What Happens When the Protector Becomes the Offender
The last thing one expects when entering a place of business is to be assaulted by the person entrusted with the job of protection. But, sadly, such occurrences do take place. I recently concluded a case in which a teenage female victim was sexually molested by a security guard who had a criminal record, and had only listed relatives as work references. A background check by an independent party would have alerted a careful employer to the applicant’s criminal record, and prevented this senseless act.
An employer is obliged to prevent unsafe individuals from coming into context with its customers—or business invitees—and to perform due diligence during the hiring process. Due diligence should include a background check, to ensure that the applicant does not pose a threat of injury or bodily harm. When the employee is a security guard, the stakes are especially high, owing to the nature of the work and the extent of contact that this individual will have with the public.
Needless to say, an individual with a questionable background or a history of violent crime will have a higher risk of committing a crime than another person. Yet, believe it or not, many employers never investigate an applicant’s criminal background—even in the case of security guards. They will sacrifice the safety of others rather than spend the small amount it takes to do so.
Recently, a case was successfully resolved for millions of dollars, against a national oil company that hired a clerk who suffered from schizophrenia and other mental problems. An altercation occurred, and a visitor to the store was shot and killed. The parents of the victim sued the employer, alleging negligent hiring and training, and a failure to establish an appropriate security plan.
In Pennsylvania , an employer may be liable for negligent hiring, retention, and supervision, if the employer knew—or should have known— that the employee was dangerous, careless, or incompetent, and that his or her conduct could harm a third person. The Court determines whether the defendant employer “knew or should have known” that his employee had a propensity for violence, and could potentially harm a third person. The scope of the employer’s duty is limited to those risks that are reasonably foreseeable.
Obviously, if of an employee has a history of criminal action or sexual abuse, and the employer has failed to take action to prevent foreseeable harm, the employer will be held responsible for the actions of the employee. A background check of an applicant’s criminal past, together with disciplinary records from public and private agencies, should always be performed, in order to avoid liability for negligent supervision and hiring.
Many employers claim that they did not have knowledge of the violent employee’s background, and that their failure to undertake a background check derived from a wish to protect the privacy of the applicant and avoid discriminating. This argument does not hold, however, as a background check cannot be done without the written permission of the job seeker, according to the Privacy Rights Clearinghouse.
In the case of a rape, sexual assault, or violent criminal act by an employee, several factors must be evaluated to determine liability—including lighting, security cameras, and the presence of secluded locations on the premises where such acts can occur. The victim of an assault carried about by a security guard must establish that the employer breached his or her duty to protect others from the risk of harm.
If you or a loved one has been sexually assaulted or has sustained a violent attack while on the premises of a store or other business, it is important to contact an experienced negligent security attorney to properly evaluate your claim.
Jeffrey Reiff, an experienced criminal assault, negligent security, and sexual assault lawyer, has been recognized as one of Pennsylvania’s top attorneys from 2004 to the present, and has received the highest rating in both legal ability and ethical standards. Mr. Reiff has been recognized as one of the Top 100 Trial Lawyers by National Trial Lawyers Association.