A Clear View of Liability
Print Issue: March 2012
TWO FEMALE SHOPPERS CHATTED as they walked toward their car in the parking lot of a big-box chain store. Suddenly, they heard rushed footsteps and a disheveled young man grabbed one of the women. Without warning, he pulled a knife and plunged it twice into her neck. She fell to the ground, bleeding profusely, and the assailant ran away across the parking lot.
In the litigation of the case, one factor weighed heavily against the property owner: although surveillance cameras were mounted along the roof of the building to record activity in the parking lot, they were not monitored in real time. That’s a critical but common error—one of nine major deficiencies that lead to increased liability when persons are harmed on a company’s property.
This case is just one example of how, whenever a breakdown of security occurs and someone is harmed because of it, businesses can expect a lawsuit. Without fail, the role of the surveillance system and department will be thoroughly examined and assessed in the discovery phase and used against the defendant if it can be. The author has been an expert witness—on both the plaintiff’s and defendant’s side—at trials where surveillance systems and their operation have been used in evidence to either greatly lessen or increase the liability of the business or employer. When correctly engineered and properly operated in tandem with adequate security responders, surveillance systems function admirably to protect people and assets, but when they do not, they can lead to large judgments against the companies who own them.
Hierarchy of Deficiencies
In lawsuits, liability arises from equipment when there are flaws in design, placement, installation, or functionality. For example, if cameras are placed in lowlight situations and unable to capture images because of insufficient luminosity, if cameras placed where backlighting is extreme cannot compensate, or if systems with excessive interference suffer significantly reduced image quality, liability may result. Operational faults can occur because of poor management decisions, inept administrative applications, training malfunctions, and operator errors.
A scale of operational errors or “faults” causing potential liability exposures arising from deficient or negligent surveillance operations is used as a metric to assist litigants. In ascending order from least to most serious, they are as follows.
Operator inexperience. The first deficiency is having staff that is never fully competent technologically and operationally. The cause may be high employee turnover due to low pay, poor benefits, and supervisors with poor people skills.
Poor training. Next is when the operators do not understand the behavioral or legal implications of the images due to a lack of training or experience. Companies that suffer the first deficiency (inexperienced staff) will likely suffer the second, but even companies without high turnover may suffer this deficiency if they fail to provide proper training.
At one Nevada gaming resort, the surveillance operators directed security floor personnel to detain various patrons who seemed to be acting suspiciously. The directive originated with a previous director of surveillance who had misinterpreted legal statutes. The former director thought that anybody inside the casino could legally be detained based upon any suspicion. This led to several lawsuits for false imprisonment.
At another casino, the surveillance operators were never taught to discriminate between nongaming misdemeanors and felonies. This distinction is critical because the law requires that for a misdemeanor arrest to be lawful, the person making the arrest must have witnessed the crime. This lack of training resulted in multiple lawsuits. Most were settled out of court; one that went to trial was ruled a false arrest.
Inadequate staffing. The next fault in order of increased liability is that the company has too few operators given the size of the property.
At a gaming resort that marketed itself as a family destination, for example, there was a large arcade that catered specifically to children and teenagers. A man entered the arcade and lured a young girl away from family members. He took the girl out a side exit and tried to get a taxi in front of the casino. Surveillance staff did not notice what had happened. Fortunately, another guest reported this to security, and officers immediately responded. The man was arrested, and the child was returned to her family.
It was discovered during the ensuing lawsuit that the surveillance department was responsible for monitoring the arcade as well as the casino, the large hotel, the back of the house, the parking lots and garages, and all outside areas. It also acted as the dispatcher for all incoming calls from security guards, department heads, and guests. The surveillance department had an average of two to three operators per shift to perform all of these tasks. A review of the camera footage clearly showed the man making deliberate maneuvers to avoid security and other arcade employees as well as engaging several children in conversation and horseplay. A well-trained surveillance observer would have noticed these behaviors, which are indicative of predatory pedophiles, but there was no one who had time to spot these red flags because of the drastic understaffing.
Substitution. Thinking that a suitable surveillance system should replace, rather than supplement, other necessary security measures is the next error in the liability pyramid. This is typically the result of management replacing people with technology because “computers don’t call in sick and cameras don’t ask for pay raises,” as the author has heard it said.
This tactic is usually part of a broader business strategy to operate with leaner staffing across all of the company’s operating units and departments. The irony here is that these companies eventually learn the hard way that their ability to respond to incidents captured by surveillance systems and witnessed by operators is severely curtailed by that approach, which can have expensive consequences.
A good example of this was at a large retail mall linked to a Nevada casino resort. Inside the independently operated mall were numerous retail outlets, as well as restaurants, lounges, and a large nightclub. The mall had its own security force and a fairly elaborate camera surveillance operation that was highly effective—so much so that it generated more alerts than security staff could handle.
One evening, the nightclub had ejected some rowdy patrons who did not leave the property; instead they stayed inside the mall common area displaying aggressive and provocative behavior. The camera operators witnessed this and called for security responders to intervene. The security staff was already thinly distributed between three other serious criminal incidents and a medical emergency. The local police were notified, but they had no one available to send either. Eventually, a fight broke out between the ejected patrons and a man whose girlfriend they insulted. He received severe injuries during the altercation. The attackers then fled the scene, but were tracked by cameras and later arrested.
In subsequent lawsuits, the mall management and owner were sued for inadequate security. The mall’s own extensive surveillance recordings were used as evidence of negligence.
Selective monitoring. The next type of liability is when an organization has elected to monitor a designated portion, section, or aspect of its enterprise to the exclusion of another. This may not be a problem if the unmonitored portion has the same level of security and protection as that which is being monitored via alternative risk-management methods.
In a recent Nevada case, a big-box store had previously protected its 800-space parking lot with live monitoring via cameras and physical patrols. It then ceased live monitoring and switched to recording only. It also discontinued having its own security officers physically patrol the lot and contracted for a lone guard to patrol the entire lot in a truck.
After this change in protocol, a patron was killed in the parking lot. At trial, the jury learned that the security contractor and its employees were not aware that the outdoor, roof-mounted cameras were being recorded and not watched in real time. The jury also learned that inside the store, there were more than 50 surveillance cameras watching most of the store. Operators in the store’s surveillance room were in constant contact with both retail sales supervisors and plain-clothes loss prevention agents on the floor. The trained operators knew how to maximize the surveillance camera equipment. They also knew how to adroitly coordinate with the loss prevention agents to confirm a theft and capture the culprits before they could leave the store.
By contrast, the only oversight given the outside lot was the lone contract guard patrolling in a truck; he had no direct radio contact with security inside the store and the mistaken belief that surveillance officers were also watching the parking lot. The jury decided that the store’s inside model was within the standard of care; the outside model was significantly below. The jury awarded the decedent’s family more than $1 million.
In the case that opened this article, the woman who was stabbed in the neck nearly died from her wounds. During the resulting lawsuit, it was learned that—as in the case just described—the inside of the store was patrolled and monitored while the outside had a lone contract guard watching the football-field-sized parking lot and no one monitoring the camera feed. The settlement with the store was for several hundred thousand dollars.
No monitoring. A system where there is no live surveillance, only recording video for later review if needed is the next step in the liability pyramid. While there has been much debate within the security profession regarding the wisdom of this approach, juries are not so conflicted. They are increasingly ruling against large businesses, such as some shopping malls, big retailers, parking garages, and educational campuses, when they fail to have live surveillance-system monitoring of criminally intensive environments.
Juries base their decisions on the fact that the average users of a location where the surveillance system is visible make a natural and reasonable assumption that a person is actually viewing the camera feed. This assumption is often reinforced by ambiguous signs such as “Cameras in use” or “This lot under surveillance.”
In one case that occurred at a Nevada men’s entertainment club, there were both bouncers and security personnel on duty to break up occasional fights. One evening, during one such altercation, a fight erupted in which a group of males attacked a single patron. The fight occurred out of the sight of any of the bouncers or security personnel. The man sustained severe injuries.
During pretrial discovery, it was learned that the club had a fairly sophisticated camera surveillance system that extended throughout the facility but was not monitored. It was also learned that there was an on-site surveillance viewing room; it had once been staffed, but when the surveillance operator quit, he was never replaced. A review of the recorded footage clearly showed that, had the system been monitored, the operator would have seen the buildup to the fight and would have had sufficient time to dispatch security to break apart the arguing parties. The club ultimately settled the case out of court for a substantial amount.
Operational but ineffective. Third from the top of the list is having a camera surveillance system that is operational but no longer suitable for the environment. In some cases, this can be caused by temporary or seasonal changes to the environment.
For example, during the holiday season, a California shopping mall’s marketing management hung elaborate banners and decorations from the ceiling. Unfortunately, these impeded the view of many of the mall’s surveillance cameras. When the security director complained, senior management sided with the marketing department.
As a direct result, the surveillance teams did not see two rival teenaged gangs break into a fight in the food court. The melee resulted in injuries to multiple holiday shoppers, created a media debacle for the mall management, and resulted in expensive lawsuits.
Another example occurred when a Nevada casino underwent a major renovation of its gaming floor. Previously, the surveillance system had a clear view of the entry to restrooms that were near one of the entrances. Outsiders often used the facilities, including criminals engaged in gang, drug, and prostitution activities. When surveillance room operators watched suspicious persons enter the restrooms, security was dispatched, and the users were instructed to leave.
When renovation was completed, the surveillance operators no longer had a clear view of the restrooms. The requests from the surveillance director for additional cameras to compensate were given low priority, even though there had recently been well-publicized casino-related incidents where both the elderly and children had been attacked, sometimes fatally, in restrooms.
Several months later, an elderly woman coming out of the restroom was attacked by two female gang members. When the victim’s husband tried to intervene, a male accomplice of the women assaulted him. Security guards intervened only after a guest called the hotel front desk on her cell phone to report the incident. Within weeks of the incident, management had allocated a budget for additional cameras. The victims took their consolation in preparing a lawsuit against the casino.
Broken. Having a surveillance system that is in disrepair or nonfunctional is the next most costly deficiency. This can occur when management decides not to maintain existing funding for staffing and system maintenance. The problem can be exacerbated when cameras are targeted by criminals.
An example of this occurred at a casino parking garage. A local gang had all but taken over the upper level of the garage, claiming it as their turf by destroying the surveillance cameras and defacing the walls with graffiti. When the casino repaired the cameras and painted over the graffiti, the gang destroyed the cameras and tagged the site again. This went on until the casino senior management tired of the cost and decided to stop repairs. One day, a patron who had parked on the upper level was brutally battered by gang members and suffered extensive injuries. Because the cameras were not operational, surveillance did not see the attack. The jury returned a substantial judgment against the casino that far outweighed the cost of continuing repairs and maintaining constant patrols.
No system. Finally, in terms of liability, the worst error is having no camera surveillance system in place when prevailing circumstances dictate that it would be prudent to have one. These circumstances include an established history of crimes against persons and property; an insufficient security force to cover the area; or a lack of other security methods or tactics to offset the absence of cameras. Juries will also take into account whether similar organizations in the same type of business or region typically have surveillance systems.
An example was a pay-by-the-week, long-term-stay hybrid motel and apartment complex with more than 700 units in 23 buildings on 18 acres of land. The complex had suffered the entire spectrum of crime, from small misdemeanors to serious felonies. To protect this massive complex, the management company had one guard and no camera surveillance except inside the rental office. One morning, a resident was outside smoking when she was brutally attacked and suffered permanent brain injury. The judgment at the trial was more than $3.5 million against the management company of the complex.
All of these examples provide crucial lessons for practitioners, lawyers, installers, and risk managers. Smart companies won’t wait to learn these expensive lessons in court. Instead, they will carry out proactive self-assessments and make necessary adjustments to limit the potential of harm to anyone on their property and to minimize their liability should unavoidable incidents occur.
D. Anthony Nichter, CPP, is senior analyst and instructor at the Institute for Strategic Executive Development in Las Vegas, Nevada, and Executive Security International of Colorado. He is a member of ASIS International and past chair of the ASIS Gaming and Wagering Protection Council.