The security expert, attorney, and the business executive have complementary roles in providing reasonable and appropriate security measures for the workplace. Each party contributes to business financial goals when there is a mutual understanding of their expertise and capabilities.The business executive is required by law to provide a safe and secure environment for those individuals on company property. Unfortunately, some business executives consider safety and security as cost centers and not as contributors to corporate goals. They question the costs and do not consider the return on their investment.
Frequently, corporate financial planning is primarily oriented to increasing sales, productivity or whatever the corporate product might be. Not much emphasis is attributed to the reduction of expenses as a method of increasing profits.
Adequate security is not something to be documented on corporate financial statements as it cannot be directly quantified in dollars and cents. However, there is a return on the financial investment in adequate security. Employees who feel safe within their work environment will be more productive and have a higher degree of morale.
There are several goals for a comprehensive security program. Business executives have a responsibility to the owners and shareholders to protect the people on the property, corporate physical assets and the reputation of the business and its staff members. The fourth goal of adequate security is the development of a database that will assist in countering claims of negligent security.
Some businesses believe that if they outsource the security function to a third party they will not be liable in the event of litigation. The court in Rockwell v Sun Harbor Budget Suites, 925 P.2d 1175 (Nev. 1996) ruled that management could outsource the security function but could not delegate responsibility for safety and security.
The basis for a comprehensive defensible security program is an analysis of risks to the property. This is the domain of the security expert. The risk analysis encompasses those risks occurring on the property as well as those in the neighborhood. Based on this analysis, comprehensive and cost-effective security countermeasures can be developed. The program must include security awareness training, workable policies and procedures, employment of appropriate security systems and devices, inspection and maintenance of these systems, documenting security related incidents and activities, and constantly reevaluating risks and countermeasures.
If a security officer force, either proprietary or contract, is to be employed it becomes the focus of the security program. A word of caution-the security officer contractor is caught in a cost-driven environment where it may be impossible to pay the compensation necessary to get a highly qualified security officer. This situation is caused by others within the security industry that make minimum bids and rely on unqualified individuals to provide a less than desirable level of service.
Another problem is the basic qualifications and training of the security officer. Some states do not have minimum regulatory requirements and standards for security officers and security companies. In some cases, the jurisdictions with “requirements” are primarily interested in collecting business taxes. In Colorado, for instance, there are absolutely no requirements mandated by the State. In fact, even a convicted felon can be a security officer or start a security company, and frequently without even a business license. In some cases, they do not register with the Secretary of State and move on to another location or change their name if there is a hint of interest in their activities.
It is possible for a business executive to think that they have adequate security when they employ a security force when in fact they have created additional liability. When a task is undertaken it must be performed in an appropriate manner to meet the expected objective. Taking less than reasonable and appropriate action increases corporate liability.
It is the opinion of some individuals that it may be easier to defend litigation where there is no security program with the idea that “ignorance is bliss.” On the other hand it is normally more difficult to defend a security program because the business recognized the necessity for a security program but did not undertake the matter in a responsible manner.
The attorney has two roles in the business arena of premises liability and negligent security. First, the attorney must be able to interact with senior corporate executives in such a manner that they understand their liability if they do not provide reasonable and appropriate security measures. The executives must understand that employees and visitors are inclined to initiate litigation based on their perceived wrongs and the extent of the corporate assets. Employee loyalty is easily overcome when there is a good chance of acquiring a large sum of money for a corporate error. Some courts have held that Workers Compensation may not be the only remedy available to the employee.
The cost of negligence is not just the direct financial costs to the company. There are the costs of loss of consumer confidence and market share as well as their good standing with the community.
A frequent problem encountered by business entities in defending premises liability litigation is the lack of adequate documentation of their decisions and actions. It is basically a matter of “if you haven’t documented something, you haven’t done it.” Even more of a problem is the destruction of pertinent documents prior to the termination date of the statutes of limitations.
Mayer v Gary Partners and Co. Ltd, 29 F.3d 330 (7th Cir. 1994) revolved around security officer daily reports that had been destroyed. The defendant maintained they were “only payroll records, used to see if the guard had done a day’s work.” They were destroyed after thirty days. The court opined that a reasonable juror could infer that these forms recorded crimes and other incidents that occurred at the mall. Recording what the guard did, in addition to the fact of his presence at the mall, was potentially useful to show the level of criminal activity and thus the risk to customers. Subterfuge does not work to your advantage.
The second role of the attorney is that of a litigator; either for the plaintiff or in defense of an individual or corporate entity. A major mistake of the plaintiff’s attorney is the failure to utilize the services of a security expert at the proper time. In many cases it is prudent to discuss the matter with a security expert prior to the initiation of litigation. The security expert normally does not charge for an initial conference and can enlighten the attorney on potential problems and the possibility of success from the security expert’s perspective and experience.
When the attorney employs the security expert, valuable advice can be in the area of initial preparation of Interrogatories and Requests for Production of Documents. Specific and definitive questions on security matters gives the adversary an indication that the attorney is very knowledgeable of security operations and documentation. In some cases, this may encourage the opponent’s attorney to settle in lieu of trial or drop all allegations. The use of generic “ballpark” questions may give a false impression of an attorney’s competence.
A defendant’s attorney should not answer any litigation without consulting a security expert. This may eliminate providing information that could lead to additional issues and compromise litigation strategy. Normally the security expert is not a qualified attorney but has a wealth of practical experience. Security experts do not attempt to tell the attorney how to manage the matter but will play “devil’s advocate” to ensure as much knowledge as possible is transferred for the mutual benefit of all parties.
A word of caution when considering the employment of a security expert: In the security business there are many individuals with a law enforcement background. Some individuals mistakenly think that their law enforcement experience automatically qualifies them to be a security expert. This is not necessarily the case. The law enforcement approach is reactive in nature and the security approach is prevention. Watching an individual commit a crime or violate a company policy and either having them arrested or initiating internal disciplinary action is not prevention. Proper prevention requires that action be taken to ensure the event does not occur.
Many law enforcement officers have successfully transitioned to become security experts. When employing a person with a law enforcement background, it is important to determine the actual job responsibilities of the individual. For example, the individual could have been a street patrolman, an investigator, a member of the SWAT team, engaged in technical services or responsible for physical security of facilities. The name of the agency is not the qualifier: it is the type and extent of duties performed.
The security expert, attorney and business executive have a unique variety of roles in providing a safe and secure business environment. The proper utilization of each person’s experience and skills will provide the expertise needed to safeguard the workplace through the development of a comprehensive and cost-effective security program.