Breaching the Duty of Reasonable Care

Prepared for the New York City Police Department Crime Prevention Section

The duty to provide reasonable care against foreseeable risks of crime can be an extremely burdensome one especially at a time when terrorist violence has become so widespread around the world and finds its way into our lives without notice. After 911, landowners, business operators and government itself were forced to evaluate security in a new and more serious light than ever before. Not only is the potential for violence, chaos and public disorder a greater threat now than anything heretofore experienced, but also the responsibility to protect the public from mass violence is being looked at from a different perspective by the business community and ordinary citizens.

The notion that a landlord, a hotel operator or a shopping mall has a responsibility to protect tenants and guests from crime has become widely accepted by our courts and by the public since the 1970’s. In court rooms across America it is not unusual to find a lodging as a defendant in robbery case; a landlord being sued by a tenant for a rape committed by an unknown assailant, or even the City of New York defending itself from a damage claim brought by the parents of a child assaulted by a teenager in a public school cafeteria. We have come to accept that when we invite the public onto our property, attract customers into a place of business or even admit patients into a hospital we have a duty to provide reasonable security against reasonably foreseeable crime risks.

The events of 911 have forced us to question just how deep the duty to protect against the crime of terrorism might go given the magnitude of the potential harm that might be suffered by thousands of people at once. Since terrorism is generally categorized as a political act involving nations, what duty does such an act impose on a commercial entity, a municipality or a private institution such as hospital or a university for its employees, business guests, patients and students? Should they be held responsible to provide security against an act of terrorism as well as for the ordinary criminal acts they are now responsible to protect against? While these questions and other related ones are being considered by the federal court in the southern district of New York, indications are that to some degree and under some circumstances responsibility for protecting the public against an act of terrorism is likely to be imposed on both the private sector and local government just as statutory criminal acts are now.

It is important for each of us regardless of who we are, our family responsibilities, or our status in the community to understand what is expected of us viv-a’-vis security from foreseeable crime risks. It is necessary to be aware of what security threats mean to us not only from the point of view of protecting ourselves and our property from loss, injury or death but also in regard to our obligations to others for whom we have either a duty in law or a moral obligation to protect from harm.

It is because we wear many different hats that we are expected to care for others for whom we are in a better position to protect than they are to protect themselves. In some cases these duties are imposed by law because the law recognizes the existence of a special relationship between the parties that makes one responsible for the care of the other; in other cases it is because a party has assumed the duty to care for another and the one being protected has come to expect it. In some relationships the duty to provide security is obvious: the parent or teacher for a child; the airline pilot for passengers; the doctor for a patient; the correction officer for inmates; an innkeeper for guests. In other relationships the security duty is not as obvious: the bartender for the customer; the parking lot owner for the vehicle operator; the school system for the teacher; the employer for the employee. But whether the duty to provide reasonable security for another is permanent or just results from the limited nature of the relationship, failing to recognize a duty of care can lead to harm for both the one who owes it as well as the one relying upon it.

Foreseeable Risks
When terrorists forced their way into the cockpits of the airliners hijacked on 911 not many people outside of the airplane manufacturer itself thought to blame the event on Boeing. Today, victim’s families are doing just that together with others seeking to hold the manufacturer responsible for the death, injuries and damage that resulted. It has happened because Boeing knew, as did the airlines, the FAA and others that cockpit doors were not adequate to keep out a determined hijacker, especially one with a weapon. Despite airliners having been hijacked for decades, nobody ever insisted that cockpit doors be reinforced, lined with Kevlar and kept locked as they are now. Though airliners had been targeted for use as missiles in the 90’s, they had never been hijacked for that purpose before 9/11, so for reasons of cost, inconvenience, and added weight they were not required to be reinforced until January 1, 2003 after three thousand lives were lost to terrorist hijackings. Today, Boeing is being sued for negligent security because it failed to provide reasonable security against the foreseeable risk of aircraft hijacking, which led to their use as missiles, which caused them to be used against buildings, and which resulted in injury, death and destruction of property, a risk it is being argued that was reasonably foreseeable.

It is being claimed that Boeing had a duty to passengers and the public on 9/11 to protect them from the risk of hijacking to which they were exposed and from which their injuries resulted. It has long been recognized that because of the increased responsibility imposed upon operators of public transport systems to keep their passengers safe from harm, they are also granted the authority to impose reasonable regulations for the conduct of passengers to ensure their safety and security. Commercial aviation prior to 9/11 was required by the Federal Aviation Administration to institute security procedures to check passengers and their baggage for weapons and explosives. Today those responsibilities are the duty of the Transportation Security Administration in the Department of Homeland Security. On 911, the airlines sought to fulfill their duty to the public to screen carry-on items by hiring security guard companies to screen the contents of passenger’s carry-on bags and to check the passengers themselves for weapons and explosives. The FAA promulgated rules regarding what could be carried in the cabins of airliners; the security guard agents for the airlines were responsible for ensuring compliance with FAA regulations through screening. That either the FAA’s rules were not clear or the security guard screeners allowed prohibited items, box-cutters, to be carried aboard the airliners is apparent. The box-cutters it is believed were used to assault flight attendants which resulted in terrorists gaining access to the cockpits, killing the pilots and crashing the planes. The security guards it is argued had a duty to the passengers to keep weapons off the airliners; the FAA had a similar duty to the passengers to prohibit the weapons used to assault the flight attendants, and Boeing, it is argued, had a duty to the passengers to build cockpit doors that could not be forced open. They have all been charged by the plaintiff victim’s families and others with having breached their duties to the victims and those facts are to be tried in federal court.

Once it has been determined that a party owes a duty of care to protect against the foreseeable risk of crime and fails to reasonably provide that duty, a breach of the duty is said to have occurred. If the FAA clearly stated that box-cutters were prohibited from carriage in the cabin of airliners, and if it is determined that the security screeners provided reasonable security under the circumstances and if it can be shown that the existing cock-pit doors were adequate to protect against the efforts of the terrorists to force them open, then it can be argued that despite the hijackers having succeeded in gaining control of the airliners none had breached their security duty as required. The fact that the terrorists succeeded in getting prohibited weapons onto the airliners and used them to gain control of the planes is not necessarily proof that a duty was breached but is rather an example of how a duty carried out reasonably is not a guarantee that no crime can be committed. Perfection is not required, only reasonable performance under the circumstance is.

The fact that a party who owes a duty of care to protect against the foreseeable risk of crime negligently breaches that duty does not mean that the breach of the duty caused the harm experienced by the victim. If the FAA clearly stated no box cutters were permitted to be carried in the cabin of an airliner, and a dozen passengers heading for a box-cutter convention were allowed to carry their box cutters in their pockets through security and into the cabin of the airplane by the security screeners, that breach is not enough to find them responsible for the harm caused if it wasn’t one of the box cutters they allowed through that caused the harm to the victims. If it is learned that the box cutters used by the terrorists were placed on board by an airline worker who cleaned the planes and left them under the seats for the hijackers, then it can be said that the breach was not the causation of the harm and the security guards are not responsible for the damages because their breach did no harm.

In the early 1960’s, a number of airline hijackings around the world were conducted to take hostages to be used in exchange for terrorists being held in prisons by nations whose airliners and passengers were the targets of the hijackings. Particularly in the United States where airliners were frequently hijacked by passengers seeking asylum in Cuba, the threat of hijacking and the potential for harm to passengers and equipment had become critical. In an effort to prevent hijacking, the U.S. government established screening procedures to search for weapons and explosives the threat of which was being used to carryout the hijackings. With the institution of screening stations, the assignment of Sky marshals and an agreement with Cuba not give haven to hijackers, hijacking ceased to be a serious issue in the U.S. Because the government responded to the threat of hijacking quickly by taking reasonable steps to prevent the use of weapons, explosives and hijackers, claims of negligent security were avoided and awards to passengers of damages averted. Unfortunately circumstances have changed and damage awards to passengers for losses suffered due to negligent security for events such as the explosion aboard Pan Am 103 in 1988, has made liability for damages a very serious issue in commercial aviation.

Negligent Security
Negligent security and liability in damages for negligence are not the same. One may perform a duty negligently but because the negligent performance did not result in harm, damages do not follow. As was earlier mentioned, that box-cutters were negligently allowed to be carried on board in passenger’s pockets, is not enough to impose negligence liability on screeners for the damages suffered by the victims. For there to be damage liability, the negligence must also be the cause of the harm. But for security professionals, the fact that no liability for money damages results is not an acceptable outcome for a security breach that should have been prevented. It is should not be enough to perform your duties only up to acceptable professional standards, particularly when the duty owed is one in which personal injury may result where security fails to protect a person from crime. Acceptable is not enough where protection from physical injury or death could be prevented with additional effort.

Because negligent security can be the result of a wide range of failures from inadequate training to lack of supervision, it is important that security professionals know how to develop a security program designed to protect that which has been assigned to their care. Whether it is corporate security, public security for an agency of government, institutional security or personal protection that has been entrusted to them, they must carefully understand the foreseeable risks of harm which stand before them, the unique vulnerabilities they face, and how best to employ the assets at their disposal with which they are to protect those relying upon them for security if they are to fulfill their duties effectively and without negligence.

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