as other types of evidence such as the nature, location, condition and archi- tectural design of the property. The Clohesy v. Food Circus Supermarkets, Inc. case, heard before the New Jersey Supreme Court, involved a customer that was abducted from the defendant’s parking lot and murdered. The defendant argued that no similar incidents had occurred in the parking lot within a rea- sonable time prior to this incident. The court applied the totality of the cir- cumstance approach and ruled that the supermarket owner should have fore- seen the possibility of the crime and had a duty to provide security. Some of the factors the court took into consideration in making this deci-
sion included prior criminal acts that occurred on and near the supermarket property, location, the absence of security, lack of windows on the side of building where the crime occurred, the increasing level of crime in the neigh- borhood, the size of the property and parking lot, and the nature and circum- stances of nearby businesses. Parking and outdoor environments have been deemed by some courts to
have unique features that are conducive to criminal activity. For example, vehicles and their contents are put on display for thieves. This, coupled with the absence of vehicle owners, provides opportunity, privacy and ample time for thieves or vandals to strike. Security leaders should take the previously list- ed items under consideration, and if possible, implement these and any other security and safety measures that are indicative of illustrating that the compa- ny is supportive in proactively reviewing and, if necessary, revising any proce- dures, processes or best practices to demonstrate a commitment to safety and security.
These practices could be invaluable in the event that a company is ever in the unenviable position of having to demonstrate that everything was done to
prevent an incident from occurring. A proper blend of tools, equipment, training and CPTED (crime preven-
tion through environmental design) are the key ingredients to a robust, effec- tive and efficient security program. As demonstrated in the previous cases, the courts appear to be shifting to a totality of circumstances approach, which places the burden of increasing security measures on the property owners. Since there is a significant difference between the foreseeability and totali-
ty of the circumstances approaches, it behooves all security practitioners to fully understand in which direction the pendulum of recent court decisions is swinging and trending in their areas of jurisdiction, and implement security measures accordingly. Best practices for security professionals, regardless of jurisdiction and cur-
rent trending of court decisions, is to consistently review the criminal statis- tics of the area, and to regularly analyze the properties’ security needs. Operators should establish and periodically review a written security plan
involving law enforcement, tenants, civil groups and company leaders. If pos- sible, implementation of these and any other security and safety measures illustrates that a company is proactively reviewing and, if necessary, revising any procedures, processes, or best practices to demonstrate a commitment to safety and security.
Anthony DiSalvatore, CPP, PSP, PCI, CFE, CLSD, has more than 25 years of security and law enforcement experience. He is the vice chairman of the ASIS Gaming & Wagering Protection Council, the Gaming Subsector lead in the Department of Homeland Security Commercial Facilities Coordinating Council, and treasurer of the Las Vegas Security Chiefs Association. He can be reached at
adisalvatore@yahoo.com.
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