Keywords

answer to the complaint; arson; insurance; letter of demand; patrol

Castenada v. American Avocado Growers

Eduardo Castenda was one of thousands of undocumented Mexican and Central American immigrants within 60 miles of the U.S. border, taking any kind of day-labor jobs he could find, and sending the bulk of his earnings back home to his wife and child in central Mexico.

As is common, these undocumented immigrants find each other and come together in small groups living in overly crowded houses rented by legal Mexican immigrants or, more often, camping in remote mountainous and rocky terrain, out of sight of busy highways and urban and suburban communities. They can be seen at the end of the day carrying plastic grocery bags containing beer and basic food supplies, disappearing into the dense countryside, heading for “home,” a campsite without clean running water, power, or basic sanitation. Sometimes an immigrant woman or two share the camp. These people work in the dirt and sleep in the dirt, and their appearance gives them away as illegal day laborers.

Besides the natural need for companionship, these people come together for security purposes. Every day they can land a job is payday, in U.S. currency, and it accumulates fast before they can convert the cash into a money order and get it mailed off to Mexico. Safety in numbers is a survival strategy. Lone workers, even in the middle of the day, are frequently robbed by fellow immigrants. In the camps, each member of that community has a “secret” place he or she hides his or her money.

After several weeks in the United States, Eduardo made friends with three young men from his hometown, a natural common bond. The four of them moved away from an established camp and found a remote avocado grove that could only be reached by a rough dirt road almost a half-mile from any paved street. Each of the young men had an old bicycle to access the grove as well as to get to work. If selected to work for the day with some local rancher or party in need of labor, the employer-for-the-day would throw their bikes into the back of his or her truck and off they’d go.

The grove had no power but did have irrigation piping that they tapped into, illegally, for fresh water. So housekeeping was set up on trespassed land.

The four, when not working as day laborers, constructed a “house” comprised of pieces of heavy cardboard cartons, sheets of corrugated tin, plastic and vinyl sheets, and plywood and other wood scraps salvaged from the surrounding areas. It even had a padlock to secure the door on the outside when they weren’t home, and the same lock was used on the inside when they slept at night. It was a pretty flimsy arrangement but it provided some protection against the rain and cold nights and provided each man with his own space.

No other undocumented immigrants knew of this new camp, nor did local residents who lived on the far side of the grove.

One Saturday morning Eduardo and one companion rode close to town, hid their bikes in the bushes, and walked to the local weekend swap meet. While browsing through the various vendor’s wares and booths, they met two fellow countrymen from their hometown in Mexico, who, according to them, had been in the general area a couple of years. They were sharply dressed, well groomed, wearing new lizard-skin cowboy boots and white hats, and had nicely trimmed black moustaches. There was much back-slapping and handshaking between the four, despite the sharp contrast between the appearance of Eduardo and his friend compared to the other men.

After visiting and sharing stories and news from home, Carlos, the apparent leader of the two, said he had a nice car and asked Eduardo and his friend if they would like a ride home. Eduardo was proud to show off his camp and the four drove to the edge of the paved road and walked the rest of the way into the grove. Carlos was most complimentary over the “house” and site selection. They all had a shot of tequila as they sat under the avocado trees, then returned toward town, where Carlos dropped off the two to retrieve their bicycles. They all agreed to meet again at the swap meet around noon the next Saturday.

The chance meeting was a pleasant surprise and all four sat around the fire that evening and talked about home and some of the news they had learned that day. Around midnight, the door of the little shack burst open with a deafening crash, when kicked in by the largest of four dark figures, indistinguishable because of the total darkness of the location, and the sleepers were immediately attacked, beaten, and stabbed. The entire shack was destroyed and collapsed, and the money of each laborer was either found or was given up by its beaten owner.

Eduardo was stabbed in the skull. The knife remained lodged in his head with the handle protruding.

The least injured man ran wildly through the grove where he knew he could locate a house and seek help.

Nearby residents were awakened, and they called the police. There was difficulty in finding the site of the crime. When the police were guided there, they radioed for an air medevac to get Eduardo to the hospital’s emergency room and trauma team. Eduardo was in intensive care for weeks, but he survived.

Once released, Eduardo obtained the services of a Mexican-American attorney in town whose practice was exclusively for the Mexican community. On Eduardo’s behalf, he filed a lawsuit against the owners of the avocado grove, as well as the contractor who managed the grove. Their complaint alleged the management company’s grove supervisor knew they were living there and was collecting rent from the four, under the table. Therefore, as lawful tenants who paid their rent regularly, they were not trespassers, and they were entitled to a reasonable level of security, but none was provided. They also alleged the grove should have been enclosed by cyclone fencing to keep intruders out and some lighting should have been provided inside the grove.

I was retained by the law firm representing the owner of the grove and the grove management company.

The plaintiff retained an expert, a security consultant I knew, who inspected the property the same day I was there. We greeted each other but otherwise did not discuss the matter. I suspect he was as appalled by the filth of the campsite as I was. Trash littered the area and no one location was designated for latrine purposes. I understood he had already formed his opinion and was in agreement with the plaintiff’s theory of liability.

The grove manager, a legal Mexican immigrant, had quit his job prior to the incident and could not be located. In my view, even if he could have been found and even if he admitted collecting (or extorting) “rent,” he was not acting within the scope of his employment, and he was not empowered to charge or collect rent, and there was no duty owed to the trespassers.

For comparison purposes I surveyed the many avocado groves for miles around and only a fraction were enclosed with fencing. None had lights inside the grove.

I testified in deposition as to my opinion about the grove manager’s role, if indeed it was true, as well as my findings of comparable properties, and opined there was no duty to provide security nor was there a breach of duty.

Based on the opinions and the summary of the case, the defense filed a motion for summary judgment and the court dismissed the case.

Hunt v. J. J. Stores

J.J. Stores was a five-and-dime. They normally did not have a security employee, but they did hire a part-time off-duty policeman during the holidays. Two days before Christmas, Mr. and Mrs. Hunt, quite elderly senior citizens, went to the store, more for something to do than to actually shop. Mrs. Hunt had all her faculties, but her husband was showing signs of dementia. He followed her wherever she went, and on this occasion was following her as she wandered through the store. Officer Howard Cones was on duty as security for the store and noticed the couple. He decided to follow them because the old man put his hands on everything. In the children’s department he observed the old man take a boy’s belt from a rack and stick it under his sweater. Mrs. Hunt was unaware of what her husband had done. They eventually left the store with Cones in pursuit.

Out on the crowded sidewalk, Cones made the decision to retrieve the belt before stopping them and identifying himself. From behind Mr. Hunt he reached over the man’s shoulder and into the partially buttoned cardigan sweater and pulled out the belt. Mr. Hunt cried out in surprise, which caused Mrs. Hunt to immediately turn around and see a stranger in a brown sweater, Cones, with his arm draped over her husband’s shoulder. Thinking the man was a robber, she whirled about, reached over her husband, and scratched the officer’s face.

Mr. Hunt was arrested on the scene for shoplifting and his wife was arrested for felonious assault of a police officer, a serious crime. They were handcuffed and marched to the basement of the store to the security office and then rehandcuffed to a pipe about shoulder high.

Common practice in the city mandated the issuance of a citation for the minor crime of shoplifting and prompt release. People weren’t taken to jail anymore unless the charge was considered a felony. However, Cones was upset with being scratched and called his station requesting a unit be dispatched to the store to transport his prisoners and book them into the city jail. Because it was a busy season, no police unit could make it to the store for over three hours.

The district attorney’s office recommended to the court the dismissal of the criminal charges “in the interest of justice” considering the advanced age of the offenders and the value of the boy’s belt.

I was retained by the attorney representing the couple in the civil action for unlawful and excessive use of force. The attorney said he was working hard to get a trial as quickly as possible because Mr. Hunt was nearing the end of his life. Before the trial could be set, Mr. Hunt died.

As an expert in shoplifting, I considered Cones’ handling of this incident outrageous, in terms of his recovering the belt, chaining older people to a pipe for three hours, locking them up, and filing a felonious assault on the wife.

The trial was subsequently set. As it approached, the attorney was worried Mrs. Hunt too would pass away and that would end the case (my case too, because I was prepared to inform the jury how badly this whole matter had been handled and how the police department, if they wanted their officers to work shoplifting, should provide some training). The attorney also said his client was becoming very difficult to deal with. Mrs. Hunt was especially cranky and was getting reluctant to proceed with the trial.

At the end of the first day of trial, the attorney phoned me with an incredulous story. He told me that in the morning, during the selection of the jury, Mrs. Hunt, who was seated at the counsel table with him, said in a clear, loud voice, “I don’t want no blacks on my jury!” The African-American judge and the two African-American jurors already seated in the jury box didn’t blink, but everyone knew this was a “fatal” remark. The full jury was quickly seated and the trial process beat all-time records. The matter was decided, in favor of J. J. Stores, before the day was over. The attorney called it the most accelerated trial in the state’s history, short of hanging horse thieves in the last century.

That concluded my expert witness assignment.

Jackson v. National Discounters

“Sonny” Jackson only caught the loss prevention agent’s attention because of his size. This was a large man indeed. Agent Bud Hovley thought he might be a professional football player, a lineman perhaps, as he followed the customer in the store, more out of curiosity than suspicion. And then, in the costume jewelry area, to the agent’s amazement, the man openly placed one inexpensive watch on his left wrist and stuck a second watch in his right front pocket without any apparent concern anyone may have been watching. The customer then reversed his direction and headed toward the garden department and its exit door to the parking lot.

Two reactions raced through Hovley’s mind: good, I’ve got myself a shoplifter, and bad, how can I possibly arrest this man, if he resists? As he followed the customer he signaled to the garden department manager to call for help and follow him to assist, if needed. The manager acknowledged the signal.

Sonny left the store and Hovley was satisfied the six steps required for a shoplifting arrest had been met: (1) see the customer approach the merchandise, (2) see the customer select the merchandise, (3) see the customer conceal the goods, (4) maintain an uninterrupted surveillance to ensure against the merchandise being discarded, put back, or paid for, (5) see that the customer does not pay for the item, and (6) stop the customer once he or she exits the store. Hovley was now outside gaining ground as Jackson reached his car and started opening the door.

“Excuse me, sir. I’m with National Discounters, and you have merchandise you did not pay for.”

Sonny released the door handle, removed the watch from his wrist, and handed it to Hovley. “You’re right, I’m sorry,” he said and turned to continue opening the door to his vehicle.

“And the other watch, the one in your pocket?” asked the agent.

Sonny surrendered the second watch and again tried to fully open the car’s door. Hovely held his hand against the door and told the customer he had to return to the store to finalize this matter. By now the garden manager and a stock boy were on the scene, standing behind Hovely.

Sonny shoved Hovely, and the agent, a former police officer, seized the big man’s arm resulting in the two tumbling to the ground. Hovely shouted for help and the two store employees joined in the struggle on the pavement. A customer passing by shouted for someone to call the sheriff. Customers in the fast-food restaurant nearby watched the group of men struggling, and an employee also called the sheriff.

It was apparent Sonny was not going to willingly submit, was profane, and threatening those who were on top of him, and was struggling desperately to get upright and to his feet. Hovley was afraid the man could easily injure him as well as the others and was intent on holding the man down on the surface of the lot until the sheriff deputies arrived. Another customer, realizing the difficulty the store employees were having, joined in and he too helped hold down Sonny.

In the distance sirens could be heard and two sheriff units arrived and pulled the men a part, handcuffed Sonny, and took him to the county jail. En route to jail, Sonny complained his shoulder and legs were “on fire” and asked for medical attention. The jail’s booking office wouldn’t accept the prisoner until he received medical attention, so Sonny was transported to the local emergency room where burns on his body were treated.

Sonny was charged in the local court with misdemeanor theft, pled guilty, and paid a small fine. Subsequently, he obtained the services of an attorney who filed a lawsuit against the store claiming excessive use of force.

I was retained by the store as their expert. In my review of the incident in its entirety, the complaint alleged it was unreasonable and excessive to hold down the man on the hot black macadam surface of the lot. The language of the complaint included the fact that on this particular summer day the local temperature was 107 degrees and the superheated surface of the lot caused severe burns and scarring to the plaintiff’s body. This conduct, on the part of the employees, was cruel and unnecessary.

After reviewing the materials, including the photographs of the burns that would be introduced as evidence during the trial, the defense attorney and I discussed the case. I told him there was some merit in the complaint, considering the temperature, and said the whole matter could have been averted if the agent had handcuffed the man while they had him immobilized on the ground.

I was informed the agent didn’t have handcuffs that day, and when I asked why not, I learned the regional loss prevention manager had sent out an order prohibiting their use for 30 days as a form of “punishment” because one agent had abused their use.

As we sat there in his office I stated the following:

While I’m testifying, if Jackson’s attorney asks me, “Mr. Sennewald, you’re a recognized expert in matters connected with shoplifting including people who are arrested but are afraid to go to jail and sometimes resist. Correct?” And I’d agree. And if the attorney continues and asks, “If the store’s security agent had handcuffed my client, Mr. Jackson, and lifted him off the pavement to his feet, that would have been custom and practice in the industry, isn’t that correct?” And I’d agree. And if he pursued that line of questioning he’d most likely ask me if that’s the course of action I would recommend, as an expert and consultant, and I’d answer yes. Then he’d certainly ask me if, in my investigation into this event, I inquired why his client wasn’t handcuffed and lifted off the pavement, I would be bound to answer, “I did inquire,” and he’d ask, “What did you learn?” I would be bound to reply the agent wasn’t allowed to carry his handcuffs that day because of a ban imposed by a supervisor as punitive action because some agent in some store misused his handcuffs.

The store’s attorney knew what I knew: my answer would infuriate the jury and they would find for the plaintiff. The store’s attorney would lose his case.

But we both also knew that an expert witness, any witness for that matter, must only answer the questions that are asked by counsel, or by the court (judge). Put another way, witnesses may not or should not volunteer information or answer questions that are not propounded by counsel.

That key question was not asked during my deposition nor during the trial.

I testified in the trial that the store personnel and a helpful customer were all concerned for their safety because Sonny, a very large man, was threatening and they collectively were afraid to let this man up and suffer the consequences.

The jury found for the store.

Had the attorney representing Sonny asked the “right” question, I suspect the trial would have had an entirely different outcome. Was justice served?

Universal Insurance Co. v. Gold Shield Security Services

Northern Mills was a major lumber company surrounded by a majestic forest. It was one of many lumber operations in the area, and the community’s economy was solely dependent on lumber products and related services. Northern Mills’ insurance carrier was Universal Insurance Company.

Security was not viewed so much as a crime prevention effort as much as it was a fire prevention activity, and every mill had active programs to prevent as well as fight fires on their various properties.

Northern Mills had a small staff of security officers whose primary and most important task was to patrol the property at night and on weekends and holidays as a “fire watch.” One of the guards retired, leaving a vacancy, and every effort to replace him failed. That vacancy created an added payroll expense because overtime was required to cover his shift, midnight to seven in the morning.

To resolve this dilemma, Mike Poole, Northern Mills’ superintendent, phoned Gold Shield Security Services to come out and discuss providing an officer to fill the vacancy. Gold Shield’s account manager, Bill Husk, met with Mike and they walked the property and discussed the terms of a contract that would be satisfactory to both parties. The contract for services detailed, in clear language, what the arrangements were, how problems would be solved, how to resolve differences, and the cost for one security officer who would be dedicated to this property. Three days after both parties signed the contract, Henry “Hank” MacIntosh reported to Mike at the designed place and time and commenced his first graveyard shift working on-the-job training alongside a current security officer named Phil Gardner.

The task was relatively simple. The officer carried a “time clock,” a specifically designed clock with a replaceable paper disk that fit in the mechanism, the face of which rotated around inside reflecting the hours and minutes in synch with the clock. The clock was encased in a leather case with a shoulder strap for ease of carrying all night. The route the guard was to follow had been established for years; the guard’s job was to follow the route and at designated locations along the way remove a key, chained to a small metal box secured to a building or any object, insert the key with a number on the edge of the key into a slot in the time clock, turn the key, and the number would be physically embossed on the paper disk.

Therefore, when the guard visited the pump house and keyed that station, which was designated as station 11, a supervisor’s examination of the embossed numbers of the paper disk the next morning would reveal that station 11 was visited at, for example, 12:43 a.m., 1:59 a.m., 3:07 a.m., etc.

This was a supervisorial tool to ensure the guard was indeed walking and working rather than sitting in his car taking a nap. If he did take a nap, theoretically the supervisor should detect it by the unexplained absence of “station hits” for any given period of time. Along the route were emergency phones and firefighting equipment that was explained and could be used temporarily until the fire department from town could reach the scene.

Several months into the job a major fire broke out at Northern Mills on Hank’s shift. It was a huge loss. Arson investigators were confident it was intentionally set and were suspicious Hank was the culprit, but they didn’t have sufficient evidence to charge him formally with the crime. Investigators from the state as well as the insurance company questioned Hank but he denied setting the fire. The matter went unsolved. An insurance claim was filed.

The insurance carrier, Universal Insurance, filed a lawsuit against Gold Shield Security Services complaining their security officer was negligent and, had he followed instructions, he could have minimized the fire, therefore his negligence was the cause of the loss. Not only was Hank negligent in not being timely in responding to the fire, he had been negligent in hitting his time clock stations regularly, and that failure pointed to the fact he wasn’t where he should have been when the fire broke out.

I was retained by the law firm representing Gold Shield, and was provided with the typical boxes of documents for my inspection and review. Among the material were the time clock disks for the graveyard shift for one year up to and including the night of the fire.

Following my investigation I met with the attorneys in this multimillion- dollar lawsuit and after some preliminary small talk about the flight and weather, they asked how my review went and what I thought.

I said, “Gentlemen, I have good news and bad news.”

“Why don’t you give us the bad news first?” said the lead attorney.

“My opinion agrees with the suspicion of the earlier investigators; your guy, Hank, set the fire.”

“Oh great! What could the good news possibly be, in view of that?”

I explained that the good news was that it really was not important whether Hank set the fire or not for the following reason: The typical security service contract is pretty much “boilerplate,” including the language the officer will be checked X number of times during his or her shift by a guard company supervisor, like a sergeant, lieutenant, or captain, who oversees an area within which the guard company has personnel posted. That means the supervisor drives from location to location at all hours and makes a spot-check to ensure the guard isn’t sleeping or otherwise is alert. Also, a typical contract requires the guard to submit a copy of what is called a DAR (daily activity report) to the client and to the guard company office for their review and inspection, another supervisorial tool to ensure the work is being done as required. That language was removed from the Northern Mills contract, by Northern Mills.

So, what was important here was not what the language of the contract said, but what it didn’t say, and the consequences of that. In this case it means Northern Mills did not want their contracted guard supervised by the guard company; they relieved the guard company of their normal supervisorial duty to check on and supervise the guard assigned to their property and, as a consequence, the guard was a de facto employee of Northern Mills, not the guard company’s employee. The guard service simply provided a person for them to use as they saw fit.

A careful examination of the daily time clock disks told me Northern Mills didn’t really inspect them and had they done so, they would have seen numerous failures to patrol as required by the absence of station hits. Northern Mills was responsible for Hank’s performance, good or bad. I concluded, “The security service cannot be held liable, in my opinion, for someone’s performance if they have no control over the employee.”

The matter settled.*

Henderson v. Valley Mall

During the holiday season the enclosed Valley Mall located in the northeastern United States closed at 10:00 p.m. Parking in the huge surface lot that surrounded the mall accommodated approximately 5,000 parking spaces. Overnight parking in the lot was not allowed. The weather was light snow and the temperature registered an overnight low of 15 degrees. Only two mall security officers were on duty between 11:00 p.m. and 7:00 a.m. Their task was to patrol the property that, on this shift, was divided into two zones, the interior of the shopping center and the exterior parking lot.

The interior officer’s task was to walk the enclosed mall, ensure the various merchant’s doors were secure, and view the interior of each store alert for anything unusual, such as a possible fire or water flow from faulty sprinklers, an intruder, or someone left locked inside. It wasn’t common, but from time to time people had either fallen asleep or passed out and later found themselves locked in a relatively dark department store.

That interior officer would note the time he commenced his rounds and make notations of anything unusual, for example, “03:31 a.m., noted padlock not locked on accordion gate in front of Snuffy’s Sporting Goods big window. Checked interior with flashlight. I snapped the lock shut. Nothing unusual noted.” At the conclusion of the officer’s rounds he would note the time on the activity log.

The exterior officer was required to circle the property once an hour, being alert to any activity outside, such as a gathering of vehicles driven by juveniles, drag racing, abandoned vehicles, checking the exterior gates that led to the store’s receiving dock areas, check for burned-out lamps on the many parking light stanchions and note their location for the maintenance department, and any other observation or event worthy of his attention and action, such as an early callout for the snow-removal team, if warranted, and enter his activity and actions on the activity log. The last parking lot patrol for this graveyard shift was scheduled at 6:00 a.m.

By 7:00 a.m. each morning the activity common to large shopping centers was underway, including cleaning crews arriving, trash trucks, early deliveries for any number of stores, and various employees with other early-morning duties to prepare for the coming business day.

The security day shift now increased to full staffing, the interior of the mall was increased to the full four patrol zones, plus the dispatcher, supervisor, director of security, and two exterior officers, one of whom did the first day shift parking lot patrol at about 7:30 a.m.

On this December morning at about 10:00 a.m. a customer contacted a security officer in the mall and reported a strange sight in the parking lot—a parked vehicle dusted with snow from earlier in the morning and a woman with her leg up on the dash. Security officers responded to the location and found a dead woman seated in her auto. A subsequent police investigation revealed she had been stabbed to death.

As a consequence, a civil lawsuit was filed against Valley Mall for negligent security, alleging the shopping center was a known dangerous location and the security provided was inadequate. I was retained by the law firm defending the mall.

In reviewing the defendant’s “answer to the complaint” (the allegations reflected in the preceding paragraph), I noted the defense denied the mall was a “known dangerous area,” that it had an unusually low frequency of crime against property, and crimes against persons were rare. The defendant contended its proximity to a nearby private university campus and small-town community both with low crime rates represented a relatively safe environment, and the number of security officers was in keeping with comparable regional shopping centers.

My task was to independently confirm this information, as well as all the facts and circumstances surrounding this event.

My research into the history of criminal incidents on the premises as well as the crime rates for the greater area verified they were indeed low, lower than average for comparable geographical settings.

My review of the local police department’s crime report and subsequent investigation revealed a college student had bled to death after being stabbed while seated in her car. The time of the stabbing and exact time of death could not be fixed. The curious and quite startling information in the investigator’s report was the dead woman; when the police arrived some minutes after 10:00 a.m., was frozen stiff!

The question in my mind from my perspective, as well as in the homicide detective’s mind from his perspective, was: When was she stabbed and when did she expire? His perspective, naturally, had to do with identifying the murderer and his motive, and mine was how long did it take for the victim to bleed to death, and once she expired while dressed warmly inside of a vehicle, how long would it take for her to freeze solid? And even more important, to me, was how could the patrol officers, doing their hourly patrol, not find her? Was it possible they could have found her on the first patrol around 11:00 p.m. and saved her life? Or even the midnight round?

Examination of the security officer’s log sheet, reflecting the hourly entries of patrols and observations, disclosed the two officers alternated the patrols—that is, Robert Jones patrolled inside the mall while Gene Miller did the exterior patrol. Therefore, the log reflected “Jones to outside patrol, 2303 (military time for 11:03 p.m.) and rounds completed 2341 all okay.”; “Miller outside patrol 0005 and rounds completed 0030, all okay.” And so the notations went, hour by hour.

I decided to identify the kind of patrol vehicle these officers were provided for this outside work in subfreezing weather and asked for the security vehicle patrol and maintenance reports. Maybe the vehicle’s heater didn’t work and the officers hurried through their patrol because it was so cold outside. I was also curious how many miles the officers put on the vehicle as evidenced by the daily odometer readings. The readings would help me calculate the number of times the vehicle circled and crisscrossed this exceptionally large property’s footprint.

I was informed the management of the center had decided to eliminate the vehicle so as to reduce operating expenses. The officers, as a consequence, were required to walk in that weather. I formed the opinion they did not walk; they did not patrol; they did not see that lone vehicle sitting there all night, because they refused to go out in the cold just to save the company money, right or wrong. They falsified their daily log and were never checked to ensure they were doing their job as expected.

More often than not I interview the officers involved in a case for the benefit of their explanation. In this case, irrespective of their statements, even if they told me they diligently walked the perimeter, they couldn’t explain to my satisfaction why they did not check the lone vehicle, relatively close to the main entrance, and check the interior. The failure was twofold: management denying the officers a basic tool for the job and the officers’ failure to investigate the vehicle (if they did go outside), which would fall below the acceptable standards of a professional security officer.

But for the poor management decision to take away the officers’ patrol vehicle, therefore forcing them to walk in freezing and inclement weather, the victim of that stabbing may have survived her wounds.

In my professional opinion the protection program for that property was not adequate and the performance fell below the standard of care. I informed the defense firm I was unable to continue assisting them in their defense of the mall and they would be obliged to find another security expert.

Olea v. The Cleveland Hotel

The Cleveland Hotel was considered a major landmark in the downtown area of a major Midwestern city. It was constructed at the turn of the twentieth century, 11 stories high, red brick, classic canopy over the wide glass door entry facing Main Street, with a secondary entrance with a porte-cochere on the west side of the building staffed with a tall, handsome, elegantly dressed doorman in period attire. As automobiles became the main mode of transportation the porte-cochere was the natural entrance for arrivals and departures and for valet parking. The main entrance on Main Street was a pedestrian entrance into a grand high-ceiling atrium. Registered guests and visitors preferred to use the main entrance if not using their automobile.

Security personnel were part of the staff. Traditional deployment of officers was as follows:

The officers were so deployed for three shifts a day, 365 days a year. When special events were held at the hotel and when the annual parade occurred on Main Street, the staff was augmented with extra uniformed officers contracted from an outside guard service.

Jorge and Maria Olea and Maria’s brother and sister-in-law, Ricardo and Elena Sepulveda, were guests in town, celebrating Maria’s 60th birthday. Across the street and kitty-corner from the hotel was a plaza with fountains, flower beds, winding walkways all beautifully illuminated at night, and especially so during this time, the Christmas season. It was a popular attraction for guests to the city, as well as locals.

But there was a dark side to the park—the persistent presence of homeless street people and occasional drunks wandering in the area. The old hotel’s neighbors had deteriorated over time and were on the verge of becoming a skid row. The city decided to clean up the area, modernize it, and put in the plaza. Some dingy and empty buildings remained but were not as noticeable as in the past. Yet it was still an attractive tourist area.

On the second night of the Oleas’ and Sepulvedas’ stay, they decided to visit the plaza, enjoy the Christmas decorations, and perhaps visit some of the shops on the backside of the gardens.

Upon returning they crossed the two streets to reach the front entrance of the hotel and entered the hotel, at about 9:00 p.m. The vast lobby area was empty of guests. As they proceeded through the lobby, unknown to them, a “street person” had followed them in and stealthily approached the two couples from behind. He grabbed Maria’s handbag and forcibly ribbed it away from her grasp—a classic “purse snatch.” The force used in the event caused Maria to fall, breaking her hip.

Jorge went to the aid of his wife. Ricardo gave chase but couldn’t catch the fleeing robber. Maria was taken to the hospital in an ambulance and major hip surgery was required, ending the holiday trip.

The Oleas obtained legal counsel and a lawsuit was filed against the hotel for inadequate security. They contended had there been a security officer monitoring traffic in and out of the main entrance, this event would not have happened. The hotel’s position was the security staff was adequate and the small amount of traffic in and out of the main lobby and main front doors didn’t warrant or justify an officer’s permanent presence.

The filing of the lawsuit was processed to the hotel’s insurance carrier who in turn designated a well-established and experienced law firm to handle the defense. The attorney assigned to that case retained me to evaluate the claim and the security program and assist in the defense.

My assessment disclosed that within the year prior to the Oleas’ and Sepulvedas’ visit the hotel was purchased by a foreign investor. New ownership invariably brings changes. One change included reducing the security budget. The new budget reduced the staff from four officers to three—that is, post #1 remained the same and post #3 was eliminated, and posts #2 and #4 were combined with infrequent checks of the main entrance.

I contacted the attorney I was assisting and told him the revised and reduced security arrangement was inadequate, that the main floor, main atrium, and front doors were not adequately covered, and I was unable to testify in the defense of the hotel. In my view the attorney, a respected member of the local bar association, knew that the protection was inadequate and may have argued the matter with the insurance adjuster, but proceeded as he should as an attorney. I’m confident he knew what my opinion would be and the case would go away (settle). He thanked me for my opinion and said he’d call me back. Later that day he called and said the insurance adjuster wanted a three-way telephone conference so we could discuss this further. The call was scheduled.

During that call I personally told the adjuster the security coverage was inadequate and the main floor and entrance was a risk area and required more coverage. The adjuster said he didn’t agree and wanted me to reassess my position. I said there was nothing further for me to analyze or review and I was satisfied the case was not defensible, or at least I couldn’t contribute. I wouldn’t risk my reputation by testifying security was adequate when I knew it wasn’t. He insisted the case was defensible, and I said to him, “Who’s the expert, you or me? I’m telling you the security was inadequate, and as a consequence of poor coverage the plaintiff in this case was criminally victimized and injured. If you want me to testify for you, that’s what I will tell the jury.”

My services ended. Although I wasn’t so informed, I’m confident they settled the matter and the former guest was compensated; unless, of course, the defense firm was obliged to go out and find another “expert” who would testify in support of the insurance adjuster’s opinions. And that happens!

Heston v. Big Grand Stores

Store policy required employees to park on the perimeter of the store’s vast parking lot, a common practice in shopping center and box store operations, so as to ensure customers have preferential parking close to the store.

A young man, Anthony Sims, was initially seen in the morning around 9:30 a.m. near a 24-hour fast-food restaurant, on the edge of the store’s parking lot. He was seen on the lot and in the store at various hours all day and evening. At midnight, an employee, Becky Heston, clocked out and walked to her truck across the lot, followed by this young man. As she opened the door of her vehicle Anthony surprised her, forced her across the cab to the passenger’s side, and drove her to a remote location.

There was a loss prevention agent on duty inside the store, whose primary task was to detect shoplifters as well as handle other types of criminal offenses, such as use of stolen credit cards and the passing of worthless bank checks.

The store and the parking lot was equipped with over 100 “fixed” CCTV cameras, meaning each was focused on a given area and could not be panned or tilted remotely to follow anyone or change the direction in which the camera was aimed. All the cameras were recorded around the clock.

The parking lot was patrolled by a contracted security service that provided a uniformed officer and patrol vehicle with distinctive markings and flashing yellow lights mounted on the roof. In keeping with the request of store management, this vehicle was in constant use, patrolling up and down isles and circling the lot so as to create a security presence.

At 12:30 a.m. Becky’s sister called the store, inquiring if her sister was still working, and if not, what time did she leave the store? Becky should have arrived home by 12:15 a.m. The assistant manager confirmed Becky had left the store a couple minutes after her shift at 12:02 a.m. and the sister should be patient and allow a little more time. Surely Becky would arrive any minute now.

Anthony Sims parked the truck in a remote area not far from the store and raped Becky after forcing her to undress. Following that first rape she was allowed to redress. Anthony then drove her to his parents’ mobile home located on a tract of farm land, devoid of any nearby homes. He cautioned Becky not to cry-out or awaken his mother if she didn’t want to be hurt. He then raped her in his own bed. Anthony’s mother was asleep in her bedroom and his father was working the graveyard shift. He wasn’t due home until about 8:00 a.m.

At 12:50 a.m., Becky’s sister called the store again and had the assistant manager paged. She was truly alarmed and asked him to have someone check to see if Becky’s truck was parked in the employee parking area. It was not. She said she was going to call the police and report Becky missing. At that moment a local police officer arrived at the store for a cup of coffee. The assistant manager put the police officer on the phone.

The officer took the “missing person” report, which included Becky’s description and the description of her truck. The officer asked if the camera system viewed the employee parking area and if the store agent could bring the image up on a monitor. The agent on duty at that time couldn’t do that, but the assistant store manager called the senior agent at home and asked him to come to the store to assist. Time was passing.

At about 3:00 a.m., Anthony ushered Becky out of the trailer, put her in the truck, and drove on the interstate, crossing into the next state. He stopped for gas and searched her purse for money to pay for the gas and some “munchies.” A cheap motel was nearby, so Anthony rented a room. Once in the room, Becky was allowed to shower and was then raped again. At no time did she resist his sexual demands out of fear for her life.

While the abductor and victim were at the hotel, the senior agent was at the security camera counsel and had the cameras on the east side of the store rolled back to midnight. The monitors replayed the recordings as the assistant store manager, police officer, and two loss prevention agents watched. They observed Becky walking from the employee door diagonally across the lot, followed by a male figure some 50 feet behind her, only closing the gap as she approached and opened the door to the truck. They saw the blur of movement ending with the man seated behind the steering wheel backing out of the parking slip and then driving out of the lot on the road headed toward the interstate. Becky’s head was barely visible on the passenger’s side. They had just witnessed an abduction four hours after the fact. By this time Becky’s sister had dressed and drove to the store. She was informed of their findings.

An “all-points” broadcast was made to law enforcement agencies, including the license plate number of the truck.

At daybreak Anthony decided to return his home. He put Becky back in the passenger’s seat. Some 40 miles from the state line he pulled the truck off the interstate onto a construction site, drove less than 50 feet from the interstate, behind a pile of dirt, and murdered Becky. After shooting her in the head and face, Anthony drove back onto the interstate headed toward home. He realized he had spent all of Becky’s money, so he decided to rob the very gas station he had stopped at earlier using the same gun he had just used to kill Becky. As he left the gas station, stuffing the bills into his pockets, a state trooper pulled into the lot. Anthony stood there, gun in hand, and surrendered. He took the troopers back to the scene of the shooting and to the motel. It was now about 9:00 a.m. and the criminal matter was relatively resolved.

The family wasted no time obtaining counsel who filed a civil action against the store as well as the security contract service for inadequate security and negligence. They also obtained the services of two security experts.

Those plaintiff experts viewed hours of videotapes, reviewed the store’s loss prevention policies and program, and scrutinized the contract between the store and the security service company, including the post orders. The post orders were professionally crafted and obviously based on years of experience between the two parties. The experiences and events that drive the language of post orders are typically based on a history of failures or criminal events.

The plaintiff’s conclusion and opinion was the store and guard company were negligent in terms of allowing Anthony to loiter on and around the store for 14 and a half hours, despite signage and a policy prohibiting loitering. They opined, had Anthony been properly challenged, such challenging would either have discouraged or frightened him to go elsewhere. Absent such aggressive challenges, they pointed to the various videotapes that, over a span of hours, especially after dark, showed Anthony sitting on the bus bench near one of the stores main entrances, and he followed various young women as they walked out to their vehicles, but reversed his direction when he saw the security vehicle with its flashing lights approaching or nearby. Clearly, they said, he was picking potential victims but was deterred by the constant patrol.

Therefore, the plaintiff’s position was the patrol officer’s failure to either ask the young man to leave the property if he had no intention of shopping or bringing the matter to the attention of his supervisor, a specific member of store management on duty, and such failure contributed to Anthony’s eventual success of following and kidnapping a victim.

I was retained by counsel for both defendants. I, of course, reviewed the same material examined by the plaintiff’s experts.

My review of the hours of videotapes and reading of contracts, policies, and history of events on the property disclosed four interesting points that buttressed the defendant’s position they were indeed not negligent in making the property reasonably safe against foreseeable events. The defendants felt their notice and challenges satisfied a reasonable security awareness and response to Anthony’s presence.

The issue was, what more could the security officer have done and was he in compliance with his post orders? The post orders clearly stated that the outside patrol officer did not have the authority to eject or trespass any loiters or suspicious or rowdy persons, such as a group of juveniles gathering on the property, but he was required to report those conditions or any other unusual or suspicious circumstances to a member of store management and that management person would take appropriate action.

In my view, Officer Stanley failed to comprehend the importance of Anthony’s answering his question without looking at him, despite the fact Officer Stanley thought that was peculiar. In view of the totality of circumstances of the long day, the officer should have followed his instructions and simply called his supervisor (the very store management employee who sat on the bench with Anthony) and requested a brief meeting to share a concern. When the supervisor came out Officer Stanley would have reported that this young man had been on the property all day, and had twice said he was waiting for a ride, the first time at allegedly at 3:30 p.m. and again just now, but the young man wouldn’t look him in the eye when asked about that ride again. The supervisor would have investigated by approaching Anthony and most likely would have been even more suspicious, considering the amount of time he’d been there. He would have either offered to phone his friend with the car or suggest he go down to the gas station and wait there. In my view, the store supervisor’s presence and questions would have alarmed Anthony, discouraged his intentions, and he would have moved on. Had he left the property, Becky would not have been followed to her truck, abducted, raped, and murdered.

I called my client, shared my opinion, which essentially agreed with the plaintiff’s two security experts, and, as a consequence, was unable to support my client’s theory of defense. I withdrew from the assignment.

Senior Citizen’s Claim, Letter of Demand

The chief counsel of a major grocery store chain phoned one day advising he received a letter from an attorney representing an elderly lady arrested for shoplifting from one of the chain’s markets. He said he was aware of my reputation and expertise and was calling to see if I was available and interested in assisting in the defense of the store. This is typically how an expertise witness is approached in a prospective retention.

I asked him what happened in the store to cause the lawyer to write, as such type of letter is typically the prelude to filing a formal complaint.

The counselor asked, based on what he knew at this early stage, if the shoplifter was detained because she had stolen a pack of cigarettes by slipping it down her dress to conceal it in her bosom. She was escorted up the stairs of the store to the manager’s office for the purpose of being processed prior to the police being summoned.

The climb up the stairs was rather difficult for the lady because of her age as well as her asthma, and they had to stop a couple times for her to get her breath and use her inhaler. In the office the proper paperwork was completed and the police were called. They arrived and issued the customer a citation to appear in court.

“How old is the lady?” I asked.

“The attorney claims she’s 87 years old,” he replied.

“That’s pretty old for shoplifting, but it happens, obviously. I’m even surprised the police cited her. What’s the issue here?” I asked.

The counselor replied, “The attorney said his client is claiming excessive use of force?”

“What kind of force?” I asked.

“He claims the application of handcuffs was the excessive use of force.”

“Handcuffed!? Why in the world was she handcuffed?”

“Well, it’s corporate policy. All detainees are handcuffed for the protection of the loss prevention personnel and to deter escape. To avoid claims of discrimination we handcuff everybody—black, white, male, female, young, or old—we handcuff every person in our custody. Standard procedure.”

“How much is the attorney demanding?” I asked.

“Nineteen thousand dollars,” he replied.

“Pay it,” I said, “and the store is getting off easy. A jury would be incensed to see an 87-year-old woman in iron handcuffs. Who would she hurt? How could she possibly run away and escape? In my view, good common sense wasn’t used, despite the policy. I wouldn’t help defend this matter for twice my fees. Your people are off base and you should see to it the policy is changed to be a little more flexible. That’s my opinion and it’s free.”

“Thank you sir,” he replied. “And you’re welcome to bill us for your advice.”

“No need. Thanks for your interest in my service and the call.”