The Legality of Security Work, Research Paper Example

Introduction

In order to look at the performance of private and public security work and associated liability of negligence we must first observe there is a high associated risk involved with the public element surrounding such liability because of the risks associated with the scope of the employment. Anytime the risks of the job increase so does the limitations of the duty owed to the workers, the public and anyone coming in contact with the company. Such negligent liability can be reduced by attempting to regulate and minimize such risks through different measures. “Liability suits have increased over 260 percent in the past five years with the average negotiated settlement award $535,000 and the average jury award $3.6 million.” (Blake, 1996). The value of a well-trained security force is essential to keeping the numbers down with lawsuits states well known litigators across America. Many courts are realizing that security companies play an important role in keeping the streets clean as well as using police forces as well. In profound court decisions such as Butler v Acme Market (1982) New Jersey, and Dupree v Piggly Wiggly Shop Rite Foods Inc. (1976) Texas distinguished that merchants have “a duty of care to provide adequate care to their customers and that duty cannot be transferred to third party.” (Blake, 1996). In the past this duty was not conducive to contractors. This meant they could not escape liability by delegating authority to a third party security contracting company. Companies do not eliminate their liability by employing security companies but they force the insurance companies to make the payments with regards to tort lawsuits as seen in Northwestern Casualty Co. v McNulty (1962) Court of Appeals where the ruling gave significance to the employment of adequately selected and trained security officers. For example in an emergency situation the security officer should be able to lift and transport over 200 pounds or be able to sprint short distances. “This level of physical fitness should be confirmed by a medical examination within ninety days prior to assignment to the security force.” (Blake, 1996). All officers should be adequately trained prior to commencement of their first assignment with the security company. Any additional “training shall not be deemed frivolous. Minimum training is not clearly a liability defense for the company. Additional training should include patrol techniques and procedures, visitor and vehicle access control, crime prevention, incident report preparation, physical security equipment inspections, hazardous materials response, company and property policies, fire prevention and suppression, use of force, emergency first-aid procedures, correctly reporting incidents to emergency services, and interpersonal relations designed to meet the requirements of the protected property. All security officers should receive a minimum of twenty hours of training semiannually in the mandated and supplemental training subjects. All training should be documented with a report that specifically identifies the subject matter and the length of each training period. The training reports should be signed by the trainer as well as the security officer and retained by the company’s security manager.” (Blake, 1996).

This brings us to the aspect of if by chance an incident does occur how do we legally determine if there is an action of liability owed by the security company? In the realm of law there are five elements that have to be considered: “Is there a duty owed, to whom is that duty owed, was there a breach of duty, was there factual and proximate causation and was there any harm or damages as a result of the incident in fact?” We will peer closer into each of these elements. Negligence emerged as a distinct tort through Brown v Kendall in 1850. “Also essential to negligence, evident from an early date, was the necessity of a causal connection between the Defendant’s breach of duty and the plaintiff’s damage that was natural, probable, proximate, and not too remote. As early courts and commentators explored the developing tort of negligence, they increasingly divided it into its essential pieces— “elements”—centered on a defendant’s failure to exercise due care and the plaintiffs proximately resulting harm. ” (Owen, 2007). As tort emerged most court broke it down into four essential elements of duty, breach, cause and damage. Some courts break these elements into duty, breach and proximately caused harm. Most courts have agreed that the five formulation test is best because the “five element test is distinct and complex and all must co-exist or the claim will fail.” (Owen, 2007).

Duty is the “obligation from one person to another that flows from social customs, religion and philosophy. Duty is the thread that binds one human being to another. Duty sets the constraints by which we judge one behavior from another.” (Owen, 2007). There must be an existence of a duty owed for there to be a tort claim. A duty is not owed to the whole world and does not exist in a vacuum. If it were owed to the whole world then anyone and everyone would be able to file frivolous lawsuits and be paid out on such actions.

With regards to breach of duty the objective standard is applied. The question that arises is would a ‘reasonable person’ in a similar situation as the person being sued have done the same thing? Subjective standards will be considered to the latter. The jury will consider whether the person acted reasonably according to the subjective standard. “The following factors will be considered to determine if the person acted reasonably: whether the person would have foreseen the damage, the extent of the risk, obviously the greater the risk, the greater the precautions the defendant is required to take, if the feasibility of the precautions were not available then the defendant may not be held liable, the social significance of the liability.” (“Breach of Duty”)

Looking at causation, there is a two prong test that has to be considered both legal and proximate causation. Cause in fact is the ‘but for test’ which states but for the negligent act would the damage have occurred at the time?” Proximate causation is the immediate responsible act for causing some observed act. This is the ‘real reason’ for something having occurred rather than a contrasting event. This acts as a legal limitation to the factual causation or legal causation. This does not have to be the ultimate cause but a cause leading to the ultimate cause.

The last element to be discussed is was damages done. There needs to be a sufficient amount of damages done as a result of the breach of the duty for a potential claimant to prevail in an action of tort.

References

Owen, D. The Five Elements of Negligence Retrieved August 4, 2010 from, http://law.hofstra.edu/pdf/Academics/Journals/LawReview/lrv_issues_v35n04_i01.pdf

Blake, W. Putting a Lid on Premises Liability Retrieved from, http://www.crimewise.com/library/putlid.html

Butler v Acme Market (1982) New Jersey Dupree v Piggly Wiggly Shop Rite Foods Inc. (1976) Texas Northwestern Casualty Co. v McNulty (1962) Court of Appeals Brown v Kendall (1850) Breach of Duty Retrieved August 5, 2010 from, http://www.weitzlux.com/breachduty_398.html