Defending Negligent Security Cases In Florida

Crime happens, and statistics show that this trend is on the rise along with the litigation associated with such crimes. For example, based on banking surveys it is estimated that ATM crimes occur at a rate of one per 3.5 million transactions. Although this is seemingly not a high volume of crime, it is likely that this estimate is somewhat understated as not all incidents are reported and the amount of ATM machines (and transactions) is on the rise.1 Additionally, a significant percentage of crimes are armed robberies, which result in physical harm to the victim.

Businesses must take a proactive approach, both in providing adequate security and in educating their customers. The result should be increased safety and reduced litigation.

Because of the variety of businesses, the unique characteristics of each business, and the crime considerations at each location, no single formula can guarantee customer security or eliminate potential litigation resulting from criminal attacks. However, criminals typically select their venue based on environmental conditions that enhance their opportunity to successfully complete the crime. It is necessary to consider the various factors concerning each business that may affect the probability of a criminal attack. Criminals may also focus on targets that appear to be unaware or unprepared for such an attack. Therefore, educating customers may also reduce the probability of a criminal attack.

The Legal Standard in Negligent Security Cases

The plaintiff's burden of proof is to show: (1) the existence of a legal duty owed by the business to conform to a certain standard of care, (2) a breach of that duty, (3) which was the proximate cause of the resulting injury, and (4) actual damages. Kayfetz v. A.M. Best Roofing, Inc., 832 So. 2d 784 (Fla. 3rd DCA 2002). Once an attack evolves into litigation, the legal battle primarily involves two issues: (1) whether the business owed any duty of care to the victim to prevent this criminal attack, and if so, (2) whether the business fulfilled this legal duty by providing adequate security at the site.

A customer is considered a "business invitee." Generally, a property owner/lessee owes a legal duty to such persons to maintain its premises in a "reasonably safe" condition. This extends to taking reasonable actions to reduce, minimize or eliminate foreseeable risks before they manifest themselves. Markowitz v. Helen Homes of Kendall Corp., 826 So. 2d 256 (Fla. 2002). The main focus in deciding whether any legal duty existed relating to a criminal attack is the determination of whether it was "reasonably foreseeable" to the business that criminal activity similar to the subject attack would occur at this location. If the criminal attack was not "reasonably foreseeable," then the business had no legal duty to the victim to provide any security to reduce, minimize or eliminate the "unforeseeable" criminal event (such as a targeted attack as a result of a personal vendetta).

How Courts Determine Whether a Particular Crime Is a Foreseeable Event

The mere fact that thousands of criminal attacks occur nationwide is not sufficient proof that future attacks are foreseeable at a particular business so as to give rise to a legal duty on the part of the business to protect its patrons from such attacks. Popp v. Cash Station, Inc., 613 N.E. 2d 1150 (Ill. App. 1st 1992). Courts have used one of three different tests to determine the foreseeability of criminal acts: (1) specific harm; (2) prior similar incidents; and (3) totality of the circumstances.

Specific Harm Test

The specific harm test is limited to circumstances where the business is aware of the probability of specific harm to the customer. For example, ATMs are unmanned, a bank could never be aware of the specific imminent danger to a specific customer. Therefore, very few courts have applied this test in ATM cases, and it is likely that these few courts will adopt one of the other two tests in the near future.2 However, where apartment complexes are aware of a specific crime and assailant, plaintiffs may argue that such a crime by that very same assailant was foreseeable.

Prior Similar Incidents Test

The prior similar incidents test focuses on the existence of similar criminal attacks at the business prior to the subject incident. In a situation where there is no history of any similar incidents in the geographic area of the business, courts have found that as a matter of law no legal duty exists to prevent an "unforeseeable criminal attack." If there is a history of at least some criminal activity at the business or in the immediate vicinity, courts typically address the following issues: (a) how "similar" do the prior incident and the subject event need to be for consideration; (b) how expansive is the geographic area in which a court will impute constructive knowledge from prior incidents; (c) the frequency and proximity in time of any prior, "similar" acts; and (d) the publicity surrounding the previous crimes. Courts have not been uniform in analysing these issues.3

As for the first issue, "similarity," courts usually require a fairly high degree of similarity in order to find that a business owed a duty to protect against a particular criminal attack. For example, prior incidents of vandalism on the property do not make an armed robbery or murder foreseeable. As a general rule, the prior incident must be sufficiently similar so that it can be said that the business was aware of a history of assaults and robberies in the relevant geographic area determined by the court.

Courts used to require that all prior incidents had to occur at the exact location where the plaintiff was injured before the event could be considered in determining the foreseeability of the subject criminal attack. See Taylor v...

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