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Negligent Security – When is a landowner considered responsible for criminal acts on the property?

Michael Balducci | February 5, 2021

One of the more popular claims we have seen in recent years is for negligent security. Why? Just watch the 11:00 p.m. news! Unfortunately, the world is a dangerous place, and things like shootings, muggings, and assaults happen. The main reason these claims are popular is that the resulting injuries are often quite severe and can include psychological residual. These events often occur in so-called “high crime” areas. Residential landlords and commercial facility owners need to be wary of the possible liability, or at least claims of liability for occurrences that happen on, or in, the vicinity of their premises.

Like any claim of negligence, the plaintiff must prove:
(1) the defendant owed a legal duty to confirm to a standard of care to protect the plaintiff from reasonably foreseeable harm;
(2) a breach of that duty;
(3) a sufficient causal connection between the breach and the claimed injury; and
(4) the plaintiff suffered actual harm.
 
See Williams v. Davis, 974 So. 2d 1052, 1056 (Fla. 2007).

Both duty and foreseeability are threshold questions and a plaintiff’s failure to produce sufficient proof on any of the required legal elements will foreclose the entire claim. See Brown v. Motel 6 Operating, L.P., Ltd., 989 So. 2d 658 (Fla. 4th DCA 2008).

The general legal duty of a property owner, such as a landlord or business owner, to an invitee on the premises “is to use ordinary care to keep the premises in a reasonably safe condition and protect them from harm due to reasonably foreseeable risks of injury.” See Satchwell v. LaQuinta Motor Inns, Inc., 532 So. 2d 1348, 1349 (Fla. 1st DCA 1988). However, a property owner is not an insurer of an invitee’s safety and ordinarily has no duty to guard or warn again the acts of third persons, unless those harmful or criminal acts were “reasonably foreseeable.” See Litch v. City of Delray Beach, 41 So. 3d 411, 412 (Fla. 4th DCA 2010). Some security experts emphasize the “foreseeability” issue and note there can be safe places within dangerous areas, and dangerous places within safe areas (for example, a convenience store). It is important to focus on the exact location of the event and research prior history of crimes/incidents.

Even where a criminal attack may otherwise be reasonably foreseeable, any legal duty to take “reasonable precautionary measures” does not extend to preventing all crime or to guard against a targeted or sudden attack, even in a high crime area. Certain cases often come down to whether or not the event involved a “sudden and unforeseen attack.” The courts will often find sudden, bizarre and unusual types of events to not be foreseeable - even in high crime areas. See Reichenbach v. Days Inn of America, 401 So. 2d 1366, 1368-69 (Fla. 5th DCA 1981) (innkeepers should not be legally required to do that which organized society cannot do as crimes usually occur suddenly and without warning; there are severe limitations on the capability of anyone to prevent an assault, especially since people intent on making a criminal assault have the advantage of surprise rarely giving the victim, the police, or an innkeeper an opportunity to prevent an assault). Thus, a property owner’s legal duty should be co-extensive with its abilities to meet that duty.

Plaintiff counsel will often rely on crime grids obtained from a local police department to show the alleged extent of crime in a particular area to inflame a jury and sell them on the idea that the property owner should have taken extraordinary steps to protect the property. However, a good defense expert will present testimony showing that crime in the surrounding area may not be relevant to the property in question, including where the history of crime may be quite minimal, if not non-existent. He or she will explain how the surrounding danger in one neighborhood may change completely within even a few blocks, so that it is unfair to cite criminal activity in an adjacent area that does not materially effect the safety of residents who live just blocks away.

It should be noted that a plaintiff must always prove proximate cause in these cases. Even if the security measures are open for question, it may not necessarily suggest they were the cause of the injury to the plaintiff. A sudden, unexpected attack can occur even in the face of very strong security. A showing of causation requires more than a mere possibility that the alleged negligence caused the plaintiff harm. See Mt. Sinai Med. Ctr. Of Greater Miami, Inc. v. Gonzalez, 98 So. 3d 1198, 1204 (Fla. 3d DCA 2012).

While property owners certainly have some protections under the law, it is always important for them to recognize the climate surrounding their property and to take adequate security measures, whether those be locks, alarms, security personnel, video cameras, etc. As to security personnel, it is important that there be well-drafted policies in place and well-trained personnel, which is not always the case. Sometimes a less than alert security guard can reflect very poorly on the property, and a jury could be swayed if devastating injuries were sustained, even though proximate cause remains an issue. As such, property owners, especially commercial ones, must have proper measures in place and should consider retaining security experts to review procedures regularly. While these efforts may not prevent all criminal events - a jury will see the property owner took measures to prevent such events from occurring.

Every case is different, our team is available to help consult on negligent security cases and advise on procedures and precautions.


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