26 September 2019
S. Mark Henkle
Premises liability comes in all shapes and sizes. More and more, private companies and landlords are employing private security to provide some measure of protection, but their activities can sometimes lead to liability claims. At its core, private security can take two different forms: typical security guards (like the yellow shirts between the crowd and stage at a concert) and company police (like campus police at a university). To put it simply, company police are essentially sworn law enforcement officers with similar authority and security guards are not. In negligence cases, these two groups present unique risks for any of your insureds that employ them.
The leading North Carolina case discussing the duty of care owed by security companies to third parties is Cassell v. Collins. In Cassell, a plaintiff was attacked while visiting a tenant in an apartment complex. There, the North Carolina Supreme Court rejected that the security company owed a duty to keep third parties safe or free from injury. 344 N.C. 160 (1993) (stating that “we cannot conclude that the mere act of providing a security guard imposed . . . any duty to prevent Collins from criminally assaulting plaintiff.”) In fact, the contract between the security company and property owner lacked language requiring the guard to protect the tenants or their social guests from attack. Id. at 163-164. Without such a provision, the Court concluded that the mere act of providing a security guard did not impose any duty to prevent the plaintiff from being criminally assaulted. Id. at 164-66.
Likewise, in Hoisington v. TZ Winston-Salem Assocs., the North Carolina Court of Appeals held that there was no duty arising out of the contract between the security company and the property owner to protect those employed in the shopping center. 133 N.C. App. 485, 489-90 (1999). There, the employee was severely assaulted on the premises while the security company had an employee on patrol. The Court looked at the contract language specifying the security company’s scope of work as “vehicular and foot patrol of property maintaining high visibility” and to “act as a deterrent against theft, vandalism and criminal activities.” Id. at 487. Notably, North Carolina law strictly construes contracts against a party trying to enforce third-party beneficiary rights. Thus the Court in Hoisington concluded that the Plaintiff failed to establish a third-party beneficiary claim.
Courts will look to the contractual language between the property owner and the security company in assessing the question of duty. If the contract merely states that it is for “security services” or that the security company is to “maintain visibility as a deterrent,” courts will likely not find a duty owed or a breach of that duty. Of course, the facts of every case are different and the analysis of each case depends on its facts.
The liability of a company police officer may be at issue in premises liability cases. In North Carolina, company police officers are governed by statute. Under N.C. Gen. Stat. § 74E-6, company police officers, while in the performance of their duties of employment, have the same powers as municipal and county police officers to make arrests for both felonies and misdemeanors while in the performance of their duties.
Pursuant to N.C. Gen. Stat. §15A-401(d):
A law-enforcement officer is justified in using force upon another person when and to the extent that he reasonably believes it necessary: (a) To prevent the escape from custody or to effect an arrest of a person who he reasonably believes has committed a criminal offense, unless he knows that the arrest is unauthorized; or (b) To defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force while effecting or attempting to effect an arrest or while preventing or attempting to prevent an escape.
The Supreme Court in Graham v. Conner held “that all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its reasonableness standard[.]” 490 U.S. at 395. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id. In analyzing reasonableness, the question is whether the officer’s actions are “objectively reasonable” in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. Id. Within reasonable limits, the officer is properly left with the discretion to determine the amount of force required under the circumstances as they appeared to him at the time of the arrest. State v. Anderson, 40 N.C. App. 318, 253 S.E.2d 48 (1979).
Company police officer are held to the same standards as other law enforcement officers. When attempting to arrest or stop a crime in progress, they are given a wide latitude to use force so long as the use of force is reasonable. Courts will look at the proportionality of the force used and the context in which it arises. Of course, the facts of every case are different and the analysis of each case depends on its facts.
About the Author: Mark Henkle is an associate with Martineau King PLLC and focuses his practice on serious personal injury defense, premises liability, and construction litigation. Comments and feedback are welcome. Mark can be contacted by email at [email protected].
Important Disclaimer: The above is not legal advice and is made available for educational purposes only. You should not act upon this information without seeking advice from a lawyer licensed in your own state or jurisdiction. This article should not be used as a substitute for competent legal advice from a licensed professional attorney in your state or jurisdiction. The presentation of this information does not form a lawyer/client relationship.
 Cassell v. Collins, 344 N.C. 160 (1993) overruled on other grounds by Nelson v. Freeland, 249 N.C. 615 (1998) (which merely eliminated the distinction of licensees and invitees and adopting the reasonable standard of care for lawful visitors for property owners and possessors in premises liability cases and left intact the Court’s holding on duty of care of security companies).