Limiting Liability for Surveillance Investigators

Mar 28, 2011

Note: The following article was originally published in the Professional Private Investigators Association of Colorado members-only newsletter for September 2010. For more information, please visit

Surveillance is often perceived (in an erroneous manner) as being a fairly simple task: follow a subject from point A to point B. Those who have attempted to put that fairly simple plan into execution quickly realize that the many details that are initially overlooked can be crucial factors in determining whether a surveillance investigation will be successful or not. The most important of these factors for the surveillance investigator to consider is what liability could fall back on that investigator for taking any particular case. 

One way to limit liability, which must be considered before the case is ever accepted, is to determine if there is a legal purpose for taking the case. Is there a court case that has been filed? If so, get the case number and obtain the documents detailing the case. If a court case has not been filed, it does not necessarily mean there is no legal basis to conduct the surveillance investigation. It does, however, expose the operative to a higher liability. Picture yourself having to explain to a judge why you decided to take on that surveillance investigation simply because your client was ‘curious.’ 

Does the potential client have an attorney? If so, consider taking the case from the attorney. Talk to the attorney and find out what particular information or documentation he/she needs to have a successful outcome, rather than what information or documentation the private client WANTS. Taking the case from the attorney, dealing with the attorney during the actual investigation, and turning the final work product over to the attorney rather than the private client limits liability.

When dealing with all investigations (and certainly with surveillance investigations) you can limit liability by being selective in releasing third party information to clients. Many private clients want to know who, what, where, when, and why any time a third party enters the picture. By remaining focused on the subject that the client has the legal proceedings with rather than veering off course, liability on the investigator or investigative agency can be limited.

Liability in surveillance investigations can certainly be minimized by not accepting surveillance cases which involve a ‘confrontation’ or approaching the subject ‘in the act.’ Certain television reality shows have popularized the idea that it is common for an investigator to assist the client in a confrontational scenario, particularly with infidelity investigations. Leave the confrontations or ‘busts’ to law enforcement. If you are witness to a situation where a person or animal is in imminent danger and you feel compelled to intervene, know that you are doing so as a private citizen and not in response to that lifelong desire to be a police officer.

 Surveillance investigators should exercise caution in giving clients ‘on the spot’ updates regarding a subject’s location. Typically, Advanced Private Investigations gives an email update at the end of each surveillance day. Occasionally, a phone update may be given particularly if additional authority is needed to continue the surveillance investigation. However, clients that want detailed descriptions of who the subject is with and what they look like, precise location of the subject, vehicle descriptions and locations, etc. should raise red flags with the surveillance operative. Limit the possibility of a confrontation with the subject and the client, and hence your liability, by not providing instant updates out in the field.

Surveillance investigators should think twice about bringing others out on cases. The public can tend to be extremely curious about what we as surveillance operatives do, but there is the remote possibility, that the investigator will be involved in an unexpected confrontation BY the subject or an overzealous neighbor, or that the investigator will be involved in an auto accident during the course of a mobile surveillance. Surveillance investigators in Colorado have the extra challenge of being involved in sunny, dry conditions in downtown Denver or Cherry Creek only to run into heavy snow as the subject is followed Having passengers during a surveillance will make for undue insurance claims if the PI is ever in an accident. It goes without saying that the client should not be involved in the surveillance with the investigator. Clients, particularly in a highly emotional state, can only serve to complicate the surveillance, cause the subject to become aware of surveillance, engage in a confrontation regardless of the investigator’s advice, or disrupt the surveillance in other ways.