THIRD PARTY CRIMINAL ACTS

1. THIRD PARTY CRIMINAL ACTS When Bad Things Happen at Good Places By: Richard J. Keating, Jr.

2. When the Crime Occurs • Dealing with the Police • Provide ample and accurate information • Video surveillance • Make a copy • Show-off system • Employee witnesses • Make available • Avoid subpoenas

3. Internal Investigation • Begin ASAP • Don’t wait for lawsuit • Don’t rely on police investigation • Issues may not be the same • Information may not be shared • Understand what happened and why • “See the punch coming” • Proactive and leading the investigation • Don’t get in way of police investigation • Be ahead of them

4. Who Should Lead Your Investigation? • Not management • Not trained in criminal investigations • Not understand the liability issues • Not Security • Focus on detective work rather than fact finding • Creating more witnesses

5. Then Who? • Your attorney • Understand liability issues • Trained interviewer/investigator • INFORMATION PRIVILEGED • Can not become a witness • Reports not discoverable • Hired investigator • Possible work product privilege • Won’t have as good understanding of liability

6. Once Bad Guy is Arrested • Grand Jury/Preliminary Hearings • Go to court • Eliminate subpoenas • Take contempt out of discussion • Align yourself with the “white hat” • Send Counsel with Witness • Introduction to prosecution • Message of cooperation • Goodwill with the Court • Make life easier later • Ease concerns of witnesses

7. Once Bad Guy is Charged • Indictment • Send counsel to arraignment • Introduction to prosecuting attorney • Provide a single point of contact • Avoid subpoenas for information • Hopefully they will call to ask • Investigators not hanging around • No need for continual presence • Become bothersome • Aware you are their resource is key

8. Post Arrest Site Inspections • Expect this to happen • Will “show up” unannounced • Do not need a warrant • Do not need a court order • Will ask to simply view location of incident • Seem reasonable • Want to be helpful • Liability trap MUST be avoided • Investigator’s report could document fact that becomes issue in negligence allegation • Statements made by personnel also documented • Train staff to funnel requests through counsel

9. Post Arrest Site Inspections • Have Counsel present • Facilitate inspections/understand parameters • What want to see • Need instruction/education on protocols • Expecting interview • Who is coming (e.g. the victim) • Document results of inspection • What seen • Photos taken • Any statements • Nothing discoverable/all privileged

10. Prosecutor: Friend or Foe • Prosecutor has simple goal • Protect victim • Catch bad guy • Charge bad guy • Convict bad guy • Lock bad guy up for more years than he can count

11. Prosecutor: Friend or Foe • Prosecutor’s mentality • Talented trial attorney • Aware how poorly paid they are • Willing to be “appropriately lazy” • Not interested in complicating simple goals • Avoids conflicts not directly related to simple goals • Not interested in civil liability issues • Negligence issues not normally tied to crime • Not inclined to help/hurt either side • Unless they perceive you as standing in the way • Then more inclined to raise negligence issues in record

12. Internal Reports • Investigations lead to reports • What comes of our reports • Do we want them as part of the criminal file? • Will they become discoverable in a civil action? • How or when can a privilege be invoked? • Does this mean we should not investigate? • Does this mean we should not “make paper”?

13. Internal Reports • Ways to avoid production of internal reports • Attorney/Client communication • Your attorney leads internal investigation • No one else takes notes • Attorney drafts comprehensive letter/report • Report marked as “Privileged and Confidential” • Creates record of investigation for when suit is filed several years later • Can continuously update with new information

14. Internal Reports • Ways to avoid production of internal reports • Reports not done by counsel can still be privileged • Work Product Doctrine exists in most states • Certain conditions need for privilege to attach • Done at direction of attorney -or- • Done in anticipation of litigation -and- • Not Done as standard operating procedure • Analysis of some States’ application of doctrine

15. California • Greeneich v. Southern Pac. Co.,11 Cal. Rptr. 235 • Car versus train accident • Southern Pacific withheld incident report • Court allowed the privilege • Affidavit claimed the primary purpose of report was litigation • Concern: affidavit can often lead to depositions

16. Florida Royal Caribbean Cruises, Ltd. v. Doe, 964 So.2d 713 • Crewmember assault on cruise ship. • Security non responsive to request for help • Passengers sought to discover incident reports dealing with assaults and batteries committed by crewmembers on nineteen of the cruise line’s vessels. • Court ruled documents protected work product doctrine • Documents prepared in anticipation of litigation protected • Incident reports sent to Risk Management to defend any claim

17. Florida • Marshalls of MA, Inc. v. Minsal, 932 So.2d 444 • Slip and fall in department store • The customer sought discovery of the incident report generated by the store. • Florida adheres to the work product doctrine • Not automatic • Purpose of report examined • Litigation can be one of the reasons for report to establish privilege. • Litigation foreseeable? • Florida Supreme Court has not ruled on current dispute between districts requiring litigation to be substantial and imminent for incident reports to be privileged

18. Texas • Child World v. Solito, 780 S.W.2d 954 • Slip and fall in business • Sought production of liability report prepared by claim manager • Court upheld business owner’s claim of privilege • Mere allegation that report done in anticipation of litigation not sufficient • Two prong test • Objectively examine facts • Subjectively determine if privilege designation made with good faith belief of ensuing litigation

19. New York • Sigelakis v. Washington Group, LLC, 46 A.D.3d 800 • Slip and fall in a business • Plaintiff sough discovery of accident reports generated by defendant • Court denied the privilege • Accident reports made in regular course of business not privileged • Must be for the sole purpose of litigation

20. New York • Claverack Co-op. Ins. Co. v. Nielsen, 296 A.D.2d 789 • Arson claim dealing with insurance carrier • Reports made by insurance carrier were sought • Court examined the “mixed purpose” of the reports • If prepared only in contemplation of litigation, privileged • If served multiple purposes, not privileged • If done in ordinary course of business, not likely privileged • Onus upon defendant to prove the privilege

21. Illinois • Rounds v. Jackson Park Hospital, 319 Ill. App. 3d 280 • Medical malpractice case • Plaintiff sought disclosure of nurses’ incident reports • Court did not find privilege • Reports created at the time of incident • Reports used for “unusual events” • Reports not created at the direction of counsel • Reports not created subsequent to the incident itself (ie, the form existed previously).

22. Prevention • Can’t really prevent crime • Can prevent or limit possible liability • Likely allegations: • Insufficient security • Insufficient background check

23. Security Issues • In House Security • Who is in charge • Training internal or external • Stated duties and responsibilities • More than crowd control • Expectations when something happens • Armed v. Unarmed

24. Security Issues • Outside Vendor • Who is the vendor • Years of experience • Prior police training • Experience of officers assigned • Training provided • Provisions of contract • Expectations • Reporting • Beware creation of apparent agency or control • Then become responsible for their actions • Must be comfortable with training and abilities

25. Security Issues • Outside Vendor • Contract requirements • Insurance policy • Named as Additional Insured • Review policy, not declarations page • Know the exclusions and limits • Indemnity clause • Sometimes unenforceable • Provides avenue for protection regardless of insurance • Specific responsibilities • Includes response to events • Purpose of officers

26. Liability • All comes down to a single principle: FORESEEABILITY The ability to see or know in advance; e.g. the reasonable anticipation that harm or injury is a likely result from certain acts or omissions. Emery v. Thompson, 148 S.W.2d 479, 480; Blacks Law Dictionary, 6th Edition Foreseeability differs from state to state

27. California • Yu Fang Tan v. Arnel Management Co., 88 Cal.Rptr.3d 754 • Shooting/carjacking in parking lot • Plaintiff sued alleging duty to protect from third party criminal actions • Where the burden of preventing future harm is great, a high degree of foreseeability is required • Court analyzed four factors • Court must determine measures the plaintiff asserts should have been taken • Court must analyze how burdensome proposed measures would be • Court identifies the foreseeable nature of the third party conduct • Court assesses the burden against the foreseeability • Proposed changes were minimal (adding a gate), the burden was low compared with a high level of foreseeability evidenced by three similar violent attacks in un-gated parking areas of the land.

28. California • Ann M. v. Pacific Plaza Shopping Center, 6 Cal. 4th 666 (1993). • Store employee was raped at mall where she worked • Was mall required to have security guards • Court ruled owner was not required to provide security guards • Prior criminal acts not similar to this violent attack • Proposed burden (hiring security) too great for action that was not foreseeable

29. California • Delgado v. Trax Bar & Grill • Bar patron assaulted in parking lot • Court ruled bar not required to provide burdensome measure of security guards • Need prior similar (not identical) incidents to require buredensom measures • Few altercations between patrons not sufficient • Minimal measures would be separate the combatants • Special relationship exists between owner and patron • Reasonable steps to secure common areas • Even with low foreseeability • Reasonable, simple and minimally burdensome steps to avert danger

30. Florida • Wal-Mart v. Caruso, 884 So.2d 294 • Wal-Mart employee nearly poisoned co-worker • Wal-Mart was not liable • Owner required to protect against third party criminal acts • reasonably anticipated -and- • actual or constructive knowledge of specific danger • Wal-Mart aware of larcenies in employees department • Wal-Mart not on notice of violent crime possibility

31. Florida • T.W. v. Regal Trace, Ltd. 908 So.2d 499 • Tenants sue landlord for failing to warn of criminal activity • Landlord /tenant or business/patron might be enough to establish the relationship • Similar acts were never warned or notified • Similarity makes current actions foreseeable • Prior tenants children assaulted • Same harm befell plaintiff • Duty to warn existed • Reasonable way to prevent other similar actions • Minimal efforts to help protect (notification)

32. Texas • Trammell Crow Cent. Texas Ltd, v. Gutierrez, 267 SW3d 9 • Mall patron murdered • Estate sues property owner • Court ruled property owner did not owe a duty to patron to protect him by examining five factors • Proximity • Publicity • Recency • Frequency • Similarity • Foreseeability is established through evidence of specific previous crimes at or near location • In past two years, 227 crimes occurred, but only 10 categorized as violent crime • Not sufficient frequency • Not sufficiently similar

33. New York • Brown v. Roblee, 57 A.D. 3d 1494 (2008) • Resort patron punched in parking lot • Summary judgment upheld • Landowners have a duty to control the conduct of a third person when • They have the opportunity to control • Reasonably aware of the need for control • Roblee walked away from plaintiff after initial exchange • Roblee’s abrupt return and quick punch was unpredictable and uncontrollable

34. Illinois • Castro v. Brown’s Chicken and Pasta, Inc., 732 N.E.2d 37 (2000). • Patrons murdered in restaurant • Estates of patrons sued alleging negligence • Court ruled in favor of Brown’s Chicken • Duty may arise out of special relationship • Innkeeper/guest • Common carrier/passenger • Duty may also arise due to voluntary undertaking • Browns did not mandate security system wide, therefore special relationship was not created

35. Illinois • Lutz v. Goodlife Entertainment, 208 Ill. App. 3d 565 (1990) • Nightclub patron sued nightclub after attacked in club • Court found no duty on the part of a nightclub owner to warn or protect patrons • Generally no duty to protect persons from criminal activity while on the premises unless there is a special relationship • A business owner/invitee is a special relationship • To create a legal duty, the act must have reasonably been foreseeable • prior incidents may make criminal acts foreseeable  • Courts also consider the burden of guarding against the injury

36. Post Suit • Parties • Plaintiff will likely sue everyone possible • Property owner • Franchisor • Franchisee corporation • Known subcontractors • Possibly individuals

37. Post Suit • Parties • Possible Third party claims • Security Companies • If tender of defense fails • May need to include indemnity and breach of contract claims • Other possible vendor • ie. Laundry service, cleaning companies • If their negligence proximate cause • Unlikely to have indemnity agreements • Less likely to be additional insured

38. Post Suit • Parties • Possible Third Party Actions • Don’t forget the Bad Guy • May have already been convicted or plead guilty • Judicial admission • Factual information already in the record • Serve in jail or through his attorney • Unlikely to provide financial cover • May provide jury cover • Put on the verdict list • Jury allowed to blame right person • May reduce own percentage liability • Joint/several liability concerns • Can eliminate the “deep pocket” issue • Finder of fact realize this is random act

39. Crime Committed by Employee • Added liability issues • No longer just foreseeability • Now also issue of employee screening • Background checks • Are they done • How is information gathered • Employee’s application/word • Criminal background checks • Normally just convictions • Not arrest history • Not FNG • Not supervision orders • Not expungements • Not remands/appeals • Is this information available • Internet searches • Public access terminals

40. Crime Committed by Employee • Background checks • What can be done with this information • Normally not legally sufficient to deny employment • State Human Rights Act may legally preclude use of information: • “Unless otherwise authorized by law, it is a civil rights violation for any employer, employment agency, or labor organization to inquire into or to use the fact of an arrest or…as a basis to refuse to hire, to segregate, or to act with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure or terms, privileges or conditions of employment.” • 775 ILCS 5/2-103(A). (Emphasis added).