We’ve been seeing an uptick recently in claims against restaurants, bars, store owners and residential buildings alleging assaults and negligent security. While the assault often has nothing to do with your restaurant, your company often becomes the deep pocket target. But these claims are defensible, particularly if proper procedures are followed. The purpose of this article is to highlight the recommended best practices- both before and after the incident- to protect and insulate your company against these inflammatory claims.
Do you need outside security?
A restaurant owes a duty to its patrons to provide a minimum level of security. If an assault occurs, the Courts will ask whether it was foreseeable. If you have a history of crime in your restaurant or neighborhood, then another criminal act is foreseeable and you must provide security. Some restaurants will station a security guard whenever the restaurant is open. Others will have a guard present at night and during the busier hours. The more security you provide, the stronger your defense will be to an assault claim.
Considerations in retaining a security company
You must select a licensed, competent security company. It should be a company with experience in the restaurant or retail setting. Importantly, enter into a written contract with the security company. The contract should include provisions whereby the security company agrees to indemnify your company and to provide your company with additional insured coverage (the security company’s form probably will not include these requirements). We recommend using the contract rider drafted by our attorneys for this purpose. There is a link at the bottom of this article to download the rider. Get proof of insurance from the security company, and make sure to get renewal certificates when policies expire.
An incident occurs- what should we do?
The most important thing you can do after any incident occurs, not just a security incident, is to preserve the video. The preserved video should run from the time any of the participants enter the restaurant until they leave. Preserve all camera angles that show any of the participants. Failure to preserve the video not only deprives your defense of critical evidence, it could cause the Court to charge a jury that you spoliated the evidence. What could have been our best defense has now become a death blow against us. The manager on duty should prepare an incident report setting forth what happened. The incident report should provide names and cell numbers of all witnesses. Make sure to notify your insurance company of the incident as soon as possible. Follow these steps even if you think the person claiming injury is at fault or that they didn’t really sustain an injury. It’s our unfortunate experience that the protagonist is often the first to get a lawyer and pursue medical treatment to make a claim.
Negligent security law in a nutshell
Negligent security cases typically fall into three categories- customer v. customer, employee v. customer, or security guard v. customer. The law varies for each scenario, but the general principles of foreseeability and an opportunity to prevent the incident apply across the board. Was this an escalating altercation that could have been diffused, or a sudden and unanticipated attack? In a customer v. customer attack, the law does not require an employee or guard to intervene in a physical altercation and place their own health at risk. They should call the police and protect themselves. But if the manager or security guard had an opportunity to diffuse an escalating situation before it turns violent, they may be accused of negligent security. If there were prior criminal acts in and around the restaurant and you didn’t have security, then you can be liable for failing to provide security.
In an employee v. customer situation, in addition to the issues addressed above, the liability questions become 1) whether the employer knew or should have known of the employee’s dangerous propensities, if any, 2) whether the employee was properly hired, trained and supervised, and 3) whether the incident occurred in the course and scope of the employee’s work, in furtherance of the employer’s business. If so, then the employer may be vicariously liable for the employee’s assault. If, however, the incident was not related to work, then the employer shouldn’t be responsible.
When a security guard intervenes and it becomes a security guard v. customer situation, it often becomes a physical altercation, like the guard trying to escort an unruly patron from the restaurant. The guard and his employer may become defendants in a personal injury lawsuit. If the security company has insurance, then they will be plaintiff’s target. Plaintiff will likely sue the restaurant too, but hopefully the security company executed a contract with an indemnity provision and their insurer will defend your company. If not, plaintiff will argue that your company should be liable for hiring an incompetent security company, or that your company exercised such control over the security guard that it should be vicariously liable for his acts.
In conclusion, negligent security cases are defensible, even if your employee is the aggressor. However, you need to make the right moves before and after the incident to increase our chance of success. Before: properly hire, train and supervise your employees. If criminality is foreseeable around your location, retain an experienced security company. Make sure they have adequate insurance and execute a contract with additional insured and indemnity provisions. After the incident, preserve the video, prepare an incident report and report the claim to your carrier.
CLICK HERE to download a sample security contract rider.
Source: Michael Stonberg helped in the drafting of this article. Mike is the managing partner of the NYC office of Stonberg, Hickman & Pavloff. He has been defending McDonald’s franchisees for nearly twenty years throughout the State of New York and New Jersey. Mike is always happy to discuss these issues in greater detail. He can be reached at mike.stonberg@shplawyers.com or 917.936.9201.