It has happened again. The trial court and the Court of Appeal in Los Angeles have upheld a $5.42 million jury verdict, where the business posted two security guards in its unisex bathroom area all night until very late, and as soon as they left their post, an employee raped the plaintiff. The bar-club tried to defend by claiming that it had no duty to protect the plaintiff against being raped by one of its employees, because it was not foreseeable that such a crime would occur unless it posted guards. The trial court and the Court of Appeal rejected this defense, because by posting two security guards there every night for most of each night, the bar-club admitted it knew it needed guards in the bathroom area.
The California Supreme Court has repeatedly refused to impose the burden on a property owner to employ security guards, because the cost of security guards exceeds the likelihood of guards successfully protecting a victim from harm. A guard in a fixed location doesn’t protect against crimes and injuries in other parts of the property. If the guard roams, a person planning a crime can watch to see the pattern and timing of the guard’s rounds, and commit the crime during the time when the guard will be somewhere else. In a case involving gang activity, the court acknowledged that even an armed guard could be outnumbered and outgunned.
In this case, the bar-club confessed that it knew it needed guards in the bathroom area to prevent sexual and criminal activity, by posting two guards there every night for most of the night. The defendant was already employing 8-10 guards. The burden of keeping at least one of the two guards posted to the bathroom, at that location, was described by the Court of Appeal as “minimal.”
When you implement some form of security to protect the safety of your patrons or employees, you are admitting that you have actual knowledge of some need for this level of security. Unless you can prove that the need for that level of security no longer exists, you have confessed that you have a duty to maintain that level of security. Of course, if this is being argued in a lawsuit about a criminal assault which has occurred, it will be hard to prove that the need for the discontinued security had ended.
If you are considering upgrading the security at your business, you may want to consult with a premises liability attorney to determine whether or not you actually have a duty to implement such precautions. Once adopted, you are probably stuck with it forever.
If you are considering removing any security system, definitely review that decision with an attorney familiar with these cases. You may already have confessed that there is a need for the previously adopted procedures.
