Corporate Security, Liability, and “Foreseeability” in 2020

In 2020, corporate security and safety will boil down to one thing: Foreseeability. In essence, foreseeability breaks down into two basic questions:

  1. Would a reasonable person be able to foresee that this event was to occur?
  2. What did the organization do to mitigate or prevent it?

Consider this example: There’s a problem with petty larceny or vandalism in your office’s parking lot—broken car windows, stolen purses, and so on. Not at all uncommon for offices in many cities. Complaints may fall on deaf ears. After all, there’s a warning sign posted in the parking structure for a reason. Petty thieves target empty cars. Some loss is to be expected. Employees stop leaving valuables in their cars. The situations deteriorate. A few of your workers are victims of strong-arm robberies. Finally, it escalates to several armed robberies and a violent sexual assault. Perhaps that progression seems farfetched—you start with scratched cars and end up with an assault?

It’s not hypothetical. This example is drawn from a recent case Joe Delia worked on. Delia is the senior director of U.S. Security Consulting Services for GardaWorld. He’s a former Deputy Chief of Police, with nearly 30 years on the force. In law enforcement, he often worked as a Task Force Agent, coordinating inter-agency operations at every level (from local law enforcement to the FBI, DEA, and IRS-CID task forces). Today, he regularly serves as an expert witness in negligent security lawsuits.

After describing this awful series of actual events, Delia asks: “When they started having these issues, did they [the company] have ‘foreseeability’? Could they have foreseen the events were going to escalate into this [assault]? The company didn’t do anything between those steps. And I think a reasonable person would say: Yes. Very possible.”

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Corporate Security: Understanding Internal Threats

The first foreseeability question—“Would a reasonable person be able to foresee that this event was to occur?”—comes in many shapes and sizes. Broadly it breaks into two categories: internal and external threats.

“Internal threats” are situations where one worker is a threat to an employee, client, contractor, or customer. These threats are almost invariably a matter of either negligent hiring or negligent retention:

  • negligent hiring: “You should have been more cautious in hiring this person!” Did the assailant have a violent criminal record? Past indicators of violence or instability in other organizations? Have you properly addressed and remedied these issues?
  • negligent retention: “You should have fired this person!” As with the parking lot example, negative interactions tend to escalate. It’s rare that a worker suddenly loses his temper and starts shooting. It’s heartbreakingly common that an employee is first erratic, and then starts yelling at people, and later begins making disturbing remarks, and then lashes out with deadly violence. Are you addressing disciplinary issues consistently, comprehensively, and as early as possible?

Courts often determine that an internal threat was highly foreseeable. Your organization has access to a great deal of information—from background checks to evaluations, co-worker complaints, and customer feedback. There’s a reasonable expectation that you take measures to centralize this information and take action when something starts to seem off-kilter.

External Threats are Foreseeable, Too

The court likewise frequently concludes that external threats are highly foreseeable.

“If you’re in a high crime area,” Delia explains, “you should know that. You have a duty and responsibility to enhance your security profile to protect your customers and staff. Look at all these [workplace] active shooter incidents; since 2015 they’re on an upward climb. A good attorney can, and will, make the argument that you should know the data. Especially if you have women in the workplace: The leading cause of death in the workplace for women is homicide. You have to ask yourself if you have security issues and a largely female population, are you providing them the level of security they deserve? They are more likely to be victimized.”

Corporate Security Threat Mitigation

This brings us to the second foreseeability question: “What did the organization do to mitigate or prevent an incident?”

Delia says, “I tell people, all the time, you can’t mitigate all risks—it’s impossible—but you can take reasonable measures to protect your staff and customers.” Unfortunately, he has consistently found that businesses err on the side of not spending money. “Security is a non-revenue-generating department,” he points out. “It’s sad to say, but if they’re going to skimp, that’s generally an area they skimp on. Money plays into that equation. People don’t want to spend money. It’s like buying an insurance policy. How many people don’t have a life insurance policy? They don’t think it’s going to happen to them.”

This last cognitive bias is especially powerful—and dangerous. As T.J. McComas pointed out in a past interview, there’s a tendency to incorrectly assume that the fact that no one has been hurt yet proves that what you’re doing is safe (especially in areas where crime rates are generally lower). “Since nothing has happened,” McComas finds, “the conclusion is that the security works. But, in many cases, it isn’t that the security works, it’s just that they’ve been lucky.”

Corporate Security in 2020 and Beyond

Total Security Solutions CEO Jim Richards has more than 30 years of experience enhancing corporate security through custom ballistic barrier systems. He has watched the acceleration of corporate security play out in real-time. Most obviously, over the last three years, Jim has seen an increase in the ballistic security level corporate offices request.

In the past, most corporate offices that opted for any barrier were satisfied with a system tested to UL Level 1, 2, or 3. These systems stop closely grouped shots from a small pistol. Some companies even installed untested doors and glass partitions and thought nothing of it.

That has changed. Since late 2018, TSS has been installing more systems tested to UL levels 4 and 5. These barriers can stop bursts from high-powered rifles, assault weapons—even resist explosive blasts.

“There’s been a huge increase in corporate security,” Jim says. “They seem to be much more conscious of threats, much more aware than ever before.”

Additionally, corporate clients also used to be especially reactive about security: They rarely sought out a barrier unless they’d had an incident or received a direct, credible threat.

“Now, they’re more proactive than reactive,” Jim says. “They want to know what they can do to protect their facilities now before something happens.”

And that points directly to the last sign that corporate security is finally becoming a central part of the conversation in many businesses:

“More people are hiring safety directors. It used to be, we’d be getting calls from someone in facilities—in essence, a maintenance guy. Now we’re hearing from a security professional, someone with a lot of training in corporate security, risk assessment, and threat mitigation. That’s an excellent trend. That’s the way people should handle safety and security.”

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