Premises Liability: Who is Responsible?

By November 8, 2018 Risk Management, Security

The spate of recent active shooter incidents has resulted in tragic dead and wounded, and has spawned an array of lawsuits. Whether you have live music at a strip mall saloon in Sand Point Idaho, or present Cirque du Soleil in Reno, there exists the same likelihood you will be subjected to claims of negligence when something bad happens to people on your property.

The purpose of this article is to provide some practical suggestions on how to prevent such carnage and the potential ensuing liability, and how to minimize your exposure if an incident does occur.


Legal Status

An active shooter episode is only one type of act that can cause harm at schools, stores, malls, stadiums, or hotels. Customers, visitors and trespassers engage in activities that could be harmful to those around them as well as themselves.

Some organizations have taken legal refuge under the Department of Homeland Security SAFETY Act of 2002, which “provides incentives for the development and deployment of anti-terrorism technologies by creating systems of risk and litigation management.”

While this may be appropriate for some organizations, it is not appropriate for all and, in the view of many experts, is not likely to provide complete legal immunity.


Action Items

There are numbers of proactive steps that can be taken to help mitigate the risk of liability in the first place, or minimize the legal aftermath when an act occurs. Here are a few suggestions that have been proven effective in our experience:

  • Vulnerability Assessment: This is not a security survey or audit. It is a comprehensive analysis of the critical infrastructure of your demographic area, premises footprint, and site-specific venue considered as delivery platforms for destructive devices or activities.
  • Crime Statistics: Analyze the current information, so trends can be observed. What has happened over the past two years is important in determining foreseeability, but the “now” aspect is imperative for pro-action.
  • Background Checks: Every vendor, supplier, and contractor related to the final product should be subjected to stringent criminal, civil, financial, family law and social security (recent residence) locator checks. Suppliers should be required to present evidence all subcontractor employees also conform.
  • Technical Risk Assessment: Every performance (even multi-same day presentations) should be scrutinized as to potential hazards for every envisioned circumstance — safety, medical emergency, artist based civil disturbance, venue targeting, and program content (including risk scores and control methodologies).
  • Reciprocal Indemnification: Every entity involved from the cloak-room staff to the promoter’s top executive staff should endorse each other as additional insureds.
  • Industry Standard: All of your stakeholders are likely to belong to professional, fraternal or other commercial associations. Each such organization probably provides guidelines, holds seminars, disseminates periodic industry updates, proffers credentials and has continuing education programs. Be aware of their existence, capabilities and limitations.

Conclusion

Consider the guidance offered by Common Law that business owners are required to inspect and make their premises safe for all who enter. These are complex times requiring equally complex solutions. TAL Global has been providing these kinds of solutions to our clients for over 20 years and we can do the same for you.


This article is brought to you by TAL Global’s Mr. Forrest P. Franklin, D.A.B.F.E – Managing Director, Physical Security Management / Risk Assessment, and Col (R) Lawrence D. Dietz – General Counsel and Managing Director, Information Security.

As always, we value your feedback which helps us shape our perspective on recent events, security, and the services we offer.

© TAL Global, 2018