The circumstances in which a private security guard company will be held monetarily liable to victims of criminal acts by third parties are examined. The standard of care imposed upon private security companies by general legal principles throughout the United States is identified as well as those classes of persons to whom such a duty is owed. Several common-law principles that mitigate the imposition of any liability imposed upon private security firms are also noted.
References
1.
(hereinafter cited as Polygraph Hearings).
2.
2. Employee theft alone, for example, costs business $40 billion per year. Retail consumer prices are 10-15 percent higher to cover such internal losses. See Polygraph Hearings, p. 305. Successful foreign espionage, naturally, injures U.S. national security as well as the economy.
3.
3. According to the Alcohol, Drug Abuse and Mental Health Administration, lost productivity in 1986 resulting from alcohol and drug abuse was approximately $100 billion.
4.
4. Polygraph Hearings, p. 331.
5.
5. Such unauthorized or excessive acts by security guards are not limited to particular industries or to geographic regions. Rather, they occur across the board due to poor judgment in selecting the private security guard company, over-dependence on armed security guards, or just bad luck. For example, in a Miami bank, a recently hired security guard, without warning or provocation, shot and killed a fellow guard. Although the killer was declared incompetent to stand trial and was committed to a state mental hospital, the victim's widow sued the bank, alleging that, because the bank knew, or should have known, of the killer's mental instability, her husband's death was the result of the bank's negligence in hiring the killer for armed guard duty. Rather than risk a jury award in excess of $1.5 million, the bank paid $300,000 to settle the suit. Wall Street Journal, 30 Apr. 1987, p. 25. An enterprise can, and should, attempt to minimize the potential for such instances by retaining only private security guard companies of the highest quality, ones that utilize the most advanced methods, such as psychological testing, in screening and assigning their employees. Similarly, the use of security guards who are armed should be kept to an absolute minimum.
6.
6. William Prosseret al., Prosser and Keeton on Torts, 5th ed. (St. Paul, MN: West, 1984), pp. 505-506.
7.
7. Due to a business' difficulty in proving the amount of damages it suffered as a result of any adverse public relations from such an incident, such losses may go unrecompensed. See generally Dan Dobbs, Remedies (St. Paul, MN: West, 1973), pp. 150-157.
8.
8. Prosseret al., Prosser and Keeton on Torts, p. 500.
9.
9. Because the law with regard to the issues discussed herein may vary from state to state, this article must confine its scope to the principles set forth in the series Restatement of the Law, published by the American Law Institute, which presents the generally accepted majority position with regard to the various issues it addresses.
10.
10. A nondelegable duty may be delegated to another for performance; but if the person to whom performance of the duty is delegated acts improperly, the enterprise remains subject to liability to his employees. Restatement (Second) of Agency (Philadelphia: American Law Institute, 1958), chap. 4, topic 4, title C, introductory note, p. 435 (hereinafter cited as Agency).
11.
11. Ibid., section 492.
12.
12. Ibid., section 495.
13.
13. Restatement (Second) of Torts (Philadelphia: American Law Institute, 1965), section 324A (hereinafter cited as Torts). This doctrine, in which one agrees, either for consideration or gratuitously, to render services to another that “he should recognize as necessary for the protection of a third person,” is sometimes referred to as the Good Samaritan Rule. See, for example, Rick v. R.L.C. Corp., No. 82-1059, slip op. at 4 n.1 (6th Cir. 1983).
14.
14. Torts, section 324A.
15.
15. See Agency, section 495; see also text accompanying footnote 12 of this article.
16.
16. Agency, section 503, comment c.
17.
17. Torts, section 344. This principle is a significant departure from the nineteenth-century rule that an agent, such as a guard company, owed a duty only to its principal, the person or enterprise on whose behalf the agent acted. See Agency, section 355, comment f.
18.
18. Agency, section 354 and comments a, b; see also Agency, section 352. Additionally, for the security guard company to be held liable to such third persons, the injury suffered by the victim must be physical, rather than economic, loss. See Agency, section 357.
19.
19. Torts, section 467. Many jurisdictions, however, have now adopted a comparative negligence approach, in which a victim's own negligence is not necessarily a complete defense. Rather, it may simply permit a pro rata apportionment of damages. See generally Prosser et al., Prosser and Keeton on Torts, section 67.
20.
20. See generally Agency, section 525, comment a.
21.
21. Torts, sections 479-80; see also Agency, section 525, comment a.
22.
22. Torts, section 496A.
23.
23. Ibid., section 496C(1).
24.
24. See Agency, section 497, comment f.
25.
25. See Agency, section 522. Moreover, there are some circumstances in which the security guard company's duty is unqualified. If it becomes known to the guard company that an employee of the business that retained the guard company, while acting within the scope of this employment, either has come “into a position of imminent danger of serious harm” or has been hurt and become helpless, then the guard company has a duty in the first instance “to exercise reasonable care to avert the threatened harm” and in the second instance to use reasonable care to give first aid and care for the employee until he can be cared for by others. Torts, section 314B.
26.
26. “In order that a negligent actor shall be liable for another's harm, it is necessary not only that the actor's conduct be negligent toward the other, but also that the negligence of the actor be a legal cause of the other's harm.”Torts, section 430.
27.
27. Torts, section 431.
28.
28. Vesely v. Sager, 5 Cal.3d 153, 163 (1971); see also generally Torts, section 442A.
29.
29. Torts, section 448.
30.
30. See generally Torts, section 440.
31.
31. See, for example, 7735 Hollywood Blvd. Venture v. Superior Court, 172 Cal. Rptr. 528, 529 (Ct. App. 1981); see also generally Torts, section 448. In 7735 Hollywood Blvd. Venture, for example, the court held that a landlord's failure to replace an outdoor light bulb did not breach any duty to a tenant raped by one who broke into the building. In so doing, the court observed, “In this day of an inordinate volume of criminal activity...no one really knows why people commit crime, hence no one really knows what is `adequate' deterrence in any given situation.” 172 Cal. Rptr., p. 530. The court went on to state that the fact that “anyone can foresee that a crime may be committed anywhere at any time” does not, “per se, impose a duty to install security devices meeting a jury's concept of adequacy.” Ibid.
