Pre- and Post-Incident Actions to Rebuff Negligent Security Lawsuits

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You would like to think that if a serious crime occurs at a particular property that you could point to your prior thoughtful risk analysis, show the appropriate security measures you took in response, and quickly put the matter to rest. You would like to think that—but putting an incident to rest can be frustratingly difficult. Without explicit rules to follow, and because courts are discretionary, defending security decisions and practices is a tricky area. Ancillary issues often have a real impact on whether a retailer successfully defends a claim of negligence. One of these “other” factors is how loss prevention professionals perform in depositions.

After an incident, “relevant” crimes in the “immediate vicinity” will come under scrutiny. Unfortunately, there is no explicit definition for “relevant” or specific guideline for companies to follow regarding how wide a geographic radius it needs to check. It’s up to individual judges what evidence they allow. It varies by jurisdiction, noted Jon Groussman, J.D., president and COO of CAP Index, Inc., a leading crime risk forecasting company. “You can do a one- or three-mile radius for determining prevention, but when you get in litigation you’ll have people trying to bring in data from much greater distances, and it’s up to the judge what to let in.”

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In the face of such uncertainty, what can a retailer do? Retailers should undertake and document a wide breadth of security risk assessment activities to demonstrate due diligence should a case get to a jury. CAP Index provides one piece of the puzzle by examining the probability of crime, and the firm has actively and successfully helped defend security decisions and practices made by its clients.

Groussman also recommends that retailers—when examining the external threat environment with respect to liability—pay particular attention to crime at similar businesses in the area if available. General area crime events are also an important consideration, but crime at similar establishments is particularly weighty in determining foreseeability, he suggested. “I think courts are looking more for events that are nearly identical to the case at hand or at least similar enough in nature that they would put a business on notice,” said Groussman. “It’s more balanced now in that courts are less likely to be letting in every property crime that occurred. But it’s still ultimately up to a judge to let a jury weigh what evidence he wants.”

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Periodically touching base with local law enforcement and asking if there is anything you need to be aware of is another way to establish due diligence, said Groussman.

However, it’s not only pre-crime actions that matter, said Groussman. Loss prevention executives can also help their case by performing well in depositions. Groussman, who has worked on over 700 premises security liability cases, lists 11 rules for deposition performance and preparation.

Be a superb listener.

  • Listen carefully to each question
  • Think before answering
  • Consider any and all objections
  • Never accept a fact merely because the plaintiff says it is so
  • Remember the jury is listening carefully, too

Maintain your composure.

  • Take a break if you start to feel upset
  • Be polite but firm

Never guess or volunteer information.

  • Don’t speculate
  • Don’t offer additional information
  • Don’t volunteer names of others who may have information

Review documents thoroughly before answering.

  • If you haven’t seen it before, offer no comment
  • Know your company’s policies and procedures
  • Ensure documents correspond to the relevant time period
  • Read the fine print

Know what the case is about and what your defenses are.

  • Understand the complaint and the appropriate defenses
  • Know what your discovery responses already say

Never waive privilege.

  • This pertains to privileged incident reports and investigation details, as well as privileged communications

Never admit to legal conclusions.

  • Never admit that you/your company acted negligently or recklessly

Never discuss money unless asked and you know the answers.

  • Do not discuss any increased costs associated with security measures and/or compensation.

Immediately correct your answer if necessary.

Insist that your lawyer get together with you seven to ten days before deposition and, if necessary, undergo a mock deposition.

Be comfortable and confident. Remember, you know more about the subject than the lawyer asking you questions.

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