Premises Security Experts, Inc.
|Posted on December 8, 2021 at 3:10 PM|
CONCERT RISK PYRAMID BY CROWD DRAW
ELEVATED RISK TIER
Annual Site/Group Assessment
Tier One Access Controls
+State Police and/or National Guard
MEDIUM RISK TIER
Bi-Annual Site/Group Assessment
Tier Two Access Controls
COunty Police and/or City Police
Ticket Control/Assigned Seating
Country & Western
Site Assessment Every Three Years
Private Security Guards
Serpentines & Barricades
Stanchions & Ropes
Classic Music Festivals
In these times of mass shootings and terrorism regular police patrols should be heightened on the exterior of the venue and in surroundings parking lots.
Indoor pyrotechnical devices and shows require the presence of professional firefighters to avoid mass injury and death as evidenced in the Great White concert at The Station nightclub in Rhode Island where 100 died and 230 were injured.
The law enforcement contingents in the medium and elevated tiers should be commensurate with the size of the crowd. For example, it would have taken an army of security to protect "the mother of all concerts" by Rod Stewart on the Copacabana Beach in Rio de Janeiro, Brazil where three-and-a-half-million attendees were present in 1994.
|Posted on December 8, 2021 at 3:05 PM|
Houston’s Tragic Crowd Crush
Andrew P Sutor
Unfortunately, we live in dangerous times, especially when venturing outside of our homes and residences to engage and participate in the general "pursuit of happiness" such as attending a music concert. Far too often people suffer serious injury, and even death while doing so.
Sadly, ten concertgoers died and hundreds more seriously injured in a crowd stampede while attending Travis Scott’s Astroworld Festival rap concert presented by Live Nation in Houston, Texas on Friday, November 5, 2021.
Live Nation, the world’s largest concert promoter, has an abysmal history when it comes to reasonable security. For example, it was not in place when fifty-nine concert attendees were slain and many hundreds injured, at the Harvest Festival in Las Vegas on October 1, 2019. (There were more than four thousand Plaintiffs in the Mandalay Bay Massacre.)
The tragic crowd crush incident at the Houston rap concert was foreseeable and predictable. The size of the crowd, (50,000 + vs 22,000 in the Las Vegas massacre), the nature of performers (Rap musicians require more security than Country & Western ones due to heavy use of drugs, etc.), low-security budgets, inadequate law enforcement presence, and third-rate security guards clad in T-shirts with “Staff” emblazoned on the back, were all likely present and the proximate cause of the latest crowd crush outrage in Houston.
Innocent victims, or sometimes, sadly, their survivors, often seek out legal redress and compensation for their loss through their attorneys. Most of the elements of these cases are obvious: the Serious damage was done; a likely breach of the legal duty of involved entities to provide for a minimum standard of care for their customers, patrons, and guests. The question is, how does counsel prove proximate cause and negligence in the case?
To bring a premises security case to a successful conclusion, plaintiffs' attorneys need to establish the actual level of, and foreseeability of risk at the time and place of their occurrence. You require an accurate and genuine "foreseeability" of risk assessment by a crowd control professional which is often hidden, and hard to prove.
Once that is established, attorneys need to make their case around the evidence that the defendant's security budgets and measures in the face of that risk were inadequate or unreasonable. An experienced expert in law enforcement and the private security field can determine the level of risk and whether the security provided by the defendant was adequate or reasonable to counter that risk.
Andrew P. Sutor is a Principal at Premises Security Experets, Inc., which provides professional security consultation and expert witness services for law firms and attorneys pursuing premises liability and negligent security cases. He can be reached at [email protected] or 609.822.2626
|Posted on December 8, 2021 at 2:50 PM|
WHY YOU SHOULD LISTEN TO YOUR EXPERT
Andrew P. Sutor
You are a highly-educated professional, well learned in the law, who is a dedicated advocate for injured parties seeking justice in our complex jurisprudence system. As a capable and confident litigator, you are prepared to do battle with those who would thwart justice and deny your clients just compensation, sometimes at any cost including their practicing “willful ignorance” as to the facts in the matter and even spoliation of evidence.
To achieve justice for your injured clients and bring your premises liability/negligent security/wrongful death case to a proper and successful conclusion you, and your expert must follow stringent rules and legal standards laid down in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). In essence, your expert needs to follow a scientific approach to the case and the analysis of the probative data therein to provide you with a strong opinion that supports your case.
This daunting task is not as easy as it may seem. Your clients have been injured, oftentimes while lawful business guests of your defendants. The defendants had a legal duty to provide a reasonable level of care to protect their clients, and others, from the foreseeable risk and future harm caused by their failure to do so. You mainly need reliable and accurate data on the actual risk facing your clients at the time and place of the incident to take a “scientific approach” in developing significant evidence relevant and material to the matter at hand. The accurate analysis of that critical data is critical to proving negligence on the part of the defendants and establishing the proximate cause of your client’s injuries.
There are significant obstacles to the acquisition of truthful and accurate risk data in many premises liability/negligent/security/wrongful death cases. Not the least among them is the despicable practice of “willful ignorance” by defendants, which is part and parcel of ignoring foreseeable risk facing your client. Quite often defendants “cut corners” on reasonable security in the face of foreseeable risk to the public in general and your client in particular. Another significant impediment is “spoliation of evidence” which is far too often widespread and pervasive in such cases.
Fortunately, an experienced and astute expert who is well versed in crime, crime reporting, and risk analysis is available to assist counsel in getting the truth of the matter. Your expert can obtain significant crime and risk data from public and private sources and the media. However, it takes a team effort in that your expert must work hand-in-hand with counsel to obtain other critical probative data and records through discovery, depositions, and OPRA/FOIL - (NY) public records. A knowledgeable and effective expert that specializes in such cases will be able to provide counsel with a list of potential evidence necessary for a scientifically based opinion that will pass the court “gatekeepers” under the Daubert standards.
Perhaps a copy of the “Missing Link” slide from my CLE classes on “Litigating Negligent Security Cases” will illustrate what you need to bring your premises security matter to a successful conclusion:
This scientific approach to collecting important evidence also enables your security expert to provide you with a strong opinion report on the matter at hand. This will, in turn, support you in prosecuting your lawsuit by establishing the totality of the circumstances and assist you, and the court, in determining the level of negligence and the proximate cause of your client’s injury. Although Daubert is a federal rule, it is highly recommended that it be followed in state civil cases as well.
Practitioners would be well advised to heed the sage advice of John Elliott Leighton, Esq., the premier attorney on “Litigating Premises Security Cases” (Thompson West, 2006). Attorney Leighton points out the necessity for an expert in inadequate security cases and recommends, “Pay careful attention to the items sought by the expert and work with the experts in formulating document requests and interrogatories for the lawsuit.” The bottom line here is that listening to your experienced security expert, especially one who knows “where the bodies are buried” and how to gain vital evidence enabling him to provide a strong opinion of negligence to make your case a winning one, is the way to go.
Andrew P. Sutor is a Principal at Sutor & Associates, LLC, which provides professional security consultant and expert witness services for law firms and attorneys pursuing premises liability and negligent security cases. He can be reached at [email protected]
|Posted on December 8, 2021 at 2:40 PM|
HOW TO WIN A PREMISES SECURITY CASE
Andrew P Sutor
We live in dangerous times, especially when venturing outside of our homes and residences to engage in necessary commerce and participate in the general "pursuit of happiness." Unfortunately and far too often, people fall victim to violence, crime, or serious injury while doing so.
Innocent victims often are forced to seek out legal redress and compensation for their loss through their attorneys. Most of the elements of these cases are obvious: serious damage was done, a likely breach of the legal duty and moral obligation of someone to provide for a minimum standard of care for their customers, patrons, and guests. The question is, how does counsel prove proximate cause and negligence in the case?
To bring a case to a successful conclusion, plaintiffs' attorneys need to establish the actual level of, and foreseeability of risk at the time and place of their occurrence. The level of prior crime on and near the property is needed to determine the level of risk that was present.
Once that is established, attorneys need to make their case around the evidence that the defendant's security measures in the face of that risk were inadequate or unreasonable. A competent expert in the security field can determine the level of risk and whether, or not, the security provided by the defendant was adequate or reasonable.
The actual "foreseeability" of risk required for the successful prosecution of your case is often hidden, and hard to prove. Defendants in negligent security cases often have a vested interest in under-reporting crime and minimizing the actual risk to the public mainly because reasonable and proper security performed by professionals is quite expensive. Furthermore, many defendant companies do not want to record events that would demonstrate their civil liability. Additionally, the truth is often willfully concealed because it is bad for business if their customers knew the truth about the risk involved.
In other words, many defendants willfully ignore the true threat to guest safety and security and fail to provide adequate and reasonable security to address that foreseeable risk. This behavior is a shortsighted and reckless attempt to increase margins and profits. Obfuscation, downgrading, and confusion about crime and risk exist and even proliferate in many industries. Where must plaintiffs' attorneys go to establish the actual foreseeable risk facing their client/victims in a premises security case? How does one obtain accurate and factual information while taking a scientific approach to complying with the tenants of the rules of evidence?
To determine the actual level of risk existing at the time and place of the incident, a security expert is required. John Leighton, Esq., one of the nation's foremost lawyers handling premises security cases, proclaims, "Expert witnesses are almost always necessary to bring an inadequate security case. Since the plaintiff has the burden of proving foreseeability and negligence and causation, doing so without expert testimony is almost impossible."
Knowledgeable security experts make use of public and private sources on crime and risk, such as the FBI Uniform Crime Report (UCR). The eight most common serious index crimes listed in the UCR are Homicide, Rape, Robbery, Aggravated Assault, Burglary, Larceny, Auto Theft, and Arson.
There are also private companies such as CrimeCast that can provide accurate and graphic data on index crimes and forecast risk at a particular address or location. It should be noted that this data is also available to the defendants involved in negligent security cases before the event even occurred.
Police departments have computerized communications systems that provide an extraordinarily accurate record of all founded police actions at a particular location within the agency's jurisdiction. This relevant crime data is automatically gathered, mainly by 911 calls. These sources of foreseeable risk data will enable your security expert to provide a stronger opinion in considering the totality of the circumstances in determining the level of negligence and the proximate cause of your client's injury.
Andrew P. Sutor is a Principal at Sutor & Associates, LLC, which provides professional security consultation and expert witness services for law firms and attorneys pursuing premises liability and negligent security cases. Attached you will find a catalog of Sutor’s publications addressing the issues raised in this article on “How to Win a Premises Security Case.” Feel free to contact him for complimentary copies of any articles concerning the matter before your office. He can be reached at [email protected] or 609.822.2626.
EXPERT’S PUBLICATIONS – CATALOG
“The Bandit Has Two Arms” November 2011
Security Directions Magazine, American Society for Industrial Security (ASIS)
“Warning - A Public at Risk!” November 2011
InBrief Magazine, New Jersey Association for Justice, Trenton, NJ
“Negligent Security” May 2013
N. J. Bar State Association, ICLE Seminar, New Brunswick, New Jersey
“Proving Foreseeability” February 2014
InBrief Magazine, New Jersey Association for Justice, Trenton, NJ
“The Importance of Timely Site Inspections in Negligent Security Cases” January 2015
Security Directions Magazine, American Society for Industrial Security (ASIS)
“Uncovering Spoliation of Evidence” February 2015
InBrief Magazine, New Jersey Association for Justice, Trenton, NJ
“How Foreseeable Was It?” June 2017
The Philadelphia Lawyer, a quarterly magazine, Philadelphia, PA
“Litigating Premises Security Cases” May 2018
PA Bar State Association, ICLE Seminar, Bucks County, Pennsylvania
“Is Your Security Guard Dangerous?” January 2018
Security Directions Magazine, American Society for Industrial Security (ASIS)
Blogs - Published Posts in Legal and Law Enforcement Communities:
o “A Timely Site Inspection May Clinch the Case.” June 30, 2015
o “Your Negligent Security Case - Proving Foreseeability.” July 7, 2015
o “Uncovering Spoliation of Evidence.” July 21, 2015
o “Determining Foreseeable Risk.” August 5, 2015
o “Proving Causation: The Rosetta Stone.” August 24, 2015
o “Hear no, See no, Speak no Evil, - Willful Ignorance.” September 2015
o “The Enablers.” November 9, 2016
o “Risk – How Foreseeable Was it?” May 2016
o “The Scientific Method.” May 2016
o “Crime and Risk Cover-Ups” June 2016
o “Proving Foreseeability” May 2017
o “What is Reasonable Safety and Security?” June 2017
o “Defense Ploys: The Three D’s” August 2017
o “Mandalay Bay Shootings” October, November 2017
o “Debunking the Casino Surveillance Mystique” November 2017
o “The Mandalay Bay Massacre – How foreseeable was it?” October 2018
o “Accurate crime and risk data, “Now you see it, now you don’t” December 2018
o “Why You Should Listen to Your Expert.” January 2019
|Posted on December 8, 2021 at 2:35 PM|
THE MANDALAY BAY MASSACRE
HOW FORESEEABLE WAS IT?
Andrew P. Sutor
If a lawful business patron is harmed or seriously injured while a guest at a facility in the hospitality industry, there is a distinct possibility that the defendants may not have provided a reasonable standard of care for the safety of customers and guests. Establishing the foreseeable risk factor is critical in determining the reasonable level of security required to meet the prevalent risk. How does one prove that level of risk? It needs the services of a competent and able safety and security expert to identify the risks and make a recommendation as to what level of security is necessary to meet that risk.
The typical analysis begins with looking for and evaluating previous similar crimes or incidents. It was once accurately stated that “what’s past is a prologue to the future.” A quick study of risk management tells us that if a type of incident has occurred previously, there is a higher probability of it happening again. It also means there is a higher standard of security, preventive action, etc. required to be in place. It will be difficult for defense attorneys to support a position that no additional protection was needed if there exists a history of problems that are relevant to the new incident.
This security expert used multiple credible sources in a scientific approach to determine true foreseeable risk at the scene of the crime on October 1, 2017. That includes date from FBI Uniform Crime Reports (UCR) and local police Computer Aided Dispatch Reports (CAD), along with valuable private sources such CAP Index risk data from CrimeCast, a personal favorite of this security and crime expert. A compilation of that data will provide a more accurate picture of the actual risk involved, prior to the incident. The following is a selection of evidence I uncovered in the horrific mass murder at the Mandalay Bay Casino Resort on October 1, 2017.
FBI Uniform Crime Reports indicate that homicides in Las Vegas have increased a whopping 108% from 2012 to 2016, leading to increased risk in the area running up to the horrific crime as evidenced in the below chart:
A CAP Index report confirms the extraordinarily high foreseeable risk of serious crime at the Mandalay Bay Resort with a homicide risk score of 372, 100 being average. That comprehensive report documents the foreseeable risk at the time of the event, as well as five years previous and five years going forward.
Crimecast Site Information Map
Another reliable and accurate data source for determining foreseeable risk is the local police Computer Aided Dispatch (CAD) reports. These reports document all of the police calls at the specific address, in this case, 3950 S. Las Vegas Boulevard, as Vegas, NV 89119, the address of the defendants. It is strongly suggested that five years previous CAD reports be obtained from the Las Vegas Metropolitan Police Department. In the case of multiple law enforcement jurisdictions, it is recommended that you obtain this essential data from both sources, such as the Clark County Sheriff’s office in this matter.
Furthermore, both major defendants (MGM and Live Nation) should have known that there was enormous foreseeable risk involved considering a recent spate of mass shootings and killings related to terrorism at entertainment venues throughout the world, such as the Pulse Nightclub in Orlando or the Bataclan Theatre in Paris. Do they not recognize that the 9/11 terrorists were “scoping out” potential targets along the Las Vegas Strip just before taking the Twin Towers down? The ringleader of the September 11th attacks, Mohammed Atta, and at least four of the other 19 hijackers made six visits to Las Vegas between late May and mid-August 2001.
It appears that some authorities in Las Vegas are now, in fact, taking notice of the foreseeable risk of terrorism by installing $7 million in protective bollards along the Strip. This is a reasonable security precaution to deal with the new terrorist tactics of using motor vehicles to mow down innocents. But in the case of these defendants in the Mandalay Bay mass shooting, it is, “too little, too late.”
n conclusion, given the availability of foreseeable risk data and the totality of the circumstances this expert can avow, with a high degree of professional certainty, that the foreseeable risk on October 1, 2017, was enormous.
The scientific approach summarized above that includes actual crime and foreseeable risk data can significantly contribute to your successfully litigating premises liability, security and negligence cases. By showing the correct foreseeable risk and the reasonableness, or lack thereof, of your defendants’ security measures, negligence can be proven in the pursuit of justice for the victims.
Andrew P. Sutor is Principal at Sutor & Associates, LLC, which provides professional safety and security consultation and expert risk assessment services for companies wishing to avoid premises liability and negligent security cases. Reach Andrew at [email protected] or 609.822.2626
|Posted on December 8, 2021 at 2:30 PM|
Uncovering Spoliation of Evidence
Andrew P. Sutor
To obtain even a modicum of justice for injured clients, litigating attorneys often must seek out the truth. Too often, however, the truth is often concealed and very difficult to prove because of the practice of “spoliation of evidence.” Spoliation of evidence is widespread, particularly in negligent security cases.
Several decades ago I was the commander of the Accident Investigation Division of a major U.S. city’s police department. Among our duties was the investigation and documentation of police vehicular accidents. With approximately 2,200 crashes every year in a fleet of 1,600 police vehicles, we were kept quite busy. Accident scenes were processed accurately and honestly resulting in comprehensive reports to help determine preventability and accountability. The Police Accident Review Board would consider the facts and evidence contained in reports and then mandate appropriate remedial action. If extra driver training did not work, more severe sanctions were applied. Repeat offenders would find themselves suspended, walking a beat in subway or airport concourses, or even fired. The accurate accident reports were forwarded to the City Solicitor’s Office for settlement. Cover-ups and spoliation of evidence were unheard of at that time.
In the private sector, however, things are very different. Consider what happens if an elderly lady falls down the concrete stairs in a casino hotel parking garage and suffers serious injuries. A trained and highly-experienced in-house investigator documents the case and photographs the icy steps which were the proximate cause of the accident. The Director of Security gets called into the front office and is questioned: “Why are you establishing liability for our company?”
That is spoliation at work. The pressure for profits provides a powerful incentive for some owners and operators to look the other way in negligent security cases.
According to the courts, ”Spoliation of evidence in a prospective civil action occurs when evidence pertinent to the action is destroyed, thereby interfering with the action’s proper administration and disposition.” (Aetna Life and Cas. Co. v. Imet Mason Contractors 309 N.J. Super. 358, 368 (App. Div. 1998))
Spoliation of evidence relevant to litigation takes many forms including, but not limited to, discarding evidence that would be prejudicial, “missing” or “lost” reports, deleting e-mails, crashing computer hard drives, misclassification, and downgrading the seriousness of incidents in internal reports, destruction of security camera video clips, making fact witnesses unavailable to opposing counsel, and failure to obtain third-party witnesses to the event.
When you include the practice of “willful ignorance” with this behavior, which is part and parcel of ignoring foreseeable risk, you can come away with a sense of the immensity of the task before you to ensure that the truth of the matter is revealed and that justice for your client prevails.
Although courts and juries take a somewhat “dim view” of spoliation of evidence, it is challenging to prove. Interested parties require the services of experienced security professionals who are experts in uncovering spoliation and finding the truth. That includes the employment of and utilization of trained and experienced former law enforcement officials, investigators, and detectives who “know where the bodies are buried.” In this day and age of advanced technology, your expert must also have access to associates who are specialists in security, surveillance, and forensic information technology.
To bring a premises liability/negligent security case to a proper and successful conclusion, plaintiffs’ attorneys need to establish the truth of the matter, the actual level, and the foreseeability of risk present in cases at the time and place of their occurrence. Only then would your expert be able to accurately opine on the reasonableness of the security provided in the face of that risk.
The uncovering of spoliation of evidence allows the security expert to provide you with a stronger opinion in considering the actual totality of the circumstances in determining the level of negligence and the proximate cause of your client’s injury. It could also result in an adverse inference against the party responsible for the spoliation and possibly add to punitive damages.
Andrew P. Sutor is a Principal at Sutor & Associates, LLC, which provides professional security consultant and expert witness services for law firms and attorneys pursuing premises liability and negligent security cases. He can be reached at [email protected] or 609.822.2626
|Posted on December 8, 2021 at 2:25 PM|
Warning: A Public at Risk!
Andrew P. Sutor
Fears of becoming a victim of a crime may be the very last thing on the mind of an American bound for a leisure or hospitality destination, particularly one here in the United States. People headed for fun weekends or vacations tend to leave home in an ebullient, elevated mood, ready to soak in the sun, fun, entertainment, and great food offered by destination resorts. What they tend to put out of their minds is the increased risk they may well be facing as the result of a weakened US economy.
The economic decline has shrunken the pool of on-site security officers in many hospitality venues as well as the ranks of official law enforcement agencies at all levels. As these resources have thinned, so can protect a public who are facing greater exposure. Why? The reason is simple: Criminals read the papers and watch television as much as the general public does. They know police and security resources have been trimmed; they know that visitors to such places as hotels, motels, shopping malls, casinos, nightclubs, schools, and sports arenas all present far more tempting targets for every type of crime than ever before.
We often don’t know about this because all the players in this security game have a vested interest in under-reporting crime and diminishing risk. A federal law enforcement victimization study estimates that only 20 percent of serious crime is reported to authorities. Far too many police departments across the nation perpetuate this distortion to propagate the illusion that their crime-fighting records are better than they actually are.
Private companies operating public hospitality and leisure facilities have an even more compelling reason to under-report crime at the properties they manage. First professional security is expensive. Whether it’s boots on the ground or electronic surveillance or pre-emptive plainclothes activities we are talking about significant dollars to provide even a minimum standard of care for the security of guests patronizing their facilities. Multi-billion-dollar companies, of course, do not deliberately wish to put the public at risk, but to protect their margins and profits, they often do.
The publicity and legal implications of diminished security are far too high. Yet the sad truth is that trimming budgets for security by consolidating posts, cutting down staff, and hoping for the best often finds rationalizations aplenty when the pressures are on security departments to cut, cut, and cut some more. There is a legal characterization of this kind of policy; it is called willful ignorance. In plain language, it means looking the other way and ignoring foreseeable risk when you suspect that something is amiss.
Willful ignorance is what we often face when big companies who serve huge masses of the public construct their operating budgets in tough times. And it is the public in the end, who pays a hefty price by not being as safe as they otherwise would have been in visiting these hospitality industry venues.
In New Jersey, we have seen reductions in security and surveillance budgets at Atlantic City casinos. A Dateline NBC segment focused on three casino hotels sued for negligent security. A spokesman for the hotels said the level of crime in the facilities was “insignificant.”
During discovery, however, the plaintiff’s attorney did not rely on in-house records but acquired Computer Aided Dispatch (CAD) reports from local police. That data showed more than 10,000 police calls and actions at one casino during a five-and-a-half-year period, including four homicides in 2009.
Casinos are among the prime culprits in this negligent leisure world of ours. However, other types of companies including Comcast, Wal-Mart, Home Depot, Lowe’s, Wendy’s, Regal Cinemas, and Clear Channel Communications have negligent security and premises liability problems as well.
Due to severe cutbacks engineered by managements insufficiently sensitive to public safety, the public remains at higher risk than ever before. The only sure way to change this dangerous trend is to provide object lessons to those managements who have raised the art of willful ignorance about crime and foreseeable risk to a high level. That way is to get the plaintiff’s counsel to force defendant companies to perform risk assessments and provide adequate security for their lawful business guests. Only when the force of such evidence results in powerful verdicts will change occur.
Andrew P. Sutor is a Principal at Sutor & Associates, LLC, which provides professional security consultant and expert witness services for law firms and attorneys pursuing premises liability and negligent security cases. He can be reached at [email protected] or 609.822.2626.
• FBI Uniform Crime Reports, U.S. Justice Department, Clarksburg, W. VA;
• “Police Operations,” Sutor, West Publishing Co., St. Paul, MN (1976);
• Handbook: “Security Standards for the Hospitality Industry,” Sutor, (2013);
• DATELINE NBC Video: “Hidden Camera Investigation Uncovers Security Gaps”;
• Federal Rules of Evidence: (Daubert, 509 U.S. at 594.);
• Litigating Premises Security Cases, John Leighton, Thompson West Publishing Co., 2006.
|Posted on December 8, 2021 at 2:20 PM|
Crime and Risk Cover-ups
Andrew P. Sutor
To successfully prosecute your premises security case and secure adequate compensation and justice for your injured client, you must show the actual foreseeability of risk facing your plaintiff to determine the reasonableness of security provided by your defendants. That includes co-defendants such as MGM and Live Nation who had a legal and moral duty to protect their lawful business customers and guests from harm at the time and place of our country’s worst mass murder.
Unfortunately, getting to the truth of foreseeable risk is not as easy as it first may seem. Almost every actor and party related to the civil matter before you have a vested interest in minimizing the actual risk involved in your plaintiff’s incident. What results from this practice can best be described as a classic “cover-up.” It usually involves willful ignorance on the part of defendants and frequently spoliation of evidence as well.
Since governmental records are potential sources of data on crime and risk, please consider the reality that all levels of government and political entities want to “look good.” When it comes to crime, mayors, politicians, and police chiefs like to display lower crime counts as their personal accomplishments. Thus, police department personnel are under pressure to downplay crime. Minimizing and under-reporting crime is commonplace. On the other hand, experience has shown that upgrading and elevating crime reporting is almost unheard of.
The most accurately reported crime of all is homicide because there is a body to contend with and explain. Even some of these most serious and fatal crimes slip by as missing persons, drug overdoses (sometimes with some help), suicides, unsuspicious sudden deaths, or accidental deaths. There is no doubt that 58 innocent victims were murdered on October 1, 2017, in Las Vegas, but the truth of foreseeable risk is often hard to find even with traditional “official” data sources all due to a strong proclivity to under-report.
For example, if you look into New York city’s official UCR homicide stats for 2001, you will find nary a blip accounting for the thousands murdered there on 9/11. Likewise, if you review the homicide numbers for Shanksville, PA, and Arlington, VA, you will not find any accounts of the hundreds murdered in those venues on that same dreadful day. Lest you think 9/11 is a one-off situation, please note that the same lack of accurate crime reporting on this most serious of all crimes can be found for the dozens of murders in Fort Hood Texas (2009) massacre and Newtown, CT school shootings in (2012)*. It would be more truthful to report the actual murder numbers, perhaps with an asterisk to account for anomalies. (*The Newton homicides did show up on the CT state UCR stats, but you have to know where to look for them.) It remains to be seen if the victims of the Mandalay Bay massacre show up on the FBI statistics next year, but time will tell.
One thing is for sure. What happened to those victims was pure unadulterated murder and these obvious homicide events should be recorded as such. This expert has developed a graph showing how homicides in Las Vegas increased 108% in the five years leading up to the Mandalay Bay massacre. When you couple that with a CrimeCast rating of 327 for homicide at the specific address on the Las Vegas Strip, it is clear that the foreseeable risk data available to the Defendants were ignored in a dreadful act of willful ignorance- all resulting in grossly inadequate security protection for the lawful business guests of the defendants Live Nation and MGM on that infamous night. Please note that the actual crime and risk data from the above two sources are objective.
A more subjective and general illustration of the risk that faced concertgoers on October 1, 2017, was the spate of terrorist attacks on entertainment venues around the world. Furthermore, Las Vegas was “scoped out” by Mohamad Atta and fellow terrorists just before 9/11. Obviously, someone in the Las Vegas government took notice of the recent vehicular terrorist attacks and had bollards installed along the Las Vegas Strip observed by us during our site inspection in December 2017. Defendants MGM and Live Nation should have taken proper notice of the prevalent risk of such events and provided more reasonable security for their most vulnerable concert site.
The downplaying of risk is even more pervasive in the private sector. The defendants want to minimize risk because the actual data would increase their liability and be bad for business. If the public knew the actual level of risk, they might not patronize the facility at all. Furthermore, providing reasonable and professional security is expensive, and oftentimes security is looked upon as an expense to be cut, cut, and cut again. Some defendants who once had reasonable security cut corners so much that it raises the novel charge of “abatement of security.” I have seen this charge utilized successfully in several of the cases I have opined against significant corporations in the hospitality industry.
Premises security litigators must contend and confront other serious obstacles in their quest for justice for clients. When you include the deliberate and despicable practice of “spoliation of evidence” with the above “willful ignorance,” you can come away with a sense of the immensity of the task before you to ensure that the truth of the matter is revealed and that justice for your client prevails.
Spoliation of evidence relevant to litigation takes many forms including, but not limited to, discarding evidence that would be prejudicial, “missing” or “lost” reports, deleting e-mails, crashing computer hard drives, misclassifying and downgrading the seriousness of incidents on internal reports, destroying of security camera video clips, making fact witnesses unavailable to opposing counsel, utilizing “know nothing” DCRs, and failing to obtain third-party witnesses to the incident. In the Mandalay Bay mass murder case, “spoliation” rules. The crime scene site was quickly changed. A security expert colleague, who is also on the case, obtained satellite photos of alterations to the exterior crime scene just days after the horrendous attack. There are reports that the Mandalay Bay hotel floor of the shooter (32nd) and those above and below the killer’s perch have been renumbered. (Other mass murder sites around the country have been changed into memorials, but not Mandalay Bay’s) Thus, the spoliator’s deliberate attempt to deceive, conceal the truth, and hide incriminating information and evidence is being perpetrated by some parties to this litigation. Their concealment, obfuscation, and minimization contribute to what the general public has come to know as the classic “Cover-Up.”
Litigating negligent security cases is not an easy task, especially in a significant tort case against a pair of multi-billion-dollar defendants such as MGM and Live Nation. Unfortunately, the plaintiff’s counsel faces many obstacles along the tricky march to justice for their injured clients. Not the least of the severe challenges counsel must contend with are the all too common defense ploys of defenders and enablers engaging in the three D’s: deny, delay, and deceive.
That is precisely and exactly what is happening with the Mandalay Bay mass murder case.
Andrew P. Sutor is Principal at Sutor & Associates, LLC, which provides professional security consultant and expert witness services for attorneys pursuing premises liability and negligent security cases. Reach Andrew at [email protected] or 609.822.2626
|Posted on December 8, 2021 at 2:15 PM|
IS YOUR SECURITY GUARD DANGEROUS?
Andrew P. Sutor
The recent mass shooting and massacre of twenty-five innocent churchgoers in Texas raises a serious concern, especially when you take a close look at the evil shooter’s employ. David Patrick Kelley was employed as a 26-year-old security guard. How could an individual responsible for the protection of life and property of others be involved in such a heinous act? Kelley is not the only mass shooter coming from the ranks of young security guards. Here are a few examples for your thoughtful consideration:
On June 12, 2016, Omar Mateen, a 29-year-old security guard killed 49 people and wounded 58 in a mass shooting attack in an Orlando, Florida nightclub.
On December 2, 2015, Syed Farook, a 28-year-old a “health inspector” killed 14 people and wounded 22 others in a mass shooting attack at a Christmas party in San Bernardino, California.
On August 10, 2017, Darryl Hanna, a 29-year-old security guard shot and killed co-workers after complaining of low pay in a Longboat, Florida resort.
Although these mass shootings by “security guards” seem to be a recent phenomenon, this expert recalls a young uniformed security guard from the Sands Casino in Atlantic City slaying three opposing gang members on Route 30 by a high-powered rifle on his way home from work.
On July 18, 1984, security guard James Oliver Huberty killed 21 employees and customers in a McDonald’s Restaurant in San Ysidro, California.
These aforementioned mass shooting incidents now raise an essential point regarding the mass shooting and murder of scores of concert attendees and the wounding of hundreds of others across from the Mandalay Bay Casino Hotel on October 1, 2017. You see, the security guards do not necessarily have to do the actual shooting themselves to present a clear and present danger to guests and patrons. It is quite evident to this expert that the multi-billion dollar, second largest casino hotel company in the world with the most substantial presence on the Las Vegas strip “cut corners” on the quality and quantity of security and surveillance personnel needed to reasonably protect lawful business guests. Furthermore, their partner in this deadly event, a multi-billion dollar, and largest entertainment company in the country does not fare much better when it comes to providing reasonable security for concert attendees. Previous highly dangerous events investigated by this expert confirm that they often do not use professional security. Instead, they instead hire low-paid young punks sometimes by handing them a yellow T-shirt with STAFF emblazoned on the back to provide this vital and essential security protection.
Sometimes security guards as would-be cops take low paid jobs to find opportunities to utilize judo, karate, and Gracie fighting skills to inflict damage on errant customers and patrons. Much unnecessary excessive force and illegal detention civil suits result. Check out some videos of this abuse by security guards by Googling: “Harrah’s security beatings.” Photographic evidence of scores of excessive force cases will clearly show how one of the largest resorts of the largest casino gaming company in the world handles security.
Owners and operators of premises in the hospitality industry including casinos, hotels, sports, and entertainment venues have a legal and moral duty to provide a reasonable standard of care for the safety and security of their customers and guests. They must utilize the services of a qualified and experienced safety and security expert to determine actual foreseeable risk existing at the time and place of the event. Establishing this foreseeability risk factor is paramount in determining the reasonable level of security required to meet the prevalent risk. A quick study of risk management tells us that if a type of incident has occurred in the area previously, there is a higher probability of it happening again. This also means there is a higher standard of security, preventive action, and the like required to be implemented prior to the incident.
Unfortunately, rather than hiring highly available, experienced security professionals, including retired local, state, and federal law enforcement agents and former military personnel and reliable veterans, who wish to supplement their pensions, many greedy hospitality industry companies choose the low-cost route. These inexpensive options include the hiring of young and inexperienced local thugs, illiterate loafs, cop wannabes and assorted ne’er-do-wells who provide cheap but highly inadequate and grossly irresponsible security protection. Far too often they hire foreigners including individuals from dangerous and war-torn third world countries to man their security positions.
A case in point is that on our other “day of infamy,” September 11, 2001, about ninety percent of the security personnel at the National Airport in Washington, D.C. were illegal aliens, willing to work important jobs for little pay.
On occasion the security guards themselves, as evidenced by the aforementioned shooting cases, are very dangerous. Persons placed in positions of trust and responsibility must be carefully vetted prior to their hiring and placement into service. Unfortunately, even in these times of heightened threats from terrorism, many hospitality industry companies pay less than one percent of their revenues for these vital protective services.
To provide a classic example of this gross negligence in action, in a premises security negligence case against a Pennsylvania casino recently brought to a successful conclusion, this expert found that the defendant’s highly inexperienced Director of Security was an elder-care social worker with zero law enforcement training or experience. Her security underlings included young security guards who took car valet positions as promotions and for pay increases. Furthermore, a company garbage collector who took appropriate action in the casino parking lot robbery was actually paid a higher salary than her security guards. One ex-security guard involved in the case was unavailable for a deposition because he was in prison!
A fact of life remains that professional security is expensive. Sometimes, even when the corporation’s management knows that there is a need for more robust security, they just don’t spend the money for risk surveys and the hiring of qualified personnel to provide reasonable safety and security. Unfortunately, corporate management often cuts too many corners on security and surveillance.
The bottom line is that instead of placing dangerous un-vetted persons in important positions as security guards within the hospitality industry, companies should perform threat and risk assessments and provide comprehensive background investigations to ensure adequate security and reasonable security protection of their lawful business guests.
Andrew P. Sutor is Principal at Sutor & Associates, LLC, which provides professional security consultation and expert witness services for attorneys pursuing premises liability and negligent security cases. Reach Andrew at [email protected] or 609.822.2626
|Posted on February 6, 2020 at 3:10 PM|
LITIGATING PREMISES SECURITY - INFORMATIVE CASE HISTORIES
In order to bring a premises security case to a successful conclusion, counsel requires accurate and reliable data on the foreseeable risk present at the time and place of the crime. As illustrated by the above header photo taken from one of my continuing legal education (CLE) classes on the topic, accurate risk data is often the missing link in such matters.
Taking a scientific approach to expert opinion in conformance with the principles of Daubert and Frye, accurate crime and risk data is necessary in order to assess the appropriate level of security required to protect guests and the general public.
The below graph illustrates the high risk of crime in and around the Borgata Casino Hotel & Spa in Atlantic City where our CLE class on “Litigating Premises Security Cases” was held:
NJ Bar CLE Class August 8, 2019, Atlantic City, New Jersey
This expert relies on several important sources of accurate crime information, including FBI UCR reports, local police department Computer-Aided Dispatch Reports (CAD reports), and CAP reports from CrimeCast. What follows are some significant negligent security cases whereby I served as an expert in assisting counsel in developing a scientific approach in presenting the essential.:
Young Li Kim, a sales clerk in the Hair Town shop in the Cedarbrook Plaza Mall in Cheltenham Twp., PA intervened in a robbery of his store and was fatally impaled on a wig display case. There were sixty-two stores in that dangerous complex protected by a single security guard who did not speak English.
Although the defendants proclaimed ignorance, we were able to secure Computer Aided Dispatch (CAD) reports from the Cheltenham PD that consisted of five hundred pages, single-spaced, of crimes reported at the mall during the five years leading up to Mr. Kim’s horrible death. (Kang v Cedarbrook Plaza & U.S. Securities Associates Inc., Phila. CCP: April Term, 2013, No. 03386)
Ann Yuille, a nurse at Temple University Hospital in Philadelphia clocked out from her 4 to 12 shift one evening. The mother of five called her family and told them she was on her way home. She was waylaid in the defendant’s unprotected parking garage, car-jacked, and take to an abandoned lot in the ghetto, sexually assaulted and then, shot to death. The defendant’s premises was located in a particularly risky area.
As a police detective, decades earlier, this extraordinarily dangerous setting of North Philly was referred to in law enforcement circles as the “Bad Lands!” So how bad was it? In the Yuille wrongful death case, I utilized CrimeCast reports to document the risk of violent crimes at the defendant’s premises including crime data five years prior to the rape/murder of nurse Yuille. (Note: the FBI violent crimes in the CAP report include Homicide, Rape, Robbery and Aggravated Assault, all of which were perpetrated upon Mrs. Yuille that night.)
Temple Hospital was sited in a virtual sea of red ink graphically indicating the high level of risk of violent crime in and around their grossly unprotected property. We were able to prove that the multi-billion-dollar defendants, Temple and Securitas AB turned a blind eye to the risk and failed, miserably, to protect Ms. Yuille from harm. (Yuille v Temple & Securitas AB, Philadelphia Court of Common Pleas)
The Plaintiff, Mr. Sirisuk Didsapong, Galloway Township, New Jersey, a casino dealer, was a lawful business invitee of the Defendant. Mr. Didsapong was robbed and assaulted by knife while using the Defendant’s restroom located on the second-floor aisle way to the Taj Mahal casino parking garage.
CrimeCast reports revealed that Mr. Didsapong, the victim was attacked in the highest risk section of Atlantic City. To illustrate the level of risk for violent crime in that extremely dangerous city, FBI UCR reports indicate that Atlantic City suffers a higher crime rate than the notorious high-crime cities of New Jersey, Camden and Newark. Due to the determination of crime rates being per 100,000 persons, Las Vegas, Nevada with a higher population actually has a lower crime rate despite having many millions more visitors than does Atlantic City.
CAD data obtained from the Atlantic City Police Department revealed that, despite the claims by the head of security that “crime was insignificant” at the Taj Mahal Casino, there were over 11,000 police calls listed on the CAD report during a 5 ½ year period. That included hundreds of serious crimes and four separate homicides at that particular casino hotel in a single year!
To further illustrate the level of risk by utilizing actual violent crime counts vis a vis crime rate, please consider this: Atlantic City sits on the eastern end of the ten miles long Absecon Island. FBI UCR reports indicate that If you traveled from the safe community of Longport on the western end, a few miles into Atlantic City on the eastern end of the island, the risk of becoming a victim of a violent crime increases by 7,410%! (Didsapong v Taj Mahal, Superior Court, Atlantic County, New Jersey)
The three aforementioned negligent security cases also have some commonality that may be of interest. All three of the victims are persons of color, of modest means and gainfully employed in the service industry. On the other hand, each of the defendants is a majority race owner/operator of a multi-billion-dollar entity that had the financial wherewithal to perform risk surveys and operate reasonable security for the protection of employees and guests but did not.
Sad to say, more recently the outrage of inadequate and negligent security continues even in these times of international terrorism and a spate of mass shootings in public places. With regard to the horrible Mandalay Bay mass murder case of October 1, 2017, whereby 59 concert guests were slain and many hundreds more injured, the CAP Index and UCR reports indicated that the risk was high. Based on that threat and our site inspection, the security provided was grossly inadequate to meet that risk. (Gasper v MGM, et al - Case NO.: A-17-762858-C)
The same can be said of the Cielo Vista Mall mass murder case of Saturday, August 3, 2019, in El Paso Texas. Armed police security coverage was eliminated prior to the slaughter of 22 unprotected innocents and the wounding of dozens more.
In each instance, multi-billion-dollar companies fail to protect their lawful business guests in the face of significant risk. How might it all end?
The general public will be better protected if, by force of large civil awards and penalties, the defendants expend the appropriate financial resources to ensure that more reasonable safety and security measures are taken. Only when the weight of such evidence results in substantial verdicts will these changes occur.