Interesting Customer Fear - Video System Increase Liability?

We have a multi-use commercial building client for whom we have conducted a security risk assessment and recommended among other things, a video system for limited deterrence, forensic purposes as well as to serve as operational support to view people who will be remotely admitted through electronically controlled doors. The client is fearful that they will not reduce their risk but actually incur liability because the camera system will not be monitored "real time" by security staff. I am well aware of the weaknesses in humans watching video for extended periods of time. I am not aware of any successful litigation against an organization that has an unmonitored video system and in fact know where video has been used to negate frivolous claims (e.g., slip and fall). Thought I would float this out to the IPVM community to see if there is anything additional to add here. Thank you.


Frank, good topic!

Is your client going to market or place signs that creates the expectation of live monitoring?

For example, something like this seems risky:

In addition, does any of their tenant contracts have any terminology or clauses implying live monitoring?

Not a lawyer, obviously, but have not heard of such risks absent creating an expectation.

According to this article from 2009 by Doug Marman, former CTO of Video IQ, there certainly is the perception and allegedly the reality of increased liability:

What they were referring to is the potential lawsuits that can arise when a camera is installed, if it isn’t monitored. The public can see the camera and imagine that it is being watched. If something should happen, they expect a response.

The problem is that less than five percent (5%) of surveillance cameras are monitored today, because it has been too expensive to have people watching cameras all the time. The general public doesn’t realize this, however.

The CSOs weren’t raising a needless concern. They could each recite the lawsuits that had already proven this is a real problem. They could tell you how big the settlements were for.

Apparently, there are a number of cases where the courts have ruled that when people see cameras, there is “a reasonable expectation of response.”

In other words: Yes, there is an increase in liability for any cameras you have installed that aren’t being monitored.

The Liability of Unmonitored Cameras

Loaded with hearsay and short on references, so beware...

Come on 1, you left out the best part:

The minute they saw [the product he was selling] the iCVR with its built-in video analytics, they saw it as a potential boon for increasing protection without increasing liabilities. They could each think of a dozen locations where they wanted to add cameras if they could solve the liability problem.

That shows his motive.

Yes.

Usually a totally concocted story is slightly more vague than

These CSOs were from the Fortune 500, so they knew the danger of increasing their company’s risks.

Leading me to believe that the CSO's fears might be real, if the actual cases were more folklore.

In the future, please don't share a 7 year old post, with no evidence, from a company clear looking to profit on the 'advice', making legal claims.

Ok, sorry, I can do better.

I know you have never found an actual court case regarding 'false sense of security', so here you go:

Kutbi v. Thunderlion Enterprises, Inc. suggests that the vic- tims of a robbery or an assault might also allege negligence if there is evidence that a video security system is improperly designed or maintained, or is not monitored. The latter allegation may actually include a claim that a video security system, represented as monitored, but in fact not monitored, creates a false sense of security, thereby encouraging visitors, tenants, customers, and students to take risks they would not take if they knew the video security system was not monitored... Stetson law review

Kutbi v. Thunderlion Enterprises, Inc.

Yes, it's from 1985, but as you know our legal system is based partly on precedent, therefore the burden would be on any cases following to show reason that their case was materially different.

That is more interesting but your excerpt is from a legal review, not the court case. More on the Kutbi case / the actual court ruling here.

Indeed, in that case, the court noted:

In addition, defendants' assistant manager at the time of the alleged theft stated in a deposition that the video security system was operating properly and was sufficiently well monitored at the time.

That's why the legal review uses the term 'suggest' because the case was not actually decided based on faulty video surveillance.

Important to this is an Oregon law for innkeepers (cited in the ruling) that concludes:

Every innkeeper or hotelkeeper is liable for the loss of any property of a guest in the inn or hotel, whether or not the property has been accepted for safekeeping as provided in this section, if the loss is due to the theft or negligence of the innkeeper, hotelkeeper or any of the servants of the innkeeper or hotelkeeper.

Also in that ruling:

There are, however, situations in which the actor, as a reasonable man, is required to anticipate and guard against the intentional, or even criminal, misconduct of others. In general, these situations arise where the actor is under a special responsibility toward the one who suffers the harm, which includes the duty to protect him against such intentional misconduct

Looking at the more fundamental principle, you could certainly argue that an innkeeper who did not have video surveillance at all (i.e., decided to buy nothing) would be equally or more at risk.

Returning to Frank's original point, it is fair to ask if an organization is potentially liable for negligence with an unmonitored video surveillance system would they not also be liable for negligence by choosing to have none?

In other words, in a scenario where not monitoring a video surveillance system exposes liability, it would make sense that not having one at all would be equally bad if not worse.

Indeed, in that case, the court noted...

Indeed, the defendants denied the allegations? Is that a surprise to you?

You can interpret as you like.

Stetson is a nationally renowned law school. Their interpretation is at least worthy of submission to the OP, agree?

Indeed, the defendants denied the allegations? Is that a surprise to you?

You can interpret as you like.

It has nothing to do with the defendant denying. It has to do with the court accepting it. Continuing that excerpt from the court:

In addition, defendants' assistant manager at the time of the alleged theft stated in a deposition that the video security system was operating properly and was sufficiently well monitored at the time. Defendants did not offer any evidence regarding plaintiff's claims that they were negligent in duplicating excessive keys and in failing to change the locks and that that negligence was the cause of plaintiff's loss. Because defendants did not by affidavit or otherwise actually dispute those claims, there remain genuine issues of fact for trial, and summary judgment was improper on the ground that defendants were not negligent as a matter of law.

In other words, since the court did not reject or question that part about the video system, the law school could only use the word 'suggests' since the contention about a not monitored system was not used in the judgement.

Finally, whether Stetson is a good or bad law school is besides the point.

Court case ruling > law school commentary

Finally, whether Stetson is a good or bad law school is besides the point.

So only you get to use ad hominem?

In the future, please don't share a 7 year old post, with no evidence, from a company clear looking to profit on the 'advice', making legal claims.

Just the same, it could be argued that even if someone is looking to profit, that doesn't mean that their arguments should be dismissed, per se. For instance, a security integrator may recommend an expensive system, this doesn't mean the recommendation is wrong necessarily.

You could say you should be wary of course, just as one might be suspect of legal advice from a less than reputable source.

To argue that a poor reputation impeaches my case, yet a good does not bolster it is special pleading.

Anyway, IMHO, this is the most relevant item found to date regarding 'false sense of security', agreed?

So only you get to use ad hominem?

Just the same, it could be argued that even if someone is looking to profit, that doesn't mean that their arguments should be dismissed, per se

Doug Marman is not an attorney - fact.

Doug Marman offered no citation to any cases or legal experts - fact.

Doug Marman shared unspecific anecdotes - fact.

Then he concluded that all of this was a reason to buy his product.

You are polluting this thread by continuing on the Doug Marman 7 year old self-promotion with no evidence submission. Just stop. This undermines the value of IPVM that people need to wade through debates on manufacturer promotion submitted as legal evidence.

I have run into a couple of customers with a similar viewpoint. One of them has both employees and customers around heavy equipment. They insisted that having cameras covering these areas would get them into more trouble legally then if they didn't. They did not want video recording of their employees doing something wrong as they said their lawyer advised against the cameras. Even though we showed them similar customers where the cameras have saved them millions of dollars in lawsuits.

Here's a more recent case, from 2009, regarding a drowning in a condominium:

...arguing that the Carlyle was liable because it informed residents that the entire complex, including the pool area, was being monitored by the front desk via surveillance cameras and closed-circuit television monitors. The estate argued that Nader relied on the presence and monitoring of these cameras when she swam alone in pool. The estate argued that while ordinarily the condominium association may not be liable for such an incident, in this case, the Carlyle was liable because it had assumed the duty to protect its residents.

The case was decided against the victims family, on appeal:

The evidence does not support that the Carlyle assumed the duty of protecting Nader by installing the surveillance cameras, nor does it support that Nader reasonablely relied on the cameras. The estate cites to no Ohio case in support of the proposition that a landowner can be held liable for the protection of individuals on the property simply by installing and monitoring cameras for security purposes.

Thanks, that is interesting.

One pattern that seems to arise is the expectation the organization sets, i.e. if they make people believe that they are going to protect / monitor / do something (whether video or otherwise and then don't). Another excerpt from the ruling that is noteworthy:

In the instant case, if Nader had any belief that the surveillance cameras were present to protect her from the dangers of swimming in the pool, this belief would have been negated by the several signs posted near the pool that stated no lifeguards were present and that swimmers swim at their own risk

While the estate argues that it was in the job description of the front desk receptionist to monitor the surveillance cameras, it would not be reasonable for an individual to rely on this as a quasi-lifeguard. The closed-circuit television monitors displayed at the front desk show images from 16 separate cameras. It would be unreasonable for an individual to rely on the front desk receptionist, who also had numerous other listed duties, to actively monitor all 16 cameras. [Emphasis added]

Again, the expectations set can play a role so best to be clear, even in job descriptions, what is expected (i.e., no expectation to monitor live surveillance).

Frank - I hope this helps. If it's in NC, feel free to contact me for additional information

I spoke with an expert on these types of cases, and was advised that in any litigation expert witnesses can be found for both sides.

However, The general standard and framework in which cameras typically come up (i.e. criminal acts of third parties).

More specifically, the North Carolina Supreme Court has held that a business owner owes “an individual who enters the premises of [the business] as a customer during business hours ... [t]he general duty ... not to insure the safety of [such] customers, but to exercise ordinary care to maintain [the] premises in such a condition that they may be used safely by [customers] in the manner for which they were designed and intended.” Foster, 303 N.C. at 638, 281 S.E.2d at 38 (emphasis added). Accordingly, under North Carolina law, “[o]rdinarily [a business] owner is not liable for injuries to [customers] which result from the intentional, criminal acts of third persons.” Id. “Nevertheless, the [North Carolina Supreme Court has] recognized ... that where circumstances existed which gave the owner reason to know that there was a likelihood of conduct on the part of third persons which endangered the safety of his [customers], a duty to protect or warn [them] could be imposed.” Id. at 638–39, 281 S .E.2d at 38; see also id. at 640, 281 S.E.2d at 39 (quoting with approval statement in Restatement (Second) of Torts, Section 344, Comment f that, “[i]f the place or character of [a] business, or [the owner's] past experience, is such that [the owner] should reasonably anticipate ... criminal conduct on the part of the third persons, either generally or at some particular time, [the owner] may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection”).

Foreseeability Based on Prior Criminal Activity
Under North Carolina law, “[t]he most probative evidence on the question of whether a criminal act was foreseeable is evidence of similar prior criminal activity committed on the defendant's premises.” Purvis v. Bryson's Jewelers, Inc., 115 N.C.App. 146, 147, 443 S.E.2d 768, 769 (1994) (affirming entry of summary judgment for defendant-business by Beaty, J.); accord Dettlaff v. Holiday Inns, Inc., 10 Fed. Appx. 100, 102 (4th Cir.2001) (citing Connelly v. Family Inns of Am., Inc., 141 N.C.App. 583, 588, 540 S.E.2d 38, 41 (2000)). Additionally, “evidence of criminal acts occurring near the premises in question may be relevant to the question of foreseeability....” Murrow v. Daniels, 321 N.C. 494, 501, 364 S.E.2d 392, 397 (1988). Consistent with that authority, Plaintiff has argued that “the shooting was foreseeable by [the GGP Defendants and Defendant Gap because of] ... the past criminal activities that occurred at [FSTC].” (1:10CV423, Docket Entry 59 at 4; 1:10CV423, Docket Entry 60 at 4.)

*6 As evidence of such relevant “past criminal activities,” id., Plaintiff's summary judgment response identifies the following:
The [P]roperty [P]rofile, which was completed [by Defendant Mydatt] two months after the incident in question ... states that the busiest day at [FSTC] is Saturday. It also states that in between 2004 and 2006 there were nine robberies, one homicide, 11 burglaries, nine assaults, 71 instances of disorderly conduct and 336 larcenies on [FSTC] property. Additionally, the profile states that the day of the week that crime occurred the most in 2006 [sic] on Saturday and this crime mostly occurred in retail spaces. Plaintiff was shot on a Saturday in 2006. One month prior to this there was a murder in the parking lot of [FSTC].
(1:10CV423, Docket Entry 59 at 5 (emphasis added) (citing Docket Entry 60–2 at 3–5); 1:10CV423, Docket Entry 60 at 4–5 (emphasis added) (citing Docket Entry 60–2 at 3–5).)4 The Property Profile cited by Plaintiff also lists one “aggravated assault” separate from the nine “assaults” referenced in Plaintiff's above-quoted summary judgment brief. (See 1:10CV423, Docket Entry 60–2 at 4–5.)
The evidence of past criminal activity on which Plaintiff relies to establish the foreseeability of his shooting thus consists of 20 total crimes which by definition involve the use (or threatened use) of force against a person (i.e., nine robberies, nine assaults, one aggravated assault, and one homicide) in three years.5 In other words, the statistics Plaintiff has cited reflect that, before his shooting, crimes involving use (or threatened use) of force against persons (like his shooting) occurred six to seven times a year at FSTC, a shopping mall that (according to the Property Profile relied on by Plaintiff) catered to a population-base of 611,700 people and featured 1,141,000 square feet of interior retail space, as well as nearly 6,000 parking spaces (see 1:10CV423, Docket Entry 60–2 at 1).
Given the scale of FSTC (in terms of both physical area and customer numbers), such relatively infrequent prior instances of relevant criminal conduct cannot reasonably support Plaintiff's assertion that a “high volume of violent crimes ... occurred on [FSTC] property [sufficient to] put [the GGP Defendants] on ample notice that its invitees were in serious danger of being the victim of a crime by a third party (1:10CV423, Docket Entry 60 at 5 (emphasis added)) and/or that “sufficient criminal activity [occurred] to put [Defendant] Gap on notice that its store was located in a dangerous mall ” (1:10CV423, Docket Entry 59 at 5 (emphasis added)). By way of contrast, the two cases in which the North Carolina Supreme Court has found sufficient evidence to raise a fact-question as to the foreseeability to a business owner of third-party crime involved: 1) 100 criminal incidents deemed relevant at a commercial intersection in a four-and-a-half-year period before the crime at issue (i.e., approximately 20 per year), Murrow, 321 N.C. at 502, 364 S.E.2d at 397–98; and 2) 31 criminal incidents deemed relevant at a shopping mall in the year preceding the crime in question, Foster, 303 N.C. at 642, 281 S.E.2d at 40.6

*7 To permit a finding that the GGP Defendants and Defendant Gap had a duty to prevent third-party violence based on the substantially fewer (and less frequent) past relevant crimes in this record would work an injustice contrary to North Carolina law. As the North Carolina Court of Appeals observed over a quarter century ago, it is unlikely “there exists a community in this State which is entirely crime-free. In the broadest sense, all crimes anywhere are ‘foreseeable.’ ... [However,] to impose a duty [on a business to prevent crime] absent true foreseeability of criminal activity ... would be grossly unfair.” Sawyer v. Carter, 71 N.C.App. 556, 562, 322 S.E.2d 813, 817 (1984).7


Hayes v. GGP-Four Seasons, L.L.C., No. 1:10CV423, 2011 WL 6027443, at *5-7 (M.D.N.C. Dec. 5, 2011)

Andrew, thanks for sharing.

Did the expert who provided that share any guidance of how that specifically applies to video surveillance systems? I see the general principles discussed in that excerpt but not sure how it would relate to video surveillance.

John.

Theres not a black and white standard. If the industry standard is that 95% of video surveillance systems aren't monitored then it would be reasonable not to have ones surveillance system monitored.

However, considering the crime statistics in a specific area and foreseeability should be part of the decision to install or not install surveillance (or security), and / or have a monitored or non monitored system.

As Video surveillance is a subset of an overall security plan it is relevant in the previously supplied excerpts.

By the way John, it's 419am, you're up early (or late) 😀. Hope you're doing well.

In the book Hospital and Healthcare Security, there is this section:

Unfortunately, the case is not online. Does anyone have access, maybe thru PACER?

I don't believe the thread topic is referring to non-recorded or "dummy cameras". I was referring to cameras which are being recorded for forensic use and not being lived monitored in a "SOC" type environment.

I was referring to cameras which are being recorded for forensic use and not being live monitored...

As was I,

A false sense of security can also exist when real CCTV systems are not monitored. <Emphasis added>

I included the part about dummy cameras to give context to the rest of the paragraph and to show the section heading for anyone interested in reading further.

1, thanks for sharing, interesting.

I did go through PACER but did not find anything for any variation of Cisky or Longs Peak. One issue could be the age of the case. That version of the book is from 2001 and the CV reference implies the case is from 1984. I have seen cases on PACER from the 1990s but not sure how far it goes back.

The book has a new 2015 version which still uses the same case 14 years later. Scanning through the other pages in that section that is the only case that the book cites, which is a negative sign, given that if there are 'many lawsuits' they should have been easily able to find and cite others over a 14 year further period.

I'd still like to see the case to read the ruling itself and better understand the issues at stake.

I made a "research request" with the Denver District Court, they said 3-5 days.

I wish to express my appreciation for all of the discussion and debate on this interesting topic. At this point, I am inclined to conclude that there is no tort law basis for increased liability for an unmonitored camera system. I can certainly see liability increases where representations are made and not delivered. Andrew has done a nice job in presenting case law for NC, though my issue is in Alabama. Thank you Andrew, John and others for your comments and moderation on this very essential topic for those in the video specification and sales space.

Regards, Frank