provide Adequate Protection: Landowners’ Liability for Failure to Protect Patrons from Criminal Attack. Arizona Law Review (21): pp. 727–737.

48. Kaplan, Robert (1994). The Coming Anarchy. The Atlantic Monthly, February.

49. Pastor op cit. at 57; and Kelling op cit. at 25. Also see Moore, Mark H., and Robert C. Trojanowicz (1988). Perspectives on Policing: Corporate Strategies for Policing. National Institute of Justice, Office of Justice Programs, November; and Palango, Paul (1998). On the Mean Streets: As the Police Cut Back, Private Cops Are Moving In. MacLeans, 111 (2), January 12; Robinson, Matthew (1997). Why the Good News on Crime. Investor’s Business Daily, April 30; Seamon, Thomas M. (1995). Private Forces for Public Good. Security Management, September; Kolpacki, Thomas A. (1994). Neighborhood Watch: Public/Private Liaison. Security Management, November; Spencer, Suzy (1997). Private Security. Onpatrol.com/cs.pivsec.html; Cox, Steven M. (1990). Policing into the 21st Century. Police Studies 13 (4): pp. 168–177.

50. Pastor op cit. at 58.

51. Pastor op cit. at 58. Also see Chanken, Marcia and Jan Chaiken (1987). Public Policing—Privately Provided. National Institute of Justice, Office of Justice Programs, June; and Cunningham, William C., John J. Strauchs, and Clifford W. Van Meter (1991). Private Security: Patterns and Trends. National Institute of Justice, Office of Justice Programs, August.

52. Kolpacki op cit. at 47; and Pastor op cit. at 58.

53. Pastor op cit. at 58.

54. Ibid at 58–59.

55. Bazyler op cit. at 736–737.

56. Bazyler op cit. at 733. Also see Davey, Caroline L., Andrew B. Wootton, Rachel Cooper, and Mike Press (2005). Design Against Crime: Extending the Reach of Crime Prevention Through Environmental Design. Security Journal 18 (2): pp. 3951; and McKay, Tom (2004). How Are Behavior, Crime and Design Related? Security Management, May.

57. Gordon and Brill op cit. at 5.

58. See for example, McClung v. Wal-Mart, 270 F. 3d 1007 (6th Cir. 2001).

59. Thompson, Michael (1986). Cutting Your Security Risk. Security Management, September.

60. Cunningham et al. op cit. at 1–2; and Pastor op cit. at 42.

61. Cunningham et al. op cit. at 2; and Pastor op cit. at 42.

62. Cunningham et al. op cit. at 2; and Pastor op cit. at 42.

63. Bailin, Paul (2000). Gazing into Security’s Future. Security Management, November.

64. Clifford op cit. at 304; and Pastor op cit. at 42. Also see Zielinski, Mike (1999). Armed and Dangerous: Private Police on the March. Covert Action Quarterly. Caq.com/caq/caq54p.police.html.

65. Perez, Evan (2002). Demand for Security Still Promises Profit. The Wall Street Journal, April 9.

66. National Policy Summit: Building Private Security/Public Policing Partnerships to Prevent and Respond to Terrorism and Public Disorder, Community Oriented Policing Services, U.S. Department of Justice, 2004.

67. Benson, Bruce (1997). Privatization in Criminal Justice. National Institute of Justice, Office of Justice Programs.

68. Zielinski op cit. at 1; and Pastor op cit. at 42.

69. DuCanto, Joseph N. (1999). Establishment of Police and Private Security Liaison. Manuscript presented at the 45th annual seminar of the American Society of Industrial Security, Las Vegas, NV, September 27–30.

70. Perez op cit. at 4; Pastor op cit. at 42–43, and www.securitasgroup.com.

71. Ibid, and www.g4s.com.

72. Bailin op cit. at 12; Cunningham et al. op cit. at 1; and Pastor op cit. at 44.

73. Walinsky, Adam (1993). The Crisis of Public Order. The Atlantic Monthly, July.

74. Walinsky op cit. at 40; and Pastor op cit. at 43.

75. Walinsky op cit. at 40; and Pastor op cit. at 43.

76. Pastor op cit. at 44; and Zielinski op cit. at 1. Also see Carlson, Tucker (1995). Safety Inc.: Private Cops Are There When You Need Them. Policy Review 73, Summer; and Goldberg, Ceil (1994). New Roles for Private Patrols. Security Management, December.

77. Tolchin, Martin (1985). Private Guards Get New Role in Public Law Enforcement. The New York Times, November 29.

78. Walinsky op cit. at 44; and Cunningham et al, op cit. at 2. Also see West, Marty L. (1993). Get a Piece of the Privatization Pie. Security Management, March; and Dilulio, John J. (1995). Ten Facts About Crime. National Institute of Justice, Office of Justice Programs, January 16.

79. Benson, Bruce L. (1990). The Enterprise of Law: Justice Without State. San Francisco, CA: Pacific Research Institute for Public Policy.

80. Goldberg op cit. at 12; and Pastor op cit. at 44.

81. Kolpacki op cit. at 47; and Pastor op cit. at 44.

82. National Policy Summit: Building Private Security/Public Policing Partnerships to Prevent and Respond to Terrorism and Public Disorder, Community Oriented Policing Services, U.S. Department of Justice, 2004.

83. Schramm, Jennifer (2004). Feeling Safe. HR Magazine, May.

84. Taken from Booz-Allen Hamilton website on September 16, 2002 at www. boozallen.com.

85. Security Management (2002) October.

86. Lockwood, Nancy R. (2005). Crisis Management in Today’s Business Environment: HR’s Strategic Role. SHRM Research Quarterly (4).

87. Ibid at 2.

88. Maseda, Mike (2005). How to Ensure You’re Not Courting Workplace Litigation. San Antonio Business Journal, May 30.

89. Ibid.

90. Kaufman, Uri (1990). When Crime Pays: Business Landlords’ Duty to Protect Customers from Criminal Acts Committed on the Premises. South Texas Law Review 31 (89).

91. Bazyler op cit. at 734.

92. Sharp, Rex A. (1987). Paying for the Crimes of Others? Landowner Liability for Crimes on the Premises. South Texas Law Review 29 (11).

93. Bazyler op cit. at 751.

94. See for example, Ali Sameer v. Tahir Butt, 343 Ill. App. 3d 78, 796 N.E. 2d 1063 (2003).

95. Gordon and Brill op cit. at 4–5.

96. Sharp op cit. at 65–66; and Kaufman op cit. at 96.

97. Kaufman op cit. at 114.

98. Sharp op cit. at 65; and Kaufman op cit. at 96–96.

99. Sharp op cit. at 44.

100. See for example, Posecai v. Wal-Mart, 752 So. 2d 762 (1999).

101. This chart adapted from Young, Eric G. (2005). Cause of Action Against Tavern Owners, Restaurants, and Similar Businesses for Injuries Caused to Patrons by the Criminal Acts of Others. WestLaw: Causes of Action Second Series, 26 Causes of Action 2d 1; and from independent research conducted by this author.

102. See for example, Toscano-Lopez v. McDonalds, 193 Cal. App. 3d 495 (1987).

103. State Farm Auto Insurance Co. v. Campbell, 538 U.S. 408 (2003); and BMW of North America v. Gore, 517 U.S. 559 (1996).

104. Stamatis, Peter S. and Alexander T. Muhtaris (2005). Maximizing Punitive Damages. Illinois Bar Journal 93, March.

105. Ibid at 21.

106. Ibid at 21.

107. Thompson op cit. at 47.

108. Homeland Security: Challenges and Strategies in Addressing Short and Long Term National Needs (2001). General Accounting Office, from testimony of Comptroller General David M. Walker, before the Committee on the Budget, U.S. House of Representatives.

109. Ahrens, Sean A. and Marieta B. Oglesby (2006). Levers Against Liability. Security Management, February.

110. ASIS International, General Security Risk Assessment (2003).

111. Homeland Security: Challenges and Strategies in Addressing Short and Long Term National Needs at 8.

112. Ibid at 12; and International Association of Professional Security Consultants (IAPSC) Forensic Methodology, Best Practices #2, June 2000.

113. Ibid at 5.

114. Ibid at 4; and Homeland Security: Challenges and Strategies in Addressing Short and Long Term National Needs at 7–8.

115. Kaufman op cit. at 118.

116. ASIS International, General Security Risk Assessment at 14.

117. Lombardi, John H. (2001). Not Guilty by Reason of Security. Security Management, May.

118. The items in this list were derived from various sources, including Leo, Thomas W. (1994). Site Security. Security Concepts, September; Yeager, Robert (1986). The Failure to Provide Security Handbook, Columbia, MD: Hanrow Press; Residential Security Survey (5/1975), Chicago Police Department, CPD-52.184; and International Association of Professional Security Consultants (IAPSC) Forensic Methodology, Best Practices #2, June 2000.

119. See for example, Federal Rules of Civil Procedure, Rule 703, 28 U.S.C.A.

120. Everett, Peter S. (1998). Direct Examination of Security Experts. Trial, March; Talley, Larry (2000). Using Experts in Premises Cases. Trial, April; and International Association of Professional Security Consultants (IAPSC) Forensic Methodology, Best Practices #2, June 2000.

121. See for example, Nickelson v. Mall of America Company, 593 N.W. 2d 723 (1999).

122. See for example, Clarke v. Broadway Motor Trucks, 372 F. Supp. 1342 (1990).