Sulzer Enterprises

With the lack of a sound Security Program to mitigate the known risks and vulnerabilities would-be assailants’ comfort levels will rise along with your liability!

In an Arizona Daily Star article dated April 20, 2010, it was reported that a group of young offenders between the ages of 15 and 19 had stolen from a specific Circle-K convenience store 17 times in a period of 5 months. While thefts of this nature are not all that uncommon, and often the best practice for employees of convenience stores is to follow the long standing security officer mantra of “observe and report”, the fact remains that when you operate a business solely by this rule, the owners/operators of that entity have been put on notice! Not only should owners/operators of these types of businesses know that repeated thefts are occurring at their establishment, they should also know that, in the event an injury to an employee or customer results from circumstances occurring during or in the aftermath of one of these thefts, in civil litigation which often follows these types of incidents, the owners/operators may be found grossly negligent due to their failure to reasonably respond to such frequent and foreseeable incidents through an effective security program.

While “observe and report” may play a role in distancing the employees from attacks against their person, it can also breed an environment in which those who prey upon convenience stores become more blatant in their actions and escalate these events with potentially violent outcomes. The convenience store industry knows that theft is a foreseeable event, without a risk and vulnerability assessment for each given location and a viable method of tracking incidents of this nature at their locations, they will not know the frequency and criticality of these foreseeable acts. In the case at hand, this location had reportedly been targeted by the same group of offenders 17 times. Sometime during these 17 events these actions clearly put the location and the owners/operators on notice and that some additional countermeasures were needed. The development of a security program specific to the conditions identified by a risk and vulnerability assessment would have allowed management to take actions that would have sent a distinctly different message than the one they were projecting by allowing 17 attacks to be committed by the same reported group of individuals without any identifiable repercussions or steps to mitigate.

As a general rule, the role of “observe and report” for convenience store clerks may very well serve the interests of the store and its employees. Nevertheless, this role must be supplemented by other countermeasures, depending on the vulnerabilities identified, in order to formulate a security program that allows convenience store owners/operators to move from the role of victim to that of a proactive merchant protecting its assets, employees and customers.

Negligent Security – You cannot pass the non-delegable duty to provide a safe environment to your contract security provider without their negligence becoming your negligence!

Well, we are all outraged by the images of the three contract security officers in a Seattle mall bus terminal watching while a 15 year old girl was beaten. This is an example of negligent security in its most egregious form. But, on who’s part? Surely, if the facts represented are correct, the contract security company can be found negligent in their training and supervision of these officers. Particularly since the girl had reportedly contacted the contract security guards and explained that she was just harassed by a group of 10 individuals and that she was in fear. This being the case, these security guards, if not for negligent training and negligent supervision, should have known the correct actions to take to provide a safe environment. But, the responsibility for providing a safe environment, free from foreseeable risks, doesn’t stop with the contract security provider. The mall bus terminal that let the contract with the security provider may also be found to hold a degree of negligence as well.

There are many reasons that the mall bus terminal could be found to be negligent, and all would be speculation at this point. Nevertheless, from the reported statements of the guards and others, one could reasonably conclude that the terminal could be found negligent in selection, screening, and retention of their contract security provider and/or negligent in their enforcement of their contract with the security service provider. Anyway you look at this horrific incident, it is apparent that there was insufficient security training and supervision which leads to an unsafe environment from what surely would be considered a foreseeable incident. In environments where the general public gathers and the stressors of socioeconomic divergence and varying demographics converge, it is clearly foreseeable that confrontations between the general public, including youths, will occur.

In SEI’s opinion, a properly conducted risk and vulnerability assessment to determine the necessary countermeasures would go a long way toward mitigating these risks, but without proper implementation, no true measure of security could be achieved. Contract security services can play a critical role in the mitigation of such risks, but the most reasonable way to avoid liability and mitigate these foreseeable events is to first properly screen and select a contract security provider that can meet the needs of the entity to be protected. Second, a contract must be crafted that provides the level of services necessary to meet the specific risks and vulnerabilities of the entity to be protected. Further, this contract must be enforced by the contracting entity. If the contracting entity fails at any one of these points, they would surely be negligent in their security practices. If they fail at all of these points, it would be difficult to not find them grossly negligent in their security practices.

In a situation such as occurred in Seattle, had the contract security provider followed a risk and vulnerability assessment to determine the level and degree of need, they could have avoided negligent security practices by developing a security training and supervision program that met the specific needs of the entity to be protected. This is often not the case, and the competitive bid process often drives costs down at the sacrifice of training and supervision. This condition places the blame for negligent security practices on both the contract security provider and the contracting entity. A security contract that considers the countermeasures necessary to meet the specific needs of the entity to be protected, and then is trained upon and supervised by the contract security provider and enforced by the contracting entity is, in SEI’s opinion, the best possible way to mitigate against these very real and foreseeable threats.

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Bars, Taverns and Nightclubs Have Unique Security Needs to Avoid Negligent Security Practices

Intuitively it is reasonable to identify a causal relationship between the overconsumption of alcohol and the potential for assaultive behavior. Furthermore, a cursory search of the literature on this subject reveals ample evidence of this relationship as well. Useful insight into this relationship can readily be found in a number of publications and studies, e.g.: U.S. Department of Justice (DOJ) Research In Brief, Psychoactive Substances and Violence (1999), DOJ, Office of Community Oriented Policing Services (COPS) Guideline, Assaults in and Around Bars, 2nd Edition (2006), and the New York Nightlife Association in Cooperation with the New York City Police Department, Best Practices For Nightlife Establishments, 2nd Edition (2011).

Observations and findings contained in these publications, along with those found in many similar publications and studies of the relationship between the overconsumption of alcohol in certain settings and assaultive behavior, coincide with SEI’s experience providing litigation support evaluating the foreseeability of and circumstances surrounding negligent security claims stemming from assaults in and around nightclubs, taverns, social clubs, and adult entertainment venues (strip clubs). Locations, which in addition to operating in a venue in which alcohol is sold to a diverse clientele, in many instances this takes place in an environment in which there is a heightened potential for assaultive behavior.

By way of example, a recent series of assaults and fatalities in Tucson and Phoenix, Arizona in and around nightclubs, taverns, social clubs, and strip clubs provides clear picture of what can go wrong in and around these types of locations – particularly in the absence of a proactive and effective security program.

Of course, Tucson and Phoenix are not alone in this problem. Examples of similar negligent security practices resulting in assaults and fatalities in and adjacent to these types of locations in cities and towns across the nation can easily be found via a search of the Internet.

This being the case, as cautionary advice to the owners and operators of nightclubs, taverns, social clubs, and strip clubs responsible for providing the required level of safety and security for their patrons and employees, while at the same time reducing their potential exposure to these types of incidents, SEI, has a number of recommendations. These include:

The completion of a Risk and Vulnerability assessment designed to identify the level and degree of exposure to risk and the reasonable countermeasures to mitigate that risk. Without an initial assessment, any security program would be based upon assumption and would likely lead to an insufficient and ineffective security program.

Development and implementation of sound security policies, practices, and procedure designed to identify, circumvent, and, as a last resort, intervene in acts of violence on or adjacent to their premises.

Use of physical security countermeasures such as access control procedures, and, where warranted, CCTV to monitor potential trouble spots.

Assignment of a sufficient number of trained employees to monitor and identify potentially violent situations (both interior and exterior) with clear and documented instructions to take appropriate action in these situations before they have an opportunity to escalate.

Development and implementation of a reasonable security plan. Such a plan should include policy, practice, and procedure designed to control access and mitigate foreseeable acts of violence. And, finally, steps to supervise and train staff in the proper implementation and continued adherence to such a plan.

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Who Should Conduct Background Checks on Your Subcontracted Skilled Labor Force?

Staffing is a costly challenge for many organizations and healthcare is no exception. With fluctuating census rates and varying demand for specific skill sets, Hospitals, like many organizations, utilize staffing agencies. Where does the liability begin for the Hospital? We use staffing agencies to provide a buffer don’t we? The temporary worker is an employee of the staffing agency right? The staffing agency is responsible for vetting these temporary workers before they send them to work aren’t they?

All of these are valid questions, but when it comes down to responsibility and civil liability, the costs may well come back on the organization instead of the service provider. For example, in a November 5th, 2009 article by Dale Quinn in the Arizona Daily Star, the Tucson Medical Center is attempting to recover the costs of settling a wrongful death suit where a Registered Nurse falsified information on her application to a staffing company who ultimately placed this individual at Tucson Medical Center.

It all sounds quite simple. It’s the staffing agency’s fault for failing to conduct a background check on the individual and falsely marketing that individual to their client, right? The answer from SEI’s experience is, maybe not. What responsibilities are delegable? Since the Hospital was placing the individual in a position where they were directly responsible for patient care and there is a Standard of Care that the Hospital owes to its patients, are they not responsible to guarantee that background checks are conducted on 100% of the people that are responsible for patient care? Would it be reasonable to hold a hospital to a standard where background checks are completed and confirmed prior to allowing an individual to administer patient care? When the hospital requires a dress code, has specific processes and procedures in the administration of patient care and rules of conduct for all employees to follow, are they, in fact, stepping over that client contractor line and actually directing the actions of the staffing agency employee?

When contract labor is used, SEI has held to the standard of “trust but verify”! When your organization knows the critical nature of the functions to be performed by a contractor, manage your contract, audit their employee files within the terms of your contract and independently conduct background checks (whose cost can be shared or borne by the contractor) prior to releasing the keys to the kingdom.

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Security Negligence and Failure to Participate in Crime Free Multi-Housing Programs can Become a Risk Beyond Recognized Civil Liability!

SEI has been a strong proponent of the Crime Free Multi-Housing Programs as a means to further enhance an apartment community’s security program and further bonds with its tenants and local law enforcement. Now, the city of Tucson has changed the face of liability. Not only can an apartment community owner and/or manager find themselves liable in civil court should someone become harmed as a result of their negligent security practices, in certain circumstances, the property owner may very well be forced to sell. In an October 10th, 2009 article in the Arizona Daily Star by Kim Smith, an apartment community owner was taken to the Pima County Superior Court under the Landlord Accountability Initiative and ultimately was moved to enter into no new leases and ensure that all of his communities’ units were vacant by November 30th. The end result of this court action under the Landlord Accountability Initiative is the owner’s sale of the community.

While this sounds harsh, the property in question is a 5-unit complex that received 100 Police Calls for Service in a period of 3 years with 26 arrests and 1 death. The owner would have avoided this condition and reduced liability by taking some basic steps. First, the voluntary participation and 3 step certification in the no-cost Crime Free Multi-Housing Program would have provided the owner with the tools necessary to identify, manage, and evict or not rent to tenants who engage in illegal activity. Second, the owner should have had a Risk and Vulnerability Assessment conducted by a qualified entity to determine the appropriate security countermeasures necessary to mitigate the risks unique to the property. And lastly, develop a comprehensive security program specific to the risks identified for the subject property.

These statements are nothing new! Negligent security practices resulting from an effort at cost avoidance more often than not become more costly than anticipated. Apartment Communities face unique and specific risks. Risk acceptance, while part of a risk mitigation strategy that may look appealing from a cost perspective, will ultimately prove to be quite costly. Apartment Community owners/managers know, or should know, that these risks are real and ever present. This position leaves these owners and managers in a position where they were clearly put on notice and risk acceptance leads directly to Negligence and more specifically Negligent Security practices. If the ruling in Tucson is a sign of things to come, the cost of risk acceptance has found new ground to impact those who, through their superior knowledge, should have known better or acted more responsibly.

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Contract Security Guard Negligence Leads to Contracting Party’s Negligence! Who is the Employer in the Eyes of the Court?

A September 2009 summary in the Premises Liability Report identifies an appeals court remand where a nightclub unsuccessfully attempted to get a security negligence case dismissed through a Motion for Summary Judgment. The scenario in this case is one that SEI has seen and consulted on time and again. The club owners contracted with an independent contract security provider for security guard services. With the contract in place, the club felt that appropriate risk management had been applied and that there was now a buffer between the club and potential security negligence claims.

The reality of this independent contract security guard provider and club owner relationship, in the eyes of the court, was that the club management directed many of the daily activities of the contract security officers, which nullifies the independent contractor status. SEI has repeatedly identified the liabilities surrounding negligent security, negligent supervision, negligent security contract enforcement, and the non-delegable responsibilities of the contracting entity in matters of private security.

This ruling further solidifies the need for sound development of security service contracts, security guard vetting, training, and supervision. In addition, the generation of sound security policy practice and procedure, along with diligent security contract terms enforcement, become essential to the avoidance of negligent security, negligent supervision, negligent security vetting, negligent retention, and negligent security contract enforcement claims. Articles such as these place contracting entities on notice where they knew or should have known that the actions of their contract security officers have direct impact on their organizations.

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Negligent Security Guard Supervision or Negligent Security Contract Administration?

In reading the linked article surrounding felony actions on the part of a Contract Security Guard, we at Sulzer Enterprises, Inc. would argue that while the Contract Security Company may not have been negligent in their hiring practices, they may still have liability resulting from Negligent Supervision on their agent, the Contract Security Guard. While this Contract Security Guard had a clean criminal history and successfully passed what is stated as being a rigorous background screening process, the Contract Security provider still has a responsibility to provide a sufficient level of supervision over their agents. Since these incidents of theft occurred over a period of time, a reasonable argument can be made that the superior knowledge of the Contract Security Provider placed them in a position where they knew or should have known that these types of incidents occur without sufficient levels of guided supervision.

In addition to the potential Negligent Supervision on the part of the Contract Security Provider, the organization that retained the Contract Security Provider may be exposed to a degree of culpability in these actions. The Contract Security Guard, acting as an agent of the Contract Security Provider utilized an access control system that is part of the retaining organization’s internal Security Program. The failure of the organization to audit their internal access control system and hold accountable the Contract Security Provider for the activities of their agents places the organization in a position of Negligent Supervision and enforcement of the Contract Security Agreement. Sulzer Enterprises, Inc. believes that, while historically this incident is not foreseeablity, if a Contract Security Provider or the organizations that employ them view foreseeablity on historical, without taking into consideration current economic conditions along with principles of the crime triangle (Desire, Motive, and Opportunity) they may very well find themselves exposed to civil charges of Negligent Supervision.

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Security Consulting – Use Caution When Performing a Risk and Vulnerability Assessment.

In our continued mission to promote understanding of the critical issues surrounding private security that our clients may encounter, Sulzer Enterprises, Inc. is committed to identifying useful information as it becomes available. In the linked article, Mr. Lang does a very good job identifying the critical elements of an emergency management plan, along with some of the pitfalls one might encounter. One concern that SEI would raise is that an organization must be cautious that they do not fall into the trap of narrowly defining Risk. Further, each organization is faced with varying degrees of risk specific to their environment regardless of the industry.

While we are certain that facility managers have their fingers on the pulse of their organizations, SEI would caution that Risk & Vulnerability Assessments should be conducted on a much broader scale than is indicated if one wants to mitigate the true level of risk to which their organizations are exposed. While SEI agrees that an Emergency Management Plan must begin with a Risk & Vulnerability Assessment, such efforts require internal and external information gathering and analysis at levels that go beyond that of facilities-based emergency management and must be evaluated on an organization level if risk is to truly be identified.

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Security Guard, Negligent Supervision or Negligent Hiring?

While many of us who have had the opportunity to manage people have stories that they only share in a humorous light years after their occurrence, SEI believes that we need to learn from these occurrences and reduce our organization’s liability and exposure from such events. After reading the linked article, most would agree that the actions of this security officer could land him on the next episode of “America’s Dumbest Criminals”. We, at SEI, believe that such an event can result in litigation against your organization for negligent or inadequate security. Specific emphasis needs to be added to the areas of negligent hiring and screening, negligent training, negligent supervision, and negligent retention of this security officer.

In the ever growing arena of private security, guard force management is fast becoming a costly aspect of risk management. While the practice of transferring liability through contract services appears sound, it may not insulate your organization from liability resulting from negligent or insufficient security. Lack of contract enforcement, due diligence in identifying a service provider, and the lack of an industry and site specific risk assessment are the primary causes of organizational liability.

Please enjoy the article relating to Hospital Security Guards and have a little chuckle. But in the front of your mind, while you’re thanking your lucky stars that it did not happen to you, ask yourself honestly, “Am I prepared to defend my program should this happen to me”?

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Stay Ahead of Change in the IT Security Arena

Sulzer Enterprises, Inc. SEI believes that sharing information with our clients and associates is not just our responsibility, it is the right thing to do! The information Technology element of an Asset Protection Program is one that requires constant evaluation. In order to further assist with this, we would like to direct you to the latest White Papers released from TechRepublic. Remember the adage, “To err is human, to really foul things up, it takes a computer.” While the majority of security attacks on your organization’s network are internal, if we do not arm our IT professionals with the latest information to Detect the attack and Delay the attacker long enough for the vulnerability to be mitigated, we are clearly not acting diligently in developing a true Asset Protection Program.