Kelmar Case Study: Defending the Defender

By Kelly Riddle

Our agency was employed by an attorney that represented a security guard company in a negligence lawsuit.

A security company had contracted with a college to provide 24-hour, on-site armed security. During registration, a security guard was sitting in a room assisting with taking money as the students paid for their classes. Two armed men with ski masks entered the building and fired several shots. The security guard was struck in the head and killed instantly. Several students were wounded (but subsequently recovered from their injuries).

As the perpetrators left the building, they came face-to-face with two additional armed security guards who were at opposite ends of the hallway. Surprised to find guns pointing at them, the guards were concerned for their safety as well of that of the students, and elected not to pull their weapons. The two perpetrators exited, entered a nearby car and fled the scene.

The security company was then sued by students who were present at the time, alleging that the guards did not act reasonably in this situation. Although the company was solely owned, it petitioned the college to be listed as an employee of the college. This would have enabled the security company to be protected due to a government entity having limited liability. The college refused, however, and the lawyers for the security company then countersued the college to include it as a defendant in the case.

Obviously, from an investigative standpoint, this limited access to college records and personnel. In order to bolster its case, the security company retained Kelmar Global to investigate and supply more supporting evidence.

In cases such as these, there are several issues that must be overcome for a successful defense to be mounted. These include:

Foreseeability

Foreseeability is based on available information from law enforcement agencies, crime statistics, experience and news sources. Security cases can often hinge on four major elements:

  1. Whether the owner owed a duty to provide a safe environment to the injured party.
  2. Whether the owner breached the duty to provide a safe environment.
  3. Whether the breach constituted the “proximate cause” of the injury.
  4. Whether the plaintiff suffered actual injury or damage.

The duty to provide a safe environment is pretty basic. In the incident in question, the plaintiffs had reasonable expectation that they would be safe from such an assault while on the campus. Whether the security company or college breached the duty is more difficult to determine. In Chapman v ESJ Towers (U.S. District Court, Puerto Rico, 1992), the appeals court ruled in favor of the plaintiffs stating that the defendant should have had “reasonable foreseeability.” The court reasoned that, among other things, only one security guard was on duty, working a 12-hour shift without a break and watching 10-15 CCTV monitors simultaneously. The court also found that cars could get out of the property without going through an access control system.

In the case of this incident, there were a reasonable amount of security officers on duty at the time of the incident. However, the surveillance cameras were apparently not functioning properly and no one had been assigned to monitor them. Additionally, the parking lot area did not have an access control system.

Other relevant elements pertaining to foreseeability include:

  1. Compliance with industry standards in protecting its premises.
  2. The presence of suspicious people around the premises.
  3. Peculiar security problems, including the design of the facility.

We contacted other colleges and universities and were able to determine that the security company appeared to have operated within industry standards. Most of the colleges and universities revealed that they do not handle registration day any different than any other day as far as security is concerned. In addition, most of their officers are unarmed.

Crime Rate

The crime rate and crime history in the area of the incident played a role in determining whether the college and security company should have foreseen the probability of an incident such as this. In this situation, the security company did not have access to their reports as they were filed at the college and were not readily available. Therefore, interviews had to be conducted to determine the general recollection of the crime rate.

Next, we conducted a neighborhood canvass to find out about crimes and the perception of crime in the area near the college. Outside of a few burglaries and auto thefts, the area appeared to be free of crime — especially violent crime. We then obtained a breakdown of police calls within a two-mile radius of the college. There were only 17 assaults, three weapon related calls, seven robberies and 130 suspicious person calls.

We also checked with the local media and reporters covering the police beat who indicated that they believed the area around the college to be relatively safe. A check of the FBI statistics was then performed and it was determined that the specific city and those around it had experienced an average decrease in crime of seven per cent. Compared to cities throughout the U.S. with similar populations, the crime rate was even lower.

To take this a step further, our investigators contacted other colleges and universities in the state to determine if they had experienced any similar incidents and their crime rate. None of these had reported any situations where there was a victim of a robbery and/or physical assault with a weapon.

A review of current written material related to the topic of foreseeability was conducted. In a recent court proceeding, Timberwalk Management v Cain, 972 S.W. 2d 749 (Tex. 1998), the court stated, “Crime may be visited upon virtually anyone at any time or place but criminal conduct of a specific nature at a particular location is never foreseeable, merely because crime is increasingly random and violent and may possibly occur almost anywhere.”

In the incident at the college, “the risk of criminal conduct being both unreasonable and foreseeable” did not appear to exist. Further, there was not any information or other indicators that would have prompted the security company to foresee an event such as this.

Proper Licensing

A check with the State Board revealed the security company was properly licensed and insured. In addition, the security officers were properly licensed at the time of the incident.

Proper Training

At the time of the incident, the security officers in question had completed the required training set forth by the State Board. In addition, each was also properly trained and licensed to carry a weapon on duty.

Adherence to Contract

A review of the contract between the security company and the college revealed that the contract was weak and little was specified about the actual duties and responsibilities of the security officers. The security company was found to not only have complied with the contract, but exceeded it when appropriate. According to the contract, the security company was only required to have two officers on duty for registration. The company, however, elected to have three present.

Reasonable Actions of the Security Officers 

According to the author of “Trial by Fire,” published in the Security Management May 1998 edition, San Diego State University had a student who shot and killed three instructors on August 15, 1996. The University’s security personnel approached the shooter and were able to take him into custody. According to the author, “legally, they could have [shot the student], but in the university’s view, the additional bloodshed was not necessary, because the officers were in full control of the situation and would have been able to react to any threatening movement.

The officers responded appropriately, displaying judgment and sensitivity while maintaining proper officer safety techniques. Had the officers been unarmed or poorly trained or supervised, the events following the shooting could have escalated an already tragic incident.” Accordingly, as noted in this article and Keeping Crisis Cool, the manner in which security officers react to a potential threat will have a direct bearing on how the situation escalates.

In the incident in question, the security officers who were not wounded reacted in an appropriate manner by not drawing their weapons. In the interior of a building composed of brick and concrete, any bullets missing their mark would have ricocheted and may have hit innocent bystanders. Additionally, the security officers reacted properly by not attempting to cut off the escape route once the robbers attempted to flee.

Physical access and limitations

According to the authors of the textbook Introduction to Security, building design should be considered as a part of security. The authors state, “The cause of security can be furthered simply by making it more difficult (or to be more accurate — less easy) for criminals to get into the premises being protected. And these premises should then be further protected from criminal attack by denying ready access to interior spaces in the event that exterior barriers are surmounted by a determined intruder.” The authors continue by stating, “Yet few such buildings are ever designed with any thought given to the steps that must eventually be taken to protect them from criminal assault.”

In the incident in question, the perpetrators were able to access a parking lot next to the registration building, as there was no type of controlled access for the parking lots. The perpetrators parked within 20 feet of the door to the building where the cash was held. Once out of their vehicle, there were several small trees that prevented anyone from observing the door. In addition, the door was set back in a recessed area. The building where the registration was being conducted did not have any windows. A combination of these factors made access into and out of the property virtually undetectable.

Equipment

According to the contract, the college was to supply all equipment for the security company to use at the college, including CCTV cameras and a monitoring room. However, the contract did not provide for a security officer to monitor the cameras. In addition, many of the cameras were not functional.

Summary

The investigation revealed that the security company provided the right amount of manpower, training and equipment as required by the contract and industry standards. The actions of the security guards were found to be reasonable and prudent, and may have actually prevented additional injuries. The evaluation of the college revealed that they did not adhere to the contract responsibilities, failed to limit access to the college, did not have adequate lighting, and had landscaping and other building design issues that prevented observation of criminal activities.

By the end of our investigation, the security guard company was provided with a capable defense while at the same time demonstrating that the real liability rested on the college.


Kelly E. Riddle is the President of Kelmar and Associates Investigations (www.KelmarGlobal.com) as well as a certified member of the Texas Association of Licensed Investigators (https://www.tali.org/). Contact Kelmar Global at (888) 873-1714.

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