Industry News

A Non-Paying Passenger

A Nigerian immigrant found a used and discarded ticket in the John F. Kennedy International Airport in New York City. The ticket had been used to fly from JFK to Los Angeles. At the security checkpoint a TSA supervisor didn't notice that the ticket was invalid but became suspicious when the individual could not produce a passport or other form of picture identification. The individual did produce a University of Michigan ID card but the supervisor failed to notice that the name on the ID card did not match the name on the ticket. The supervisor called the next higher supervisor who gave the okay for the passenger to proceed.

The airlines employee checking tickets at the boarding gate did not notice that the ticket was invalid. The individual was allowed to board the aircraft. After taking a seat, passengers near the individual asked to be seated away from him because of a strong body odor. During the flight, aircraft staff discovered that the individual was a non-paying passenger. They called ahead to LAX and the FBI was notified. When the plane landed, the non-paying passenger got off but was not taken into custody because the FBI was not there.

The Nigerian was apprehended the next day while trying to board a Delta plane.

Store Employee Injured In Mass Shooting

Facts: On Nov. 20, 2005, Dominick Maldonado walked into a mall wearing a trench coat under which he was concealing a rifle and a pistol. Maldonado also carried a guitar case containing ammunition. Prior to entering the mall, Maldonado made a phone call to 911 informing the operator that he was carrying two weapons and that he was going to begin shooting.

After entering the mall, Maldonado stopped by a soda machine to load his rifle, passed by a mall kiosk several times and then began shooting. In approximately eight minutes, Maldonado shot seven people. Maldonado took four people hostage for several hours before he was eventually taken into police custody.

The last person Maldonado shot was Brendan McKown, an assistant manager at a store in the mall. When the shooting began, McKown was taking store deposits to a bank deposit box located at the opposite end of the mall from his store when he heard sounds that he recognized as gunshots. After several minutes of not hearing any additional gunshots,

McKown stood near the entrance to a camera store when Maldonado walked by and shot him several times. McKown filed a lawsuit against the mall owner alleging the owner failed to provide sufficient security measures which could have better protected the individuals faced with an emergency situation such as the shooting. The mall owner filed a motion for summary judgment arguing the shooting was not foreseeable and McKown's injuries were not preventable under the circumstances. The court denied the mall owner's motion for summary judgment, and the owners filed a motion for reconsideration.

Decision: The trial court granted the defendant's motion for summary judgment after reconsideration. The court held that McKown had not proven that there were prior similar incidents of random acts of shootings inside the mall; therefore, McKown could not maintain an action for negligence. Although McKown argued that the mall owners had a duty to intervene and protect him once the shooter began firing in the mall, the court rejected his argument. The trial district court stated that the mall owners had the duty to observe activities on their property, but only had the duty to intervene when it was foreseeable that unreasonable conduct would occur by a third party. Based on the facts of this case, the federal court held that McKown failed to prove that the actions of the shooter were foreseeable to the mall owners on the day of the incident; thus, the court dismissed McKown's complaint with prejudice.

Implications: This case illustrates the duty of business owners to maintain reasonably safe premises for invitees that come onto their premises. Here, the court reasoned that once an unforeseeable event occurs on the owner's premises, the owner has a duty to watch for similar acts and intervene if a third party attempts to engage in behavior that previously caused harm. McKown v. Simon Properties Group Inc., No. 08-5754 (U.S. District Court for the Western District of Washington May 4, 2011).

Source: Security Law Newsletter, published monthly by Strafford Publications, Atlanta, GA. www.straffordpub.com, phone: 800-926-7926, ext. 10 or email: custserv@straffordpub.com.

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