Investigative and Litigation Issues Involving Hotels and M0tels in Inadequate Security
By MICHAEL MAGGIANO, ESQ.
When a potential inadequate security case against a large hotel or motel chain comes to your office, you must marshall all of your professional and a sizeable portion of your economic resources to successfully litigate the victim’s cause — justice!
UNDERSTANDING THE BASIC LEGAL ISSUES AND DEFENSES
A. No One Free Crime Rule:
Before you take on the burdensome task of discovery, you must research the applicable premises liability/inadequate security law in your jurisdiction. For example, New York and New Jersey follow the concept “No One Free Crime.” Under New York law, the defendant hotel or motel has a duty “to take reasonable steps to minimize the foreseeable danger to those unwary souls who might venture on to the premises.”1 There is no requirement, however, that the “past experience relied on to establish foreseeability be of criminal activity at the exact location where the plaintiff was harmed or that it be of the same type of criminal conduct to which plaintiff was subjected.”2 The New York Court of Appeals casts “foreseeability more generally – i.e., in terms of `past experience that there is a likelihood of conduct on the part of third persons . . . which is likely to endanger the safety of the visitor.'”3
B. Apportioning Liability On The Assailant:
A shrewd defense lawyer will attempt to circumvent the real issue of liability and place the blame on the perpetrator and the victim. If the assailant is apprehended and your jurisdiction permits the defendant to apportion liability on the perpetrator, undoubtedly the defense will argue that the perpetrator’s conduct was: (1) unforeseeable; and (2) beyond its control. The hotel will argue that it should not be held accountable for the acts of the mad dogs of society.
For example, the defense will argue that the CIA could not protect JFK from being assassinated, or prevent Reagan or the Pope from being shot. If the mad dogs of society can get passed the CIA and FBI, how could you, ladies and gentlemen of the jury, expect us to prevent this attack. At least the FBI and CIA are armed with the very best weaponry available. And the security guards at the hotel were completely unarmed and were not permitted to carry guns. What is a security guard to do when faced with a man holding a gun?
The rebuttal is quite simple: JFK, Reagan and the Pope were victims of assassins. They were specifically targeted by the assassin whose goal was to carry out the assassination regardless of escape. In the hotel inadequate security case, however, the focus is on the opportunity afforded to the perpetrator by the hotel. The perpetrator looks for the greatest opportunity to commit the crime with minimal risk of getting caught so that he will be free to commit more crime another day. It is true that a hotel or motel cannot prevent the perpetrator from committing crime. The assailant will commit his criminal acts where he finds opportunity. The only questions are where, when and who will be his victim? The hotel, however, has the duty and the power to create and control its environment to deter crime within its boundaries alleviating opportunity. Because of the foreseeable risk of harm to its patrons, the hotel has a duty to design, develop and implement an in-depth, comprehensive, integrated security program for the hotel and its surrounding environs to provide a safe environment for its guests and business invitees. When such a reasonably safe environment is created, opportunities are not afforded to the criminal and he will not be attracted to the area, causing him to look elsewhere.
All of the elements that make up a security program such as a security survey, security patrol, closed-circuit televisions, access control, lighting, space and landscape design are barriers to the perpetrator who, more likely than not, will be deterred by the barriers and chose an easier target to commit his crime and escape. A rapist is like a shark. You cannot prevent a shark from being a shark. A shark kills. A rapist rapes. What the hotel must do, however, is set up reasonable barriers that will keep the shark away from its guests.
If the assailant is apprehended, you should locate him and have your expert or private investigator interview him to determine how he committed the crime and the reasons why he chose that target to commit his crime. If you elicit from him, for example, that it was an easy target with minimal risk of apprehension, you have established that the appropriate security measures, if taken, would have more likely than not deterred this crime. It is, therefore, imperative to fully understand your state’s joint and several liability law.4
C. Apportioning Liability On The Victim:
The defense will also argue that the plaintiff was at fault by putting herself in a vulnerable situation proximately causing the assault. Before countering this argument, you must research the applicable law governing assumption of risk and comparative negligence. Under New York law, a plaintiff may not be found to have impliedly assumed the risk of injury unless the plaintiff had “knowledge of the injury-causing defect . . . [and] appreciation of the resultant risk.”5
The duty owed by the owner or possessor of land does not depend upon whether the plaintiff is an invitee, licensee or trespasser. The duty owed is that of reasonable care for the safety of all persons reasonably expected to be on the premises.6 The plaintiff’s status, however, remains relevant only to the reasonableness of defendant’s conduct.7 The issue of comparative negligence, however, should not be presented to the jury in the absence of evidence that plaintiff’s conduct was negligent and was a substantial cause of plaintiff’s injuries.8
Once you have determined the applicable law governing premises liability, you can focus in on what you need to prove to establish that the crime committed was foreseeable and that measures should have been taken, but were not, to prevent the foreseeable risk of harm to guests and business invitees on the hotel or motel property. Knowing the law before you begin the discovery process assists the lawyer to conduct informal and formal discovery in the most efficient and effective way. CAVEAT: The law makes facts significant and others insignificant.
THE NECESSARY INVESTIGATION TO PROVE YOUR CASE
A. What Crimes Are Relevant To Prove Foreseeability:
The most important question is “What evidence is necessary to prove that the occurrence of crime on the hotel property where the incident occurred was reasonably foreseeable? Generally, proof of prior crimes on the hotel property or in the neighborhood, i.e., within the local police precinct, are admissible to show the foreseeability of crime occurring on the hotel property. And in most jurisdictions, there is no requirement that the past experience relied on to establish foreseeability, i.e., prior crimes, be of the same type of criminal conduct to which the victim was subjected.9
To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury.10 Plaintiff does not, however, need to demonstrate that the precise manner in which the accident happened, or the extent of injuries, was foreseeable.11 For example, if burglaries are occurring on the property, it may be argued that it is foreseeable that injuries to persons will ensue during the course of such burglaries. Proof of any criminal activity, whether it be crimes against property or crimes against the person, occurring on the property or in the neighborhood should place the hotel on notice of the risk of physical harm to its guests and business invitees.
B. Informal Discovery To Obtain Crime Statistics:
- Contact the Police Officer in the Records Room of the precinct where the incident occurred and determine if the police department has computerized its call reports. If so, request or subpoena a computer printout of all calls for police assistance to the hotel’s address for the five (5) year period preceding the date of the incident.
- Upon receipt of the computer printout, highlight all incidents involving crimes against the person (stranger-on-stranger) and crimes against property and obtain the actual incident reports involving those incidents. With respect to crimes against the property, if the subject crime occurred in the parking lot, for example, you want all incidents involving vandalism and thefts of cars in the lot. The reasoning is that crimes against property could foreseeably escalate into crimes against the person.
- Contact the police department within the hotel’s jurisdiction to find out if it has a Crime Prevention Unit. If so, send you investigator to speak to an officer in that Unit to determine whether or not the hotel is in a “high crime rate” area of town. If so, you may want to take that officer’s deposition once the lawsuit is commenced.
- Crime Prevention Unit
- With respect to the Crime Prevention Unit, you must find out if the Crime Prevention Unit had conducted a security survey or crime prevention survey at the subject hotel prior to the date of the incident. If the survey was written, obtain copies of the report. If it was verbal, find out who conducted the survey and what recommendations, if any, were made to reduce crime at that hotel;
- Who requested the security survey (when and why);
- Did the local police authority recommend or offer to conduct a security survey, but the offer was not acted upon by the hotel/motel;
- Why did the police offer to conduct a security survey; and
- If the security survey was performed, were any of the recommendations implemented by the hotel/motel, and if so, when and by whom?
- Send your investigator to canvas surrounding buildings and go to the local precinct to accumulate additional information concerning crime in the area, and the subject crime.
- Obtain the U.S. Crime Reports statistics for the town where the hotel is located and the neighboring towns for the five (5) year period preceding the date of the incident to compare the crime rates and to determine if crime is on the rise.
- You and your investigator should interview the police detectives who
- conducted the investigation involving the victim and the assailant to ascertain relevant information. You will be surprised how much information you will learn.
- If the assailant was apprehended and prosecuted, contact the prosecutor to determine what evidence was used against the perpetrator in the trial or gathered in the investigation to prove the state’s case.
- Evidence used in the criminal trial should be ascertained, when possible, to use during the civil case against the hotel.
- Request or subpoena the entire police file, including, but not limited to, incident reports, supplemental incident reports, witness statements, victim impact statements, crime scene photographs, and photographs of the victim.
- Interview former employees and former security guards of the hotel. Before interviewing former employees, you must follow the standard litany of questions pursuant to applicable case law in your jurisdiction.
- 12. Contact the local newspaper in the area where the hotel is located to obtain its records on crimes occurring at that hotel address.
C. Informal Discovery To Obtain Demonstrative Evidence:
- Aerial Photographs: If the hotel property is large and/or the incident occurred in the parking lot, you should obtain an aerial photograph of the hotel and the surrounding area to demonstrate the size of the hotel property as compared to the number of loss prevention officers (security officers) on duty at the time of the incident. These photographs may be found at the Department of Transportation (DOT) or the municipal and county planning boards.
- Blueprints and Surveys: If the hotel property is large, you should obtain copies of blueprints, surveys and/or diagrams of the hotel and its surrounding property to again demonstrate the size of the hotel property as compared to the number of loss prevention officers on duty at the time of the incident. These documents may be found at the local building department.
- Lighting Plans: If lighting is at issue, such as poor lighting in the parking lot, you should obtain copies of the lighting plans and diagrams for the particular hotel lot to determine, among other things: (a) the wattage of the bulbs; (b) the number of lamps in the lot; (c) the height of the stanchions; (d) the distance between each stanchion; (e) the number of bulbs per fixture; and (f) the candle power of the lighting in the parking lot.
- Building Code Violations: If lighting is at issue, you should also obtain copies of any and all violations issued against the hotel for breaching the building code. You should also obtain the applicable local building code sections regarding parking lot lighting to establish the lighting standards within that municipality.
THE OVERALL CONCEPT OF INADEQUATE SECURITY
The overall concept of inadequate security is that the hotel management failed to display a security awareness or an understanding of the importance of designing, developing and implementing an in-depth integrated security program for the hotel and the surrounding environs. A hotel is in the business of providing a safe living environment for people. Unfortunately, its main concern is usually protecting property, not people.
A perfect example of the defendant’s negligent focus is in the title of their security staff. They are generally known as loss prevention officers or courtesy officers instead of security officers. Moreover, the hotel emphasizes the protection of money by placing more loss prevention officers in areas such as nightclubs, bars and casinos and de-emphasizes the vulnerable areas of the hotel property such as the parking lots, gardens and such other common areas utilized by the guests, but not income generating areas per se. History shows that this misguided, negligent conduct will be corrected when the hotel is hit where it hurts the most — the pocketbook.
A. The Security Program:
Before the hotel can implement a security program, it must conduct a security survey of the entire property to determine the foreseeable risk of harm to its guests and business invitees. Based upon the results of the security survey, the hotel should design, develop and implement a comprehensive, integrated security program. Security surveys should be periodically conducted by or on behalf of the hotel to review and re-evaluate its security performance and needs.
There are many external and internal factors that should be considered. For example, has the surrounding neighborhood changed. Has there been a rise in crime at the hotel or in the surrounding area. Has the element around the hotel changed. Have the activities and business focus of the hotel changed to include such activities as a nightclub or singles bar. Or has the hotel or motel entered into an agreement with the local housing or welfare authorities to provide shelter for the homeless. All of these factors may require the hotel or motel to modify its security program to adapt to changes in circumstance or its environment.
The security plan should be in writing and compared with previous plans to implement an effective security program. The following security devices should be considered by every hotel or motel when implementing a security program12:
1. The Director of Security
- Did the hotel have a director of security;
- Job description: (description of local standard operating procedure). Does the director serve in a dual capacity: security guard and director. The director should not perform the functions of a security guard. If he looks like a duck and acts like a duck, he is a duck;
- Was he coordinating the security program;
- When he is doing administrative work, who fills in for him;
- Who is in charge of directing security when the director is off duty, on vacation, etc.; and
- Who wrote the security standards for the hotel. Is he/she fully familiar with those standards.
2. Security Patrol
- Selection (the lack of security awareness begins at the selection process of its security personnel);
- Training of the security guards (on the job and/or classroom);
- The number of shifts per day;
- The number of guards per shift;
- Record keeping (daily security log);
- Duties of the guards (are they strictly security guards or do they perform other functions such as picking up breakfast banners and delivering express check-outs);
- Job description (description of local standard operating procedure);
- The amount of time spent patrolling various parts of the interior and exterior of the hotel (e.g., the guest floors, elevators, bars and parking lots);
- Relief program: When a security guard is on break, is there any relief program. Who takes his/her place when he/she is not at his/her assigned post or position;
- Sick: When a security guard calls in sick, is there a procedure to make certain that there is adequate coverage for that shift;
- Patrols of the hotel should be random, not routine;
- Did the guards wear uniforms;
- Are they familiar with the local standard operating procedures. If so, did they follow them;
- Communication between security guards and the security control room. A security guard’s duty is essentially to observe and report. The security guards should carry walkie-talkies to communicate to fellow guards and to the security control room;
- Description of patrols (written criteria: duration, frequency and area of patrols per shift); and
- Quality Assurance Program: Who monitors the security guards to make certain they perform their duties as required? Must determine management’s methods of monitoring the patrols. e.g., bar code system.
3. Access Control
A control point. e.g., only one way in and out of the parking lot, and the passage way is monitored by a security guard or CCTV. This deters crime.
Proper lighting is a known deterrent to crime. When considering the adequacy of the lighting at the time of the incident, you should consult with an expert on this very important issue which, in and of itself, establishes a prima facie case for inadequate security. You should also determine if the hotel had a light bulb replacement procedure in place at the time of the incident. In addition, your expert must also consider the visibility at the time of the incident (e.g., weather, shrubbery, trees, buildings, shadowing, etc.).
5. Closed-circuit televisions (CCTV)
- Number of CCTVs;
- Location (interior and/or exterior);
- Monitoring of the CCTVs (by whom and how often); and
- Reasons for the implementation of CCTVs.
6. Key Control
- Who has access to the master and sub-master keys;
- Where are the keys located;
- The type of key system (key or card system);
- Procedures and policies for lost or missing keys;
- Are key records kept up-to-date by all departments controlling those records;
- Are keys issued to employees on a basis of need rather than convenience;
- Are extra keys maintained securely (e.g., limited access to extra keys); and
- How are the keys secured.
7. Escort Service
- Was there an escort service in place at the time of the incident;
- Purpose of the escort service;
- Who used the escort service; and
- Was it advertised (manner).
B. Security Failures:
The inadequate security and lack of security awareness on the part of hotel and motel owners and managers are evidenced by one or more of the following security failures13:
- Failure to conduct proper pre-employment screening of its loss prevention officers;
- Failure to provide proper patrol of the parking area;
- Failure to provide adequate lighting in the parking area;
- Failure to have a written security program;
- Failure to conduct a security survey of the hotel and parking area to detect security deficiencies;
- Failure to respond to recommendations made by local police in its security survey to improve security at the hotel and parking area;
- Failure to properly train its security guards;
- Failure to properly utilize CCTVs;
- Failure to monitor the CCTVs;
- Failure to comply with local standard operating procedures (LSOPs) and corporate (national) operating procedures (SOPs);
- Failure to liaison with the local police department to seek its assistance in reducing crime and raising the level of protection at the hotel;
- Failure to establish a procedure to hold management accountable for maintaining an adequate security program;
- Failure to have an adequate access control program;
- Failure to properly supervise loss prevention officers on duty;
- Failure to provide an adequate number of loss prevention officers to patrol the interior and exterior of the hotel, including the security control room;
- Failure to install video and audio surveillance equipment in the parking lot area;
- Failure to communicate and report unauthorized person(s) on the premises (e.g., be on the lookout bulletins);
- Failure to remove unauthorized person(s) from the premises;
- Failure to report suspicious person(s) on the property;
- Failure to respond to the location of the crime in a rapid manner (duty to observe and report immediately);
- Failure to place specific accountability and responsibility for security in the absence of the director of security;
- Failure to monitor lighting and implement a reasonably adequate light bulb/fixture replacement procedure to prevent burnouts; and
- Failure to demonstrate a security consciousness and awareness.
A. Discovery Devices
The following discovery devices should be used in this phase of the litigation:
- Document Requests;15
- Depositions (party, non-party and expert witnesses);16
- Requests for Admissions;17 and
- Contention Interrogatories.18
B. Key Documents To Obtain From The Hotel19
- The written security plan in existence at the time of the incident;
- Any and all incident reports involving crimes against the person and crimes against property within the five (5) year period preceding the date of the incident;
- Any and all Period End Analysis Reports and/or Period Security Analysis Reports and/or compilations and/or summaries of incidents that have been generated by the hotel on a periodic basis for the five (5) year period preceding the date of the incident;
- Security Incident Trend Analysis Reports (this provides pertinent information regarding whether or not crime has increased or decreased on the property);
- The hotel’s document retention policy at the time of the incident;
- Any and all documents prepared by and/or on behalf of the hotel in the ordinary course of business concerning the investigation of the subject incident;
- The security polices and procedures in existence at the time of the incident to establish that the hotel violated its own local standards operating procedures (LSOPs) and national standard operating procedures (SOPs);
- The security manual in effect at the time of the incident;
- The daily security logs for the one (1) year period preceding the date of the incident. (This is to establish the security patrol pattern in effect at the time of the incident. If the security patrols are routine, they are defective. Security patrols should be conducted on a random basis to prevent a criminal from learning the tours of duty of the loss prevention officers);
- Any and all security audits conducted by the hotel and/or on behalf of the hotel to determine the effectiveness of its security program;
- Daily Events Log to determine the events which were going on at the time of the incident;
- Closed-circuit television tapes depicting the activities for the day and night of the incident;
- The security guards’ time cards;
- The personnel file of each security officer on duty on the day and night of the incident;
- The resume and personnel file of the director of security of the hotel at the time of the incident;
- The parking lot lighting log and/or maintenance program to determine when lights were burned out and/or replaced in the parking lot (if lighting is at issue);
- The security budget of the hotel as well as the overall budget of the hotel (to establish that the hotel places more importance on making money than in providing a safe environment for its guests and business invitees);
- Internal memoranda regarding security, prior crimes and complaints made by and/or to its employees and/or guests;
- Advertising done by the hotel to attract guests and business invitees onto the property;
- Manuals, audios and videos regarding the training of its loss prevention officers;
- All records to reflect the chain of command regarding security at the hotel;
- The corporate manual on security procedures;
- Security director’s profile;
- Security director’s job description;
- The loss prevention officer’s job description;
- The dispatcher’s (security control room) job description;
- Local and national (corporate) security guidelines for security administration;
- Incident report(s) of the subject incident;
- Hotel floor plan;
- Investigative reports, statements and diagrams of the subject incident prepared in the ordinary course of business;
- Screening and hiring procedures of its loss prevention officers; and
- Pictures taken of the subject crime scene.
C. Key Depositions
- Director of Security;
- Security Guards;
- General Manager;
- Resident Manager; and
- Front Desk Manager.
In addition to the materials relied upon by your security expert, the following materials should be reviewed to get a better understanding of the area of inadequate security litigation:
1. “Report of the Task Force on Private Security of the National Advisory Committee on Criminal Justice Standards and Goals.” Governor Brendan T. Byrne, Chairman of the National Advisory Committee, December 1976;
2. Private Security Standards and Goals – From the Official Private Security Task Force Report. A Special Edition with Editorial Comments and Discussion Questions by Arthur J. Bilek, Task Force Chairman;
3. Various standards regarding hotel and motel parking lot lighting published and/or written by the Illuminating Engineering Society of North America (“IESNA”);
4. The American Hotel and Motel Association: Standards and guidelines for hotel and motel security, including, but not limited to, security patrol, security surveys, access control, parking lot lighting, visibility, CCTV (closed-circuit television), security control room and key control system;
5. The Hotel Association of New York City, Inc.;
6. Protection of Assets Manual by Healy & Walsh, Merrit Publishers;
7. Security for Hotels & Motels by J.J. Gregory Service. Published by Charles C. Thomas;
8. American Society of Testing and Materials (“ASTM”): standards for doors and door locks for hotels, motels, apartments, etc.;
9. American Institute of Architects: standards on interior and exterior apartment doors, as well as hotel and motel guest room doors and locks;
10. Architectural Graphic Standards, Eighth Edition, published by John Wiley & Sons: Door and Window Security;
11. Security and Loss Prevention Management by Raymond C. Ellis, Jr., and the Security Committee of AH&MA; and
12. Hotel Security by Harry Smith. Published by Charles C. Thomas.
1 Nallan v. Helmsley-Spear, Inc. 50 N.Y.2d 507, 518-19 (1980).
2 Jacqueline S. v. City of New York, 81 N.Y.2d 288, 294 (1993).
3 Jacqueline S. v. City of New York, 81 N.Y.2d 288, 294, citing, Nallan, 50 N.Y.2d at 519.
4 Under New York law, where the assailant is known and the plaintiff can or could have acquired jurisdiction over him, his culpability can be considered by the jury. Under New York law, Section 1601 of the Civil Practice Law and Rules (“CPLR”) prescribes that “the culpable conduct of any person not a party to the action shall not be considered in determining any equitable share herein if the claimant proves that with due diligence [s]he was unable to obtain jurisdiction over such person in said action.” C.P.L.R. 1601(1); see also, In re Brooklyn Navy Yard Asbestos Litigation, 971 F.2d 831, 844-45 (2d Cir. 1992); In re Joint Eastern and Southern Districts Asbestos Litigation, 798 F.2d 940, 955-56 (E. and S.D.N.Y. 1992); In re Brooklyn Navy Yard Asbestos Litigation, No. 88-1286, 1900 WL 124330, at *1-3 (S.D.N.Y. Aug. 20, 1990). Please note that a plaintiff has seven years from the date of the crime to commence an action against the assailant under CPLR 213-b.
5 Maddox v. New York, 66 N.Y.2d 270, 278 (1985); Arbegast v. Board of Education, 65 N.Y.2d 161, 169-70 (1985); Laylon v. Shaver, 187 A.D.2d 983, 984 (4th Dep’t 1992).
6 Basso v. Miller, 40 N.Y.2d 233, 241 (1976).
7 Quinlan v. Cecchini, 41 N.Y.2d 686, 689 (1977).
8 Quinlan v. Cecchini, 41 N.Y.2d at 690; Grcic v. New York, 139 A.D.2d 621, 625 (2d Dep’t 1988); Southwell v. Riverdale Transit Corp., 149 A.D.2d 385 (1st Dep’t 1989). See Rodriguez v. New York City Housing Authority, 211 A.D.2d 328, 333 (1st Dep’t 1995) (holding that “plaintiff’s return trip across a parking lot, albeit a darkened one, cannot possibly involve an inherent, elevated risk of danger”).
9 Jacqueline S. v. City of New York, 81 N.Y.2d at 294 (1993).
10 Nallan v. Helmsley-Spear, Inc., supra, at 520, 429 NYS2d 606, 407 NE2d 451; Restatement, Torts 2d, section 431.
11 Restatement, Torts 2d, section 435, subd. 2.
12 The list of security devices are intended to be illustrative, not exhaustive.
13 The retention of a well-qualified security expert is a must to successfully litigate your case.
14 See Rule 33 of the Federal Rules of Civil Procedure.
15 See Rule 34 of the Federal Rules of Civil Procedure.
16 See generally Rules 30 and 26 of the Federal Rules of Civil Procedure.
17 See Rule 36 of the Federal Rules of Civil Procedure.
18 See generally Rule 33(c) of the Federal Rules of Civil Procedure, as well as the Local Rules in your jurisdiction.
19 This list of documents is intended to be illustrative, not exhaustive.
Andrew John Calcagno