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MGM SHOOTINGS - FOOD FOR THOUGHT

Posted on December 30, 2017 at 6:25 PM Comments comments (0)

There are far too many unanswered questions concerning the horrific shooting of hundreds of innocent victims attending a concert across from the MGM’s Mandalay Bay Casino earlier this month. As any perceptive investigator knows, the answers can be found in the “Who, What, When, Where, Why, and How” of the situation.


We know who did it- an evil, sick man. We also know what he did in the slaughter of scores and wounding of hundreds of lawful business guests of MGM and Live Nation. We know when and where it happened. It does not much matter why he committed this atrocity; What matters most is the how.


In order to achieve even a modicum of justice for the injured victims, it is of the utmost urgency to uncover the landlord’s negligence and shortcomings that contributed to the proximate cause of the deadly rampage. The defendants had a legal and moral duty to provide a reasonable standard of security and protect their vulnerable guests from harm. What follows are some major concerns about how the barbaric attack actually happened:


How foreseeable was it? Establishing the foreseeability factor is key in determining the reasonable level of security required to meet the prevalent risk. How do you establish that level of risk? It requires the services of a competent and able safety and security expert to identify the risk and recommend what level of security is required to meet that risk. The typical analysis begins with looking for and evaluating previous similar crimes or incidents. It is accurately stated that “the past is prologue to the future.”


A quick study of risk management tells us that if a type of incident has occurred in similar areas and venues previously, there is a higher probability of it happening again. It also means there is a higher standard of security/preventive action, etc. required to be in place. Mass terrorist attacks have been occurring with higher and higher frequency since the start of this century. Las Vegas has been a key potential target in the past. Remember, the 9/11 terrorists were “scoping out” the Vegas Strip just prior to their deadly attack on the WTC Twin Towers. Aside from the international terrorism threats, it should be noted that domestic terrorism and mass shooting are also on the rise with ever larger body counts.


Given the prevalent threat and foreseeable risk, it will be difficult for MGM and Live Nations’ defense attorneys to support a position that no additional security was required with the history of such ongoing worldwide terrorist attacks.


How reasonable was the MGM and Live Nations’ security in face of the obvious foreseeable risk? A fact of life remains that professional security is expensive. Sometimes, even when the corporation’s management knows that there is need for more robust security, they just don’t spend the money for risk surveys and reasonable safety and security. This expert was recently involved in a casino negligent security case (Binns v Caesar’s) where a novel concept of “Abatement of Security” perpetrated by the nation’s largest casino hotel company was successfully raised and proved. It went to the heart of the negligent security matter. Unfortunately, corporate management cut too many corners on security and surveillance. In other words, the defendants once had reasonable security performed by professionals but decimated it in order to save money! This is a classic example of being “penny wise and pound foolish.”


MGM is the second largest casino hotel company in the country that has the greatest presence on the famous Las Vegas strip. Initial research into the lame qualifications of the defendant’s security personnel at their Mandalay Bay Casino Hotel strongly suggests that “Abatement of Security” is prevalent in that MGM property as well. Live Nations’ multi-billion entertainment corporation also has a poor history in providing reasonable security for concert goers as evidenced in previous cases handled by this expert. (Putillo v Tweeter Center)


There are several other important “How’s” that need to be carefully addressed in this matter. How could “Willful Ignorance” on the part of the defendants play a significant role in this matter? How probable is “Spoliation of Evidence” given the absence of important evidentiary material coming from the defendants, including misleading and conflicting time line accounts on important details such as response times? Plaintiffs’ attorneys are likely to face the all too common defense ploys of the three D’s: deny, delay and deception on the part of those who represent the damned in this matter.


Consideration of the above particulars provide some “food for thought” on behalf of plaintiff’s attorneys attempting to bring justice and compensation for their grievously injured clients.


Practitioners would be well advised to heed the sage advice of John Elliott Leighton, Esq., the premier attorney on “Litigating Premises Security Cases” (Thomson West, 2006). Leighton points out the necessity for an expert in inadequate security cases and recommends, “Pay careful attention to the items sought by the expert and work with the experts in formulating document requests and interrogatories for the lawsuit.” The bottom line here is that listening to your experienced security expert, especially one who knows where to look and how to gain important evidence to make your case a winning one, is definitely the way to go.


Andrew P. Sutor is a Principal at Sutor & Associates, LLC, which provides professional security consultation and expert witness services for law firms and attorneys pursuing premises liability and negligent security cases. He can be reached at [email protected] or at 609.822.2626

The Missing Link in Your Case

Posted on May 18, 2017 at 10:55 AM Comments comments (0)

Proving Foreseeability


We live in dangerous times, especially when venturing outside of our homes and residences to engage in necessary commerce and participate in the general "pursuit of happiness." Far too often people fall victim to violence, crime or suffer serious injury while doing so.


Innocent victims, or sometimes, sadly, their survivors, often seek out legal redress and compensation for their loss through their attorneys. Most of the elements of these cases are patently obvious: Serious damage was done; a likely breach of the legal duty and moral obligation of someone to provide for a minimum standard of care for their customers, patrons and guests. The question is, how does counsel prove proximate cause and negligence in the case?


In order to bring a case to a successful conclusion, plaintiffs' attorneys need to establish the actual level of, and foreseeability of risk at the time and place of their occurrence. The level of prior crime on and near the property is needed to determine the level of risk that was present.


Once that is established, attorneys need to make their case around the evidence that the defendant's security measures in the face of that risk were inadequate or unreasonable. An experienced expert in law enforcement and in the security field can determine the level of risk and whether the security provided by the defendant was adequate or reasonable.


You require accurate data to succeed in bringing the matter before you to a successful conclusion. The actual and genuine "foreseeability" of risk required for successful prosecution of your case is often hidden, and hard to prove.


Defendants in negligent security cases often have a vested interest in under-reporting crime and diminishing the actual risk to the public mainly because reasonable and proper security performed by professionals is quite expensive. Furthermore, many defendant companies do not want to record events that would demonstrate their civil liability.


In other words, many defendants both ignore risk and fail to provide adequate and reasonable security. This behavior is a shortsighted and reckless attempt to increase margins and profits. Obfuscation, downgrading and confusion about crime and risk exist and even proliferate in many industries. Where do plaintiffs' attorneys go to establish the foreseeable risk facing their client/victims in a negligent security case? How does one obtain accurate and factual information in taking a scientific approach to comply with the tenants of the rules of evidence?


In order to determine the actual level of risk existing at the time and place of the incident, a security expert is required. John Leighton, Esq., one of the nation's foremost lawyers litigating premises security cases, says:

"Expert witnesses are almost always necessary to bring an inadequate security case. Since the plaintiff has the burden of proving foreseeability and negligence and causation, doing so without expert testimony is almost impossible."


Knowledgeable security experts make use of public and private sources of crime and risk, such as the FBI Uniform Crime Report (UCR). The eight most common serious index crimes listed in the UCR are Homicide, Rape, Robbery, Aggravated Assault, Burglary, Larceny, Auto Theft, and Arson.


There are private companies that can provide accurate and graphic data on the index crimes and forecast risk at a particular location. It should be noted that this data is available to the defendants involved in negligent security cases prior to the event actually occurring.


Police departments have computerized communications systems that provide an extraordinarily accurate record of all founded police actions at a particular location within the agency's jurisdiction. This relevant crime data is automatically gathered, mainly by 911 calls on Computer Aided Dispatch (CAD) Systems. These reliable sources of foreseeable risk data will enable your security expert to provide a stronger opinion in considering the totality of the circumstances in determining the level of negligence and the proximate cause of your client's injury.


Andrew P. Sutor is Principal at Sutor & Associates, LLC, which provides professional security consultation and expert witness services for attorneys pursuing premises liability and negligent security cases. Reach Andrew at: [email protected] or at 609-822-2626. Visit www.SutorSecurityExperts.com for more information.


Crime and Risk Cover-Ups

Posted on June 13, 2016 at 1:45 PM Comments comments (0)

Crime and Risk Cover-Ups

by

Andrew P. Sutor

 

In order to successfully prosecute your premises security case and secure adequate compensation and justice for your injured client you must show the actual foreseeability of risk facing your plaintiff. This is necessary to determine the reasonableness of security provided by your defendants who had a legal and moral duty to protect their lawful business customers and guests from harm.

 

Unfortunately, getting to the truth of foreseeable risk is easier said than done. Just about every actor and party related to the civil matter before you has a vested interest in minimizing the actual risk involved in your incident. What results from this practice can best be described as a classic “cover-up.” It usually involves willful ignorance on the part of defendants and frequently contains spoliation of evidence as well.

 

Since government records are potential sources of data on crime and risk, please consider the reality that all levels of government and political entities desire to look good. Mayors, politicians and police chiefs like to show data supporting lower crime as their personal accomplishments. Thus, police department personnel are under pressure to downplay the actual occurrence of such crime and incidents. Minimizing and under-reporting crime is sadly commonplace. On the other hand, experience has shown that up-grading of crime is almost unheard of because of this desire to “look good” factor.

 

The most accurately reported crime of all is homicide because there is a body to contend with and explain. However, even some of these serious and fatal crimes slip by as missing persons, drug overdoses (sometimes with a little help), suicides, suspicious sudden deaths, or accidental deaths.

 

One would think that homicide, the most serious of all index offenses would not be subjected to under-reporting- not so!

 

As classic but extreme examples, if you check out New York city’s official UCR homicide stats for 2001 you will find nary a blip accounting for the thousands murdered there on the Twin Towers attack of 9/11. Likewise, if you review the homicide numbers for Shanksville, PA and Arlington County, VA you will not find any accounts of the hundreds murdered in those venues on that same dreadful day. Lest you think this is a one-off situation, please note that the same lack of accurate crime reporting on this most serious of all crimes can also be found for the dozens of murders in Fort Hood, Killeen, TX massacre in 2009 and Newtown, CT Sandy Hook school shootings in 2012*. It would be more truthful to report the actual homicide numbers, perhaps with an asterisk to account for anomalies. (*The Newtown homicides did actually show up on the CT state UCR stats but you have to know where to look for them.)

 

One thing is certain; what happened to those victims was, in fact, pure unadulterated murder and these obvious homicide events should have been properly recorded as such. It is too early to determine if authorities are going to “fudge the numbers” on the San Bernardino, CA murders of 2015 and Orlando, FL massacre of June 12, 2016, but time will tell. (Note: This latest atrocity occurred while this article was being written.)

 

The FBI’s Uniformed Crime Index reports include crimes against the person, listed as homicide, rape, robbery, aggravated assault and crimes against property, listed as burglary, larceny, auto theft, and arson.

 

As you go down the scale of seriousness of crime the opportunity for crime reporting agencies to “take advantage of the gray area” and downplay and minimize crime becomes even more pervasive. For example, was a domestic aggravated assault appropriately reported and recorded as a felony or simply downgraded to: “family disturbance – adjusted?” Far too often it is the latter.

 

My own research and published writings concerning victimization studies confirm the fact that about only 20% of index crimes were accurately reported in a major U.S. city. (Sutor, Andrew. Police Operations. West Publishing Co., St. Paul Minnesota. Unit 6, Crime Reporting and Clearance. P. 55)

 

Downplaying crime and risk data is even more pervasive in the private sector. Obviously, the defendants want to hide foreseeable risk because it would be bad for business if the public was aware of the actual level of risk. If guests and customers knew the real risk involved, they may not patronize the facility in the first place. Defendants, corporate “spin-meisters”, local chambers of commerce, industry trade organizations, and the defendants’ own legal “enablers” all have a common interest in minimizing foreseeable risk usually for their own specific monetary reasons.

 

Furthermore, providing reasonable and professional security is expensive and oftentimes security is looked upon as an expense to be cut, cut, and cut again. Reasonable security protection is frequently sacrificed to enhance profit margins. Some defendants who once had reasonable security cut corners so much that it raises the novel civil count of “abatement of security” that this expert has seen this charge utilized successfully in several of his negligent security cases.

 

An experienced and knowledgeable security expert on crime and risk will be able to provide you with the accurate foreseeable risk data that you need to support your premises security case by using a scientific approach involving multiple public and private data sources.

 

Practitioners would be well advised to heed the sage advice of John Elliott Leighton, Esq., the premier attorney on “Litigating Premises Security Cases” (Thompson West, 2006). Leighton points out the necessity of an expert in inadequate security cases and recommends, “Pay careful attention to the items sought by the expert and work with the experts in formulating document requests and interrogatories for the lawsuit.”

 

Getting accurate crime and risk data is the key to successful prosecution of your negligent security case. The bottom line here is that listening to your experienced security expert, especially one who knows “where the bodies are buried” and how to gain important risk evidence is definitely the way to go.

 

Andrew P. Sutor is a Principal at Sutor & Associates, LLC, which provides professional security consultation and expert witness services for law firms and attorneys pursuing premises liability and negligent security cases. He can be reached at [email protected] or at 609.822.2626

How Foreseeable Was It?

Posted on May 23, 2016 at 4:15 PM Comments comments (0)


HOW FORESEEABLE WAS IT?


By Andrew P. Sutor

 

If your client is seriously injured while a guest at a facility in the hospitality industry, there is a distinct possibility that the defendants in the case may not have provided a reasonable standard of care for the safety of customers and guests. Establishing the foreseeability factor is key in determining the reasonable level of security required to meet the prevalent risk. How do you establish that and how do you prove it to a judge or jury? According to John Leighton, Esq., distinguished author of Litigating Premises Security Cases, it requires the services of a competent and able security expert to support your case and assist you in bringing it to a successful conclusion.


The typical analysis begins with looking for previous similar crimes or incidents. It is accurately stated that “the past is prologue to the future.” A quick study of risk management tells us that if a type of incident has occurred in the area previously there is a higher probability of it happening again. It also means there is a higher standard of security/preventive action, etc. required to be in place. It will be hard for the defendants to support a position that no additional security was required if there is a history of problems that are relevant to the new incident.


Unfortunately, it is a fact of life that virtually all the players in the matter before you now have a vested interest in downplaying your incident and previous ones. In the case of crime, governmental and political entities at every level go to great lengths to under-report offenses; this includes some chiefs of police and police departments in order to look good. When it comes to liability the defendants have a clear, but sad, monetary interest to minimize what has happened to your client and previous lawful business guests and customers. Oftentimes, Willful Ignorance and even Spoliation of Evidence become the order of the day by far too many defendants who use “spin doctors” and “know-nothing” DCRs to minimize and conceal the actual foreseeable risk.


Your security expert should use multiple sources in a scientific approach to determine true foreseeable risk. That includes FBI Uniform Crime Reports (UCR) data; local police Computer Aided Dispatch (CAD) data along with valuable private sources such CAP Index risk data from CrimeCast, a personal favorite of this security and crime expert. A compilation of that data will provide a truer picture.


Furthermore, an astute investigator is going to search for what is termed Spoliation of Evidence. If the defendant organization is good at managing their data, surveillance footage, etc. the case may come to a crashing halt at this point. The material that would substantiate the incident or document will have disappeared and be untraceable. To say time and technological expertise is of the essence for your investigator is an understatement.


For a moment, assume that your expert is able to establish that there is a significant level of foreseeable risk prevalent at the time of this specific incident. Next, the expert has to develop evidence that the defendant’s security measures were inadequate and unreasonable at the time of the incident.


Inspecting the scene and the vicinity of the incident (crime or accident) at a time and under similar conditions [although obviously on another day/night] will help establish and support your expert’s opinion about the adequacy of security measures at the premises. What may be the norm weekdays might be different than what is in place say, early on Sunday around 2:00 AM.


Time is definitely a factor in performing a meaningful, competent, and relevant site inspection that will support your case. Crime scenes change over time. Many crimes and incidents in the hospitality industry occur on weekends and in the early morning hours. It is very helpful to walk the path and time frame of the plaintiff and/or his witness to obtain insight as to what happened and the security measures in place at that time interval. Expect your expert to take photographs, video… you know the drill.


Aside from the timeliness of the inspection it is also helpful to perform it on a covert (unannounced) basis if the subject of concern is located in a public area. For back-of-the house areas and security camera monitoring room inspections the defendant is going to have to give pre-approval. If the defendant’s attorney accompanies the inspection it would be wise for the plaintiff’s attorney to do so as well. In any event, the site inspection is a crucial part of any premises security/negligence case.


Furthermore, in order to determine how your defendant deviated from industry security standards it could prove useful to conduct a security survey of similar properties in that venue. And if the defendant owns or operates other properties in the area, your expert should be surveying them as well.


Sometimes, even when the corporation’s management knows that there is need for more robust security, they just don’t spend the money. I was recently involved in a casino negligent security case where a novel concept of Abatement of Security was raised. It went to the heart of the matter. Corporate management cut too many corners on security and surveillance. In other words, the defendants once had reasonable security performed by professionals but decimated it in order to save money!


The approach summarized above, along with accurate crime and foreseeable risk data, can significantly contribute to your winning of premises security and negligence cases by showing the correct foreseeable risk and totality of the circumstances involved. This, in turn, can aid in determining actual negligence levels and help prove the proximate cause of your client’s injury.


Andrew P. Sutor is Principal at Sutor & Associates, LLC, which provides professional security consultation and expert witness services for attorneys pursuing premises liability and negligent security cases. Reach Andrew at: [email protected] or at 609.822.2626

Conforming With Daubert Rules

Posted on May 18, 2016 at 4:15 PM Comments comments (0)


THE SCIENTIFIC METHOD – CONFORMING WITH DAUBERT RULES

By

Andrew P. Sutor

 

 

In order to achieve justice for your injured clients and bring your premises liability/negligent security case to a proper and successful conclusion you, and your expert, must follow stringent rules and legal standards laid down in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In essence, your expert needs to follow a scientific approach to the case and the analysis of the probative data therein in order to provide you with a strong opinion that supports your case.

 

This daunting task is not as easy as it first may seem. Your clients have been injured, oftentimes while lawful business guests of your defendants. The defendants had a legal duty to provide a reasonable level of care to protect your clients and others from the foreseeable risk and the eventual harm that may be caused by their failure to do so. You essentially need reliable and accurate data on the actual risk facing your clients at the time and place of the incident in order for your expert to take a scientific approach in developing important evidence relevant and material to the matter at hand. The accurate analysis of that fundamental data is critical to proving negligence on the part of the defendants and establishing the proximate cause of your client’s injuries.

 

Any experienced litigator understands that establishing foreseeable risk in the matter at hand is often extremely difficult to prove. There are significant obstacles to the acquisition of truthful and accurate risk data in many premises liability/negligent security cases. Not the least among them is the despicable practice of “willful ignorance” by defendants, which is part and parcel of ignoring the foreseeable risk facing your client. Another significant impediment is “spoliation of evidence” which is far too often widespread and pervasive in many such cases. Sadly, the truth is often hidden, obscured, concealed, disguised, obfuscated, and misrepresented by defendants and their enablers who are primarily interested in evading responsibility for their obvious negligence.

Furthermore, experience has shown that quite often getting the critical data you need is denied, thwarted, or delayed during the discovery process. You know the drill- defense counsel frequently use excuses to your request for relevant and important information as being “overly broad” or “too cumbersome” to produce. Daunting obstacles indeed, but you must get the truth to prove your case to the court.

 

Fortunately, an experienced and astute expert who is well-versed in crime, crime reporting, and risk analysis is available to assist counsel in getting the truth of the matter. Your expert can obtain important crime and risk data from public and private sources, and from the media. However, it takes a team effort, in that your expert must work hand-in-hand with counsel to obtain other important probative data and records through discovery, depositions, and OPRA records. A knowledgeable and effective expert that specializes in such cases will be able to provide counsel with a list of potential evidence important for a scientific-based opinion that will pass the court “gatekeepers” under the Daubert standards.

 

A case in point is one whereby defendant’s DCR went on national television claiming that serious crime occurring in his billionaire’s casino hotel was “insignificant.” Acting on the advice of his expert the plaintiff’s attorney prosecuting a vicious garage robbery assault civil case obtained Computer Aided Dispatch Reports (CAD) from the local police department for the year of the incident and four years previous. Most modern-day police departments retain this computer-based crime risk data that is a reliable source of risk information for analysis by your expert. In the above described case the “insignificant” crime characterization by the defendant’s “spin doctor” amounted to 11,000 police actions and reports of hundreds of serious crimes at the defendant’s largely unprotected property including four murders at the defendant’s hotel in a single year! This crime/risk data indicated that serious crimes at the defendant’s casino hotel were greatly increasing (+99%) along with the defendant’s significant cuts (-31%) in security and surveillance budgets and staffing during the same five year period. When married with other data on crime and risk information such as this can make your case.

 

Armed with such significant and incriminating data there is obviously clear evidence as cited in the above example that no court could ignore the facts that the defendant’s standard of security care provided to his guests was unreasonable and even quite reckless.

This type of scientific approach enables your security expert to provide you with a strong opinion in considering the true foreseeable risk, the unreasonableness of the security protection provided, and actual totality of the circumstances in determining the level of negligence and the proximate cause of your client’s injury. Although Daubert is a federal rule, it is highly recommended that it be followed in state cases as well. Getting to the truth of the matter will significantly assist counsel in proving foreseeable risk and, ultimately, justice for your injured client.

Andrew P. Sutor is a Principal at Sutor & Associates, LLC, which provides professional security consultation and expert witness services for law firms and attorneys pursuing premises liability and negligent security cases. He can be reached at [email protected] or at 609.822.2626


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