March 23, 2018 • By Dennis Beaver
For a moment, I would like you visualize the unthinkable.
It is 5 AM. The phone rings. A somber voice identifies himself as a police detective and asks if you know “Sammy.” “Of course,” you reply, “What’s wrong?”
“I am so sorry to tell you this, but he was murdered sometime last night or early this morning. There is very little information, but can you come here to identify his body?”
“Sure, but how, how could this happen? He was living in a gated community? How could this have happened? No! No! Not Sammy.”
Then shock sets in. Disbelief, numbness, “This isn’t real. This can’t be real! Please, God, I’m dreaming. This is a nightmare, right? I’ll wake up. Sammy’s fine. He has to be!”
Nov. 30, 2017
Thursday, Nov 30, 2017, is a day that will haunt the memories of all who knew 26-year-old attorney Marcos Vargas. This rising star in the Bakersfield legal community was found brutally murdered outside of his apartment, and to this day, his killer remains unknown.
He was a tenant at a very high-end luxury apartment complex which describes itself as “A gated, luxurious, and social community.” Of interest, their website also states, “We have a 24/7 On-Site Courtesy Patrol.”
“But a patrol car can’t be everywhere at the same time,” you’re thinking, “What about video surveillance which might have recorded the crime itself, given law enforcement time to respond, grabbed a picture of the killer and a vehicle! Did they have video cameras?”
Oh, yes they did, but several were not working, and as we would learn, this is fairly common even in luxury, gated apartment complexes. Does that failure to maintain the cameras provide any possible basis for a lawsuit by family members against the owners or their property management company?
We take for granted that supermarket and underground parking lots will be well lit at night and that entryways to most commercial buildings use non-slip materials. The list of safety and security features is vast and won through legal battles stretching back over a century, all under the heading of Premises Liability.
When there is a failure to provide adequate security, and a person suffers loss or injury as a result, a lawsuit claiming “negligent security” may follow. Winning or losing is determined by answers to these questions:
(1) Was the incident foreseeable?
(2) If so, were reasonable steps taken to prevent it from occurring?
(3) If they were not, was there a causal connection between that failure and the
(4) Even if everything had been done correctly, would this have prevented the harm? If the answer is no, the case will be lost.
The problem with insecurity cameras
We ran this homicide case by Marvin Fuller, President of Bakersfield-based M &S Security. He shared his feelings about apartment house owners and property managers, thoughts echoed by owners of security companies across America we spoke with.
“While it is getting better, owners and property managers are known for refusing to invest in and maintain quality video surveillance equipment,” Fuller states, adding, “Even when state-of-the-art systems are purchased, customers frequently reject either on-site or professional, remote monitoring. This is false economy for a number of reasons.
“First, any system will fall into disrepair if not maintained. Cameras will fail, and the camera you need is the one that went down. Of course, you never knew that because no one was monitoring,” he points out.
“Next, vandalism is the most common nuisance in apartment buildings. By monitoring entrances, exits, parking lots and exterior surroundings, law enforcement can be notified, respond and, hopefully, prevent property damage or theft, or apprehend those responsible.”
Limitations on where cameras may be aimed
The law in all states is clear: where there is an expectation of privacy, video surveillance is not permitted. The best example of this would be Google Street View, as their cameras roam what is out in the open around the globe.
“Public spaces, such as the common areas of residential buildings – front and rear yards open to the public, laundry areas, rec rooms, hallways and parking facilities – are the precise areas which lend themselves best to high-tech surveillance cameras and other security systems,” Fuller observes.
“But if a landlord secretly videos a tenant inside their apartment, this is an obvious invasion of privacy and a crime,” he notes.
But what if the victim’s rental agreement promised state-of-the-art video surveillance which was aimed exactly where the crime occurred? We are still left with issue of causation. Fuller could not think of a case, nor could we locate one, anywhere, finding civil liability for a murder based on non-functioning video surveillance equipment.
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.