How litigation shapes retailers' security and loss prevention strategies

Retail security consultant Curtis Baillie on litigation and the loss prevention industry

The loss prevention industry is trending towards what is called a "no touch" policy. This is largely due, in part, to the costs retailers face when defending lawsuits filed by persons who are stopped by their security staff and excessive use of force to detain the shoplifter is claimed. The "no touch" policy restricts Loss Prevention Agents from apprehending shoplifters who fight and try to escape custody. The retailers employing such a policy would prefer the shoplifter escape - thus reducing excessive use of force claims along with reduced exposure of injury to their employees and customers.

Companies that require their trained security staff to apprehend shoplifters, but implement a "no touch" policy are, in my view, counter-productive, in that "word on the street" quickly spreads and the retailer becomes even more of a target for thieves as word spreads.

Every retailer that expects their employees to stop and/or apprehend shoplifters should take note of what Charles Sennewald, CPP, CSC and John Christman, CPP wrote: "The best way to avoid a lawsuit is to keep it from being filed; the best way to encourage a lawsuit is to pretend no wrong occurred and/or try to cover it up." ("Shoplifting - Managing the Problem," ASIS 2006).

No truer words were ever written in the world of retail security litigation avoidance. If only retailers would follow that advice. Although some attorneys advise their retail clients not to apologize for suspected wrongdoing on their part, I have found that if a retailer makes what is known as an "unproductive" stop, potential litigation could have been avoided if the retailer had just apologized for the error. It does not get much simpler than that, especially when industry figures indicate that the cost of successfully defending a lawsuit can be $50,000 or more and settlements or jury awards skyrocket from there.

When Shoplift Apprehensions Go Badly

A lawsuit is the Plaintiff's complaint against the retailer. The complaint contains the facts (as claimed by the Plaintiff) and alleges such egregious acts as negligent hiring, training, supervision, retention and other acts. These claims open the retailer's records for a thorough inspection. Failure to properly hire, train, supervise and retain employees with a record of violations of a company's loss prevention policies often leads to increased awards by the court. In more severe cases where injuries occur, juries may award punitive damages. Punitive damages are just what are implied. Such damages are designed to penalize companies for aggravated acts and normally are not covered by insurance companies.

In one such case against a major retailer that resulted in a $3.8 million award, the appellate court stated in its ruling: "The evidence of negligent hiring included proof (store name) hired Doe based on a partially completed application that failed to list any references as requested, and gave only two years of employment instead of the ten requested, and failed to provide complete addresses for past residences. (Store name) also failed to investigate Doe's prior experience, from which it would have discovered that he was fired from several jobs and kicked out of high school in the 11th grade. Based on Doe's troubled work history, several store witnesses - including local, regional and national loss control managers - gave testimony suggesting that (store name) should not have hired him. The Security Expert Witness, hired by the Plaintiff's attorney, also testified that hiring Doe was 'dangerous' because it put 'an unknown quantity' in a position where he was going to be detaining and arresting people. Thus, the Security Expert opined that by hiring Doe the store did not meet the industry standard of care."

Merchant's Privilege

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