Keywords

assault; expert; policy; proximate cause; retain; witness

What happened?

A 21-year-old woman walked out of a nightclub for fresh air, and, while seated on the curb between two cars in the parking lot, was assaulted and beaten by unknown and unidentified young men.

Who was being sued, and why?

The named defendants in this lawsuit included the owner of the club, the general manager, and five security officers. The complaint alleged the club and its parking lot was a dangerous place and the security provided was inadequate. The plaintiff further claimed that the security officers were not properly trained or supervised, and on the night she was assaulted, the officers performed their jobs in a negligent manner.

Who was involved?

When did it happen?

About 1:30 a.m. on a Friday morning in August.

How did it happen?

9-1-1 operator #21 opened the switch to a call at 01:38:09 to hear a woman screaming she had been beaten and needed help. “Where are you?” asked the operator. “I’m at the Queen of Clubs in the Petersville Township,” she yelled, then hung up. The call was from a payphone and the operator called that number back. The phone rang numerous times with no answer. The Sheriff Department’s dispatcher was informed and a patrol unit was dispatched to the club, a location well known to patrol officers in that area.

Two Sheriff units pulled into the lot, driving past one security officer walking near the lot’s entrance, wearing a bright yellow jacket with the word “Security” across the back. The units drove the length of the lot toward the front doors of the nightclub and were hailed down by a young woman, later identified as Heidi Aston. Heidi was clearly intoxicated. One deputy got out of his vehicle and asked her if she called 9-1-1. She became verbally abusive and indicated he was stupid for not knowing who really called. She said the caller was in her car. Because of what she said, how she said it, and her general condition, the officer debated whether he should arrest her for public drunkenness or not.

The second deputy stood behind his colleague, ready to assist if necessary. A small number of observers, including two yellow-jacketed security officers, gathered nearby while the flashing red lights on top of the patrol cars signaled to all a problem was at hand. The deputy couldn’t make any sense out of what the intoxicated woman was saying and, in disgust, decided to leave the scene. The two patrol cars left.

While this exchange was taking place, several rows over, the caller, Cindi Marcello, sat crying in the rear seat of Heidi’s car with a battered and swollen face. She told her friends two black men had beaten her, but wouldn’t answer anyone’s questions about more details. Her friend Roberto Juarez sat with her. Everyone had been drinking in celebration of Heidi’s 21st birthday.

Heidi, along with another friend, returned to her car and drove everyone to her house. Roberto thought it was funny how she kept veering slowly to the right and had to sharply correct the car’s direction because she was so “tipsy.” Once there, Cindi got into her own car and drove home.

The next afternoon Cindi went to a nearby emergency room because her eye was swollen. There was nothing they could do except give her some pain pills. She then went to the Sheriff’s station nearest her home and at the counter filed a report. In that process they determined she had been the 9-1-1 caller who hung up earlier that day and asked why she hadn’t made her report when the officers were there. She told them she was too embarrassed.

The official version of what had transpired was now documented, as follows: Cindi stated she decided to leave the nightclub about 1:15 a.m. for some fresh air. She didn’t tell her friends she was going out. When she walked out the club’s front door she saw five security men together talking, all wearing their yellow jackets. She passed them and proceeded at an angle to a row of cars at the edge of the parking lot, nearest the street, where Heidi’s car was parked. The cars in that row bordered and faced the street. The edge of the lot was designated by a curb, behind which laid a grass strip, then a sidewalk, another grass stripgrass, and the street. She sat on this curb between two cars with the grass strip to her back with her feet on the surface of the parking lot. While sitting there she heard what sounded like a zipper being opened and turned around to see, within a foot of her, two young men, one with his hand on the zipper of his pants. They laughed. She told the deputy who was taking her report that she used derogatory language in telling them to get away from her. They left and she continued to sit there looking toward the nightclub. According to her, the two men returned within a few minutes and immediately commenced to strike her with their fists about her face and chest until one told his companion “Okay, she’s had enough,” and the two again left the scene.

Once they left her, she stood up and could see the small group of security men, still standing in a circle about 150 feet away. She didn’t call out or inform them as to what occurred. Rather, she walked toward the center of the mall and found a bank of payphones and dialed 9-1-1. During that call she decided she didn’t want to discuss the matter and hung up, and only now, hours later, wanted to make a formal report.

Shortly thereafter she sought out an attorney who filed a complaint against the nightclub for failing to provide a sufficient level of security to protect its patrons from criminal assaults. I was retained by the law firm representing the nightclub and asked to review all available material to determine whether the club was negligent or not.

Assessment of the plaintiff’s case

When the defense attorney told me the plaintiff’s version of what happened I was immediately suspicious. Why didn’t she report the two men to the security officers who were close by? Or, if she didn’t think their conduct was worth reporting, why not move to a location closer to the security officers? Why didn’t she scream or call for help when being pummeled? Why didn’t she scream for help when the two men left her and point them out as assailants? Why didn’t she run to the security officers and report what had just happened? Why did she call 9-1-1 then hang up? Why didn’t she go to the Sheriff’s vehicles when they came into the lot and report what had happened? She knew they were there, yet she stayed in Heidi’s car.

My task as a security expert is to impartially and objectively assess the facts and arrive at an opinion as to what happened and identify failures, breaches, omissions, or negligence, if they exist, irrespective of which side retains me. If, in my view, this young woman was victimized because of security negligence, I’d tell the defense lawyer. Many times, when retained as a defense expert, I’ve been obliged to say, “You don’t want me on the witness stand as your witness. If the right questions are asked, I’ll answer them and sink the ship.” We would then part ways and the lawyer would go off looking for another expert. Regrettably, “experts” are out there who will say what the attorney wants to hear. Some have that very reputation, as “hired guns.”

In the vast majority of lawsuits that I’ve been engaged with the plaintiff was truly a victim of a crime. The focus isn’t on whether the plaintiff is telling the truth or not, but, rather, was security (or the absence of) the proximate cause of the crime. Indeed, even when defense attorneys and experts suspect some deception, care must be taken so as to not alienate the jury. Example: If a woman claims she was forcibly raped, and there’s a belief she had consensual sex, challenging her could backfire if the jury accepts her story and is sympathetic with her. The lesson here is to accept the story and concentrate on the security-related issues.

In this case, my suspicion was heightened when I read Cindi’s deposition testimony. In that forum, now two years after the incident, her version of what transpired was remarkably different from what she reported to the Sheriff’s Department. She testified that while sitting on the curb she felt a wetness on her back and turned around to see two young black men, one with his penis in hand, urinating on her. What she said and did thereafter was in keeping with her original version. I would consider being urinated upon as an outrageous affront, which would evoke an emotional outburst that could be heard a city block away. But, no, she testified she did not scream or call out for help, but used profanity in telling them to get away and used the “N word” and remained seated on the curb (all wet in urine) until they returned and beat her.

There’s no question Cindi had been beaten, but I was privately convinced it didn’t happen the way she described it. It was pure speculation on my part, but I suspected she had left the club with a man. They got into a car in the lot. While inside the car the man made a proposition that she rejected and as a consequence he ended up striking her several times. I did not, nor could I, share that suspicion with anyone. Heidi, Roberto, and the other friends who all rode in the crowded compact car with Cindi testified in their depositions that they did not smell any urine as they drove home. Not overpowering evidence one way or the other, considering the condition of the celebrants!

Assessment of the security program

Not long after being retained I told the attorney I’d like to meet him at the club, see the area where the assault allegedly occurred (including its relationship and distance to the front door where the security officers were standing), and meet the owner, manager, and security officers. The club didn’t open until 8:00 p.m., so we agreed to meet at 7:00 p.m.

The attorney and I met for the first time. We stood in the lot and visited for five minutes or so and then headed for the entrance to the club. The first person I met was the club’s manager, Sahi Nawar. My heart sank. I had come to learn that many jurors tend to like or dislike—therefore, believe or disbelieve—a witness based on the witness’s appearance. Sahi simply looked sinister. Coal black hair slicked-down, long narrow sideburns, and a goatee. The only thing missing was a scar across his cheek. He was a pleasant and intelligent man, but not warm and fuzzy. We talked about his strategy of always having two men in the lot and two men at the door. The one doorman checked identifications of incoming patrons to ensure they were of age, and the second doorman stamped each patron’s hand with an ultraviolet image after the guest had paid the cover charge. He told me the lot was divided in half, for patrolling purposes, and each man made a continuous oblong loop around his section of the lot.

During this conversation, at the entrance, the owner drove up in his Mercedes. My heart sank a second time. I wondered if the young attorney had the same emotional reactions I was experiencing. Simeon Stoyanov was a surprisingly young-looking 35-year-old who appeared to have stepped out of the pages of GQ Magazine. Simeon was an impeccably dapper, almost regal, and handsome man wearing an impressive diamond ring. Would the jury look kindly upon this king of a roaring nightclub with the liquor flowing and scantily clad girls in crows’ nests gyrating to loud music under the colored lights above the crowd? I was skeptical.

Simeon was also pleasant and articulate. He expressed implicit faith in Sahi—Sahi was in charge and if Sahi said two men were necessary for the protection of patrons in the lot, then he’d pay for two men. One, in his view (and mine) would have been sufficient, but Sahi wanted two.

Later I came to learn the city council had decided to rescind the nightclub’s license because of frequent fighting in the lot, requiring the Sheriff’s Department to spend time and resources unnecessarily. Upon appeal, spearheaded by the club’s corporate attorney (not the attorney selected by the insurance carrier for the defense in this lawsuit), the council issued a new provisional permit on the condition two security officers would always be in the lot. The club was in compliance with the provisional permit.

About this time a few patrons started arriving, although the club was not yet open. One woman, about 30, pulled her station wagon into a stall and patiently sat in the vehicle smoking a cigarette with all the windows up. What was most remarkable about her was the station wagon clearly appeared to be her home. Personal effects, including a tea kettle, were jammed into the interior, blocking all windows except the two front doors and windshield. There must have been a cave burrowed lengthwise for sleeping purposes in the midst of all the belongings. Here she was, ready for an evening out in a nightclub!

While security officers Robert Glassman and Phillip Robledo started to set up their tables at the entrance I was introduced to John “JJ” Jefferson, the head security officer. He was an imposing figure, 6′5″ tall, who only spoke when he answered questions and even then with as few words as possible. I did learn from him, if a patron inside became disruptive or there was a problem, that patron would be escorted to the door. Each officer carried a radio. One of the outside parking lot guards would be informed if someone was being ejected to come to the door and complete the escort to the person’s car.

The last security person I met that night was Robert Jennings, who was the “senior” security officer in the lot on the night the incident occurred. He said the assault, as described by the plaintiff, did not or could not have happened. He was in that portion of the lot closest to the club’s entrance, which included the site of the assault. He was adamant and angry over the lawsuit. A former U.S. Marine, Jennings had been a door host in another nightclub prior to joining the Queen of Clubs. He was a physical fitness buff who exercised with weights on a daily basis, and had a family and a dog. What a consultant won’t learn while talking with witnesses!

I was shown the exact location in the lot where the plaintiff claims she was beaten. I measured the distance at 150 feet from where Glassman and Robledo were stationed. That’s 50 yards, a sand-wedge shot. The incident occurred at 1:30 a.m. when there’s little traffic on the street next to the lot. One could hear the sound of normal conversations at that distance at night, although they couldn’t distinguish the words. Any scream or shout would have caused attention.

In my review of all the documentation and testimony, I determined a policy had been established at the club whereby every noteworthy incident in the lot would be written up in a report, but the policy wasn’t followed.

Among the evidence I reviewed was the testimony of Gretchen Hightower, a former bartender at the club. She stated the security officers drank on the job. She knew because she served them, and Sahi knew they drank. In fact, free drinks were part of the benefit package. A second former bartender said the same thing. They also stated that officers assigned to the lot would come in, leaving the lot unattended, to have a free drink. Sahi and Simeon denied this, claiming both Gretchen and the other ex-bartender had been discharged and it was their way of getting even with the club. Each security officer denied this, stating they were professionals, it was their livelihood, and they knew drinking would interfere with their performance as well as safety in dealing with agitated, aggressive, and intoxicated patrons.

My deposition

There was nothing remarkable about my deposition. The plaintiff’s original attorney had brought in another trial lawyer to assist her. Some attorneys have the skills and talent to try a case, but many don’t. Bringing in that kind of talent meant the attorney’s fee for any award given by the jury would be shared between the attorneys. Usually a plaintiff lawyer gets one-third of an award for their fee for services rendered. The remaining two-thirds goes to the plaintiff, less the expenses, which can be sizeable. For example, the plaintiff had to pay my hourly fee for the time of the deposition. Expert’s fees can run into hundreds of dollars for each session. Some cases may have several experts on each side.

I testified to the following:

Finally, I testified that I did not believe the plaintiff’s version of what happened, and I was of the opinion the security strategy in place at the time of the incident was adequate.

The trial

The trial lasted three weeks. The plaintiff’s case is presented first. When the plaintiff rests (concludes) then the defense calls its witnesses. It should be noted expert witnesses are rarely, if ever, present during a trial. Their only appearance is when called to the witness stand to testify and that’s planned—for example, “Mr. Sennewald, we expect to call you to the stand on Thursday, probably after lunch.”

As the trial progressed I had occasion to talk to the attorney I was working with and he indicated he was not happy with the progress. He sensed the jury didn’t like Sahi or Simeon. Then he told me the shocking news that the plaintiff had impeached (discredit one’s truthfulness) Jennings (the security officer in the lot) on the witness stand. During Jennings deposition he was asked if he had ever been convicted of a crime. Jennings testified he had not. Through their investigative efforts, the plaintiff discovered his conviction for selling drugs (the drug was a steroid used for body building). They knew the answer before the question was asked and Jennings fell into a trap by lying while under oath.

While on the stand I reiterated my earlier deposition testimony and, again, agreed there were operational failures by the club’s staff and there was a need to conduct background investigations of applicants for security positions and felons should not be hired into security positions. Again, I testified I did not believe the plaintiff’s version of what happened. “Well, Mr. Sennewald, if you do not believe my client as to what she testified under oath happened, do you know with certainty, what in fact did happen?”

My only answer could be and was, “No.”

“That’s because you weren’t there, is that correct, Sir?”

“Yes,” I answered. “But Ms. Marcello was there, wasn’t she?”

“And she has told us what happened, hasn’t she?”

“Yes,” I replied.

“Thank you Mr. Sennewald, I have nothing further.”

This skilled cross-examiner left the suggestion in the jury’s mind that his client’s version of what happened was really unassailable; it must be correct! The defense counsel could have risen on a redirect examination to rehabilitate that concluding exchange but chose not to. There are times you simply must stop and trust the jury to grasp some of the subtle differences between fact and fiction, which are invariably present in a trial.

The jury found for the plaintiff and awarded her $18,000. Considering the time and expenses connected with this lengthy litigation, it was but a fraction of what the plaintiff sought. The defense attorney considered that a win. I suspect the two attorneys representing the plaintiff were shocked by the small size of the award, and may have not considered it a professional victory but a financial disaster. I considered it a loss, although it was apparent to me the jury found not for her, but against the club.