Security on the Witness Stand
In a crowded Florida nightclub, an argument between two customers got heated. Security personnel eventually ejected the patrons from the club, but the individuals walked out to the Elks Lodge parking lot and began another altercation that ended with a shooting. In the end, one bystander, Tanya Renee Oliver, was dead.
Although the final confrontation occurred outside the building, it was still on the nightclub’s property. The victim’s daughter filed suit against the business, claiming that the nightclub’s negligent security made it vicariously liable for the wrongful death of her mother. A St. Lucie Circuit Court jury delivered a nearly $5 million verdict against the defendant in 2019.
Michael Haggard, who represented the victim’s children in this negligent security case through The Haggard Law Firm, says the case hinged on finding that the actions taken that night—not ensuring that all parties left the premises entirely after being ejected from the building—did not match the actions called for in the organization’s own standards and procedures.
Security professionals may find themselves in court for a variety of cases, typically either intentional torts—false arrest, false imprisonment, or assault—or negligence, says Alan Zajic, CPP, a casino security expert and expert witness in security trials. For the former, organizations generally do a decent job of educating their employees about these risks, he notes.
“The rule of thumb should be for most security organizations that if a security officer, manager, or supervisor has to touch a guest or touch someone else, then a comprehensive report should be written,” Zajic says. “Then you establish the process of getting reports and video into evidence.”
In negligence cases, however, organizations must contend with the claim that security personnel should have acted but did not.
Typical cases brought on negligent security claims often involve the organization’s failure to implement, enforce, or document reasonable security measures such as training, proper lighting, and video surveillance, says Russell Kolins, an expert witness and consultant with the Kolins Security Group.
For example, a bar or a nightclub should have policies and procedures, and staff should be trained on those policies. When security guards fail to intervene in a verbal altercation until it turns violent or an overserved patron shows signs of dangerous inebriation, it can signify a lapse in training or a violation of in-house procedures, Kolins says. (For more, see “The Intoxication Issue,” February 2019.)
“Security is hired to observe and report, but they should also be trained to de-escalate situations—that’s all part of the training,” he says. “If they don’t have policies and procedures, if they don’t know what the rules are, if they don’t know how to de-escalate these situations, it’s negligence because that’s their job—that’s what they’re supposed to do.”
If a shooting occurs in a retail store’s parking lot, Kolins says, a series of security issues are called into question: Was there proper lighting? Were surveillance cameras functional with signage posted to deter crime? Was there a roving security patrol? And were the security measures adequately matched to the history of prior crime at the location?
Nightclubs or bars, for example, should be aware of their heightened risk exposure from selling alcohol and likely activity—such as narcotics use—on property, and they should account for those risks when developing and updating security procedures, says Zajic.
For concert venues, if it is well known that a particular concert or type of show regularly spawns fights in the audience, can the security director prove that he or she adequately considered these factors when deciding where to deploy security personnel that night, Kolins asks.
“There have been several cases where the defendants did everything they could possibly do,” Kolins says. “You can’t prevent all crime; however, you have to make a reasonable effort to prevent crime from happening and provide a safe and enjoyable environment for your patrons or guests. I have turned cases back to my clients because I can’t find anything the organization did improperly.”
However, proving it in court requires diligent documentation—especially because some lawsuits may be filed years after an alleged incident occurred. In some cases, the plaintiff will wait until the last day before the statute of limitations runs out—two to three years after the incident in most U.S. states—and then file a suit.
Given the nature of turnover in bars and nightclubs, Zajic says, it is unlikely that the security personnel who were working during the incident are still employed there, and without detailed documentation, plaintiffs have significantly better odds of succeeding in court or reaching a favorable settlement with the defendant.
Litigation trends and risks change with the times, as well. Zajic adds that in the face of a pandemic-triggered global recession, organizations should expect an increase in litigation, similar to what was seen in the United States following the 2008 financial crisis.
“People look to different sources to potentially cover what they’re not making by other means,” he says. “Even if someone can file a suit and settle for a lower amount, at least it’s an amount.
“Security operations really need to be very cognizant and careful; do comprehensive reporting and save everything; and do a good job—talk to counsel, make sure that they are prepped appropriately before testifying at a deposition.”
Record of Evidence
Not all witness statements and reports automatically come into evidence, says Zajic; surveillance video and reports have to be filed, and the judge will make the determination following witness testimony about whether to admit the video or reports into evidence.
Not all reports are created equal, however. According to Zajic, “75 to 80 percent of reports I come across—and witness statements—are not comprehensive in nature, and they are picked apart in the trial.” Everything from spelling errors to missing or misremembered elements can be used to color perceptions of the document and the organization’s security program.
“The entire report needs to be checked and double checked as if you’re going to be sued over it,” he adds. “As soon as you start doing that, you find that your litigation decreases overall because you’re preparing yourself—you know what’s going on and you’re educating all your security personnel about what not to do in the future.”
The smoking gun in today’s legal world is video evidence, he adds, including surveillance video, body camera footage, or smartphone video. While this can make or break a case, it is also under a high degree of scrutiny. The security team will need to have a documented chain of custody for the footage, along with documentation of when it was recorded and how it was collected and stored.
In addition, the plaintiff may claim the footage was tampered with or that the defendant is withholding evidence if the scene of the incident has multiple cameras but only one video feed is presented in court, hinting at missing or unsaved evidence.
Written records are also essential to document ongoing patterns of effective security—and how the incident in question aligns with those patterns, Zajic says. These can include witness statements, photos, and folio attachments.
He recommends retaining all of the regular day-to-day information on file—especially if logs can be scanned and digitally saved by date until the statute of limitations expires for that timeframe. This can include basic guard tour information—which officers were on schedule and where they were during an incident—as well as more event-specific statements.
Security departments should also keep updated records of regular security functions such as training, background screening, risk assessments, and revisions to in-house policies and procedures. Outdated security manuals or training programs are often red flags in court, Zajic notes, recommending that the security director review manuals at least once a year and document the review and any revisions. Even if no changes were made, simply proving that the manual is regularly reviewed demonstrates proactive security to the jury.
Overall, these policies—as well as any industrywide standards the organization follows—will likely be examined in a court case. These can include self-imposed standards, manuals, protocols, or guidance for personnel. “In litigation, the plaintiff will attempt to show that you violated your own self-imposed standards,” Zajic says.
For example, if the standard operating procedures (SOP) manual instructs personnel to never get hands-on with a customer, and the security officer does need to touch someone when responding to an incident and the customer gets hurt, that could result in problems in trial. If the SOP instead says “you should not go hands-on whenever possible, and only in defense of injury or death, etc.,” now the security personnel has room to explain their response within the parameters of the organization’s standards, Zajic explains.
In addition to the written materials, “undocumented training is often a pitfall you have to overcome at trial,” he says, recommending keeping detailed training records for at least a five-year period within the security department, checking off each specific element of training.
Corporate, commercial, and local standards are also likely to be examined, as well as national or industry-specific standards such as ASIS International’s standards and guidelines, Haggard says.
He adds that he will check standards that apply to that case or defendant, including best practices from industry associations, to build a case that the security department failed to meet an acceptable standard of care, or that it violated its own standards or national standards.
In some cases when additional explanation and context is needed, either or both sides of the lawsuit may hire an expert witness to evaluate the defendant’s security measures and give his or her opinion on whether the incident violated acceptable standards of care. The security expert’s job is to break down complex issues like security and risk mitigation into language that laymen on the jury can understand.
“An expert is not an advocate for their side. If I’m on the plaintiff’s side, I’m not advocating for the plaintiff…we’re advocating for our opinions,” Kolins says. “We’re not that interested in the outcome of the case as we are in providing the educational portion of the case to the client and, if testifying in trial, to the jury.”
But the most important factor is going to be the defendant, says Haggard, because they dealt with the situation in real time.
Whether testifying in a deposition or in a criminal or civil trial, it is essential to have a clear speaking voice, appropriate dress, a high degree of preparedness, and honesty, says Chad Callaghan, CPP, principal of Premises Liability Experts, LLC. Previously he served as vice president of global safety and security – Americas – for Marriott International, and he was called to testify in trials on behalf of the company dozens of times.
Testifying in front of a jury is somewhat rare, Callaghan says, but witnesses should look presentable, avoid colloquialisms or inappropriate language, and make eye contact with the judge or jury. This conveys an open and honest demeanor.
However, one of the most essential elements is honesty. “The worst thing that can happen is that they catch you in a lie in front of a jury or a judge; you’re pretty much done. As an expert witness, you probably won’t get any more work,” Callaghan says. “When you get all the way to a trial, you’d better be honest. If you feel like there is something you can’t be honest about, this case should be settled long before you get to trial.”
Prior to a trial or testimony, the attorney or in-house counsel will likely advise witnesses—from frontline security staff to chief security officers representing the organization to expert witnesses—about how to present themselves in court and answer questions. While each case is unique, professionalism, preparedness, and patience can help witnesses avoid falling into traps.
Preparedness. “I think our policy is this,” “The last time I looked, the policy was,” “Well, I don’t know, but…” In listening to security depositions, Zajic has heard a variety of waffling that fails to accurately portray an otherwise well-organized department.
“Where a lot of security professionals get into trouble is they try to wing it during deposition,” he says. “There are some very artful claims attorneys who try to use that to their advantage.”
Be prepared; read the policy manual, all case information, and any relevant reports, he advises.
Trap questions. “Have you ever told a lie?” The knee-jerk reaction is to deny it, especially in a courtroom, but that is easily disproven and makes the witness seem shifty to the jury, Callaghan says. A more appropriate answer would be “Yes, but I have not been dishonest under oath.”
Similarly, it is likely that an attorney will ask if there is anything more important to the organization’s customers than security. “Yes” could be argued as a sign that the company neglected security; “No” could lead to questions about why other initiatives were better funded than security. A simple response to dodge this trap, Callaghan suggests, is: “Security is among the most important things that matter to our customers.” This acknowledges security’s value without providing an obvious opening for contradictions.
Hypothetical questions. Corporate security directors or fact witnesses are not required to answer questions about hypothetical scenarios, Callaghan says, but expert witnesses are. “Probably the best way to deal with that is to say ‘I understand what you’re saying in your hypothetical, but those are not the facts in this case. If they were, however, I would answer this way,’” he says. This allows the expert witness to answer the question without admitting the hypothetical details happened during the case in question.
Unnecessary elaboration. Answer questions directly and succinctly, Callaghan advises. Elaborating without need gives the defendant’s attorney more information than strictly needed, and it can open up new lines of questioning that the witness may not be prepared to answer.
In particular, frontline security employees testifying do not need to memorize every aspect of the security policy or program, Callaghan says. The line employee primarily needs to convey that he or she knows what his or her job is, that he or she was trained properly, and that he or she responded according to their training, he adds.
Absolute statements. Not all elaboration is negative, however. “Talking about yes and no answers can be a double-edged sword, but don’t be bullied into an absolute statement by an opposing attorney,” Callaghan says.
For example, if an attorney asks: “Isn’t it true that there have been multiple crimes at this particular location?” A yes or no answer does not give adequate context in this case, so additional explanation is required to give jurors an accurate picture of the situation: “Yes, but the previous crimes are dissimilar to the crimes we are dealing with here.”
Silence. A common tactic is for the opposing counsel to remain quiet after a witness’s short answer in the hopes that he or she will elaborate to fill the uncomfortable silence, Callaghan adds. Expecting this behavior and walking through the process with the counsel during trial prep will enable witnesses to gracefully weather it.
Standards of Care
Litigation around security issues in the United States is moving away from the older concept that measures a security program against prior similar acts and toward more of a totality approach, Zajic says.
In the latter, parking lot lighting and other security measures can be considered relevant to a robbery inside a casino, especially if there is a history of robberies in the parking lot. It can be considered a warning sign to juries and opposing counsel that security and crime deterrence were not taken as seriously as they would expect at the establishment.
Some corporate security directors or property managers still take the attitude of “it’s not my company’s duty to create a safe premises, that is up to the police and the citizens of the community,” Haggard says.
“The reality is the law in pretty much every jurisdiction is the commercial property owner has a duty to keep a reasonably safe premises—not a perfectly safe premises, some crime is obviously inevitable,” he says. “But you can’t get in front of a jury and say it’s not your responsibility to keep safe premises….There are commercial property owners who just want to flip property and don’t have a concern about their tenants; they’ll get up there and say that, and once they do, the case is over.”
In one of Haggard’s recent cases, a child was kidnapped from a Pensacola, Florida, residential complex and killed. The crime was traced back to a resident who was not listed on the lease and was registered as a sex offender in a different state. Employees interviewed in the case admitted to having problems with vagrants, people parking at the facility without permits, and unknown residents, but they did not do anything about it, Haggard says.
By reviewing leading apartment management agency best practices, Haggard could show how the property management fell short compared to what others in the industry were doing.
Security and crime trends also shift juries’ expectations around standards of care, Haggard says. Ten years ago, active assailant or mass shooting incidents were relatively rare, and it was considered beyond prevention. Now, however, these incidents are part of reality in the security industry and commercial property agencies.
“Under civil law, you have a duty of care to provide reasonable security measures,” Callaghan says. “It does not mean that you have to prevent all things from occurring, it doesn’t mean that you’re ensuring someone’s safety while they’re on your property, but it does mean that you have to provide reasonable security measures.”
“The proactive corporate security directors and property managers who can get out there and defend their plan, defend their actions, those are the ones that concern me the most as a victim’s lawyer,” Haggard says. “They concern me in terms of my case, but that’s what we want them to be doing.”
In some instances, such as properties that have experienced a high amount of crime, it is smart to show the owner has gone beyond what is considered a “reasonable measure” to keep people safe, Callaghan adds.
For example, if a company is seeing increased cases of carjacking in its parking lot, it might increase security patrols from every two hours to every 30 minutes and add a staff member.
“Being able to document that is golden in trial,” Callaghan says. “It shows that you not only provided reasonable security measures, but you were willing to recognize when you had a problem and were able to respond to it.”
For more information on security expert witnesses, read "Security Experts in the Courtroom."
This column should not be construed as legal or legislative advice.