It seems to be quite common for large nightclubs and events to hire third-party security companies in an attempt to reduce their liability in the event that things go wrong and security injures a patron. New York nightclub Flash Factory, who I sued with a co-plaintiff last month for battery stemming from a “security search” that apparently involves gratuitous touching the breasts and genitals of their patrons, denies in their answer that they are liable for the torts (civil wrongs) of their contractors.
Will Flash Factory’s argument get them off the hook?
Not a chance.
Let’s look at 3 kinds of liability that could be alleged against one who throws parties secured by abusive security, using general principles of agency law common among the 50 states. Agency law, by the way, determines when one party (the “principal”) is liable for the acts of another acting on his or her behalf (the “agent”).
Direct liability is imposed on the person who actually commits a tort. Obviously the bouncer herself whose hands were actually on my body is directly liable, so the nightclub is therefore not directly liable, right? Well…
“A principal is subject to liability to a third party harmed by an agent’s conduct when the agent’s conduct is within the scope of the agent’s actual authority or ratified by the principal; and (1) the agent’s conduct is tortious, or (2) the agent’s conduct, if that of the principal, would subject the principal to tort liability.” Restatement (Third) of Agency, § 7.04. (The “Restatements” are documents put out by the American Law Institute that reflect the general policies found in the United States regarding specific areas of law.)
The problem for Flash Factory and other event producers comes when they direct security to perform a specific kind of search (give them “actual authority”), or knowingly allow it to continue (“ratification”). Given that complaints about Flash Factory’s search methods have persisted for at least a year — and even after they had notice of my lawsuit — Flash Factory will have an uphill battle to show that that they didn’t direct their security to behave in this way, or at least ratify it.
“An employer is subject to vicarious liability for a tort committed by its employee acting within the scope of employment.” Restatement (Third) of Agency, § 7.07(1). Further, an employer is not generally liable for the intentional torts of his employees, because the scope of their employment generally does not include intentionally harming others. Since independent contractors are not “employees,” and since battery is an intentional tort, I guess Flash Factory’s off the hook on this one, right?
Nope. While, in general, an employer is not liable for the torts — especially intentional torts — of his or her independent contractors, it is often stated that this rule is merely the “preamble to a list of exceptions.”
Before we get to the true exceptions, we should note that under agency law, “employee” doesn’t mean the exact same thing it means to the IRS. Rather, “an employee is an agent whose principal controls or has the right to control the manner and means of the agent’s performance of work.” Restatement (Third) of Agency, § 7.07(3)(a). Can Flash Factory seriously argue that they had no right to direct the bouncers of their nightclub as to how they want a security search to be conducted? Good luck convincing a judge and jury of that. But, it should be noted that for an event producer who does not control the venue — that is, one who throws parties at a premises owned and secured by someone else — they would likely not have vicarious liability under this rule, because a nightclub does not generally concede control of security to the third-party producer or promoter (but, read on).
Now, the classic exceptions to non-liability for torts of independent contractors that any law student will be familiar with: (1) the conduct was authorized by the principal, (2) the conduct was a natural incident to carrying out the employer’s directions, or (3) the conduct was motivated by a desire to serve the principal.
We discussed the first above under direct liability. Regarding the second and third, which very much go hand-in-hand, the quintessential example in law school textbooks is the bouncer. One who is employed for a job under which their duties include physical and hostile contact with others naturally may cause injury to the others, and that physical and hostile contact is in service to the employer. Think of it this way: if a bartender sees an unruly customer and uses excessive force to eject that customer, we would not be able to apply this exception because battery is not naturally incident to serving drinks. But a bouncer’s job is literally to do the same, and if he or she does so with excessive force, it will be considered incident to the service of the employer. Again, the third-party producer or promoter will likely escape liability (it’s less a service to the third-party than to the venue owner), but a venue owner such as Flash Factory will find themselves on the receiving end of a judgment, regardless of whether the offending bouncer was an employee or a contractor.
The third way the party thrower may find themselves liable for the acts of their bouncer is in negligence. Under negligence law, the employer is not liable for the battery, either directly or vicariously, but is liable because they had a duty to provide a safe environment and failed to do so.
A simply-put formula for negligence is: (1) the existence of a duty, (2) which was breached, (3) which caused, (4) injury to the plaintiff. Duty, breach, causation, injury/damages. “Injury” doesn’t necessarily mean physical injury, but rather injury to any legal right (including the right to be free from non-consensual contact).
A full examination of the duties of a club owner would be lengthy, but they include maintaining a reasonably safe premises and using reasonable hiring practices. If the nightclub was unsafe or a person was injured by someone hired by the club that should not have been (or, e.g., because the club failed to hire enough security), this duty was breached. And, as long as the injury was traceable to the breach (i.e., wouldn’t have happened anyway), we have causation.
It will be interesting to see Flash Factory’s argument as to which of these elements is missing to avoid liability in negligence. I certainly wouldn’t want to be the lawyer arguing it, but I suspect they will try to attack breach. That is, they will say that any injury that happened to me happened despite the fact that they acted reasonably. Will they be able to show evidence of specific things they have done that were sufficient to reasonably ensure that the harm that happened would not happen? I think it is unlikely.
They may also try to attack breach by saying that their search was reasonable because they need to stop drugs from entering the venue. This ignores the fact that they have a duty to both avoid battering their customers and not be a drug den. This will be problematic for Flash Factory given that drug use is obviously rampant within the venue despite their door search. You can’t claim that it’s “reasonable” to inspect my crotch when you allow people to wander around inside that are clearly obliterated, and even if a groin search of every customer were somehow “necessary,” failing to obtain the consent of those entering, and instead just grabbing at their breasts and genitals without warning, is negligent.
But what of the third-party event producer? Well, they didn’t hire security, nor do they have control over the safety of the premises, so they are unlikely to be subjected to negligence liability for the same duties as the venue owner. But, they do have a choice over where to host their events, and if they do so at a venue that is well-known for injuring its customers, they may face liability for negligently selecting the venue. So, for example, if you host an event at Flash Factory now, knowing that they regularly molest their customers in the security line, you may be running a risk of being liable for their wandering hands.
The Bottom Line
The key to determining liability is right to control. If you have the ability to mitigate a harm that may arise in the course of running your business, but fail to do so, you’re probably liable. Likewise, if you pay a contractor to do a task and they screw it up on their own, without your knowledge or reason to have knowledge, you’re probably not liable. But hiring an outside company to do your dirty work for you is not an automatic free pass.
This means if you’re a venue owner, choose your security wisely and monitor them carefully. It’s not only good for avoiding liability, but also customer frustration. Why not choose a security team that deescalates situations, treats customers with respect, and makes your venue a place that is both comfortable and safe?
If you’re a third-party event producer — a role I’ve indeed played — having the right venue is key, and it’s important to remember that everything is negotiable, including security. There’s no reason not to discuss the details of how your customers will be interacted with when they first arrive at the venue. And if a venue is well-known for assholery at the door, find a new venue. Regardless of whether you’re taking a legal risk, you don’t want to be associated with that.
Hum, probably all well and true, but you get into court and the judge just had an argument with his wife and feels shitty, or the attorney on Flash side is an old law school buddy who also gave generously at the judges last re-election campaign, so DAT, you loose for whatever reason the judge feels like giving and the appellate court in time honored fashion, will never over rule the trail judge.
Great article, thanks for the update!