Inadequate Security

Victims of violent crime may seek justice against an attacker in criminal court, in which prosecutors will seek penalties such as jail, prison or other sanctions. In some cases, courts may impose restitution payments to victims, but that’s not standard, nor is it the primary purpose of the criminal justice system.

In some situations, where the attack was perpetuated under circumstances where a property owner failed to provide adequate security, victims may file a Florida premises liability lawsuit asserting negligence due to inadequate security.

At Associates and Bruce L. Scheiner, Attorneys for the Injured, our personal injury attorneys understand that while property owners may not have intended to precipitate violence against patrons or guests, failure to enact satisfactory measures of security sometimes make it all but inevitable.

Some examples of inadequate security by property owners include:

• Insufficient lighting;
• Broken or weak locks;
• Absent or poorly-trained security guards;
• Poor management policies;
• Failure to restrict access to the property;
• Lack of alarms or security cameras;
• Failure to run criminal background checks on employees or tenants.

Success in a premises liability claim alleging inadequate security often hinges on the element of foreseeability.

Most often, inadequate security cases begin with a criminal assault on commercial property. Common sites include:

• Malls;
• Hotels;
• Office buildings;
• Parking lots;
• ATMs;
• College dormitories.

Laws regarding the duties owed by property owners or lessees may differ depending on the type of place and the status of the injured person, but it is generally accepted that those who own or possess property have a duty to protect those on site from unreasonable danger. Although tort law usually doesn’t allow liability of one party for the negligent or intentional acts of another, cases of inadequate security are the exception. That’s because the assertion is that no harm would have been caused to the plaintiff by the third party but for the property owner’s negligence in failing to protect.

Establishing this duty requires evidence that the property owner or possessor had actual or constructive knowledge of the danger. The principle of foreseeability asks whether the property owner knew or should have known a crime was likely to occur on-site.

The Florida Supreme Court held in the 1984 case of Hall v. Billy Jack’s Inc. that this kind of dangerous condition can be indicated if it’s proven a property owner, in their experience, knows of a likelihood of criminal acts by a third party.

When determining whether the risk was foreseeable, Florida courts will take into account:

• Evidence of similar crimes in the area;
• How recent those crimes were;
• The geographic proximity of those acts.

It should be noted, however, that appellate courts have disagreed on how exactly to weigh these elements.

For example, Florida’s Third District Court of Appeal has held that evidence of similar crimes on the premises is needed to prove foreseeability and therefore negligence in providing adequate security. It was based on the fact that the 3rd DCA affirmed summary judgments in favor of defendants in Metro Dade County v. Ivanov in 1997 and Prieto v. Miami-Dade County in 2003. In the Prieto case, a man sued the Metrorail station for negligent security after he was criminally assaulted there. However, he had no record of prior attacks at the station. That court has, however, held this requirement doesn’t apply in actions arising from landlord-tenant relationships.

Florida’s Fourth District Court of Appeal, meanwhile, ruled in the 1991 case of Holiday Inns, Inc. v. Shelburne that proof of prior similar crimes on-site isn’t required. In Shelburne, two people were seriously injured and another killed in a shooting outside a bar following a dispute among intoxicated patrons who were exiting at closing time. Plaintiffs provided evidence of 58 prior criminal complaints on-site, but most of those involved property crimes. Plaintiff prevailed in court, and on appeal, defendant argued this evidence shouldn’t have been allowed before a jury because the crimes weren’t “similar.” The appellate court affirmed, holding that such evidence may be relevant to determining foreseeability, a conclusion weighed in light of all circumstances.

Similarly, Florida’s First District Court of Appeal has held evidence of all prior crimes – even if they are considered lesser – are still valuable in determining whether the property owner should have known crimes were likely to occur on site.

If a plaintiff in Florida prevails in a lawsuit asserting injury due to inadequate security stemming from a criminal act, he or she can most likely expect to collect the entire apportionment of damages.

That’s because F.S. §76881(4)(b) excepts from the state’s joint and several liability law any actions that are based on intentional torts (or criminal acts). The principle of joint and several liability allows a single defendant in a negligence case to be held responsible to pay all damages. While that principle had fallen largely out of favor with Florida courts, the Legislature passed an updated comparative fault law in 2006 effectively abolishing this principle. Now, any defendant in a tort can only be required to compensate the victim for his or her share of the fault.

However, there are a few exceptions, and negligence actions that arise from an intentional injury are among those.

The Florida Supreme Court had already set the stage for that exception in its 1997 decision in Merrill Crossings Associates v. McDonald. There, justices affirmed the trial court’s decision to omit the criminal attacker’s name on the verdict form in a premises liability case against a grocery store. The plaintiff alleged inadequate security, and the identity of the assailant was unknown. Defendant argued it only shared part of the blame, and the unknown attacker should be listed as a non-party defendant. The state supreme court, in upholding the trial court’s ruling, effectively limited defendants’ abilities to transfer a portion of the damages to those who intentionally harm another on their property.

If you or a loved one has suffered injury in Southwest Florida, contact Associates and Bruce L. Scheiner, Attorneys for the Injured, for a free and confidential consultation to discuss your rights. There are no fees or costs unless we win. Offices in Fort Myers, Cape Coral, Naples and Port Charlotte.