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Michigan Lawyers Weekly (2006)
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Security Management Article
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Reasonable Apartment Security
Reasonable School Security
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by: Roger H. Schmedlen, CPP, CFE, CII, MIPI
Published by: Security Management
An Expert View (Sidebar
to article which follows)
Cases can be won or lost based on the jury's view of the experts. Jurors tend to give more weight to outside experts. But that conclusion does not mean that internal experts should be ignored. Probably the most expert resource a defense attorney can
find is the security director or security manager of the defendant organization. That person is most knowledgeable about security industry standards for that business as well as its day-to-day security operations.
This resource is routinely overlooked, however. Too often, proprietary security professionals are not consulted when litigation is brought, and in some instances, frivolous lawsuits are settled when they could have been won. In the interest of the
employer, security professionals should volunteer to work as part of the defense team from the start. Along with other contributions, the in-house security professional can help select a competent outside expert if one is needed.
A security professional will recognize that the best expert witness in such litigation is a security practitioner. However, an uninformed defense attorney may well employ an unqualified or inappropriate expert from the public sector or an academic
with no real-world experience in security.
If the attorneys defending a security-related litigation case are handling their first case of this type, their only knowledge of the security field may be based on the inaccurate assumptions held by the general public. While they will welcome the
input and expertise of their client's security professional, it rarely occurs to them to request it.
Costly mistakes can be avoided if the security professional employed by the defendant volunteers to provide the attorney with the basics of real-world security. Armed with this expertise, the defense attorney will make the right choice when selecting
an expert witness and significantly increase the chances of mounting a successful defense.
Heading Off the Liability Headache
One February several years ago, Dawn Marie Whittaker was walking to her office after having parked her car in the lot of her Niles Township, Michigan, employer, an automotive manufacturer. There she was confronted by
her estranged boyfriend--and the father of her two children--who pumped two shotgun blasts into her chest, seriously injuring her. Later that night he turned the shotgun on himself, taking his own life and ending a standoff with police.
What sets this case apart from other domestic violence or crazed stalker cases was the boyfriend's reasoning behind the site of the attack. According to a statement recorded by a police officer during the standoff, the boyfriend noted that security
was bad at his girlfriend's place of employment. He then requested that a lawsuit for "inadequate security" be brought against the company for its failure to protect his girlfriend from his attack, with the proceeds going to his children.
That was his way of providing for his offspring after his death.
Although this case is extraordinary, it exemplifies how an increasing number of businesses are becoming targets of ever more savvy plaintiffs and plaintiffs' attorneys. And jury awards and settlements can be steep. According to a recent study by
Liability Consultants, Inc., of Sudbury, Massachusetts, the average premises liability recovery (award or settlement) exceeded $1.2 million (although in most cases the plaintiff recovered less than $500,000).
Faced with the looming prospect of premises liability lawsuits, property owners are well-advised to create a defensive strategy that will shield them from costly exposure. This strategy includes understanding workers' compensation laws, documenting
community security standards, conducting periodic security surveys, understanding and using crime statistics, and hiring the right experts.
A workers' compensation defense may be one good way for some companies to fight claims of negligent security.
Workers' compensation. In premises liability matters where the plaintiff is an employee of the defendant, the defense often overlooks the one response that may eliminate virtually all liability: workers'
compensation. In fact, the estranged boyfriend mentioned at the beginning of this article failed to consider that workers' compensation would protect the employer from liability. Indeed, Michigan's workers' compensation law negated the company's
liability and prevented the man's girlfriend from recovering on a claim for negligent security against the company.
In many states, workers' compensation is the only recourse in cases involving on-the-job injuries because the statute bars tort claims arising from the incident. In Doe v. South Carolina State Hospital (Court of Appeals of South Carolina, 1985), for
example, a nursing supervisor sued her employer when she was assaulted and raped by an escaped mental patient. The defendant hospital moved for summary judgment (a judge's ruling based on the law and facts) on the grounds that workers' compensation
was her sole remedy. The motion was granted, and the court of appeals affirmed.
In its opinion, the appeals court set out three criteria that had to be satisfied for the workers' compensation statute to apply: the injury resulted from an accident; the injury arose out of the employment; and the injury occurred during the course
of employment. Finding all three elements satisfied, the court ruled that the workers' compensation statute barred tort claims arising from the attack.
Those three criteria were spelled out at greater length in an Indiana case, Arrow Uniform Rental, Inc., v. Suter (Court of Appeals of Indiana, 1989). In that case, an employee of Arrow sued the company, claiming she was sexually assaulted by three
employees during a company party. The trial court denied the defendant's motion for summary judgment.
The appeals court reversed, finding that the "accidental" element of workers' compensation meant only that the injury was unexpected. Even though the assaults were intentional, the court reasoned, they were not expected. Second, the
requirement that the injury arise out of employment is satisfied, ruled the court, when there is a causal relationship between the injury and the employment. In the case at hand, that element was satisfied because the plaintiff alleged that her
employer and manager were to blame. Finally, the court stated that the third criterion, that the injury occur during the course of employment, refers to time, place, and circumstances of the injury. In the example, the plaintiff's injuries occurred
during work hours, on company premises, and during a company party, thus satisfying that element.
By contrast, in Hanewinckel v. St. Paul's Property and Liability Insurance Company (Court of Appeal of Louisiana, 1992), a nurse was attacked as she was driving into the parking lot of the hospital where she worked. She was beaten for twenty minutes
until security officers arrived. She sued and was awarded $773,000 at trial.
On appeal, the defendant argued that it was shielded from liability by workers' compensation laws. The court rejected that argument, however, finding that the plaintiff had not yet reported to work, the attack was not related to work, and the attack
occurred in a publicly accessible place. (As seen in the Whittaker case mentioned earlier, Michigan courts, by contrast, tend to favor workers' compensation as the sole remedy.)
Mundy v. Department of Health and Human Resources (Supreme Court of Louisiana, 1992) adds another perspective. In this case, a nurse was stabbed in a hospital elevator as she was preparing to start her shift. She sued for negligent security and was
awarded $125,000. The hospital appealed, arguing that workers' compensation was her sole remedy.
The appeals court reversed, finding that the injury occurred during the course of the nurse's employment, since the working day includes periods of time before the actual beginning of work and during preparations to leave work. In fact, the attack
occurred while the nurse's shift had already begun, the court noted. The court also found that the injury arose out of the plaintiff's employment, concluding that at the time of the attack she intended to pursue her employer's business and not her
own business or pleasure: her work required her to ride the elevator at the time the attack occurred. The plaintiff appealed.
The Louisiana Supreme Court reversed the appeals court, finding that the plaintiff was not in the course of her employment while riding on the elevator and had not reported to her work station. The court concluded that she was still in an area of the
hospital open to the public and used by patients, staff, and visitors alike. Thus, workers' compensation did not bar her tort claims.
Community standards.
To offer a successful defense in a premises liability case, the defendant must show the event was not foreseeable, that the organization acted reasonably and responsibly, and that the level of security met or exceeded community standards.
Documentation of the ongoing protective activities of the security department prior to the event can contribute to a successful defense. Additionally, proactive documentation of community security standards in the geographical area or within the
industry can go a long way toward convincing a jury that the security department and the employer were doing everything within reason to protect employees and guests.
While security professionals regularly confirm that their facilities meet or exceed community standards, this conclusion is often arrived at informally, sometimes even instinctively. Since such an approach is unlikely to stand up in court, it makes
sense to consider a more accountable program.
Producing a file in court with records showing periodic comparisons of countermeasures at comparable neighborhood facilities has a much greater effect on jurors than an expert's testimony concluding that the facility met community standards. It shows
the company was actively trying its best to maintain a safe workplace on an ongoing basis.
For example, I recently developed a survey for trucking terminals that enables companies to look at the security measures taken by like businesses in the area (a generic version of the survey is available on Security Management Online). Since
trucking terminals are often clustered in the same geographic area, surveying their practices is relatively easy. If the survey shows that the company's security is deficient--for example, if similarly situated competitors use fences, guard dogs, and
armed guards and the company conducting the survey does not--that company's security should clearly be brought up to par.
Of course, conducting a community standards check is not a pat process. Just because one competitor has a specific security measure in place doesn't mean that it is reasonable for the business conducting the survey to have it. For instance, a certain
trucking terminal might require special security measures because it deals with high-value, high-risk cargo that others in the community don't handle.
Jurors look favorably on evidence that companies are concerned enough to survey their environment and make sure that their security program passes muster. Moreover, these surveys may well pay for themselves if a premises liability lawsuit is
initiated. Such surveys should take less than an hour and need not be more frequent than quarterly. The survey report does not have to be elaborate. A single page checklist should suffice in most cases.
Security surveys.
Experienced plaintiffs' attorneys invariably will ask whether security surveys have been conducted at the site of the event under litigation. They expect the response to be no. When the defense is able to document a self-inspection of the facility
prior to the event, the jury tends to view the defendant company as a responsible entity, often assuming that recommended upgrading occurred (of course, businesses should not rely on jurors' making that assumption; the wise path is to correct any
security holes revealed in the survey).
Often in the minds of the jury--but not necessarily in fact--risk analyses by independent parties carry more weight than proprietary surveys. That's why it is often advisable to hire an outside expert, with the assistance of the internal security
manager, to conduct the survey.
In many jurisdictions, police offer free security surveys of businesses. While these surveys can be superficial, documentation that such a survey was conducted can contribute significantly to the success of a defense, as long as recommendations were
followed.
Crime statistics.
Crime statistics are a double-edged sword: the same numbers in the hands of different attorneys can be manipulated to show that a given incident was either foreseeable or unforeseeable. The goal is for security experts to ensure that the defense is
using these statistics in the most effective manner possible and to expose any misleading use of them by the plaintiff's experts.
Most jurors are unaware of the volume of crime in any given community. Even relatively low crime statistics may seem astronomical unless presented to them properly. Additionally, some trial lawyers and their experts will use "voodoo
statistics," such as public service responses that seem valid but are not, to distort the facts.
Jurors can't relate to statistics they don't comprehend. For instance, it is difficult for most people to understand the significance of 50 burglaries per 100,000 residents when the incident occurred in a village of 5,000. Presenting statistics in
this abstract manner is a serious mistake often made by the defense team.
I have found that the best way to present statistics is by simply dividing the number of crimes in the relevant community into the population and terming the result the "risk factor." For instance, if there are 50 burglaries in a community
of 5,000, the risk factor would be 100. It's easy for jurors to understand that 1 out of 100 residents of that community will be a burglary victim each year.
When the risk factor is determined and then charted along with risk factors in other communities known to the jury--both high crime and low crime jurisdictions--the jury gets a realistic picture of whether the event was foreseeable from a statistical
standpoint.
Only statistics from years preceding the event should be used. Statistics from the year the event took place are irrelevant since they would not have been available for evaluation before the incident (except, of course, when the statistics pertain to
the specific site itself, because those numbers would be available to the defense). It should be remembered that statistics provide only raw data, and it is often necessary to take the research another step.
One example of a plaintiff expert's attempts at statistical legerdemain occurred in a recent case in Traverse City, Michigan, a resort community with a reputation for low crime and safe streets. In that case, Jane Doe v. Traverse Investments, filed
in 1996, a young lady was raped in her apartment by an intruder. She subsequently brought suit against the apartment complex and others. During depositions, the plaintiff's expert cited crime statistics showing sixty-eight rapes in the county during
a relevant year. The plaintiff's attorney argued that with such a high risk of rape, the apartment management should have implemented a high level of security. The defense attorney was reluctant to disagree.
How could such high crime numbers be reconciled with community feeling and experience that Traverse City was a safe place? The answer lay in the distinction between reported and documented crimes.
An analysis of the sixty-eight events conducted during the discovery phase of the case showed that most of the reported rapes were false reports. Others involved incest or consensual statutory rape. A few involved date rape. Of the sixty-eight
reported events, there were no cases of forcible rape by an unrelated intruder. The plaintiff's claim of high risk was proven invalid, and the case was settled before trial.
For privacy reasons, most criminal sexual conduct files are not public records and cannot be viewed by an expert witness conducting research. In the Traverse City matter, the defense expert prepared a simple chart to be filled out by representatives
of the relevant police agencies. The completed form, presented during the case's discovery phase, recapped and categorized the statistical events without compromising the identities of the victims.
Another example of the plaintiff painting a misleading picture with questionable statistics also occurred in a Michigan case, Cohen v. Whethersfield Apartments. In that case the plaintiff was attacked in her apartment by an intruder, whom she
successfully drove off. At trial, the plaintiff's expert elected not to bring crime statistics into the picture since the community where the assault occurred was well known as a relatively crime-free, upper-class area. Instead, he presented the
premise that although the community as a whole was low risk, almost all the crime in the city would most likely occur along a main thoroughfare connecting two higher-crime cities--Detroit and Pontiac--about twenty-five miles apart. The apartment
building was situated on this thoroughfare.
Before the trial, the defense expert obtained statistics for the apartment complex from a computer printout provided by local police and compared it with the statistics for the city as a whole. On a per capita basis, the risk to residents of this
apartment complex proved to be less than half the risk to residents in the overall community. In fact, using the risk factor method of statistical presentation, this apartment's residents were twice as safe as typical residents of the city, who all
parties had agreed suffered little risk. Thus, the plaintiff's theory was proved to be specious.
Moreover, plaintiff's counsel claimed that the apartment complex was exceptionally vulnerable due to the high percentage of single female residents. This conclusion was reached by the plaintiff's expert after an evening walk through the complex.
In response, the defense expert conducted a demographic study of the population of the complex and found the population of single women to be 15 percent and the total population of women to be 53 percent, effectively rebuffing the plaintiff's claim.
This eight-day trial ended with a defendant's verdict and with an order for the plaintiff to reimburse the defense for a portion of its legal costs.
After the trial, the defense attorney interviewed the jurors on the parties' use of experts. Jurors said that the defense expert's description of the "risk factor" helped them put the crime level at the site into perspective and into easily
understood terms. They also commented that the defense expert was more credible than the plaintiff's expert, an academic, because the former used a real-life approach.
Preparing a legal defense to a premises liability suit can be a drawn-out, costly, and fretful experience. But by developing a preemptive security plan, companies can head off complaints before they arise. And when cases are filed, a history of good
security practices as well as the ability to break down the plaintiff's case will make it much more likely that companies will survive the litigation process unscathed.
Roger H. Schmedlen, CPP, CFE (certified fraud examiner), CII (certified international investigator), MIPI (member, British Institute of Professional Investigators), is an investigator/security consultant
with thirty-two years of experience, based in Hartland, Michigan. He occasionally testifies as an expert witness on security negligence matters. He has been a member of ASIS for over twenty years.
© 1997 American Society for Industrial Security, 1625 Prince Street, Alexandria, VA 22314. Reprinted by permission from the August, 1997 issue of Security Management magazine.
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