Monday, September 05, 2005

Avoid lawsuits - Nightclub Security Definitions



These are a few legal definitions used in Federal legal system. Each state has their own definitions, but for instructional purposes we will use the Federal system. Each establishment should ALWAYS check with its own legal staff for important legal definitions that apply to this type of business.

Tort- a wrongful act for which relief may be obtained in the form of damages.

Negligence- conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. The average, reasonable, prudent person mentality is used to decide negligence.

There are four elements necessary to create a lawsuit in negligence:

1) Duty of Care- does your establishment have a legal duty toward the patrons? Chances are that if the patrons are in your establishment, they do.
2) Breach- is your establishment violating the duty of care owed to the patron?
3) Cause- was the cause foreseeable? Example: if the place of business hires a person who has a violent criminal record is it foreseeable that he may physically strike a patron when becoming angry? Yes.
4) Damages- what was damaged?

How does your establishment protect itself from lawsuits? Answer: GOOD FAITH AND DUE DILIGENCE (being properly trained and acting responsible).

Vicarious liability (Transfer liability)- Vicarious liability is liability that is derivatively imposed. In short, this means that one person (security) commits a tortious act against another person (patron), and a third person (owner) is liable for the tortious act. This may be done even though the third person (owner) has played no part in it, has done nothing whatsoever to aid or encourage it, or indeed has done everything possible to prevent it. This liability rests upon a special relationship between the tortfeasor (person committing the wrong) and the person to whom his tortious conduct is ultimately imputed (charged to).

In certain situations an owner/employer will be vicariously liable for tortious acts committed by their employees if the tortious acts occur within the scope of the employment relationship. However, intentional torts (assault, battery, harassment, punching, striking, kicking, etc.) are not usually held to be within the scope of employment, EXCEPT in cases of: 1) Force is authorized in the employment (bouncing); 2) Friction is generated by employment; 3) The employee is furthering business of the employer (removing customers for being rowdy). The bottom line is this: the employer/owner will be held liable for any acts taken by the intentional tortious acts of their security staff.

Sub contractor- many establishments have employed subcontractor, or independent contractor services to perform security at their establishments. The general rule for this is that an employer will not be liable for tortious acts of her agent if the latter is an independent contractor. However, if the independent contractor is engaged in inherently dangerous activity, or because of public policy considerations, the duty is simply nondelegatable- meaning the establishment cannot pass the blame off and they still owe the right to the public to provide a safe environment. Every state has different rules pertaining to these types of situations. Make sure the establishment you work for is up to date in regards to sub contracting laws and procedures. A catch that pertains to sub contractors is negligent hiring. In both sub contractor and owner/employee situations, the employer may be liable for their own negligence in selecting the employee or sub contractor. This is why the hiring process and background investigations are so important.

Another legal rule pertaining to nightclub, bar, and restaurant owners (tavern keepers) is the Dramshop Act. Earlier in America (the common law) did not impose liability on the vendors of intoxicating beverages for injuries resulting from the customer’s intoxication, whether the injuries were sustained by the customer or by a third party as a result of the customer’s conduct. Many states have created a way around this law by adopting the Dramshop Act. Such acts usually create a cause of action in favor of any third person injured by the intoxicated customer. Example: Your establishment serves a patron until they are highly intoxicated. Upon leaving your establishment, in a highly intoxicated manner, the patron attempts to drive home. Due to the patron’s high level of intoxication they lose control of their vehicle and physically injure someone walking along side the roadside. Since the cause of the accident was the patron/driver’s level of intoxication, your establishment may be held liable under the Dramshop Act. Several courts have imposed liability on tavern keepers even in the absence of a Dramshop Act. This liability is based on ordinary negligence principles (the foreseeable risk of serving a minor or obviously intoxicated adult) rather than vicarious liability.

(c) 2005 Excelsior Entertainment


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