The Likelihood of Liability

Article excerpt

AS SOCIETY BECOMES MORE PRIVATIZED, the need increases for quality private protection. The often-cited Hallcrest Report suggests that security has a major role in public safety, but one with less visibility and fanfare than public law enforcement. The privatization of protection services results from increasing demands by businesses and the public for safety, along with the realization that public law enforcement cannot respond to all public safety needs.

Trends show that private protection employment-private police, detectives, guards, and other security workers-is increasing at a higher rate than public law enforcement employment and will continue to do so despite unfavorable economic forecasts. Service industries such as health care, lodging, and entertainment will continue to require a higher quality of protection. Also, as long as drugs and associated violence permeate our society, a need exists to protect not only public areas but also the workplace.

According to Shearing and Stenning, the growth of commercial and private property has facilitated an ongoing privatization of social orders supervised by an assortment of private protectors. Thus, America is experiencing a form of "feudalism" characterized by huge tracts of property being protected by private security personnel.'

This growth is also creating an increase in civil litigation, suggesting a need for increased accountability. Inadequate or illusionary protection practices by security operators or other businesses can result in serious legal consequences. It is these legal outcomes that can affect how private protection practices will be conducted in the future.

This article examines the sources and outcomes of civil cases initiated against commercial purveyors. To fully appreciate the legal implications of negligent security practices, take a look at the 82 cases presented in Exhibit 1. The cases represent case judgments and settlements appearing in the Association of Trial Lawyers of America Law Reporter from 1984 through 1988.

Many cases result in judgments for the defendant or dismissals or are otherwise screened from the system. However, this research focuses on judgments or settlements favoring plaintiffs in an attempt to show the sources of business negligence. The cases mentioned here come from 22 states, with most occurring in California, Texas, Florida, and New York.

The suits are against commercial entities for failure to provide adequate security from third-party criminal attacks against business invitees or employees. In some cases, verdicts or settlements are not recorded because of pending appeals or undisclosed settlements. However, the case information suggests that the courts are sending a message that inadequate or lax security practices will not be tolerated.

In other words, private protection involves more than just hiring guards or using physical barriers. Private protectors must follow sound business practices, incorporating knowledge of the protected environment and other security considerations.

TO ESTABLISH A CLAIM FOR INADEquate security, the plaintiff must prove that the business had a duty or standard is taken from Part 8 of the California Jury Instructions, which addresses an owner's, occupant's, or lessor's knowledge of defective condition:

Concerning owner's, occupant's, or lessor's knowledge of defective condition-The [owner] [occupant] [lessor] of premises is not liable for an injury suffered by a person on his premises which resulted from a dangerous or defective condition of which the [owner] [occupant] [lessor] had no knowledge, unless the condition existed for such a length of time that if the [owner] [occupant] [lessor] had exercised reasonable care in inspecting the premises he would have discovered the condition in time to remedy it or to give warning before the injury occurred.

Nor may the [owner] [occupant] [lessor] be held liable if, having exercised ordinary care, he discovered such a condition before the time of the injury, but not long enough before to provide him the time reasonably necessary to remedy the condition or to give reasonable warning or to provide reasonable protection. …