Protecting Licensees Against Claims Of Negligent Security

Introduction One party generally is not responsible for the intentional torts or criminal acts of another. However, the rule is not absolute. Proprietors must maintain their premises in a reasonably safe condition and make "every reasonable effort" to maintain order among those who patronize their business. Borda v. East Coast Entertainment, 950 So. 2d 488 (Fla. 4th DCA 2007). Thus, establishments have a duty to exercise reasonable care to protect their patrons against reasonably foreseeable criminal conduct.

This exception poses a special danger peculiar to Florida licensees. Florida is a "comparative fault state;" courts generally apportion damages according to each party's percentage of fault. However, in cases where one patron injures another during or after a reasonably foreseeable criminal act, the owner of the premises may be held legally responsible for a claimant's damages. Merrill Crossings Associates v. McDonald, 705 So. 2d 560 (Fla. 1997). In this article, we explore the basic principles underlying claims for negligent security and the different options available to licensees to be proactive and protect their businesses.

General Liability for Negligence Security

Licensees may be held liable for failing to exercise reasonable care to protect their patrons against reasonably foreseeable criminal conduct. Foresee ability may be established by proving a proprietor had actual or constructive knowledge of (1) a particular assailant's inclination toward violence; or (2) the "dangerous condition" of the premises. Hall v. Billy Jack's, Inc., 458 So. 2d 760 (Fla. 1984). A plaintiff may prove that a "dangerous condition" existed either by showing that there was a "likelihood" of disorderly conduct that might endanger the safety of patrons or that security staffing was "inadequate." Key factors include local crime rates, prior incidents (including calls to law enforcement), the crime's location (whether it occurred on the premises, next to the premises, or close to the premises), the type of crime, the specific circumstances of the crime, and whether security measures could have deterred the crime.

In the case of Allen v. Babrab, 438 So. 2d 356 (Fla. 1983), an intoxicated male patron assaulted a woman in an club's parking lot after she rebuffed his advances. The establishment had a history of fighting and disorderly conduct by its patrons. Thus, in the past the club had employed security personnel to maintain security on their premises...