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How Foreseeable Was It?

Posted on May 23, 2016 at 4:15 PM


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

Categories: Premises Security Cases

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