Keywords

breach of duty; CCTV; inadequate security; molestation; parking lot

Mullins v. City Library

The plaintiff and her nine-year-old daughter went to the city library, a regular event each week. On the day in question she noted her daughter had been missing for some time. She walked the facility and, not seeing her daughter, she reported her concern to the head librarian. Security for the library was a woman whose task was to patrol the two floors and ensure order, mostly with youngsters using the facility. This security woman was asked to search the entire library for the missing girl. She did, but came up empty-handed. The mother then asked if she had checked the men’s restroom downstairs.

“No,” replied the woman.

“Why not?”

“I can’t go into the men’s room.”

A quick search of that room found the child lying in an enclosed commode, crying. She had been raped on the floor by a teenage boy.

Following that incident the parents filed a civil complaint against the library claiming it lacked adequate security and crimes on premises were foreseeable. That very restroom had a history of vandalism over the preceding month, including a recent incident where feces and been spread on the walls, mirrors, and wash fixtures. Toilets had also been intentionally plugged and obscenities written on the walls. No similar problems occurred in the women’s restroom.

Among other crimes that required the police to respond was the incident when a man was detected crawling on the floor under the reading tables, looking up women’s dresses.

I prepared my report, pointing out that men’s restrooms are known for perverse sexual contacts and conduct, in any environment such as public parks, movie theaters, department stores, and city halls, based on my years as a vice officer in Los Angeles, CA. In my opinion, the youthful clientele of this library was aware the female security officer did not check the men’s room, which made it a safe haven for mischief. A properly trained female security officer would be cognizant of the risks and indeed find a way to include that room in her rounds, such as propping the door open, announcing intent to enter, and, if necessary, obtaining the assistance of the maintenance staff to accompany her. To not regularly check the room was negligence. I opined that some form of assault in that room was foreseeable.

Counsel for the city library filed a motion for dismissal of the complaint on the grounds this unusual and one-of-a-kind assault was simply not foreseeable and therefore there was no breach of duty.

The matter was dismissed.

James v. Silver Discount Stores

It was early evening Christmas Eve. Elva James needed to purchase a star or angel for the very top of her Christmas tree, the final touch for her Christmas decorations. She parked in the lot directly in front of a Silver Discount store and had to walk a short distance to reach the sidewalk and front doors. Considering it was Christmas Eve, there weren’t that many last-minute shoppers. She made her purchase and didn’t notice anyone in the area as she walked back to her car. As she stood next to the driver’s door, she bent her head down and searched her purse for her keys. Once she located the key ring she opened the door and started to get in when “out of nowhere” a man appeared from behind, pushing her in and following close behind. He forced her over the front seat divider and gear shift lever while maintaining a firm grasp of her coat so she couldn’t continue out the passenger side. In this action, he threatened her life if she screamed. He demanded the keys and drove out of the lot with her cowering next to him. She begged him not to hurt her, to please let her go, that he could keep the car, and that her family was waiting at home for her. With a raised voice he told her if she wanted to see her family again, all she had to do was keep quiet and cooperate. She detected alcohol on his breath as he shouted at her.

He turned into a residential area not far from the store where he stopped and three more men entered the car. They were loud and appeared to be intoxicated, laughing and talking about how they just got out of Santa’s sleigh, saying “Ho, Ho, Ho,” and what fun they were having tonight.

She was driven to a remote rural area on the outskirts of town where the driver pulled the car under a large tree. The men stripped her naked and she was gang-raped on the ground.

Following the assault they drove off in her car, leaving her alone in the dark without her clothing. Traumatized and desperate, she stumbled across a large plowed field, ran toward a house with lighted windows, and screamed for help. The residents came out, took her in, and called the police.

She was taken to the emergency room of the nearest hospital for a rape kit, and was clinically medicated and sedated. The hospital contacted her husband, who picked her up after arranging for a relative to come over and stay with their children, because “Mom had been in an accident.” At the suggestion of the police, a locksmith was called to rekey the house.

The next morning the police located her car, but her clothes, purse, the bag with the ornament, and her key ring, which included a key to her house, were never found. The assailants were never identified or located. The plaintiff filed a lawsuit charging that this free-standing big-box store had a duty to provide security for its patrons inside as well as outside the store.

The store countered it had a professional loss prevention/security staff, they were on duty at the very time of the abduction, and therefore, were not remiss or negligent. Indeed, for the Christmas season they hired a local off-duty police officer whose very duties included checking the cars in the parking lot.

My research into the history of police service calls for that store and other businesses up and down the boulevard for one mile in each direction from the defendant store revealed an extraordinary number of crimes in the parking areas in that store lot, specifically, and in the parking areas of neighboring businesses, generally.

Further research disclosed the chief of police of the city in which this store was located had his own “moonlight” guard service, on the side, and had approached the store suggesting they consider using his service to protect the parking lot. The chief actually told the regional loss prevention manager the store was in a high-crime area. They opted not to use the chief’s private security service because they were of the opinion the service was a conflict of interest and was unethical.

I testified the store’s position that the chief’s offer was questionable was understandable, but once advised the area had a growing crime problem, the store should have been prompted to conduct their own crime-rate investigation, and if the chief’s assertion was true, they should have taken extra protective measures to protect both employees and patrons in the lot.

I also testified the entire protection effort was devoted to theft detection inside the store and, despite being warned by the police, no outside security was provided. I also went on record with my opinion that parking lots are inherently prone to crime victimization, especially during the holiday seasons. I pointed out the only checking of the lot by the police officer was when he took his cigarette breaks and stood with his back against the building looking out toward the parked cars, meaning he never went out into the lot and was never seen in the lot, therefore there was no crime deterrent value while he smoked on the sidewalk. In my opinion, the lot was not properly protected.

The matter settled favorably for the plaintiff.

Holloman v. American Gas Stations

The plaintiff is an elderly woman who lived in a mobile-home park with her daughter. Early one morning she told her daughter she was out of cigarettes and was going to walk over to the gas station and purchase a pack. Her daughter told her it was still dark outside, so she couldn’t go. The older woman slipped away while her daughter was preoccupied, walked to a major intersection, and crossed the street to the gas station. In front of the building on one corner she noted a man slumped on the bus bench. It was barely dawn. As she passed behind him he got up from the bench and jumped on her back, forcing her to fall on the macadam surface of the gas station. While in that hunched-over position, with the woman pinned underneath him, he pulled both of her eyes from their sockets.

The driver of an 18-wheeler saw the man jump on the woman and brought his big rig to a bouncing stop, grabbed the rubber hammer he used to test his tires, and pursued the assailant. He saw the assailant run into a fast-food restaurant and caught him in the men’s restroom washing blood from his hands.

The gas station was open for business, but the attendant was tilted back in a wooden chair, asleep, and missed the event. The family sued the station for inadequate security.

The plaintiff’s security expert did a statistical crime analysis of all known crimes reported to the police in that specific jurisdiction and compared them to the surrounding jurisdictions. This particular district, a mostly commercial area, ranked in the upper 20th percentile—that is,a relatively high risk for crime.

He pointed out the station had no CCTV cameras or alarm systems and never deployed a guard on their property, all of which would have been reasonable in view of the area in which it was located, and therefore the level of security was insufficient and inadequate.

I acknowledged the area was prone to crime, but for a gas station that only sold gasoline, batteries, and other small sundry items, located on a large busy corner, it did not need a guard, cameras, or central station alarm equipment. Such a security strategy was both economically unfeasible and unreasonable. No other gas station in the city had such security.

The plaintiff’s security expert was particularly critical of the station employee who was seated inside the station facing the incident, allegedly asleep. He suggested the man wasn’t sleeping, but rather was afraid to intervene. I privately agreed with that notion. This employee seemed shifty.

I personally interviewed the owner of the station who had an excellent command of the English language and was bright. However, when he appeared in court to testify he requested an interpreter because English was not his first language, and every question to him, as well as his responses to those questions, had to be interpreted. He appeared evasive and, again, shifty. To this day I’m convinced the jury did not like or trust him or his brother-in-law, the station attendant.

The jury found for the plaintiff.

Jones v. Highlight Casino and Hotel

Friday nights were “family pizza night” in Dominic’s, one of the restaurants in the Highlight Casino and Hotel complex. The weekly plan for the Jones family was to enjoy a pizza dinner at the casino. The Jones family included three children: 11-year-old Tommy, 10-year-old Greta, and 7-year-old Teri.

Following dinner, the parents would go into the casino proper, where children are not allowed, and the kids would go to the children’s amusement arcade, each with $10 to play the various games of their individual choice. Each of the kids had their favorite machines. Invariably, they split up. Tommy was supposed to “keep an eye” on his sisters. Between games, he would periodically wander the building to see that they were okay.

The arcade was in a separate building situated between the casino and the two-story hotel complex. The entrance to the arcade was approximately 150 feet from the casino’s side door leading to Dominic’s. There was a second arcade door, mainly used as an exit, which led toward the swimming pool surrounded by a lawn in the center of the hotel. Casino guests parked their cars around the arcade and across the street in the parking ramp. Hotel guests parked their cars around the exterior of the horseshoe-shaped hotel building.

The arcade’s interior layout was unusual in that it was like a large house with various rooms, as opposed to being one large hall. Tommy, when he did his infrequent checks on his sisters, had to weave in and out of various rooms.

About an hour and a half after the children entered the arcade, well after sunset, Tommy found Teri near the entrance door, disheveled and quietly crying. He noticed the back of her dress was dirty, with some leaves clinging to the material. She had a crumbled-up $5 bill in her hand. He asked her what was wrong and how she got so dirty. She said a “nasty” man had taken her outside, made her lay down on the ground, and got on top of her.

Tommy took her arm and led her through the casino side door, past Dominic’s, to the gaming floor where he saw a uniformed security officer, and told him his sister had been hurt by a man and asked the guard to page his parents.

The parents were horrified when they saw their daughter and obtained her story. Teri said she ran out of money and, while she was looking at a machine, a man came along and asked her why she wasn’t playing. She told him she had no more money. He put in a coin so she could play a game, and then said he needed help to unload some groceries from the trunk of his car to take up to his hotel room. He offered her $5 to help him. Teri jumped at the chance to get the extra money so she could continue playing and agreed.

She followed him out of the arcade through the rear exit, across part of the lawn to the west wing of the hotel, and to the single row of parked cars facing the hotel. Midway down the line of cars he took her arm and pulled her across the narrow driveway to the complex property line designated by a long row of trees. By now it was dark outside and there were no lights along the tree line. Teri became alarmed and tried to pull away. When she started to cry the man said, “I know your family and I’ll kill them if you don’t do as I say. You want them to die?” He put her on the ground, got down on his knees, put his hand inside her underwear, and then climbed on top of her. She told her mother he “bounced on her.” The police were contacted and one of the responding officers was a female detective. Teri was so emotionally stunned that every bit of information had to be coaxed from her by the detective and her mother. She was so traumatized she didn’t want to talk.

Teri was immediately taken to the hospital where it was determined there had been no sexual penetration, but semen was collected from her clothing. She was sedated and the family went home.

A lawsuit was promptly filed against the Highlight Casino and Hotel for failure to provide an adequate level of security to protect children in an environment established just for them, knowing full well child molesters and pedophiles were known to haunt such places. I was retained to represent the child and her parents.

Examination of the security officer schedules revealed no officer was assigned to the arcade. Numerous officers were assigned to various sections of the casino, parking ramp, hotel complex, and casino cashiering operation, but the arcade was not included in the protection program, except for the deployment of cameras, which did indeed provide full coverage of that operation. The camera system was not manned, but rather memorialized all activity for postevent review, or the system could be manned live if an event was suspected.

A review of all the videotapes for the period of time confirmed the girl’s story of being approached by a man and engaging in conversation with him. By patching together the videotapes from several cameras, one could see the child following the man through the arcade and out the exit. Twenty-three minutes later she was seen reentering the arcade and standing near the doors.

The casino contended the arcade employees were charged with overseeing the children and there was no indication the assailant was engaged in any suspicious behavior. However, my review of the videotapes revealed the culprit walked through the arcade several times, often stopping to watch the girls, then continue out, only to reenter after a lapse of 15–25 minutes. Clearly, his focus was on young girls, but the two arcade employees were occupied with the business of making change and keeping the games functional to notice.

Videotapes also confirmed that no security officer was in the building except when escorting money from the main casino to the cashier’s back office that happened to be in the arcade building. That office was a secured cash-counting room and no security officer was assigned there. Once the funds were taken into that room the security officer would exit the arcade, returning to his or her assignment back inside the main casino.

In my mind, all such findings established the fact the arcade failed to provide adequate security for children who were “parked there” while their parents gambled. I was also critical of the training of security officers in general and the arcade employees specifically, as mandated by a new county code. This code, enacted after the sexual assault and murder of a girl in a hotel–casino operation in another part of the state, required the chief of security to hold child molestation awareness sessions and document that training in terms of the date, time, and trainer in each employee’s personnel file. Examination of the personnel files disclosed only a handful of officers were so “trained” by the chief himself, and then, for some unknown reason, the training program stopped.

Whereas I was critical of the security department’s failure to provide adequate security for the arcade, I did credit them with their investigative success in identifying the assailant. The video image of the man leading Teri out of the arcade was the same man on another video where he was standing at the register with his wife while paying for their meal with a credit card. That transaction revealed the man’s name. A guest was registered in the hotel with the same name. The police were advised, and they determined the man was on parole for a similar offense. The man was arrested and admitted his involvement with the child.

Following my sworn testimony in deposition, the matter settled.

Franchetti v. Sunset Hotel Casino

Virginia Higgins and her boyfriend, Ricky Christman, had originally been attracted to the glitzy lights and excitement of the big hotel casinos. Being on a limited budget, they took up residency in a cheap motel. Virginia was unsuccessful in her attempts to get a job in one the big hotels’ chorus lines, despite her attractiveness. She had to settle for a job as a cocktail waitress. Ricky was lazy, almost too lazy to shoplift, but he did provide some income from peddling his stolen merchandise. The two regularly used cocaine, and the cost of that habit severely restricted the lifestyle they felt they were entitled to in a city in which everyone seemed to have an abundance of money.

Virginia could make good tips but couldn’t hold down a job because she was unreliable. Each day of unemployment, coupled with the ever-demanding need for drugs, seemed like a neverending downward spiral. Their financially cramped life went from bad to worse when Ricky’s long-time friend Gary Graham was released on parole and moved in with them. The three shared one car, but they couldn’t afford the insurance.

While the three lounged in the motel room, filled with cigarette smoke, Gary had an idea. What if Virginia could entice high-rollers to leave the casino with the understood expectation of having sex? It seemed like a reasonable plan to have her entice well-heeled, well-groomed gentlemen to join her in her “apartment” for an evening of fun. Her task was to lead the “trick” to their car parked in a dark section of the parking lot, where her two accomplices would be waiting. Once out in the parking lot, Ricky and Gary would “roll” the man, relieving him of his wallet and jewelry. Ricky had a gun, but it was agreed no one would get hurt; the gun would be used to scare the victim and get his immediate compliance and cooperation. This was a variation of the old-fashioned “paddy hustle,” in which the victim’s clothing would be quietly searched and valuables removed by an accomplice during the act of intercourse. In this plan, no sex was going to occur. This would be an out-and-out simple robbery.

Now, solicitation in casino environments wasn’t a novel or original scheme. The beauty of their plan was Virginia didn’t look or dress like a classic hooker and the vice cops didn’t know her because she had no record in town. She had to be cautious not to hit on a vice officer, but that wasn’t a problem because the target for their operation would always be a well-dressed man, typically with expensive clothing, shoes, and jewelry. Vice cops could dress nicely, but not to the level of the model they had in mind. Indeed, it seemed the plan was flawless. Why not try it that night?

Virginia changed from her sweats into her nicest outfit and the three drove to the Sunset Hotel Casino, a huge complex, where they found the darkest lot on the side of the building leading to the receiving docks. Most patrons chose to park closer to the various major entrances, so this location was remote. Virginia entered while the men settled back in the car with a six pack of beer to pass time.

Virginia walked around the various bars where patrons were playing video poker, sizing-up their appearance. She spotted a man later identified as Tony Franchetti, a local. Tony was in his mid-50s, overweight, slightly balding, and very well-dressed. He was wearing diamond rings on both hands. Virginia sat down and then intentionally dropped her coins on the bar and floor, letting out a little scream as she did so. Tony immediately helped her retrieve her money. She thanked him graciously and told him how glad she was that he was there and not someone else who may have kept some of her coins.

The conversation was warm and genuine. Tony enjoyed her company as they played. When Virginia ran out of coins, she said it wasn’t her lucky night and she had to go.

“Wait, wait,” said Tony, “take these and keep playing. Four aces are right around the corner for you.”

At first she declined his generous offer, but he insisted. Virginia told Tony how nice he was, how nice he looked, and asked if he was with anyone that night. The conversation led to her inviting Tony to her apartment. He accepted. They left the casino. On the way to the car, Tony expressed surprise that Virginia would park in this area, suggesting he was becoming wary, but the two arrived at the car, as planned.

Both Ricky and Gary appeared and demanded Tony’s money and jewelry. Tony was squeezed between the two on the side of the car and he reacted violently, pushing Gary to the pavement. Ricky panicked and shot Tony three times. Now all three were in a state of panic, and they jumped into the car and left the scene without so much as searching their victim for his money clip or wallet.

Tony Franchetti, a married man with four children and a successful real estate broker in the community, died on the dirty asphalt surface of the parking lot.

His surviving family filed a lawsuit against the hotel casino for inadequate security of the parking lots, which was a breach of duty because crime in parking lots was a known risk. I was retained by counsel representing the plaintiff.

The focus of my research was directed toward the frequency of criminal incidents in the parking areas of the complex, and the hotel’s security strategy to provide adequate and reasonable protection for vehicles and patrons in those lots and ramps.

I concluded that the one officer dedicated to the exterior of the property for the purpose of patrolling all parking areas was inadequate—that is, with too much parking acreage and too many vehicles in a diversified pattern, one officer couldn’t do the job alone.

I learned that one officer, assigned to the rear doors and dock, walked across the lot where this shooting occurred before the incident. He noted beer bottles on the pavement, one beer bottle sitting on the roof of a vehicle, and a young man seated on the hood of that vehicle drinking beer. Despite what he observed, he did not investigate or ask the young man what he was doing. He ignored this scene and continued on his way because parking lot problems were not part of his assignment. I told the jury if this officer had been properly trained he would have approached the young man sitting on the hood of the car and at least asked what he was doing, and why the bottles were scattered on the pavement. Had he done so, it could have scared off or otherwise spoiled the plan that was unfolding.

The expert for the hotel said he felt one exterior patrol was sufficient and drinking in public was legal in the state, as well as common practice, and to challenge and/or scold patrons was not the way the hotel and gaming industry operated.

The jury found for the hotel.

Chetikoff v. City Bowl

Edie Chetikoff and her husband, Ben, arrived at the parking lot with City Bowl on one end and K-Mart on the other, shortly before 5:00 p.m. They bowled every Thursday night in the Buck County League. League bowling started at 6:00 p.m. Both were wearing their bowling shirts, and they arrived early to warm-up and visit with long-time friends.

The bowling alley’s front doors didn’t face the street but, rather, faced the lot, in the direction of K-Mart, which faced the street. As they started toward the wide glass entry, Edie stopped and told Ben to go on in, that she wanted to run over to K-Mart to get a couple cartons of cigarettes. She’d meet him inside in a few minutes. Ben went ahead and Edie reversed her direction and walked over to the store.

It wasn’t really dark yet, although the lot lights had come on, when Edie, with her purse in one hand and the sack containing cigarettes in the other, was heading back to the bowling alley. She was about a 150 feet from the entrance when suddenly and violently she felt her purse and arm being jerked by a young man. The sudden pulling caused her to fall and hit the parking lot surface where she broke her elbow and hip. The young man, running full speed and carrying the purse, disappeared among the autos parked in the lot. Edie shouted and tried to point in his direction but didn’t see anyone chase the purse snatcher.

Someone called 9-1-1, and the police and an ambulance responded. Ben was summoned from the bowling alley and he ran to the lot still wearing his bowling shoes. Edie was taken to the hospital. While being placed on the gurney, a uniformed officer appeared among the spectators, and Ben asked him who he worked for.

“The bowling alley,” responded the officer.

“Well,” responded Ben, “where were you?” The officer then vanished from the somewhat hectic scene.

A lawsuit was filed against the bowling alley for inadequate security. Had the uniformed guard been at the front of City Bowl, as required, the purse snatcher would never have attacked Edie.

I was retained by the defense attorney to evaluate the incident and determine if the security was adequate or not. The primary focus of this evaluation had to do with the use and deployment of security personnel. The plaintiff’s position was the guard wasn’t on his post, which was right in front of the entrance to the bowling alley, and indeed he was not there.

I determined the schedule and assignment was as follows: Officer #1 reported for duty at 5:00 p.m. For the first half hour he was to station himself in front of the entrance, either out in the lot near the building, on the wide “porch” in front of the double glass doors, or just inside the glass doors. If requested, he would leave this area and assist or perform whatever he was asked. At about 5:30 p.m., he would conduct an exterior patrol around the entire building, returning to the front for another half hour. At about 9:30 p.m. he took a 30-minute break and was not relieved. At 10:00 p.m. he relieved Officer #2 for his 30-minute break.

Officer #2 reported for duty at 5:30 p.m., and his entire shift was devoted to the interior of the bowling alley, which included the inner lobby and desk area, arcade, cocktail lounge, dining room, and kitchen, checking the inner exterior doors and responding as required. At 9:30 p.m. he would go outside and relieve the officer assigned out there for 30 minutes.

A check of the daily reports and time cards revealed Officer #1 on the day of the incident had clocked-in at 5:03 p.m. Examination of months of time cards reflected a variation from 4:52 p.m. to 5:20 p.m. Examination of the daily security activity reports revealed there were times the first officer was called to attend to a task, such as overseeing the delivery door while it was open for a late delivery, immediately upon reporting for work, resulting in no security presence at the front.

The 9-1-1 record reflected the call was received at 5:09 p.m. During the deposition of Officer #1, the plaintiff’s attorney, an aggressive and rather unpleasant man, determined the officer went to the bathroom immediately after clocking in.

I viewed the protection strategy as adequate. In fact, I thought it was most sufficient considering the nature of the business and the area of the county. And, in my opinion, the officer’s presence or absence wasn’t a factor in the crime. He wasn’t assigned there for any specific task—it was only a starting point for the night’s shift, and records established that.

During my deposition I felt the attorney for the plaintiff was “over the top” in his angry demeanor. I was there as an expert on security, and my evaluation was not to make a case in favor of the bowling alley, but simply present my opinion. Typically, attorneys on both sides are not happy with the opposite side’s expert.

I testified the officer’s presence or absence at that exact location wasn’t a factor; even if he had been in front of building the event could have occurred, since he could have been inside, facing the opposite direction, or engaged in conversation. My conclusion was there was no liability. Nonetheless, the attorney hammered away at the issue, and got onto the fact the officer said he went into the restroom right after reporting for work. For some reason he was intent on this bathroom story and apparently didn’t believe it.

I told him, “Mr. Sawyer, there are times when we all experience the need to go to the bathroom and go right now!”

He responded, “Not me. I was trained to hold it when I was in the military.”

I said, “I can tell.”

He literally jumped to his feet as though ready to punch me, and I too jumped up from my chair ready to engage if necessary. The attorney I was serving jumped to her feet to smooth the ruffled feathers and we all sat down and proceeded.

This case went to trial. Mr. Sawyer behaved nicely in front of the jury. The jury found for the bowling alley.