NEGLIGENT SECURITY – OUTLINE
I. FORESEEABILITY – IN GENERAL.
Foreseeability in negligence actions is divided into two distinct categories-duty and proximate cause.McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla. 1992). Duty is a minimal threshold legal requirement for opening the courthouse doors. Id. Proximate cause, on the other hand, is a fact of consequence that must be proven to win the case once the courthouse doors are open. Id. The “duty” element of negligence maintains its focus on whether the defendant’s conduct “foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others.” Id. Conversely, the proximate cause determination of the causation element of negligence is concerned with “whether and to what extent the defendant’s conduct foreseeably and substantially caused the specific injury that actually occurred.” Id. An injury caused by a “freakish and improbable” chain of events would likely not be “proximate” because it is unforeseeable even though there may have been a duty. Id.at 503.
In defining the scope of the general duty placed upon every person to avoid negligent acts or omissions, foreseeability is crucial. Id. “Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others.” Id. The Florida Supreme Court has stated: “[w]here a defendant’s conduct creates aforeseeable zone of risk, the law generally will recognize a duty placed upon the defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” Id. As the risk of a given act or omission increases, so does the duty to use reasonable care. Id. A defendant who creates a risk is required to exercise “prudent foresight” whenever others could be harmed by their conduct. Id. This duty element is used as a guidepost and is given to the jury for gauging the defendant’s factual conduct-care exercised must be proportionate to the duty imposed. Id. However, as the Fourth District reasoned in Demelus v. King Motor Co. of Fort Lauderdale, 24 So.3d 759, 761 (Fla. 4th DCA, 2009), “[d]uty…is not limitless. To impose a duty, it is not enough that a risk merely exists or that a particular risk is foreseeable; rather, the defendant’s conduct must create or control the risk before liability may be imposed.”
II. LIABILITY FOR CRIMES COMMITTED BY THIRD PERSONS.
a. Common Law of non-liability for tortuous acts of third persons:
As a general rule, a person has no legal duty to control the conduct of a third person to prevent that person from causing harm to another. Aguila v. Hilton, Inc., 878 So.2d 392, 398 (Fla. 1st DCA, 2004). As the court in Boynton v. Burglass, 590 So.2d 446, 448 (Fla. 3rd DCA, 1991) noted, “Florida courts have long been loathe to impose liability based on a defendant’s failure to control the conduct of a third party.” However, exceptions to this rule arise and a duty to protect an unknown plaintiff from the conduct of a third party may arise if the defendant is in actual or constructive control of 1) the instrumentality of the harm; 2) the premises upon which the tort is committed; or 3) the person who committed the tort. Aguila, 878 So.2d at 398 (citing Potamkin Chevrolet, Inc. v. Horne, 505 So.2d 560, 562 (Fla. 3rd DCA, 1987)). Liability for negligent security is premised upon the second of these exceptions, where the defendant was in control of the premises upon which a tort is committed.
b. Duty Established by Third District:
In Amerijeiras v. Metro Dade County, the idea that “a landowner has a duty to protect an invitee on his or her premises from a criminal attack that is reasonably foreseeable” was firmly established by the Third District. Amerijeiras v. Metro Dade County, 534 So.2d 812, 813 (Fla. 3rd DCA, 1988).
III. WAS THERE A DUTY?
In determining whether there was a duty, courts look to whether an injury was foreseeable. Foreseeability can be determined by one of two ways: 1) by showing a particular third-party’s inclination toward crime or 2) showing that the landowner had actual or constructive knowledge of a condition on his premises that was likely to cause harm to a patron. Such a dangerous condition can be indicated if a landowner, in their experience, knows of a likelihood of such criminal conduct by third persons. Hall v. Billy Jack’s, Inc., 458 So.2d 760, 762 (Fla. 1984). When determining whether an injury was foreseeable or not, courts look to 1) evidence of similar crimes in the area, 2) the temporal proximity of the crimes, and 3) the geographic proximity of the crimes to the incident in question. Florida district courts of appeal, however, are split on how to interpret these various requirements.
IV. DISTRICT COURT DIVIDE
a. Similar Crimes
i. Third DCA – The Third DCA is unique in its requirement of “similar crimes” in establishing foreseeability. However, this does not apply to landlord-tenant relationships.
1. Prieto v. Miami-Dade County, 803 So.2d 780 (Fla. 3rd DCA, 2002)
In this case, the plaintiff Eduardo Prieto was the victim of a criminal assault at a Metrorail station. An action was brought against Miami-Dade County alleging negligent security of the Metrorail station. Summary judgment was entered for the defendant in the trial court and the plaintiff appealed. The appellate court affirmed the trial court’s ruling by holding that the attack was not foreseeable because there was no evidence in the record of prior similar incidents at the Metrorail station. Absent a record of evidence that the County had actual or constructive notice of similar criminal activity at the station, the attack on Prieto was not foreseeable and thus the County had not breached a duty to the plaintiff.
2. Metro Dade County v. Ivanov, 689 So.2d 1267 (Fla. 3rd DCA, 1997)
After Krassimir Ivanov was criminally assaulted in Calusa Park on Key Biscayne, he brought an action against the county for alleged negligence. The trial court denied a motion for directed verdict by the defendant and entered judgment in favor of the victim. Miami-Dade County appealed this ruling, and the appellate court reversed and held that the evidence was insufficient to establish that the assault was reasonably foreseeable. Citing Ameijeiras v. Metropolitan Dade County from the Third DCA-a case with a similar fact pattern-the appellate court held that “a landowner’s duty arises only when he has actual or constructive knowledge of similar criminal acts committed on his premises.” The court held firmly to the idea that there must be evidence of prior similar crimes on the premises. Evidence provided by Ivanov of crimes that had occurred in Crandon Park was not considered to be probative or to have put the County on notice. Because there was no evidence of prior similar crimes in Calusa Park, the attack was not foreseeable.
However, where there is a landlord-tenant relationship, the Third District does not follow the stringent requirement of prior similar crimes. To the contrary, in determining whether landlord has duty to his tenants to protect them from criminal acts, the landlord’s knowledge of prior crimes, against both persons and property, is relevant to the issue of foreseeability even if the prior criminal acts are lesser crimes than the one committed against the plaintiff. Czerwinski v. Sunrise Point Condo., 540 So.2d 199, 200 (Fla. 3rd DCA 1989).
ii. Fourth DCA – Court declined to follow the “prior similar” crimes rule. Holiday Inns, Inc. v. Shelburne, 576 So.2d 322 (Fla. 4th DCA, 1991) (disapproved on other grounds).
In Holiday Inns, Inc. v. Shelburne, two people were injured and a third killed in a shooting outside of the Fort Lauderdale Holiday Inn hotel in which the Rodeo Bar was located. The shooting occurred after closing time when an altercation arose between two groups of people who had been previously drinking inside the bar. An action for negligent security was brought against the hotel and the issue before the trial court and on appeal was the foreseeability of the shootings. The appellate court held that the trial court had “correctly allowed the jury to consider all 58 reports of criminal activity at the Rodeo Bar during the 18 months preceding the shootings, even though the majority of the reports were crimes against property.” The court further stated that foreseeability must be determined in light of all the circumstances rather than by a rigid, mechanical “prior similar” rule. Evidence of lesser crimes against persons and property are both relevant when determining the issue of foreseeability.
iii. First DCA – Evidence of prior crimes, even if they are considered to be lesser crimes, are probative when determining foreseeability. Hardy v. Pier 99 Motor Inn, 664 So.2d 1095 (Fla. 1st DCA, 1995).
Christopher Hardy was a Georgia resident who was visiting Panama City with his sister for spring break. One night as Hardy was returning to the hotel parking lot from his room, he observed an altercation between his friends and a stranger. Hardy witnessed the stranger stab his friend and he fought with the attacker. During the fight, Hardy sustained a serious stab wound and his friend suffered fatal injuries. Hardy brought an action against the hotel alleging negligent security. In his complaint he argued that the attack was foreseeable because “numerous criminal offenses and criminal activities occurred on [Pier 99’s] premises previously.” The trial court granted summary judgment in favor of the defendants because the record did not establish that the defendants had knowledge of any prior similar criminal activity. The plaintiff appealed and in reversing summary judgment for Pier 99 Motor Inn, the appellate court held that prior similar crimes were not the only way to determine foreseeability. It stated that requiring the plaintiff to show that the hotel had knowledge of prior similar violent crimes on the premises was an error of analysis and “it places upon a plaintiff such as Hardy a bar to recovery which does not exist for subsequent victims of violent crimes at Pier 99.” The court held that evidence of prior violent crimes and criminal activity, even if less serious than what occurred to plaintiff, created an issue of foreseeability that would preclude summary judgment.
iv. Fifth DCA – In Foster v. Po Folks, Inc., 674 So.2d 843 (Fla. 5th DCA, 1996), the court sided with the Fourth District when determining what prior crimes were considered probative.
Nancy Foster was injured during a robbery and assault in the parking lot of Po Folks, Inc. In November of 1992, Nancy and a friend stopped for tea at Po Folks, a restaurant in Titusville, Florida. Around 10:00 p.m., the two left the restaurant and walked to their cars in the restaurant’s parking lot. While in the parking lot, a man ran towards them, grabbed their purses, knocked Nancy down, and also took her jewelry. Nancy alleged negligent security against the restaurant. She asserted that the restaurant was in a high crime area and that Po Folks knew or should have known of the dangerous character of the neighborhood and provided more adequate security. Moreover, the premises had been the location of similar criminal assaults before Po Folks had owned it. Nancy argued that these two things alone should have put Po Folks on notice. The trial court entered summary judgment in favor of Po Folks. However, the appellate court reversed the summary judgment entered by the lower court and remanded the case. In its holding, the court said that the restaurant could have reasonably foreseen the criminal attack given evidence of previous incidents on the premises as well as 37 police calls to the restaurant in the previous year.
b. Temporal Proximity
i. Third DCA – Look to crimes within the previous two years. Ameijeiras v. Metro Dade County, 534 So.2d 812 (Fla. 3rd DCA, 1988).
As Geraldo Ameijeiras was jogging on the nature trail at Bird Drive Park, he was shot in an attempted robbery. Because of his injury, he was rendered a paraplegic. The plaintiff brought suit against the county for negligence-in part asserting that because the County had allowed the nature trail to become overgrown, it had facilitated the attack. There was a record of illicit drug dealings and arson attempts in the park that the County had knowledge about. Ameijeiras asserted that this record should have put the County on notice to provide adequate protection. The County moved for summary judgment pointing to the fact that no violent crimes had been reported in the park during the two years preceding the attack on Ameijeiras and the attack was not foreseeable. The trial court ruled in favor of the county and the plaintiff appealed. The appellate court affirmed the trial court’s holding, believing that the robbery was not foreseeable as a matter of law. A landowner has a duty to protect an invitee on his premises from criminal attack when an attack is reasonably foreseeable. That duty arises when there is actual or constructive knowledge of similar criminal acts on the premises. Where the record demonstrated that no violent crimes had been reported in the park within two years prior to the attempted robbery of the plaintiff, the attack on Ameijeiras was unforeseeable.
ii. Fourth DCA – in Prime Hospitality Corp., the court looked beyond the two year limitation of the Third DCA, but there was no distinct temporal analysis. In City of Delray v. Leitch in 2010, the Fourth District found a three-year boundary when looking to prior occurrences of shootings.
1. Prime Hospitality Corp. v. Simms, 700 So.2d 167 (Fla. 4th DCA, 1997).
Gaylene Simms was visiting the United States and was staying in the Wellesley Inn-owned by the defendant-alone. Simms’ room was in a mini-corridor located off the main corridor on her floor. After returning home from a shopping trip in the evening, she saw a man standing in the mini-corridor to her room. She walked past what she described as a clean, neatly dressed man in the hall. When she approached her room, she looked back to see if he was walking away. When she turned, she saw the man pointing a gun at her. He forced her into her hotel room, robbed her, and then raped her. Simms brought a premises liability suit against the hotel and the trial court entered a jury verdict for her. The court considered 56 crimes that had occurred on the premises in the previous two-and-a-half years to be probative.
2. Leitch v. City of Delray, 41 So.3d 411 (Fla. 4th DCA, 2010).
In 2006, Heather Leitch was hit by a stray bullet on New Year’s Eve in downtown Delray Beach. When the bullet hit her, Leitch was sitting in the outdoor section of a restaurant during the family-friendly event organized and run by the city. It was believed that the bullet was fired from somewhere outside the event. Leitch sued the City of Delray Beach for its negligence for failing to warn of stray bullets. Although the jury returned a favorable verdict for Leitch, the trial judge granted the city’s motion for directed verdict on the issue of whether the city had a duty. Leitch appealed this directed verdict, and the appellate court affirmed the trial court’s ruling. It held that although there was evidence that in 1998 and 2003 stray bullets had struck individuals in the city, these prior accidental shootings were “too remote” and “too infrequent” to render the stray bullet foreseeable. Due to a stray bullet was not reasonably foreseeable, the city did not owe a duty to Leitch to warn her of stray bullets.
• iii. First DCA – Look to crimes within a two-year period. Harrison v. Housing Resources Management, Inc., 588 So.2d 64 (Fla. 1st DCA, 1991).
In Harrison, the plaintiff, L. Harrison and her 16 year old daughter had recently moved into a 160-unit apartment complex operated by the appellee. On the morning of August 27, 1988, while it was still dark, the plaintiff was awoken in her sleep, threatened with a knife, tied to her bed, and sexually assaulted by an unknown assailant. Upon hearing her mother’s panic, Harrison’s daughter found her mother in hysterics after the attack and called the police. Soon thereafter, Harrison filed a negligent security action against the defendant. Harrison alleged that the management company breached its duty of care when it failed to warn tenants of criminal activity on the premises and failed to implement adequate security measures. Judgment was entered on a jury verdict finding the apartment management 75 percent negligent and Harrison 25 percent comparatively negligent and the plaintiffs appealed, seeking a new trial on the damages issue. Interestingly, the appellate court remanded for the issue of damages as well as the issue of liability. It found that the trial court erred in excluding evidence from police incident reports of crimes that occurred in the two years prior to the attack on the plaintiff. Citing Paterson v. Deeb, 472 So.2d 1210 (Fla. 1st DCA, 1985), the court reiterated that “unquestionably, allegations that prior criminal acts had occurred in the vicinity is pertinent to determining foreseeability, and police records of reported crimes in the geographical area are usually competent evidence on this issue.”
iv. Fifth DCA – in Foster v. Po Folks, Inc., the court allowed the jury to consider crimes that had happened two years before the incident in their lenient foreseeability test.
c. Geographic Proximity
i. Third DCA – in Lomillo v. Howard Johnsons Co., the court held that off-premises incidents were probative so long as they did not occur “substantial distances away.” This would seem to indicate that crimes occurring in the immediate vicinity would lend themselves to foreseeability.
1. Lomillo v. Howard Johnsons Co., 471 So.2d 1296 (Fla. 3rd DCA, 1985).
This case involved an action for negligence arising from a robbery on the premises of the defendant’s restaurant. The trial court entered summary judgment for the defendant holding that the robbery was not foreseeable and the plaintiff appealed. The appellate court reversed the trial court and found that the record contained a substantial history of crimes in an adjacent motel as well as in the immediate vicinity of the restaurant. The court held that as long as crimes were not committed “substantial distances away from the premises”, it was a question of fact for the jury as to whether crimes affecting the “surrounding and immediate” area of the restaurant were foreseeable.
ii. Fourth DCA – in Odice v. Pearson, the court held that a plaintiff must have the opportunity to establish the type of neighborhood where the incident took place-you cannot isolate incidents to the property and look at foreseeability in a vacuum. In Odice, the court found no geographic boundary, but see Larochelle v. Water & Way Ltd., where the court found the landlord may have been on notice for dangerous crimes committed within four to twelve blocks of the apartment complex.
1. Odice v. Pearson, 549 So.2d 705 (Fla. 4th DCA, 1989).
After purchasing food at Pearsons Barbeque Restaurant, Michael Odice was stabbed by an unknown third party in the parking lot. Odice then brought an action against the owners alleging negligent security. At the trial level, the court ruled in favor of the defendant, holding that the attack by a third-party was not foreseeable. In his ruling, the trial judge had excluded any reference to police reports concerning prior crimes that were committed off of the restaurant’s property. The appellate court however, believed the trial court committed reversible error by limiting the issue of foreseeability to crimes occurring on the immediate property. The court believed that “whether evidence of prior crimes should be admitted to establish foreseeability of criminal activity is a question of relevancy to be determined on a case by case basis.” The court held that you cannot isolate the property where the incident took place and look at foreseeability in a vacuum. “[T]he plaintiff must be given the opportunity to establish the type of neighborhood where the incident took place.”
2. LaRochelle v. Water & Way Ltd., 589 So.2d 976 (Fla. 4th DCA, 1991).
This case reversed and remanded a Palm Beach County Circuit Court judgment in favor of a landlord on an action for negligent security. In this case, Paulette LaRochelle sued her landlord where she had been victim to sexual battery in her apartment. LaRochelle alleged that a dangerous condition existed in the neighborhood and that the landlord should have been on notice of the danger through a record of other crimes committed in a four-to-twelve block radius. The appellate court agreed with LaRochelle and in reversing and remanding, the District Court believed that incidents of crimes committed in a four-to-twelve block radius may be considered probative in determining foreseeability.
iii. First DCA – In this case, the First District rejected evidence of prior crimes in the vicinity and required a showing of similar crimes at the apartment complex. Menendez v. Palms West Condominium Association, Inc., 736 So.2d 58 (Fla. 1st DCA, 1999).
In 1994, Julio Menendez, Jr. and several of his friends signed a lease with the Palms West Condominium Association to lease an apartment in Tallahassee. Menendez and his roommates moved into apartment 160 of the Palms West. On April 18, 1995, Menendez heard a knock at the front door of the apartment, and because there was no viewing device to see who was outside, Menendez opened the door. After Menendez opened the door, he was shot in the head. Due to the gunshot wound, Menendez suffered severe and permanent brain damage. The plaintiff and his parents then filed a negligent security action against the Palms West and its owners. The court discussed that to impose a duty on the defendants it must be shown that, “the landlord had actual or constructive knowledge of prior similar acts committed on invitees on the premises.” The court rejected the plaintiff’s argument that the generally high crime rate in the area should have served as notice to the defendants.
iv. Fifth DCA – The Fifth District law is ambiguous as to the interplay between reasonable foreseeability and geographic proximity of prior crimes, but given the lenient foreseeability tests inFoster v. Po Folks, Inc., it is likely that incidents in the general vicinity would be considered probative.
V. THE ELEVENTH CIRCUIT’S VIEWPOINT
When reviewing federal premises liability actions, the Eleventh Circuit has acknowledged the split in authority that exists between the district courts in Florida. Banosmoreno v. Walgreen Co., 299 Fed.Appx. 912, 2008 WL 4823975 (C.A. 11 (Fla.), is one such example of this. In Banosmoreno, the plaintiff was attacked by a known assailant inside of a Walgreens store. The plaintiff attempted to argue that Walgreens was negligent in failing to protect him while at the store. It was further asserted that Walgreens knew or should have known of a distinct danger from third-party crime based on police offense incident reports for the crime grid encompassing the Homestead store and the immediate area. During its determination of whether the attack was foreseeable, the court noticed the apparent split on authority between the district courts regarding the role of prior similar crimes. In a footnote, the court said “it is unclear under Florida law whether the plaintiff must present evidence of similar criminal conduct at, or in the vicinity of, the premises in order to establish foreseeability.” Finding that they could resolve the case without determining this point of law, the court went no further in this discussion. Rather, it held that because this was a targeted, personal dispute in plain view of witnesses, it was not foreseeable.
VI. COMING TO A CONSENSUS – WHAT SHOULD THE LAW BE?
Overall, when determining the probative value of similar crimes for predicting foreseeability, it seems as though the Florida district courts lean towards a lenient test that allows evidence of dissimilar crimes to weigh in on foreseeability of the crime at issue. The clear outlier in this instance is the Third District, where evidence of prior similar crimes is a necessary predicate to foreseeability. The geographic area test shows different results. In this test, most all of the District Courts look to crimes in the immediate vicinity when determining their weight in foreseeability. In this instance, the outlier is the First District that requires a strict geography test where prior incidents must occur on the premises in question. When looking at how temporal proximity of crimes evidences foreseeability, the Third and First District Courts look to incidents that occurred within the previous two-year time period. The Fourth District is willing to look beyond a two year time-period, but has seemingly drawn the line at approximately three years. However, discovery of criminal incidents and admissibility depends on a fact specific, case-by-case approach. The Fifth district takes a very lenient approach whereby the temporal test is determined in light of the relevant circumstances of the case.
The obviously fragmented state of the law concerning negligent security between the Florida district courts makes it increasingly likely that the issue will be taken up by the Florida Supreme Court in the future. Given the particular intricacies and the fact-specific nature of negligent security actions, it seems the Fourth District’s totality-of-the-circumstances approach to defining foreseeability in negligent security cases may serve as the guidepost for any converging decision by the Florida Supreme Court.
b. Florida’s Fourth District View.
The Fourth District declined to follow the “prior similar crimes” requirement of some of the other Districts. Instead, the Fourth District opted for a “totality-of-the-circumstances” approach where foreseeability is determined in light of all the circumstances. When determining the temporal proximity of previous crimes, it seems that the Fourth District permits admissibility of crimes occurring for at least a three-year period prior to the subject incident. Lastly, when determining whether the geographic proximity of prior crimes renders them probative to determining foreseeability, the Fourth District has said that it will consider the neighborhood where the incident took place. Prior crimes occurring in a four to twelve block radius around the premises may put the landowner on notice.
c. Optimal Foreseeability Factors:
i. Types of Crime – Predicate Crimes vs. Non-predicate Crimes.
A flexible, totality-of-the-circumstances approach is the view taken by the majority of the District Courts when determining foreseeability of prior similar crimes. The relevance of evidence of prior similar crime as a predictor of violent crime should be a matter of weight that a jury can consider when evaluating the totality-of-the-circumstances or actual notice of criminal activity to the landowner/landlord. However, the courts should distinguish between predicate and non-predicate crimes. Predicate crimes can be predictive of the crime in question. For example, batteries and assaults are far more predictive of a strong-armed robbery than a petty theft or noise violation which, on the other hand, is not a likely predicate to strong-armed robbery.
ii. Temporal Proximity
The general three year limit dictated by the Fourth District would adequately balance a plaintiff’s interest in being allowed to establish their case in light of the relevant circumstances, but at the same time provide some protection to a defendant by shielding them from liability where the temporal relationship to the past event is too tenuous and not relevant. The courts may allow discovery of crimes that occurred more than three years prior to the incident described in the Complaint. However, relevancy and admissibility will be determined on a case-by-case basis.
iii. Geographic Proximity
An extension of the totality-of-the-circumstances approach to the geographic proximity requirement would help plaintiffs prove foreseeability in negligent security actions. However, the relevance of prior incidents within a particular geographic proximity should be largely subject to a fact-specific, case-by-case analysis. Differences in population and neighborhood density are relevant considerations when determining foreseeability.
VII. FLORIDA STATUTORY PRESUMPTION AGAINST NEGLIGENCE AND THE CONVENIENCE BUSINESS SECURITY ACT.
According to Fla. Stat. §768.0705, owners or operators of a convenience store that are in substantial compliance with the security measures listed in Fla. Stat. §812.173 and Fla. Stat. §812.174 gain a presumption against liability in connection with third-party criminal acts on the premises. This statute was enacted in 1999 as part of the 1999 Tort Reform Act and its effect is an important consideration for any convenience business operator or owner.
The legislature’s purpose in the “Convenience Business Security Act” was to protect customers and employees of late-night convenience stores and to prevent violent crimes. Fla. Stat. §812.172. A “convenience business” as defined by Florida law is “any place of business that is primarily engaged in the retail sale of groceries, or both groceries and gasoline, and that is open for business at any time between the hours of 11 p.m. and 5 a.m.” This statute does not include 1) restaurants, 2) businesses that always maintain five employees between the hours of 11 p.m. and 5 a.m., and 3) businesses that have at least 10,000 square feet of retail space. Fla. Stat. §812.171.
According to the Convenience Business Security Act, every convenience business shall be equipped with the following safety devices and standards:
- A security camera system capable of recording and retrieving an image to assist in offender identification and apprehension.
- A drop safe or cash management device for restricted access to cash receipts.
- A lighted parking lot illuminated at an intensity of at least 2 foot-candles per square foot at 18 inches above the surface.
- A conspicuous notice at the entrance which states that the cash register contains $50 or less.
- Window signage that allows a clear and unobstructed view from outside the building and in a normal line of sight of the cash register and sales transaction area.
- Height markers at the entrance of the convenience business which display height measures.
- A cash management policy to limit the cash on hand at all times after 11 p.m.
Additionally, a convenience business “shall not” have window tinting that reduces exterior or interior view in a normal line of sight.
Every convenience business shall be equipped with a silent alarm to law enforcement or a private security agency, unless exempted by the Attorney General.
If a murder, robbery, sexual battery, aggravated assault, aggravated battery, kidnapping, or false imprisonment occurs or has occurred at a convenience business since July 1, 1989 and arises out of the operation of the convenience business, that convenience business shall implement at least one of the following security measures:
- Provide at least two employees on the premises at all times after 11 p.m. and before 5 a.m.;
- Install for use by employees at all times after 11 p.m. and before 5 a.m. a secured safety enclosure of transparent polycarbonate or other material that meets at least one of the following minimum standards:
- American Society for Testing and Materials Standard D3935 (classification PC110 B 3 0900700) and that has a thickness of at least 0.375 inches an has an impact strength of at least 200 foot pounds; or
- Underwriters Laboratory Standard UL 752 for medium power small arms (level one), Bullet Resisting Equipment.
- Provide a security guard on the premises at all times after 11 p.m. and before 5 a.m.;
- Lock the business premises throughout the hours of 11 p.m. and 5 a.m., and only transact business through an indirect pass-through trough, trapdoor, or window; or
- Close the business at all times after 11 p.m. and before 5 a.m.
Additionally, a convenience business shall provide proper robbery deterrence and safety training by an Attorney General approved curriculum to its retail employees within 60 days of their employment.
VIII. DEFENDING A NEGLIGENT SECURITY CASE
There are two elements a plaintiff must satisfy in order to show a prima facie case of negligent security: 1) that they were an invitee or invited licensee and 2) that the crime committed against them was foreseeable. The plaintiff’s status is important when defending a negligent security case because it is their status that determines the duty of care owed to them. The duty of care to a public invitee, business invitee, or invited licensee is high, as these classes are favored and protected under the common law. Conversely, the duty of care owed to a trespasser or an uninvited licensee is no more than to protect from willful or wanton injury.
a. Plaintiff’s Status on the Premises
i. Public Invitee – “a person who is invited to enter or remain on land as a member of the public for purpose for which land is held open to public.”
ii. Business Invitee – “one who goes on another’s premises at express or implied invitation of owner or occupant for benefit of invitor or for mutual benefit and advantage of both invitor and invitee.”
iii. Invited Licensee – “a social guest.”
iv. Uninvited Licensee – “a person who chooses to come upon the premises solely for his or her own convenience without invitation either expressed or reasonably implied under the circumstances.”
v. Trespasser – “one who enters intentionally and without consent or privilege enters another’s property.”
b. Duties Owed – duties owed in negligent security cases depend on the status of the Plaintiff:
i. Public Invitee, Business Invitee, & Invited Licensee:
1. “Correct or warn of dangers that the owner knows or should know by the use of reasonable care and which the visitor cannot or should not know of by the use of reasonable care. To maintain the premises in a reasonably safe condition, including guarding against foreseeable third party crimes.”
ii. Uninvited Licensee, Trespasser:
1. “To refrain from willful or wanton injury. No duty to guard against third party crimes.”
c. Determine the Plaintiff’s Status on the Premises:
Determining the status of the Plaintiff on the premises at the time of the injury can be crucial to defending the negligent security case. As shown previously, a landowner owes a significantly lower duty of care to an uninvited licensee as opposed to a business invitee. In Stewart v. Texas Co., 67 So.2d 653, 654 (Fla. 1953), the Florida Supreme Court denied relief to a plaintiff who was injured through a slip-and-fall while at the defendant’s gas station. The plaintiff’s sole purpose for being there was to get change for a ten-dollar bill. The plaintiff’s sole purpose was “for their own convenience or pleasure” in exchanging the bill. The court held them to the classification of an “uninvited licensee”. See Iber v. R.P.A. International Corporation, 585 So.2d 367 (3d DCA 1991) (person seeking to use phone in office building uninvited licensee).
d. Case Investigation
- Get the crime grids for the property and surrounding neighborhood.
- Review calls for service and police reports for the physical address of the subject property.
- Remember, past incidents on or near a property can predict future criminal activity.
- Gather internal incident reports documenting criminal acts.
- Determine whether corporate security made recommendations.
- Check for communications with local police agencies regarding security concerns.
- Confirm the employees completed security training.
- Examine maintenance records for security equipment. Ex. Video cameras, locks, alarms, etc. Review lighting standards and facility maintenance records.
- Interview police officers.
- Preserve records / evidence.
e. Discovery Requests/Defense Objections
The Plaintiff will frequently serve a request for production seeking discovery police reports and documents memorializing criminal incidents occurring during the five-year period preceding the incident described in the complaint. The defense will object on relevancy grounds. However, many courts will require production of records documenting crimes that occurred during the three-year period before the date of the crime in the complaint. The extent of production depends on the circumstances of each specific case.
IX. PROXIMATE CAUSATION – NECESSARY TO ESTABLISHING LIABILITY – WAS THE ACT OR OMISSION BY THE DEFENDANT A PROXIMATE CAUSE OF THE INJURY TO THE PLAINTIFF?
Even if the defendant in a negligent security case has breached a duty of care to the plaintiff, it is important to analyze whether the act or omission by the defendant was the proximate cause of the plaintiff’s injuries. If the court finds it was not the proximate cause, liability on the part of the defendant may not follow. The Florida Supreme Court has offered a definition of “proximate cause”. It states that: “harm is ‘proximate’ in a legal sense if prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omission in question…human experience teaches that the same harm can be expected to recur if the same act or omission is repeated in a similar context.” McCain v. Florida Power Corp., 593 So.2d 500, 503-4 (Fla. 1992). There are instances where a court could find that it would not be equitable to hold the defendant responsible for a breach of duty that led to an unforeseeable consequence. Palma v. BP Products North America, Inc., 594 F.Supp.2d 1306 (S.D. Fla. 2009), is an example of such a situation.
In November of 2005, Jacqueline Palma drove her vehicle into a gas station owned and operated by BP. Once at a gas pump, Mr. Palma went into the convenience store to pre-pay for the gas and left his wife and nephew sitting in the car. While Mr. Palma was paying for the gas, a driver of a Nissan Xterra was attempting to siphon gas from a pump. The driver of the Xterra moved his SUV to another pump, after which the Xterra was facing Mr. Palma’s vehicle. As he was pumping gas, the driver of the Xterra approached Mr. Palma and requested that Mr. Palma give him access to the pump. Mr. Palma politely refused and explained that he would give him access to the pump once he was finished. After filling the tank of his car, Mr. Palma returned inside the convenience store to retrieve his change from his pre-payment. When Mr. Palma was inside the store, the driver of the Xterra had again moved his car and struck Mr. Palma’s vehicle in the process. Ms. Palma, having felt the collision, exited the car and confronted the driver of the Xterra. The Xterra driver refused to accept responsibility and became verbally abusive. When Mr. Palma came outside, his wife informed him of what had transpired. He approached the driver of the Xterra and again asked him to observe the damage. When the Xterra driver refused, Mr. Palma told the driver he would have to call the police. Thereafter, the driver and two of his friends physically attacked Mr. Palma and then fled the scene.
In their complaint, the Palmas argued that BP was negligent in failing to properly train personnel, failing to provide personnel with adequate visibility of the premises, failing to warn invitees of potential dangers of third parties, and failing to install a high profile security camera to act as a deterrent. Despite these arguments, the court believed that the attack could not “be said to be a natural, direct, and continuous sequence” between the alleged negligence of BP and the injuries to Mr. Palma. “Working backwards in time from the injury, the attack was not a natural and probable result of the alleged negligence.” The court accepted that a zone of risk existed around the BP station because of a number of high-risk property and violent crimes in the area. However, “an injury caused by a freakish and improbable chain of events would not be ‘proximate’ precisely because it is unquestionable unforeseeable, even where the injury may have arisen from a zone of risk.” (quoting McCain, 593 So.2d at 503.)
Personal safety is important to everyone. Negligent security cases involve the concepts of foreseeability and preventability. Business operators and landowners cannot be expected to serve as insurers for the general public. However, it is important to understand the character of your neighborhood and the security risks your clients or customers could face. The implementation of an adequate security plan to meet these reasonable dangers is an efficient way to prevent foreseeable crime.