The highest-profile performers need extra security to do their jobs—and so do the buildings in which they perform. Those extra security measures are often taken before the venue is even built and carried out long after the artist has left the building. When security and construction are intertwined, it makes for optimal architecture and artistry, but when security is an afterthought to the design and build process, it is only a recipe for litigation. Courtney Dunn, an associate with Segal McCambrige Singer and Mahoney, speaks with Construction Executive on the intersection of security and construction for concert venues and how contractors and/or civilians can avoid disputes.
How does your scope of work in the legal industry intersect with the construction industry?
Security and construction can go hand in hand. The beneficial approach is to have one harmonious effort that incorporates both design and security rather than design first and security later. The contractor needs to be aware of security concerns when designing and the design manager wants to have a security expert review any plan.
When this comes into play, it can come in a couple different ways: identifying the liability, like concerns of slip-and-fall and using the proper concrete to avoid injuries that are structural; and identifying the risks presented on the premises and design in order to mitigate those risks.
Are security and safety provisions something that contractors typically have top of mind when they go into design a building?
There’s never going to be a venue or any space that can guarantee no risk of injury or no potential threat. To have potential incidents in mind from the get-go is important. At this point [contractors] know what [risk] to expect if the venue is for concerts. If a claimant or a plaintiff brings a claim of a premises liability—like they fell down the steps, they tripped because the treads weren’t the proper measurement pursuant to mandatory code—that is where premises liability lies, and the contractor may be implicated. It’s all about being aware of what those foreseeable risks are and making sure the design is in compliance with whatever the governing code is in that jurisdiction.
It’s important to note that a continuous safety effort is necessary. You can identify those potential risks at the outset—that could include designing a fence to make sure that patrons don’t try to dig it up and sneak in—but it’s also a continuing effort in knowing the venue audience, knowing any potential performer and reassessing those risks. If a venue is hosting a performer that is known to have a particularly rowdy fan base, a venue will want extra security, recognizing the potential risks that don’t usually occur and acting to address them. That goes hand in hand with contractors and the design aspects because they’ll want to know where those access points are. They’ll want to use territorial reinforcement like fences to establish boundaries and let patrons know where certain activity is not permitted.
When does a legal firm get involved in the construction process? Is there awareness from the permitting process or only when litigation is necessary?
We’re brought into it after the fact, once the litigation is in play or when a claim has been brought to an insurance company. [Segal McCambridge] has done some consulting work in the past and we’ve worked with experts who have worked with contractors in designing venues. But for the most part, we come in when there’s litigation on the table—like in slip-and-fall claims or with a premises liability suit. For legal purposes, it’s all about looking back at the purpose for different design aspects: were they in compliance with jurisdictional codes and was there any foreseeable risk involved when this venue was designed?
What are some of the most serious safety concerns you’ve seen? What are some of the more serious cases that you’ve had to resolve?
I’ve never worked with a venue that has in any way turned a blind eye to safety. Most of these venues know what to look for and they’ve been doing this for long enough and continuing their education as to what evolving threats look like. What’s beneficial for these serious safety concerns or even reoccurring safety concerns is continued risk assessment. In litigation, trouble comes where there has been an identified risk. Let’s say someone keeps tripping and falling down a flight of steps or somebody falls from a balcony. If an issue has been identified, if there has already been an accident and then it is not remedied, that’s where you get into even stickier liability issues. If a venue or contractor can show that there may have been an accident before, but they took specific precautions to address it and mitigate it for future patrons, then that’s how you properly address any safety concerns that would be considered serious or that would affect people on more than one occurrence.
Are these suits mainly civil?
We have seen instances in the news with guests that were trampled or certain crowd movements were incited, which turned into some bigger cases, but the premises liability cases we handle will be a civil action—again, if someone slipped and fell, or if there was something in the parking lot that caused an injury. There can be a criminal aspect in a different type of case. Say there was a fight that broke out or somebody was injured in a way that was not related to those structural aspects and design of the venue—there’s different analysis that comes into play for each of those instances.
If safety concerns are raised or litigation becomes necessary, what is the contractor’s first step to remedy the situation?
It comes in two different stages:
The point where we’re already in litigation and we have an explicit hand in the case with reference to any previous accident that occurred from that alleged defect. If we have a plaintiff who fell over a fourth step in the aisle, and then we see that there have been previous complaints of people falling on that same step in that same aisle, that affects the liability analysis of the premises liability. So, once you have your first or second complaint, you want to take precautions to make sure that it doesn’t happen again. Or at least show that you are trying to prevent future similar accidents from happening because you’ll have been on notice that there was a potential risk.
Then structurally, if we’re talking about the period of time when there’s still design going on, if they’re still contracting, we’re working out what could be a potential risk that requires ensuring compliance with those building codes that are mandated and working with the venue owner/operator to make sure everything is accounted for. We don’t want to have a deviation of those designs that were put there specifically to prevent against some kind of future risk.
How have you seen safety threats evolve, especially as the technology used to develop these structures, along with the design of the structures themselves, becomes more complex and intricate?
I think it’s something that’s still in its early stages, but there are so many new technology facets that are evolving as threats. Post-covid, there’s obviously been a rise in demand for in-person events; the more people you have, the more potential for risk of any kind, whether it’s something like an active shooter or somebody driving their truck into the stadium. That continuous effort to identify how risks are evolving comes from both security and design. But there are security technologies like facial recognition components that are evolving in line with those evolving threats. An expert of ours was recently telling me about cameras that are gaining popularity that see all the way across the parking lot, which sounds rather basic, but it’s a technology that prevents a potential threat from getting into the venue. So, before there is an actual issue inside, we have this technology that is becoming more common and proving effective. And I think it will also be interesting to see how AI plays a role in gathering intel on potential risks.
What are some of the safest venues you’ve been to or heard of?
There’s a security design concept called crime prevention through environmental design and it uses physical objects that are not typically associated with security, so say architecture and landscape to reduce risk. So, an example of this would be when you get to a venue and the exterior is adorned with big planters with beautiful flowers and they look nice and they’re welcoming, but they’re also strategically placed so a truck can’t drive through the entrance. It’s an environmental design technique and it uses natural surveillance and access management and lighting, which has become more popular and effective. That also goes hand in hand with the idea that when you go somewhere that looks nice, people tend to bring their behavior up to that same expectation.
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