Voluntary Incident Reporting Increases Liability

Property owners and managers have a legal obligation to provide a safe and secure environment for their employees, customers and visitors. A key factor in any negligent security litigation matter is the issue of foreseeability. In other words, did the property owner or manager make a reasonable effort to determine the probability of a security incident occurring on the property?

One element of this evaluation is the effort made to identify the number of security risk incidents occurring on the property. Frequently, property owners and managers rely on their building occupants to report security risk incidents to them. This reliance on voluntary reporting creates numerous problems and increases the potential for negligent security liability.

In the case of Lisa P. v. Bingham, 50 Cal. Rptr.2nd 646 (California, 1996), the court found that the defendants’ efforts to investigate criminal activity were not reasonable. They solely relied on volunteered reports of crime and on conversations among employees.

One problem that influences reporting is the fear of adverse public relations and the self-interests of the occupants. To counter this reluctance, the property manager or owner must require mandatory reporting of specified incidents to management. This can be accomplished through lease provisions when working with multiple tenants and through senior management approved policies for internal company control. Not only must this requirement be promulgated to all occupants but it must be consistently enforced by management.

To ensure an effective mandatory incident reporting process, minimum reporting criteria must be developed. The following actions or incidents, as a minimum, should be included in the reporting requirements:

• Any action or incident resulting in financial loss to any person or corporate entity in excess of a specified minimum amount. The minimum amount criterion is essential to eliminate non-cost effective reporting, e.g., the loss of $1.00 in a soft drink machine.
• Any action or incident which could result in financial loss to any personal or corporate entity in excess of a specified minimum amount. Many incidents occur and the amount of loss is not known at the time of reporting. An example would be when a possibly caustic fluid is sprayed on vehicle in the parking lot. When initially reported, the extent of damage, if any, may not be known.
• Any action or incident which is in violation of any criminal law or ordinance. This category is one that has considerable impact on liability issues. Any crime against a person or property is included in this category.
• Any action or incident which could result in civil litigation on behalf of, or against any occupant, manager or owner. This is normally a situation where the extent of loss or injury is not known at the time of reporting and most frequently results in litigation. Facts and circumstances must be identified at the earliest possible time and not when notified of litigation.
• Any action or incident which could result in a request for security services at a later date. A complementing human resources policy may require employees to provide notification when there is a spousal abuse restraining order in effect. This could result in a need for security services if the restrained party enters the property without authorization.
• Any termination of an employee which could result in injury to any person, damage to property, or disorderly conduct. This requirement necessitates a complementing human resources policy to provide protection against the abusive employee who is being disciplined or terminated.
• Any irregular occurrence resulting in a requirement for immediate or possible future care. Employee injuries and on-the-job illness exemplify this requirement. At the time of reporting, the potential for liability may not be known and it is essential to collect factual information at the earliest time to counter future potential litigation.
• Any action or incident wherein the occurrence should be reported to management and recorded for information and future reference. The receipt of a telephone warning of a potentially violent public demonstration against the company or organization should be immediately documented and brought to the attention of management. This allows for preparations to counter a potentially hazardous occurrence.

An essential item of incident reporting is that information be documented in many cases prior to the critical need for the information. Delays in documenting information result in routine deterioration of information quality due to the length of time between the incident and the documentation. The primary issues are what happened and what could result at a later date from a reportable incident. Too much information serves a better purpose than the lack of information.

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