William F. Blake, CPP, CFE
Blake and Associates, Inc.
Littleton, CO 80160
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James P. Carino, CPP, VSM
Executive Security Consultants
Gladwyne, PA 19035
It’s Monday morning and as the Executive Director of the Metropolitan Housing Authority, you wonder what could happen to make the day any worse. Then your worst fear comes true. Your operations manager tells you that last night a gun fight between gang members erupted in the hallway of one of the apartments where you have had many problems with drug dealers. During the gun fight, two children, ages 7 and 8, who were asleep in bed were struck by rounds coming through the wall. The 7 year old was seriously injured and the 8 year old was pronounced dead at the scene.
Your only comment is-”What else can go wrong?”
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Unfortunately, this is not a scenario that is uncommon in our public housing facilities. The question now arises-what actions should we take to make sure this type of incident does not occur again?
The owners and managers of property are expected to provide a safe and secure environment for individuals on their property. It is impossible to prevent every incident affecting safety and security. Criminal incidents have a direct negative impact on the quality of life for residents.
As the number of criminal incidents increase, people develop a “bunker mentality” because of fear for their safety and leave their residences only when absolutely necessary.
The demographics of the residents impact the probability of criminal incidents occurring. If the residents are elderly or handicapped, they become easy prey. If residents become gang members, the potential for gang related crime increases because of the “mob mentality” and peer pressure. These are just two problems affecting safety and security.
NEGLIGENT SECURITY AND PREMISES LIABILITY LAW
The underlying legal tenet is the concept of negligent security and premises liability. Being aware of the components of this concept will provide insight into various risk management strategies.
A security liability claim usually arises when a resident, visitor, or employee, while on the premises, is injured by the criminal act of an unknown third person. The claim is brought against the owner or occupier of the premises for failing to provide adequate security. Since requiring property owners to guarantee the safety of all guests, customers, and employees violates our notions of common sense, the battle rages over whether the property owner used reasonable security measures and whether the criminal act was foreseeable.
For the plaintiff to be successful, they must prove that the property owner or manager had a duty to protect the plaintiff from unnecessary harm, was aware that there was a probability that the risk exposure caused the act to occur, failed to take reasonable and appropriate protection measures, and the defendant’s failure was the proximate cause of the plaintiff’s injury.
DUTY AND REASONABLENESS
The duty owed by an owner or occupier of a property to individuals on its premises depends on the relationship of the parties. Historically, the extent of the owner or occupier’s liability rested upon whether the individual was a trespasser, a licensee, or an invitee. A trespasser is someone who enters upon the premises without consent or a privilege to do so (Restatement (Second) of Torts, 329 (1965). A licensee is someone who enters the premises with consent, generally for his or her own purpose (a social guest, sales person, etc)(Restatement (Second) of Torts, 330 (1965). An invitee is someone who enters the premises at the invitation of the owner or occupier for a purpose upon which the premises are held open (paying guests, customers, delivery people, employees, students at a school, etc.) (Restatement (Second) of Torts, 332 (1965).
The owner or occupier owes no duty to a trespasser until the owner or occupier discovers the trespass. To a licensee, the owner or occupier owed the duty of using reasonable care regarding active operations and to warn of hidden dangers. The duty owed to an invitee was one of reasonable care under the circumstances, which requires the owner or occupier to inspect the premises for dangers, to carefully operate its business, make the premises reasonably safe, and to warn of hidden dangers.
By and large, however, the owner or occupier of a property that is held open to the public will have a duty to use reasonable care under the circumstances for the protection of people using its premises. The duty generally applies to dangers, such as criminal activity, that the owner or occupier knew or should have known existed on its premises.
Traditionally, courts had held that owners and occupiers had no duty to protect against criminal acts by third persons on their premises. However, that position is changing rapidly. The Restatement (Second) of Torts gives a framework for the duty owed by owners and occupiers for acts on their premises by third persons. Under certain circumstances, a duty to police the premises or to provide adequate security may arise. Where the place or character of the possessor’s business, “or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he might be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford reasonable protection.
If a duty exists (and it usually will with regard to a property that is held open to the public), it applies to the entire premises-buildings and parking lots and structures. Although a duty to protect against criminal acts might clearly exist, property owners are not necessarily liable for injuries from such acts. The ultimate question of liability will turn on other factors, such as whether the criminal act was foreseeable (Restatement (Second) of Torts, 344 (1965).
FORESEEABILITY
The question of whether a criminal act was foreseeable is critical to the analysis of a security liability case. Courts usually apply one of two standards to determine whether a criminal act was foreseeable. One standard is based upon substantially similar events, while the other is based on the totality of the circumstances.
Under the “substantially similar events” approach, a duty may exist when the owner or occupier knew or should have known about similar incidents committed on the premises. This approach tends to limit the liability of the owner, depending on whether there were prior incidents on the premises of the same general nature as what injured the plaintiff.
The “totality of the circumstances” approach broadens the owner’s potential for liability. Under this approach, a criminal act on the premises might have been foreseeable if prior criminal incidents occurred in the neighborhood, even if no similar acts were committed on the premises. If the owner or occupier of a particular property knew or should have known about criminal activity in the surrounding areas, it was foreseeable that the residents could be harmed by criminal activity on the premises.
Whichever approach is used to determine foreseeability, property owners must implement proactive measures to collect, compile and analyze important statistical data. Since foreseeability is usually based upon what the property owner knew or should have known, owners and occupiers may not bury their heads in the sand or look the other way.
BREACH OF DUTY
The next step in the analysis of a security liability claim is to determine whether the duty was breached. Usually, the question of whether a legal duty existed is a matter of law, to be decided by the courts. The question of whether the duty was breached is a factual matter, usually decided by the jury.
The property owner owes a duty to provide reasonable measures aimed at protecting its customers from criminal attacks by third persons. The duty is not to guarantee safety, nor is it to insure against all criminal attacks. Factors such as industry standards and what security measures have been implemented by similar facilities are used to help determine the reasonableness of a facility’s security measures. At least one court has held that security trade practices do not establish the legal standard of care (Allen v Ramada Inn, Inc., 778 P.2d 291 (Colo 1989). However, characteristics unique to the particular facility, such as location, layout, design, and type and level of activity are keys to the analysis.
CAUSATION
The final step in the analysis of a security liability claim is to determine whether the failure to provide reasonable security measures to protect against the incident was a cause of the plaintiff’s injury. This causal link between the failure and the injury is usually a question of fact, again for the jury to decide.
Several factors should be investigated when analyzing whether a causal link exits. First, the relationship between the assailant and the victim should be investigated. If the assailant knew the victim, or if the assailant targeted a particular victim, the incident becomes less foreseeable and the gap between inadequate security measures and the injury widens. If the crime is of a random nature, however, and is similar to a prior incident on the premises, the gap narrows.
Another key factor is whether enhanced security measures could have deterred the crime. If there were few or no cost-effective security measures that could have been implemented by the property owner that could have deterred the crime, the causation gap again widens. If, however, the plaintiff is able to identify cost-effective measures (e.g., better lighting, key control, or supervision) that were not in place at the time of the incident and that could have deterred the crime, the causal link is easier to make.
A factor that guarantees the causal link is if the plaintiff is able to identify security lapses that contributed to the crime. If an assailant enters onto the property through an unlocked security door or unsecured gate, for example, then commits a crime on the premises, the causal link is made. Such security lapses not only help the plaintiff to establish a causal link, but they also increase the potential damages against the defendant.
A property owner or manager cannot guarantee the safety and security of those entering onto the property. With knowledge of what is occurring on the property and in the neighborhood, reasonable cost-effective measures can be employed to reduce liability potential. Even when an incident is foreseeable, the implementation of reasonable and appropriate safeguards will be a defense to negligence claims.
RISK IDENTIFICATION
Identifying the risks facing the property is the initial step in future identification of reasonable and appropriate security measures. Several sources are available to identify potential risks. As the property owner or occupier is expected to know what is occurring on the property, an incident reporting systems should be developed. As a part of the lease agreement, residents should be required to report criminal incidents and other dangerous activities to management. According to one court decision, voluntary reporting of risks does not adequately meet the requirement to know what is occurring on the property. The court held that landowners have a duty to exercise reasonable care to discover criminal acts being committed, or likely to be committed, on its property (Lisa P. v Bingham, 50 Cal.Rptr.2d 646 (California 1996). The defendants relied on volunteered reports of crime and did not know the actual extent of criminal actions occurring on their property.
Another method for obtaining information about on-property incidents is the utilization of a third-party confidential information telephone line. Residents may be reluctant to report information if they believe their identity could become known and thereby subject themselves to retaliation by the wrong doers. The third party provider would receive the information from the resident and report it to management or law enforcement, as appropriate, without revealing the identity of the caller.
The use of a qualified independent security consultant with expertise in premises liability and negligent security issues will provide risk-related information specific to the property. The consultant will be able to formulate cost-effective risk countermeasures through his familiarity with the property. Caution should be exercised when choosing a security consultant employed by a company with an interest in physical security devices and systems. The role of the consultant should be to provide impartial information and not be associated with the sale of security products or services.
Resident associations also can be used as a vehicle for the reporting of problems and also provide a means for the tenants to express their opinions and receive information directly from management. Resident associations provide another anonymous means of obtaining information.
Most local law enforcement agencies can provide statistical data for incidents occurring on the property as well as in the adjacent neighborhood. Property lines do not preclude wrongdoers from entering your property, thereby facilitating the transfer of risks from the neighborhood to your property.
Community meetings between staff members and residents provide for a free interchange of information concerning resident’s perception of safety and security related issues. At the same time, it allows management to inform the residents of improvements in security measures, discuss the rationale for changes in rules and regulations and reinforce the security awareness program.
Analysis of the risk identification information should include the type of incident, the time of the incident, location and whether or not the perpetrator was a resident or non-resident, if known. All criminal incidents or suspicious circumstances should be reported and documented and reported immediately to the appropriate law enforcement agency for necessary action.
RISK MITIGATION
The security measures employed need only be reasonable in application and sufficiently adequate to provide the requisite degree of protection based on the foreseeability of an incident occurring. The failure to implement reasonable measures gives rise to a claim of negligence, as will the failure to properly utilize the measures in place.
The proper use and implementation of each measure must be subject to continuing scrutiny by each person with any degree of security responsibility. The senior administrator, the security manager, and other staff members all have responsibility for the overall security program. This responsibility includes:
- the identification and selection of qualified personnel
- proper and adequate training
- development of policies, procedures and implementing instructions
- adequate and accurate activity reporting
- adequate financing
- continuing management and supervision.
When security measures are evaluated for appropriateness, actual use of the devices and measures is the controlling factor. Within the definition of “reasonable measure” is the cost of implementing and maintaining the security device, personnel, or procedure.
The factors to be weighed must include the cost of providing a specific security measure, the probability of a specific incident occurring, the probability that the specific measure would prevent the specific incident, and the results anticipated if the security is not adopted.
When deciding if reasonable security measures are in force, the totality of the measures is the definitive basis for evaluation. The individual security measures may not be independently adequate, but collectively they may be appropriate or even exceed the minimum standards.
Legal Compliance Issues
It is imperative that management ensure that their facility is in complete compliance with all laws, local ordinances and regulations relating to security of rental property, such as requirements for deadbolt locks on doors, good lighting and window locks. Continuing compliance requires a management inspection program of the mandated requirements. It is important to maintain the property in good repair and conduct regular inspections to spot and fix any security problems, such as broken locks, burned out exterior floodlights or a fence in disrepair. Asking tenants for their suggestions as part of an ongoing repair and maintenance systems is a good idea.
Resident Screening
The actions of an individual resident or group of residents can adversely affect the quality of life for the entire residential community. Screen prospective residents carefully and choose only those who are likely to be law-abiding and peaceful citizens. Weed out violent or dangerous individuals to the extent allowable under privacy and anti-discrimination laws that may limit questions about a tenant’s past criminal activity, drug use or mental illness.
Security Plans, Policies and Procedures
The basic documents outlining management’s expectations for security and emergency activities are its operational plans, policies, and procedures for the facility. A detailed analysis of these documents frequently discloses a difference between what is expected and what is actually accomplished. The difference between the two positions is normally a major contributor to the proof of negligence-either negligence to provide reasonable security or negligence in administering the security measures identified as appropriate for the facility.
Regardless of the type of document, it must lay out in simple and understandable terminology what is to be done, how it is to be done, who is responsible for each task, the location of the equipment and supplies necessary to accomplish the tasks, and the necessary internal and external coordination actions. A continual testing process must be used to reinforce plan requirements.
Activity and Incident Reporting
Housing Authority policy should clearly and definitively require the reporting by all individuals and departments of any incident reflecting on the safety and security posture of the property. “Security activities” are defined as those actions or events routinely occurring on the property that require a security presence or action. They are expected to be accomplished on a recurring basis by security personnel as a part of the established security measures (e.g., opening and closing of gates, monitoring of environmental alarms, etc.).
Items that should be recorded in an incident report include:
- anything that is unusual in nature
- anything that may result in a claim against the housing authority
- matters reported to external agencies
- occurrences that should be documented as a permanent or temporary record
- any occurrence of potential interest to management
One of the major problems facing public housing is drug dealing and criminal activity on the property. This type of conduct should not be tolerated under any condition as it has such a serious impact on the community. Individuals dealing drugs or committing criminal offenses should immediately be reported to the appropriate law enforcement agency. All persons residing at the individual’s residence, either temporarily or permanently should be evicted. Residents should be made aware of the probability of eviction for criminal activity by themselves or their guests. Repeated heavy traffic into a particular residence or location may be evidence of criminal activity and should be appropriately investigated.
Security Supervision and Management
A major area of potential liability is the supervision and management of the security force. While many security units will identify individuals as a supervisor, the actual utilization of these individuals may only be that of a security officer. A semi-annual workload analysis should be conducted. The purpose of the workload analysis is to ensure that security personnel are assigned at times and locations of greatest need. Traditionally, security officers are assigned in equal numbers to two or more shifts per day. This is not necessarily cost-effective and may not provide a reasonable security measure.
Security Awareness Program
For many years, the protection of life and property at a facility was considered the sole responsibility of the security unit with little active input from others. This assumption is completely erroneous and has resulted in many costly legal actions. The basic premise behind a successful security awareness program is that all staff members and residents are affected by the actions taken by the company to enhance the quality of life.
The new employee or resident’s first exposure to the security awareness program should be during his or her initial orientation. Emphasis should be placed on an “all for one and one for all” approach to safety and security. With an appropriate explanation of the program objectives, security awareness can become a very important tool in reducing liability exposure.
Program concepts should be reinforced through various media and presentations at least once every three months. Rewards and incentives are a vital component of a successful program. The objective of the rewards and incentives program is to encourage participation and show management’s appreciation for employee and resident contributions.
Response to Resident’s Complaints
Resident’s complaints about dangerous situations, suspicious activities or broken security items should be handled immediately. Failing to do this may result in a higher level of legal liability should a resident or other person be injured by a criminal act after a relevant complaint is made.
Drug-dealing co-residents can cause all kinds of practical and legal problems. It is difficult to find and keep good tenants and the value of the property plummets. Anyone
who is injured or annoyed by drug dealers–be they other residents or people in the neighborhood–may sue the landlord on the grounds that the property is a public nuisance that seriously threatens public safety or morals.
Local, state or federal authorities may levy stiff fines against the landlord for allowing the illegal activity to continue. Law enforcement authorities may seek criminal penalties against the landlord for knowingly allowing drug dealing on the property. In extreme cases, the presence of drug dealers may result in the government confiscating the property.
Security Personnel and Staffing
Administrators need to ensure that loss-prevention and risk-reduction are in fact, important components in achieving housing authority objectives.
If security officers are authorized as part of the security posture, it is important to be aware that traditionally, the compensation and qualifications for security personnel are inadequate to recruit and retain quality personnel. Some states do not have minimum standards for security officers. Consequently, the quality of security units varies from inadequate to very professional. The quality of the security staff is a function of the security manager’s personality, experience, and professionalism, as well as his or her ability to promote safety and security as a loss-prevention concept for enhanced quality of life.
Regardless of age, experience, and maturity, it is essential that the “cop wannabe” not be employed as a security officer. The law enforcement officer has different objectives, legal authority, and techniques that are diametrically opposed to the philosophy of many security units. The security unit is a loss-prevention agency and must use persuasion to accomplish its goals by involving all employees and residents in a cooperative effort of loss control and risk-reduction.
Security Training
Without mandatory minimum standards, the security training program frequently results in only on-the-job training with another officer. The on-the-job training program should complement, not substitute for, a formalized training program.
The recommended minimum training necessary to satisfactorily perform expected security tasks is different with each facility or industry. Prior to assignment to duty as a security officer, each individual should meet mandated state standards or meet an established minimum as necessary the Housing Authority. A minimum of at least twenty four hours of classroom training and sixteen hours of supervised on-the-job training. Each security officer should receive refresher training every three months and all subjects in the initial training program should be covered at least once per year.
Any security officer who is required to be armed with a firearm should be provided with a housing authority owned revolver when authorized by state or local law enforcement. To ensure a compromise between appropriate and excessive force, firearms with a larger caliber should not be allowed. Only ball type ammunition should be used. Privately owned weapons should not be allowed.
A written record of all training should be maintained for each security officer. The security officer should be required to successfully complete a knowledge and skills test with a minimum passing score prior to being assigned to a security post. Failure to successfully pass the skills test should preclude the individual from initial or continuing employment. Knowledge and skills tests should be conducted for all quarterly recurring training. Test scores should be maintained for the duration of the individual’s employment or five years, whichever is longer. Each security officer should be required to sign a document stating that he or she has received training of a specific time duration in a particular subject.
Security Officer Qualifications
Whether or not the security officer force is proprietary or contact is not important. However, they must be properly trained and supervised. It is absolutely essential that security officers be of unquestioned integrity and have the experience and qualifications required by their position. The prior employment and security-related experiences recorded on the employment application should be verified by a competent individual or employment service.
Security Devices and Measures
The types of devices and measures available to the security staff are virtually endless, such as CCTV, motion detectors, access control, panic alarms, etc. There is no common standard for the devices and measures to be employed at a particular type of facility or property. The variety of options within a particular security measure, device, or system allows specific configurations to fit the unique need of the property. Regardless of the configuration or utilization, once it is installed or implemented, continual scrutiny must be employed to ensure proper functioning. A device or measure that is not properly and consistently utilized is a greater liability risk than having no such device or measure. By installing or implementing the device or measure, management has acknowledged a need for the device or measure to counter an identified security risk.
Every security device or measure, whether it is a policy or procedures, perimeter barrier, alarm system, life safety system, or access device, should be examined periodically to ensure suitability and proper functioning. The inspection of the security barriers and devices should be conducted at least monthly. Sophisticated life safety and similar complex systems should be inspected by a technically qualified maintenance person or contractor.
Neighborhood Alliances
Drug dealing and criminal activity are not restricted to a particular property and with the activity extending to adjacent properties frequently become a neighborhood problem. Without a concerted effort by all of the affected properties, this type activity will not be eliminated. Developing alliances with the adjacent properties will result in a coordinated effort with identical goals and increase the political and psychological pressure on the undesirable element to stop their activities.
Public Nuisance Laws
The designation of a particular area as a public nuisance can be a valuable strategy to eliminate facilities or areas that harbor criminal activity. Nuisance in tort law is a broad concept characterizing “the defendant’s interference with the plaintiff’s interests” anything which annoys or disturbs the free use of one’s property, or which renders its ordinary use or physical occupation uncomfortable (Restatement (Second) of Torts, 617 (1985).” It extends to everything that endangers life or health, gives offense to the senses, violates the laws of decency, or obstructs the reasonable and comfortable use of property” (Hill v Knox Concrete Products, Inc., 391 S.W. 2d 5, 9 (Tenn 1996).
A public or common nuisance is “an unreasonable interference with a right common to the general public…It is behavior which unreasonably interferes with the health, safety, peace, comfort or convenience of the general community (Robie v Lillis, 299 A. 2d 155, 158, (NH, 1972). A public nuisance offends the public at large or a segment of the public; a private nuisance offends only a particular person or persons (Commonwealth of Pennsylvania v Barnes & Tucker Company, 303 A. 2d, 544, 567 (PA 1973).
SUMMARY
Each facility or property has a unique threat situation that requires an analysis of risk factors and incident information occurring on the property and in the neighborhood. An analysis of this information will identify security measures that will be reasonable and appropriate to cost-effectively counter the risk.
Reasonable and appropriate security measures are not just tangible objects and written documents. Integrated with these measures must be the human element. The human element must include qualified and motivated individuals responding to appropriate supervisory and management strategies directed by a knowledgeable and professional staff.
The reasonableness and appropriateness of security measures cannot be determined from any written standard. The security measures employed and their effectiveness, the performance of the security staff, facility management participation and support must be evaluated in terms of the safety and security risks. The resulting conclusion will identify the worth of the security measures as reasonable and appropriate for the specific facility.
With security risks diminished, the quality of life will improve. This should be an important goal of every housing authority.