By Mike Walker
When the plaintiff names a guard company in an intentional tort case, you can expect the defendant to deny course and scope, particularly when punitive damages are asserted. To account for this possibility, it is often good practice to name the individual guard as a defendant.
On a warm summer evening in June 2014, a security officer shot and killed an unarmed man for refusing to leave a hotel in Decatur. At an apartment complex in Austell several years prior, another guard with a history of “erratic and threatening behavior” slayed a tenant during a confrontation. On yet another occasion, a hotel guest was shot in the face during a robbery. The hotel claimed it had uniformed security, only the scheduled guard never showed up for his shift.
Security guards serve an important role in deterring and preventing crime. As the above incidents illustrate, however, poor management, negligence, or worse sometimes make security guards more of a danger than deterrent. At best, negligent security guards provide a false sense of security. And given that nearly 29,000 people are employed as security guards in Georgia alone, practitioners of premises liability are likely to encounter cases involving security guards.
Whether you are litigating use-of-force, false imprisonment, or negligent security cases involving security guards, common issues are likely to arise. This article provides tips on addressing some of the more common issues that arise in litigation involving security guards.
CHOOSING THE RIGHT PARTIES
One of the earliest and most important tasks when litigating cases involving security guards is choosing the right defendants. Security guard negligence and intentional torts are often imputable on the employer and property owner, and the facts often warrant adding these entities as defendants.
A. The property owner
Premises owners in Georgia have a duty to exercise ordinary care in keeping the premises and approaches safe for invitees. Therefore, if a property owner hires a security company to patrol or monitor the property, it has a personal and nondelegable duty to choose a responsible security guard company. Not only does this mean that the property owner can be liable for guard negligence, but it may be held responsible intentional torts, too.
In fact, the Georgia Supreme Court held that it “agree[d] with the imposition of liability upon property owners for the intentional torts committed by the personnel of an independent security agency, where the security agency was hired by the property owners to protect their premises.” If the tortious security officer is an off-duty law enforcement officer, however, the property owner is not liable for torts committed pursuant to the officer’s police duties.
B. The Security Guard Company
Many or perhaps most security guards are direct employees of private security companies. Although each case is fact-specific, intentional tort or negligent security cases involving guards often warrant adding these companies as defendants. In negligent security cases, premises owners often blame security contractors and guard companies for security flaws or gaps, and the guard company can be present for apportionment purposes or to refute claims that they were tasked with certain duties (assuming there is a duty of care; ).
In intentional tort cases, security companies can be held vicariously liable for a guard’s excessive force and wrongful detention. Given the nature of their profession, heavy-handed security guards who harm or wrongfully detain others frequently do so in the course and scope of employment, even if they violate company policies and procedures. When the plaintiff names a guard company in an intentional tort case, you can expect the defendant to deny course and scope, particularly when punitive damages are asserted. To account for this possibility, it is often good practice to name the individual guard as a defendant. Not only does this account for the possibility of losing on vicarious liability, but the individual guard’s defense counsel often will help prove course and scope.
If the employer is not vicariously liable for the guard’s torts, it can be held directly liable on negligent hiring, retention, training, and supervision claims. In fact, the Georgia Court of Appeals held that security companies must exercise “a greater amount of care to meet the degree or standard of care” when selecting their employees, given that they protect people and property. At a minimum, Georgia regulations require security companies to check a candidate’s criminal history, and industry sources recommend verifying at least seven years of prior employment. Guards must also have at least 24 hours of classroom instruction, plus another 15 hours to carry a firearm.
II. WHAT INFORMATION AND DOCUMENTS TO SEEK IN DISCOVERY
Certain documents and information are ubiquitous across the security industry and should be requested in most cases involving guards regardless of whether you are litigating a use-of-force or negligent security case. In such cases, requests for production often seek the following documents:
- The guard services contract. Most premises owners and security companies will have a services contract. Not only does this help define the guard’s responsibilities, but it is essential for establishing a third-party beneficiary claim against the guard company.
- Both and post orders. Broadly speaking, security guard companies draft general post orders to provide universal rules and guidelines applicable to all sites. Specific post orders are site centric and reflect the premises owner’s needs for the property. These latter post orders often explain whether the guard is permitted to pursue or chase suspects, carry a weapon, or is deployed at a fixed post or moving patrol. Deviations from the post orders can illustrate breaches of the standard of care, and missing or sloppy post orders can serve as an independent specification of negligence.
- Incident reports and shift activity reports. Incident reports reflect crimes on the property, which help establish foreseeability, and the activity reports indicate the guard’s patrols and observations, which may show whether he or she exercises ordinary care around the property.
- The guard’s personnel file and all training records, including the training program of the guard company has its own training program.
- Records reflecting the guard’s supervision, such as quality checks or guard wand data.
While this is not a comprehensive list of all documents to seek from a security company, these documents are almost universally useful.
III. CAUSES OF ACTION AND THEORIES OF RECOVERY
The vast majority of cases involving security guards fall into two categories: negligent security cases and cases arising from wrongful or unreasonable use of force and false imprisonment.
A. Negligent security claims
A key issue in many negligent security cases is the presence or absence of a security guard on the property. As discussed above, if a security company was on the premises at the time of the incident, there are good reasons to add the guard company as a named defendant.
In negligent security cases, however, security guard companies routinely file dispositive motions on the basis that they owed no duty to the plaintiff. Because negligent security claims are based in premises liability, guard companies claim they do not owe a duty to keep the premises safe from criminal acts. A common response to this defense is that the plaintiff was a third-party beneficiary to contract between the premises owner and the guard company.
Although Georgia law does not require that the third-party beneficiary be named specifically in the contract, as a practical matter courts often look for words like tenants, visitors, and patrons in the contract to glean an intent to confer a benefit to the third-party. While contract interpretation often focuses on the contractual language, the plaintiff should consider deposing the primary drafter of the contract or a corporate representative on ambiguities and defendant’s intent on certain language.
B. Active negligence and intentional torts
A general second category of claims against security guards involve allegations that the guard exceeded his or her authority, used unreasonable force, or wrongfully detained the plaintiff. Although many security guards wear a badge and blue uniform, a security guard has no more right to use force or detain someone than an ordinary private citizen.A security guard who uses unreasonable force or detains or restrains an individual may be sued for assault, battery, and false imprisonment. The defense in such cases often asserts that the security guard was attempting to effect a citizen’s arrest under Section 17-4-60, or for shoplifting under Section 51-7-60. A security guard can make a citizen’s arrest only “if the offense is committed in his presence or within his immediate knowledge.”
Regardless of whether the guard has the right to arrest someone, Georgia law requires that the guard use no more force than is reasonable under the circumstances. Deadly force is prohibited unless necessary for self-defense or to prevent a forcible felony (i.e., a felony involving the use or threat of physical force).
Cases involving security guards often present a host of legal issues from premises liability, criminal law, agency theories, negligent hiring-type claims, and regulations from the Georgia Board of Private Detectives and Security Agencies. In addition to familiarizing yourself with these legal issues, it is worth exploring guidelines and treatises published industry groups such as ASIS International and the International Association of Professional Security Consultants. By learning the law and industry practices on the front end, litigants in security-type cases can anticipate and defeat common defenses.