Nightclubs – Security Guards – Retail Loss Prevention
As a Security Management and Crime Prevention Expert, we provide Expert Witness services for both plaintiff and defense relating to claims of negligent security.
Bouncers and Doormen: Assaults by security personnel, inadequate security claims.
In-house guard staff: Inadequate training/supervision, use of force, and similar areas.
Contract security guards: Inadequate staffing/training, use of force, negligence claims.
Retail Loss Prevention: False arrest, malicious prosecution, false imprisonment, use of force, customer injury by fleeing shoplifter.
Negligent Security torts generally assigns/alleges fault to a security provider such as a contract security guard service, an apartment doorman or, in the bar and lounge sector, bouncers. In general terms law suits are brought when there is personal injury committed by an employee or contractor or when a company sustained a loss of assets and it is alleged that the security provider failed to properly perform their duties. The most frequent law suit, however, is brought against security personnel using excessive force. Within the cause of action the negligence factors will generally follow a path of negligent hiring, negligent training and negligent supervision.
We have been involved in numerous cases of negligent security and, as happens with any failure, there is not just one single issue that initiated the civil action but rather the totality of the events leading up to the event made basis for the cause of action.
Background checks can be as simple as calling references or as complex as finding old elementary school teachers for comment. The formal application process should always include a requirement of listing employment for the past 7 years and a disclosure of any criminal conviction (felony and misdemeanor as an adult) which would include suspended sentences and deferred adjudications. Many companies request disclosure of felony convictions but there are still serious misdemeanor offenses that may cause a company problems if not revealed. Most states require contract security personnel to be fingerprinted and checked by the FBI. However, in-house security, such as those in retail loss prevention or bouncers, is rarely regulated by State regulatory agencies but that does not preclude applicants from undergoing a thorough vetting.
There are no standards regarding what comprises a “background check”. Regardless, have a written policy that has been thoroughly reviewed by your legal counsel and follow that policy.
Negligent Training and Negligent Supervision
These two generally go hand in hand in allegations in these torts. What may surprise customers of contract security companies is that, depending on the state, the mandated minimum of hours of training may be as low as 0! States usually require the teaching of standardized training material, a final test and handgun qualification if necessary. Regardless of the amount, method or manner of training, it should be well documented. Without the acknowledgement of training AND documentation of an adequate level of understanding (usually by a test) it would be difficult to convince the court that proper training had taken place. Training documentation is critical in defending law suits regardless of the type of security performed.
Since not all needed knowledge comes from a formal classroom setting, the use of on-the-job (OJT) training will always be a part of the overall training. Generally, the direct supervisor is responsible for this type of training but, nonetheless, documentation of this training needs to be made as it happens. Checklists are helpful to ensure everyone received specific information to acknowledge formal training has been completed.
Excessive Use of Force
The use of force to arrest, apprehend, or restrain an individual requires one thing, and one thing only: that the force used was reasonable. This means that the force used was only the amount necessary to overcome the resistance. If there is no resistance then there is no force. If using force in defense, the same standard applies. The more important aspect in the use of force is the training to deescalate confrontations. Without training, confrontations can quickly erupt into physical altercations that result in injury to the employee, the offender, and possibly customers. Training also prevents unwarranted escalation of force. Torts in this area are often costly when appropriate training could have prevented the basis for the suit.
Bouncers and bar personnel are often called into confrontations with individuals who are intoxicated, angry, and somewhat out of control. Protecting the other patrons and themselves may be difficult at times but the safety of the person being confronted is equally important. Unfortunately these confrontations are high risk and there is usually little or no training provided or required to enable proper handling. Club owners and managers should have a process in place, such as reporting, to keep them informed of assaultive confrontations with customers. Specific “rules of engagement” should be defined as to how situations are to be handled and included in training/orientation. Use of excessive force should not be tolerated nor should foot chases be allowed. Video cameras can be installed at the entrance/exit also provide a clear record of events. The cameras also provide employers the ability to review incidents to further training or cause disciplinary action to be taken. Cameras could also prove problematic as they record the details. What a camera cannot portray is the amount of force being exerted by the person engaged with security.
Absence of Security
Negligence claims are also the result of allegations that the security personnel on site were either not at the assigned position or the number of personnel was insufficient. Owners and managers should know where the “hot spots” are within the club and assign personnel accordingly. Emergency exit doors should have an exit alarm (and visual strobe) to notify of an unauthorized exit. Due to the noise and other lighting, manning those doors may be more appropriate.
Restrooms are a hot spot for violence and other criminal activity if not adequately monitored. Restrooms should be well highly visible, well lighted and should be frequently checked by all staff. Patrons who have confrontations at the bar can be followed into a restroom and become a victim of an assault out of the view of employees. This is possible in either the men’s or women’s restrooms. Criminal activity such as drug use/sales are also of high risk just due to the limited visibility within the room itself. Considerations for the use of cameras should be limited to the restroom entrance area only.
Security guards or other personnel who make rounds and who are required to check on critical areas usually have only a written report to document their activities. There are many companies that provide software and readers that can document when a guard was at that specific spot. These types of computer-based record keeping creates absolute accountability. However, the true accountability lies with those who are managing the function to provide proper oversight.