Security Guard Liability in New York

By Andrea M. Alonso and Kevin G. Faley

September 3, 2021

INTRODUCTION

Private guards serve a necessary function by assisting law enforcement, ensuring individual safety and protecting business interests. Due to the nature of the profession, security guards and their employers are particularly vulnerable to potential civil liability for intentional torts, negligence, and civil rights violations. This article analyzes the application and extent of security guard liability in New York. 

INTENTIONAL TORTS

Property owners may “use reasonable force to eject a trespasser from its premises,” but evidence of unnecessary force or intent to injure removes the privilege. Mitchell v. New York Univ., 2014 N.Y. Misc. LEXIS 105, at *17 (Sup. Ct. N.Y. Cnty. Jan. 8, 2014). Assault and battery claims brought against private security guards will typically turn on the intent and reasonableness of the guard’s actions. For example, in Oakley v. Dolan, 980 F.3d 279 (2d Cir. 2020), the plaintiff brought assault and battery claims after he was roughly pushed to the ground, restrained, then removed from Madison Square Garden by security despite a lack of physical threat or provocation. Plaintiff alleged he had done nothing wrong and had even raised his arms in a defensive and non-violent gesture. The court reinstated plaintiff’s assault and battery claims as the facts permitted a reasonable inference that the plaintiff was subjected to unreasonable force.  
In claims stemming from the detainment of suspected shoplifters, courts will look to New York General Business Law § 218 (referred to as “shopkeeper’s privilege”). The statute shields police officers, shopkeepers, and their employees or agents from liability when detaining potential shoplifters so long as the detainment was based on reasonable grounds, occurred in a reasonable manner, and lasted for a reasonable time. 

Although courts have traditionally interpreted the statute quite broadly, some limitations have arisen in recent years. In Orellana v. Macy's Retail Holdings, Inc., 36 N.Y.S.3d 547 (Sup. Ct. N.Y. Cnty. 2016), the plaintiff was suspected of shoplifting and detained by one of Macy’s Loss Prevention Officers. By combining its power to detain under General Business Law § 218, with its power to collect civil penalties from suspected shoplifters under General Obligations Law § 11-105, Macy’s refused to release the plaintiff until she confessed and paid a civil penalty. The court found that Macy’s overstepped its authority under § 218 as the store was “detaining, investigating, eliciting a confession and recovering civil penalties at the time the suspected shoplifter is in Macy's custody, and then instead of releasing the individual, continuing to detain them and pursue criminal punishment.” Id. at 553. 

A proposed amendment to General Business Law § 218 addresses this very issue by both changing the definition of “reasonable time” to not exceed one hour (except in extraordinary circumstances) and mandating that the release from detainment shall not be conditioned on the detainee “sign[ing] any documents, statements, or agreements to pay damages.” N.Y. State Assemb. A00310 § 3-4, 244th Ann. Legis. Sess. (N.Y. 2021). It is unclear if and when the proposed legislation will be passed. 

NEGLIGENCE

Security guards can be liable for negligence in limited situations. The threshold question in any negligence claim is whether the defendant owed a duty of care to the plaintiff. The various duties and responsibilities of security guards are usually laid out in contractual agreements with the entities that hire the guard’s services. Since contracts generally do not create a duty of care towards third-parties, plaintiffs must show either they were a named party in the agreement, they were an intended third-party beneficiary, or the security guard assumed a duty of care.
Security guards can assume a duty of care towards unintended third-parties if the following three requirements are met: (1) the security guard launched a force or instrument of harm by failing to exercise reasonable care in performing contractual responsibilities; (2) the plaintiff detrimentally relied on the continued performance of the contractual duties; and (3) the security company entirely displaced the landowner’s duty to maintain safe premises. Cullen v. Henry Phipps Plaza E., Inc., 2021 N.Y. Misc. LEXIS 19, at *11-13 (Sup. Ct. N.Y. Cnty. Jan. 4, 2021) (granting summary judgment for defendant security company because the security guard did not launch the instrument of harm, the plaintiff failed to allege detrimental reliance, and the security guard did not entirely displace the landowner’s duty to maintain safe premises).

VICARIOUS LIABILITY

Potential liability is not limited to the guards themselves, but also extends to their employers through vicarious liability. Although employers are generally not liable for the actions of private contractors, they can be liable for the acts of their employees when committed within the scope of employment and in furtherance of the employer’s business. Determining whether a security guard is an employee and acting within the scope of employment are questions for the trier of fact except in cases where the facts are undisputed and the security guard’s conduct clearly falls outside the scope of employment. See Rivera v. State of New York, 34 N.Y.3d 383, 389-80 (2019) (laying out five factor test to determine whether an employee acted within the scope of employment). 

As a general rule, “[w]hen businesses hire security guards or bouncers to maintain order, the physical force used by those bouncers may be within the scope of their employment.” Fauntleroy v. EMM Group Holdings L.L.C., 20 N.Y.S.3d 22, 23-24 (1st Dep’t 2016). However, tortious conduct committed for personal reasons, as opposed to in furtherance of the business, is deemed outside the scope of employment. For instance, in Chunling Wang v. Cambridge Sec. Servs. Corp., 2020 N.Y. Misc. LEXIS 4183 (Sup. Ct. N.Y. Cnty. Aug. 7, 2020), a building’s security guard grabbed the plaintiff by the hair, dragged her into a room, and then raped her. The plaintiff, among other claims, alleged the guard’s employer was vicariously liable for false imprisonment and negligent infliction of emotional distress. The court found the guard’s conduct was “indisputably outside the scope of his employment as a security guard, and thus, [the defendant] may not be held vicariously liable for false imprisonment or negligent infliction of emotional distress.” Id. at *12-13. 
Plaintiffs may bring claims against employers for negligent hiring, retention, or supervision of employees. Liability arises when the employer knew or should have known about the employee’s propensity to cause harm. For example, in J.B. Int'l. L.L.C. v. Manhattan Buyers, 2020 NYLJ LEXIS 1872 (Sup. Ct. N.Y. Cnty. Dec. 18, 2020), a diamond merchant sued a security company for negligent hiring after its security guard stole diamonds from the store. The court granted the security company’s motion for summary judgment as to the negligent hiring claim because the defendant exercised reasonable care in the hiring process and did not uncover any criminal record indicating a propensity to steal. 
Merely hiring a security guard with a criminal record is not negligent hiring in and of itself. The plaintiff must show the employer had specific knowledge its employee might cause the inflicted harm. In Hendrix v. Jinx-Proof LLC, 910 N.Y.S.2d 762 (Sup. Ct. N.Y. Cnty 2010), a plaintiff brought a negligent hiring against a bar after its security guard threw a glass into the plaintiff’s face. The security guard had a criminal history for drug possession and the defendant did not conduct a background check. The defendant was nonetheless entitled to summary judgment dismissing the negligent hiring claim since the defendant is not required to conduct background checks and had no knowledge of the security guard’s propensity to act violently. See Friedman v. Schmalix, 2019 NYLJ LEXIS 1139, at *11 (Dist. Ct. Nassau Cnty. Mar. 1, 2019) (“[A]n employer is under no duty to inquire into the criminal past of a prospective employee.”). 

CIVIL RIGHTS VIOLATIONS

Security guards can be liable for civil rights violations through 42 U.S.C. § 1983. “[T]o state a claim under § 1983, a plaintiff must allege both that: (1) a right secured by the Constitution or laws of the United States was violated, and (2) the right was violated by a person acting under the color of state law, or a ‘state actor.’” Kilayko-Gullas v. E. End Temple, 2020 U.S. Dist. LEXIS 151776, at *4 (S.D.N.Y. Aug. 20, 2020). 

Private security guards are not considered state actors unless they are given state law authority or willfully participate in police conduct. See Coleman v. City of New York, 2020 U.S. Dist. LEXIS 32424 (S.D.N.Y. Feb. 25, 2020) (granting summary judgment for defendant as to § 1983 claims because plaintiff failed to introduce evidence showing the guards were given state law authority or participated in police conduct). 

In New York, security guards acquire state law authority when they are deputized as “special patrolmen” or another comparable title. Courts have also found security guards to act under color of state law when they purport to possess state law authority. In Thomas v. New York City Dep't of Educ., 2015 U.S. Dist. LEXIS 116408 (S.D.N.Y. Sept. 1, 2015), a retired high school teacher created a blog criticizing the school where he used to work. While attempting to hand out business cards about his blog to students, he was approached and removed by the school’s faculty and security. Plaintiff claimed his civil rights were violated and that the school’s security was acting under color of state law. The court stated, “[T]o satisfy the state-action requirement, Plaintiff need not allege that Defendants had actual authority to prevent him from handing out business cards to students; he need allege only that Defendants purported to act according to official power.” Id. at *9. 

To willfully participate in police conduct, the guard must do more than merely detain or question a suspected shoplifter or contact the police. State action is achieved when a police officer is “improperly influenced or controlled by the private party,” such as when an officer defers to the guard’s findings regarding probable cause before making an arrest. Masri v. Cruz, 2019 U.S. Dist. LEXIS 95204, at *11 (S.D.N.Y. June 5, 2019).

IMPROPER RESPONSE TO ALARMS

In rare situations, security companies can be liable when their guard’s fail to properly respond to alarms. Security alarm contracts often include exculpatory clauses that absolve liability for ordinary negligence, but such clauses cannot protect against gross negligence. For security guards, a delayed or inadequate response to an alarm alone is not gross negligence. Alternatively, “Gross negligence, when invoked to pierce an agreed-upon limitation of liability in a commercial contract, is conduct that smacks of intentional wrongdoing or evinces a reckless indifference to the rights of others.” Meserole Hub L.L.C. v. Rosenzweig, 2021 N.Y. Misc. LEXIS 2586, at *6 (Sup. Ct. Kings Cnty. May 14, 2021); see, e.g., Homola v. Jewelers Mut. Ins. Co., N.Y. Misc LEXIS 2777, at *6 & n.2 (Sup. Ct. Nassau Cnty. July 7, 2017) (failing to contact police on two consecutive days while plaintiff’s jewelry store was burglarized in addition to telling the plaintiff that his store was “fully armed and secured” and that “there was no burglary, just a communication problem” may rise to the level of gross negligence).

CONCLUSION

Security guards and their employers are particularly vulnerable to potential litigation. However, New York’s statutes and common law grant broad protections. To minimize potential liability, security guards should act reasonably under the circumstances, be wary of assuming a duty of care, and operate within the scope of employment. Security companies, on the other hand, should carefully draft contracts, provide comprehensive training to employees, and maintain well-documented hiring procedures. 

Andrea M. Alonso and Kevin G. Faley are partners at Morris Duffy Alonso & Faley. 
Christopher Misa, a paralegal, assisted in the preparation of the article.

Reprinted with permission from the September 3, 2021 edition of the New York Law Journal © 2021 ALM Media Properties, LLC. All rights reserved.  Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.