LIABILITY & LEGAL ASPECTS (Lesson 13 of 28)
Special Relationship May Give Rise to a Duty
If a person has a special relationship to another, there is usually a greater duty to the individual. If a special relationship exists, the party may be liable not only for his or her actions but also for failure to act. For example, a security officer may be found to be in a special relationship with an individual(s) for whom the officer is hired to protect. Although the officer cannot prevent all criminal activity, the officer’s special relationship requires the officer to take action to protect those individuals. A regular citizen would have no duty to protect another from harm, but due to the special relationship of the officer, the officer has a duty to take action to protect others.
In addition to the elements of duty and breach of duty, a negligence action must establish the causation between the actions of the one who allegedly committed the tort and the injury sustained by Plaintiff. A connection between the injury and the action must exist. Did the hazard cause the injury or would the injury have occurred independent of the hazard? Did the actions (or inactions) of the security officer cause the injury?
The current California jury instruction defining causation looks to whether the action (or inaction) was a “substantial factor” in bringing about the plaintiff’s harm:
A substantial factor in causing harm is a factor that a reasonable person would consider to have contributed to the harm. It must be more than a remote or trivial factor. It does not have to be the only cause of the harm. (CACI 430.)
Generally, a security officer is not expected to prevent an unexpected drive-by shooting because there is nothing that a security officer could do to foresee or prevent it. Thus, such a situation would not give rise to liability.
Similarly, assume that a security officer’s post orders require him or her to make foot patrol rounds at an open air shopping mall, where the businesses include a grocery market and several clothing stores. The parking lot is very large and only one security officer is assigned to the post.
Assume that the security officer did make regular rounds (which can also be documented). Assume also that two motorists fight over a parking space and in the course of 30 seconds, a verbal quarrel turns into a physical assault. The security officer who had made a round just three minutes earlier did not see anything unusual (as the confrontation between the motorists had not yet even occurred).
In this example, the security officer’s actions or inactions had nothing to do with the physical assault. The officer could not have prevented it since it was not foreseeable and it happened so quickly.
However, if the security officer observed the motorists having the verbal quarrel, but did nothing further, a jury may determine the security officer failed to act with ordinary care. If one of the motorists is injured as a direct result of the security officer’s inaction, then the officer is indeed a “substantial factor” in bringing about the harm. The element of causation would be satisfied.
Referencing the ice cream example again is also helpful here. Assume the security officer failed to make rounds and thus failed to see the hazardous ice cream spill on the ground. If the patron of the premises slips and falls on the ice cream, which likely would not have occurred if the security officer had diligently done his/her job, then the officer’s failure to make rounds would likely be a direct cause of the plaintiff’s injuries. That is, it was a “substantial factor” in bringing about the harm.