• Joe Gilbert

Workplace Violence/Active Killer/Comparative Fault.

Most security plans are as much a liability as an asset. At best many plans provide a false sense of security and leave the security team members and organization at high risk of civil liability. Something seemingly as innocuous as informing employees and/or vendors of security plans can leave you ripe for a successful tort action (Alman vs. Union Dormer Tools). As serious workplace violence events become more prevalent, the body of law will grow providing plaintiff attorneys with more arguments/avenues for establishing claims of negligence.

Many corporate and religious organizations rely on former/current law enforcement personnel for developing, implementing and managing their security program. Security, Human Resources and Safety departments tend to “manage to compliance” with OSHA and other relative guidelines espoused by various government agencies. Therein lies the problem; simple compliance is far from adequate.

With the high stakes and polarizing emotions associated with an active killer event, it is in your best interest to have your plan reviewed by a professional who not only understands the legal and physical elements surrounding the use of deadly force, but is also experienced in conducting investigations in defense of high liability claims. Your business attorney (lacking experience defending use of force cases) and the majority of law-enforcement personnel (lacking civil investigative experience) will leave you wanting in the court of law.

When a high liability insured event occurs, your insurer will begin the defense process with an experienced legal and investigation team. When an investigator arrives, he/she will gather all evidence, conduct a thorough scene investigation and obtain written/recorded statements from all involved. The legal team will analyze the information garnered (good and bad) and a decision will be made to settle with the plaintiff/s or fight in court.

Mitigating the ability to assign a portion of liability to your organization (comparative fault) is second only to saving lives. Here are a few items that must be addressed and thoroughly understood:

OSHSA General Duty Clause:

29 U.S.C. § 654, 5(a) 1: Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." Case law exists recognizing active killer/workplace violence as a “recognized hazard”.

Respondeat Superior (legal doctrine):

This principle makes an employer or principal legally responsible for the wrongful acts done by an employee or agent, if such acts occur within the scope of the employment or agency.

Comparative Fault:

Important element that can leave you vulnerable even if you have no nexus to the violent actor. Training, documentation, action (or lack of) by your security team will play a substantial role.

Financial impact of a violent event:

  • Physical cleanup/repair.

  • Lost income (short and long-term).

  • Employee retention/replacement costs.

  • Legal defense costs.

  • Damage Awards.

  • Post event counseling for staff.

  • Lost productivity.

Insurance details:

· Purchasing appropriate amount of coverage.

· Clearly understanding definitions, limitations and exclusions of policies (incredibly important). Depending on weapon used, number of casualties, etc. your insurance may not cover event if not defined in your policy.

Security program details:

· Establishment.

· Training.

· Validation of plans through testing.

· Documentation.

Emergency communications plans for:

· Security team.

· Staff and guests.

· Staff and law enforcement.

· Staff and media (including social media).

· Staff and family/social contacts.

Security team management:

· Understanding and effectively implementing plan.

· Establishing and enforcing minimum equipment standards for firearms (if used by security team).

· Establishing (HIGH LEVEL) minimum performance standards for security team members. These must be far above law enforcement minimum standards (SWAT teams exist for a reason).

· Establishing and enforcing physical fitness training/qualification metrics.

· Establishing and enforcing academic training requirements to include tactics, management of bystanders, legal issues, communication with arriving law enforcement, etc.

Care of injured:

· Competent casualty care.

· Establishing casualty collection points.

· Getting EMS on scene as fast as possible.

Lastly, all elements of your plan must survive judicial scrutiny. The best method for evaluating your plan is to follow the path of a tort investigation. The basic evaluation elements would include:

  • Overview of facility (including material condition of building, grounds, working conditions, etc.).

  • Personal background of every person involved (including witnesses).

  • Pre-event elements.

  • Event.

  • Post event.

  • Conclusions.

Lets discuss how we can improve your situation.



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