Inadequate Security Litigation in Florida

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1 Inadequate Security Litigation in Florida A SUMMARY OF FLORIDA S PREMISES SECURITY LAW Boa Certified Civil Trial Lawyer 1401 Brickell Avenue, Suite 900 Miami, Florida S. Orange Avenue, Suite 1150 Orlando, FL

2 INADEQUATE SECURITY LITIGATION IN FLORIDA A summary of Florida s premises security law * LEIGHTON LAW, P.A Brickell Avenue, Suite 900 Miami, Florida Sou Orange Avenue, Suite 1150 Orlando, Florida (305) Serious Lawyers for Serious Cases TM Copyright 2009 * Mr. Leighton is e managing partner of Leighton Law, P.A., a trial law firm wi offices in Miami and Orlando. A boa certified trial lawyer, his practice is focused on e representation of severely injured victims, primarily due TM to e failure to maintain reasonable or adequate security at commercial premises, Resort Torts, medical malpractice and consumer product liability. Mr. Leighton is Co-Chairman of e American Association for Juice (formerly Association of Trial Lawyers of America) Inadequate Security Litigation Group, pa Chairman of ATLA s Motor Vehicle, Highway and Premises Liability Section, and a nationally recognized auority on inadequate security litigation. He serves as Chairman of The Academy of Trial Advocacy, a national invitation-only association of e nation s leading catarophic injury trial lawyers. He has been selected as a Florida SuperLawyer, Florida Trend Legal Elite Be Lawyers in Florida and Sou Florida Legal Guide Top Lawyer. He is lied in The Be Lawyers in America. His two volume treatise, Litigating Premises Security Cases (Thomson-We, 2006), is e mo comprehensive national text on handling and trying premises security cases.

3 INTRODUCTION The field of inadequate security litigation has exploded in e la two decades. Considered e "product liability case of e 1990's," premises security cases have increased in number and value. Accoing to a udy by Liability Consultants Inc., e average settlement in a rape security case is $600,000, and e average veict in e same type of case is $1.75 million. The average veict in an assault in a hotel or motel is $254,850, wi 25% coming in at $1 million or more. 1 Florida has been e number ree ate for inadequate security claims (behind Texas and New York but ahead of California). In 1994 Miami was e number one city for overall crime per 1000 residents, ahead of virtually all oer metropolitan areas. Browa county ranked i in e country in crime. This means at crime and inadequate security litigation is a grow indury. In 2008 ere was one violent crime every 4 minutes and 11 seconds in Florida. 2 As we have seen from e many cases at have gone to veict and e cases at have been settled, ere are very significant results at can be obtained in security cases. They tend to result in greater veicts an oer cases of similar injuries but different liability. Alough ere are many complexities inherent in inadequate security litigation, ese cases have at eir heart basic premises liability law. What follows are some of e major cases by subject in e development of inadequate premises security law in Florida. 1 Jury Veict Research, Inc., Florida Department of Law Enforcement atiics,

4 I. DUTY As in all tort cases, a duty mu fir be eablished as a reshold for liability. The nature and extent of at duty will depend on e nature of e premises, e foreseeable criminal activity on and/or near e premises, and e relationship of e parties. A. General duty: A landowner breaches duty to use reasonable care by failing to make diligent searches or inspections at reasonable intervals for dangerous conditions at might be created by invitees or i parties. Boatwright v. Sunlight Foods, 592 So.2d 261 (3d DCA 1992) (non-security case) A landowner has 2 basic duties: reasonable care to maintain premises in reasonably safe condition, and give warning of concealed perils which are or should be known and which are unknown to invitee. Williams v. Madden, 588 So.2d 41 (1 DCA 1991) In fulfilling its duty to maintain its premises in a reasonably safe condition,?a landowner mu conduct inspections appropriate for e premises involved. Yuniter v. A & A Edgewater of Florida, Inc., 707 So.2d 763 (Fla. 2d DCA 1998)(non security case)(queions concerning wheer a proper inspection, if made, would have revealed e risks are issues of fact for jury) A retailer s general anda of care may include an obligation to protect a cuomer from a known ongoing attack. Butala v. Automated Petroleum and Energy Company, 656 So.2d 173 (Fla. 2d DCA 1995) A landlo has a duty to protect an invitee from a criminal attack at is reasonably foreseeable. Ameijeiras v. Metropolitan Dade County, 534 So.2d 812 (Fla. 3d DCA 1988) 3

5 As a matter of law a landlo of an apartment complex is obliged to protect its tenants from reasonably foreseeable criminal conduct. L.K. v. Water's Edge Ass'n, 532 So.2d 1097 (Fla. 3d DCA 1988) Duty of care owed by a landowner to invitee wi respect to protection from criminal acts is dependent upon foreseeability of such acts. Admiral's Port Condominium Ass'n. v. Feldman, 426 So.2d 1054 (Fla. 3d DCA 1983); Acco: Medina v. 187 Street Apartments, 405 So.2d 485 (Fla. 3d DCA 1981) Standa of care in providing security will vary accoing to particular circumances and location [of hotel]. Orlando Executive Park v. P.D.R., 402 So.2d 442 (5 DCA 1981) B. SPECIFIC TYPES OF PREMISES OR CIRCUMSTANCES: (1) Hotel: A hotel had a non-delegable duty to gues to provide a reasonably safe premises, including reasonable protection again i party criminal attacks. U.S. Security Services Corp. v. Ramada Inn, 665 So.2d 268 (Fla. 3 DCA 1996) (landowner can contract out performance of non-delegable duty, but he is ill legally responsible) The law imposes on hotels, apartments, innkeepers, etc. e duty to keep eir buildings and premises in a condition reasonably safe for e use of eir gues. The duty of maintaining safe premises cannot be delegated to anoer. Goldin v. Lipkind, 40 So.2d 539, 541 (Fla. 1950) Hotel owner s actual or conructive knowledge, based on pa experience, of e likelihood of disoerly conduct by i persons in general at may be a safety risk is sufficient to eablish foreseeability. Hay v. Pier 99 Motor Inn, 664 So.2d 1095 (Fla. 1 DCA 1995) 4

6 (2) Rental Car Company: Car rental agencies have a duty to warn renters of foreseeable criminal conduct particularly in light of e superior knowledge of e car rental company. (3) Gas Station: Shurben v. Dollar Rent-A-Car, 676 So.2d 467 (Fla. 3d DCA 1996)(renter was British touri) Self service gas ation anda of care may include duty to protect cuomer from known ongoing attack. Butala v. Automated Petroleum and Energy Co., 656 So.2d 173 (Fla. 2d DCA 1995)(plaintiff attacked by anoer cuomer, who poured gas on him and ignited it) (4) Bars and Nightclubs: Duty may arise on part of bar where ere is chronic, long-anding violence at bar, e management fails to have proper security, and injury ensues. Adelsperger v. Riverboat, Inc., 573 So.2d 80 (Fla. 2d DCA 1990)(police officer injured application of exception to?fireman s rule ) If a bar proprietor knew or should have known of e likelihood of disoerly conduct by i parties which might endanger invitees, foreseeability exis. Allen v. Babrab, Inc., 438 So.2d 356 (Fla. 1983) See also: Stevens v. Jefferson, 436 So.2d 33 (Fla. 1983)(plaintiff need not show at particular assailant s propensity for violence) A bar or saloon, alough not an insurer of a patron s safety, has a duty to?use every reasonable effort to maintain oer among e patrons, employees, and ose who come upon e premises and are likely to produce disoer or cause injury. Prieer v. Grand Aerie of e Fraternal Oer of Eagles, Inc., 688 So.2d 376 (Fla 3d DCA 1997) 5

7 Evidence supported jury veict at due to inadequate security, it was foreseeable at rowdy patrons would cause injury to oers. Hendry v. Zelaya, 841 So.2d 572 (Fla. 3d DCA 2003) See also: Hall v. Billy Jack s, 458 So.2d 760 (Fla. 1983); Holiday Inns, Inc. v. Shelburne, 576 So.2d 322 (Fla. 4 DCA 1991); Smi v. Hooligan s Pub & Oyer Bar, 753 So.2d 596 (Fla. 3d DCA 2000); Daly v. Denny s, Inc., 694 So.2d 775 (Fla. 4 DCA 1997); Crown Liquors of Browa v. Evenrud, 436 So.2d 927 (Fla. 2d DCA 1983). But note is major problem wi cases involving bars and nightclubs: e practitioner mu determine e exience and applicability of any intentional act exclusion or assault and battery exclusion at is present in many liability insurance policies. These policies often exclude any claim based upon an intentional act, criminal act, or assault and battery, regaless of wheer e action brought is based on e negligence of e defendant (direct or vicarious, including negligent hiring and retention). These exclusions have been upheld by courts at have been called upon to review em. See Britamco Underwriters v. Zuma Corp., 576 So.2d 965 (Fla. 5 DCA 1991). See also: Hrynkiw v. Allate, 844 So.2d 739 (Fla 5 DCA 2003)("joint obligation clause")("the insured person should not be allowed to circumvent e intentional act exclusion clause by filing a claim for negligence based on e same underlying intentional act at actually caused e injury..."). These exclusions are becoming more prevalent, including in insurance policies involving oer premises such as apartment complexes. The success insurers have had by inserting such exclusions effectively providing illusory coverage has spawned e proliferation of such exclusions in all types of general liability policies. Under Florida s mandatory liability insurance disclosure atute, Fla. Stat , e full insurance policy should be obtained before any filing to ascertain what coverage is available, wheer ere are any exclusions, and wheer ere are any coverage defenses asserted by e carrier. (5) Schools: At lea rough high school, a school owes a general duty of supervision to udents placed in its care. Rupp v. Bryant, 417 So.2d 658 (Fla. 1982) 6

8 Where a college udent was attending mandatory internship off campus and was attacked, university owed udent a duty. Gross v. Family Services Agency, Inc., 716 So.2d 337 (Fla. 4 DCA 1998) Where a udent at a public school was assaulted, it was held at despite a paucity of prior events at at school, e exience of prior violent and sexual assaults roughout e school syem put e school boa on notice. O'Campo v. School Boa of Dade County, 589 So.2d 323 (Fla. 3d DCA 1991) Where an attack is foreseeable due to actual or conructive knowledge, e landowner has duty to protect invitees. Relyea v. State (Boa of Regents), 385 So.2d 1378 (Fla. 4 DCA 1980) (Florida Atlantic University udents abducted and muered) II. WHO IS LIABLE? Frequently ere are multiple defendants or putative defendants who are or may be liable. See, e.g., Jeffery v. Publix, 650 So.2d 122 (Fla. 3d DCA 1995), which involved culpable conduct on e part of bo e commercial tenant and e owner/manager of a shopping center. The duty to protect oers from injuries resulting from dangerous condition on a premises does not re on legal ownership of e area, but raer on e right to control access by i parties by one in possession and/or control. Bovis v. 7-Eleven, Inc., 505 So.2d 661 (Fla. 5 DCA 1987)(slip and fall case) 7

9 [t]he duty to protect i persons from injuries on e premises res not on legal ownership of e premises, but on e rights of possession, cuody, and control of e premises. Wal-Mart Stores v. McDonald, 676 So.2d 12, 15 (Fla. 1 DCA 1996), approved 705 So.2d 560 (Fla. 1997). A. Landlo vs. Tenant Commercial: Bo a landlo and a tenant can have concurrent duties to provide reasonably safe premises. Wal-Mart Stores v. McDonald, 676 So.2d 12, 16 (Fla. 1 DCA 1996), approved 705 So.2d 560 (Fla. 1997). (lease did not give exclusive control over parking lot to lessee, so even ough lease placed greater share upon tenant, ere was ill evidence at landlo exercised some control over shopping center parking lot) Compare wi: Publix Super Markets v. Jeffery, 650 So.2d 122). See Craig v. Gate Maritime Properties, Inc., 631 So.2d 375 (Fla. 1 DCA 1994)(control assumed is e key factor; bo may have duty) See Schmidt v. Towers Conruction Co., 584 So.2d 630 (Fla. 1 DCA 1991)(developer ill controlled reets and security gates of residential townhouse) B. Owner vs. Lessee: Among e duties owed by a landowner and business proprietor is e duty to gua again subjecting invitees to dangers which might have been reasonably foreseen. Included among ose is a criminal assault by a i party. Levitz v. Burger King, 526 So.2d 1048 (Fla. 3 DCA 1988)(citing Fernandez v. Miami Jai Alai, 386 So.2d 4 [Fla. 3 DCA 1984]). Supermarket not entitled to a directed veict on e duty owed to cuomer assaulted in a common parking lot where extensive evidence exied concerning a hiory of prior similar occurrences in vicinity. Winn-Dixie Stores v. Johoneaux, 395 So.2d 599 (Fla. 3 DCA 1981) 8

10 Alleged knowledge of prior incidents by lessees, operators and owners of a shopping mall gave rise to a duty by all 3 to provide adequate security. Eichenbaum v. Rossland Real Eate, 502 So.2d 1333 (Fla. 4 DCA 1987)(is is from headnote e actual language in case not as clear. Appeal from granting of motion to dismiss) Where exclusive control of e common area res by contract wi e landlo (of a shopping center), e tenant does not have a duty in such areas unless e tenant operates and maintains it. Publix v. Jeffery, 650 So.2d 122 (Fla. 3 DCA 1995) Where by virtue of contractual provision in lease e owner has exclusive control over common areas, and shopping center garage was actually under lessor's exclusive control, department ore wi no activities in garage does not owe shopper duty to gua again crime ere. Federated Dept. Stores v. Doe, 454 So.2d 10 (Fla. 3 DCA 1984) Control is not e sole basis for liability in a premises liability case [slip and fall]; lessee/retailer may have a duty to warn of any dangerous condition in e parking lot if it had actual or conructive knowledge of such a condition. Combs v. Aetna Ins. Co., 410 So.2d 1377 (Fla. 4 DCA 1982) Extent of responsibility for injuries occurring on e property during e term of e lease will depend upon e extent e owner maintains a possessory intere or control over e premises which contains a defect which caused harm. Craig v. Gate Maritime Properties, Inc., 631 So.2d 375 (Fla. 1 DCA 1994) A lessee of a parking lot owes a concurrent duty wi e lessor to provide a reasonably safe premises. Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12 (Fla. 1 DCA 1996)(A duty of care is owed by e lessee to invitees under McDonald, wheer e control is temporary or permanent) 9

11 C. Hotel/Motel vs. Security Service: Duty to provide reasonably safe premises is non-delegable, so even ough hotel/motel may contract wi an independent contractor to provide required security for gues, e hotel/motel is noneeless vicariously liable for any negligence of e security service. U.S. Security Services Corp. v. Ramada Inn, 665 So.2d 268 (Fla. 3 DCA 1995) D. Property Manager Liability: One of e arguments frequently offered by property manager defendants in premises security cases is at since ey are not e owners of e premises, ey cannot be held legally responsible under a traditional premises liability eory. This, of course, flies in e face of basic tort law and e eory at e party committing e negligent act should be held accountable. Premises liability is not based on legal title or ownership, but on a failure of e party who is in actual control to use reasonable care. Haynes v. Lloyd, 533 So.2d 944, 946 (Fla. 5 DCA 1988) A property manager who is in charge of a premises is liable for any injuries as a result of defects in e property of which it knew or should have known. Improved, Benevolent, and Protected Oer of Elks v. Delano, 308 So.2d 615 (Fla. 3 DCA 1975) The operator of a premises is e primarily liable party. [Emphasis supplied] General Syndicators of America v. Green, 522 So.2d 1081 (Fla. 5 DCA 1988) 10

12 E. Franchisee-Franchisor In oer to hold e franchisor liable for e negligence of an franchisee, ere mu be some element of control exercised by e franchisor. Madison v. Hollywood Subs, Inc., 997 So.2d 1270 (Fla. 4 DCA 2009); see also Mobil Oil Corp. v. Bransfo, 648 So.2d 119 (Fla. 1995). But see Springtree Properties v. Hammond, 692 So.2d 164 (Fla. 1997)(case based on claim of defective design determined by franchisor). III. APPORTIONMENT OF FAULT By far e greate source of uncertainty in is field in e la decade has been e issue of wheer e defendant(s) may utilize a veict form which allows fault to be 3 attributed to e criminal perpetrator. In Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), e Supreme Court held at Fla. Stat allowed for apportionment of fault in negligence cases, even as to nonparties. However, e apportionment of fault atute specifically excluded cases based on certain types of cases, including intentional acts. Wheer an intentional perpetrator can be placed on e veict form was e source of numerous arguments and appeals. For several years cases were tried where such an apportionment was made even ough it did not comport wi e exception to and was intellectually dishone. Several lower courts held at it was improper to compare negligent and intentional conduct, and refused to allow defendants to apportion fault in such a manner. See, e.g., Bach v. Horizons, Inc., 838 F.Supp 550 (M.D. Fla. 1993) and Doe v. Pizza Hut, No Civ-J-10 M.D. Fla. June 21, 1994). Contra, Department of Corrections v. McGhee, 653 So.2d 1091 (Fla 1 DCA 1995)(dissenting opinion). The fir Florida appellate decision on point held at parties may not compare e intentional conduct of a criminal assailant to at of a negligent tortfeasor. Slawson v. Fa Food Enterprises, 671 So.2d 255 (Fla. 4 DCA 1996). In interpreting (4)(b), e court found at e provision at e act does not apply to...any action based on an intentional tort... meant at does not apply to inadequate security cases 3 See Leighton, Apportionment of Fault in Inadequate Security Cases, Trial, Vol. 37 No. 13, December 2001, pp ; and Leighton, Litigating Premises Security Cases, Chapter 14 (Thomson We, 2006). 11

13 because by eir very nature ey are based on an intentional act. The court also took note of e fact at e common law duty was to protect e victim from e intentional act itself. The court certified e issue to e Florida Supreme Court. The Thi Dirict, in a 2-1 decision, took e opposite view in Stellas v. Alamo Rent A Car, 673 So.2d 940 (Fla. 3 DCA 1996). This was e fir known appellate decision in Florida holding at a perpetrator could be placed on a veict form, allowing e intentional conduct to be compared to e negligence of e tortfeasor. A mon later e Fif Dirict, in a well-reasoned 3-0 decision written by Judge Mickle, agreed wi Slawson and held at since e action was based on an intentional tort, did not apply. Wal-Mart Stores v. McDonald, 676 So.2d 12 (Fla. 1 DCA 1996). The court correctly recognized at specifically excluded from its ambit cases based on an intentional act. A case brought because of a violent crime is by its nature based on an intentional act. The Court furer held at e negligent tortfeasor was seeking to diminish or defeat its liability for breaching its duty by transferring it to e very intentional actor it was charged wi protecting [e plaintiff] again. Id. The logic of e Fir Dirict was correctly noted on appeal. In Merrill Crossings Associates v. McDonald, 705 So.2d 560 (Fla. 1997) e Florida Supreme Court held at under it was impermissible to allow a jury to assess fault again an intentional tortfeasor, and at joint and several liability applies to such cases. This answered e continuing debate about e propriety of comparing negligent and intentional acts in e context of inadequate security litigation. Shortly ereafter e Florida Supreme Court reversed e Thi Dirict s opinion in Stellas, holding at did not apply to ese cases and us Merrill Crossings was controlling. Stellas v. Alamo Rent-A-Car, 702 So.2d 232 (Fla. 1997). In Wal-Mart Stores v. Coker, 714 So.2d 423 (Fla. 1998), e Florida Supreme Court, in answering a certified queion on e issue, held at where e case involves negligence at results in an intentional criminal act, it is an action based on an intentional tort under (4)(b). As such, joint and several liability applies and e perpetrator does not go on e veict form. In e 2006 legislative session, e Florida Legislature abrogated e remaining portions of joint and several liability, but did not specifically make mention of cases based on intentional torts. Therefore under and e Supreme Court interpretation, joint and several liability ill applies. 12

14 A few recent cases furer refine e issue of apportionment wi respect to negligent parties. In Hennis v. City Tropics Biro, 1 So.3d 1152 (Fla. 5 DCA 2009), e court permitted apportionment of fault among e negligent parties. In at case, e defendant did not seek to allocate fault to e intentional tortfeasor, but sought an apportionment among e parties based on comparative negligence (e case was based on a brawl in a parking lot). The court adopted e reasoning of Burns International Security Services of Florida v. Philadelphia Indemnity Insurance Company, 899 So.2d 361 (Fla. 4 DCA 2005). A. Prior Criminal Incidents: IV. EVIDENCE The primary way to prove e inadequate security case is rough e use of criminal incident reports which show at e defendant had actual or conructive knowledge of a crime problem on e premises. Every jurisdiction has different meods of assembling e recos, ough mo are attempting to andaize e process. type: The courts have developed some evidentiary andas to apply to cases of is It is error to exclude police reports of crimes 2 years prior. Police reports are not hearsay. Harrison v. Housing Resources Management, 588 So.2d 64 (Fla. 1 DCA 1991) Property owners/landlos do not get "one free ride". Ju because ere had not been a prior incident at a premises does not absolve e landlo. Schmidt v. Towers Conruction Co., 584 So.2d 630 (Fla. 1 DCA 1991) Knowledge of likelihood of disoerly conduct by i persons which could endanger safety of patrons is a factual determination precluding summary judgment. Nicholls v. Dur, 579 So.2d 386 (Fla. 5 DCA 1991) (bar had no bouncer or security despite prior disoerly or violent incidents) 13

15 Prior criminal incidents need not be of an identical nature. Newell v. Be Security Syems, 560 So.2d 395(Fla. 4 DCA 1990) Knowledge of prior crimes, even if ey are lesser crimes, is relevant on issue of foreseeability. Evidence of violent assault 4 years prior to incident was not so remote in time as to be inadmissible on issue of foreseeability. (Case talks about 5 year span) Czerwinski v. Sunrise Point Condominium, 540 So.2d 199 (Fla. 3 DCA 1989) Evidence of lesser crimes again bo persons and property is relevant and admissible in determining foreseeability of harm from criminal activity. Evidence of 58 offense reports involving bar where shooting occurred was admissible on issue of foreseeability. * Holiday Inns v. Shelburne, 576 So.2d 322 (Fla. 4 DCA 1991) * Shelburne is an outanding example of judicial clarity, and is required reading for all attorneys who handle security cases. Proof of prior crimes again property and crimes at occurred off e premises are relevant to foreseeability. Layne v. Reaurant Management of Florida, 666 So.2d 943 (Fla. 3 DCA 1995)(Dissenting opinion where majority affirmed a summary judgment) While ere had not been a prior muer, ere was evidence of prior breaking and enterings over a period of 3 years and several robberies and oer lesser crimes. Salerno v. Hart Finance Corp., 521 So.2d 234 (Fla. 4 DCA 1988) 14

16 B. Location of prior incidents: In school boa case, court found at "subantial number of complaints of violent and sexual assaults" occurred roughout e school syem such to put e school boa on notice even absent a prior similar incident at is school. O'Campo v. School Boa of Dade County, 589 So.2d 323 (Fla. 3 DCA 1991) (1) [Neighborhood] The trial court committed reversible error by limiting issue of foreseeability to crimes on property and adjacent sidewalk. In oer to determine wheer a property owner took adequate precautions plaintiff mu be allowed to eablish e type of neighborhood where incident took place. Evidence of nature and likelihood of crime has a direct bearing on wheer preventive measures were reasonable. Odice v. Pearson, 549 So.2d 705 (Fla. 4 DCA 1989) Prior crimes which landlo knew or should have known about need not be at same location as subsequent crime in oer to be relevant on foreseeability. Czerwinski v. Sunrise Point Condominium, 540 So.2d 199 (Fla. 3 DCA 1989) (2) [ Significant crime wiin 5 miles] Plaintiff failed to present evidence of significant crime wiin 5 miles of e location of is motel, us no duty. (Called no experts) Satchwell v. LaQuinta Motor Inns, 532 So.2d 1348 (Fla. 1 DCA 1988) (3) [Prior crimes in e vicinity ] Evidence of criminal conduct in e vicinity [of a hotel] is relevant to foreseeability. Meyers v. Ramada Hotel Operating Co., 833 F.2d 1521 (11 Cir. 1987) 15

17 Prior criminal acts in vicinity of apartment building where sexual assault took place were relevant to foreseeability. Police recos were not limited to e premises or e block where apartment located. Such recos are usually competent evidence of foreseeability. Paterson v. Deeb, 472 So.2d 1210 (Fla. 1 DCA 1985) (4) [Crime Grids] Evidence of computer printouts of police recos of reported crimes in e area was competent and admissible. Green Companies v. Divincenzo, 432 So.2d 86 (Fla. 3 DCA 1983) Evidence at police had been called to a reaurant 37 times in one year (including ose for suspicious persons, diurbance, olen property, etc.) Suggeed at assault on patron was foreseeable. Foer v. Po Folks, Inc., 674 So.2d 843 (Fla. 5 DCA 1996) C. Oer evidence of foreseeability: "Evidence relevant to foreseeability includes e general likelihood of harm to e invitee, criminal activity in e vicinity, and security measures taken by e owner of e premises."..."oer evidence relative to foreseeability include compliance of e premises wi indury andas, e presence of suspicious individuals around e premises, and e peculiar security problems associated wi e hotel, such as e number of bars and e fact at airwells were apparently not rericted to emergency use only." Meyers v. Ramada Hotel Operating Co., 833 F.2d 1521 (11 Cir. 1987) Proof of foreseeability by tavern owner of risk of harm not limited to actual/conructive knowledge of particular assailant's propensity, but raer knowledge of pa experience at ere is a likelihood of disoerly conduct by 3 parties in general which may endanger patrons' safety. Stevens v. Jefferson, 436 So.2d 33 (Fla. 1983). 16

18 A change in security procedures (removal of guas, locking doors later at night) can eablish foreseeability. Green Companies v. Divincenzo, 432 So.2d 86 (Fla. 3 DCA 1983) Absence of indury andas for security [motel] does not insulate motel owners from liability. Orlando Executive Park v. P.D.R., 402 So.2d 442 (Fla. 5 DCA 1981) Note: There are many situations when foreseeability will not need to be proven, eier because e duty exis rough contract or oer operation of law. See, e.g., Vazquez v. Lago Grande Homeowners Assn., 900 So.2d 587 (Fla. 3 DCA 2004)(security company duty was based upon contractual obligation; condo association was liable rough negligent retention of security provider, vicarious liability, and non-delegable nature of duty). V. NEGLIGENCE/ADEQUACY OF SECURITY Relevant factors in deciding wheer [hotel] has exercised reasonable care in providing adequate security are indury andas, community's crime rate, extent of assaultive or criminal activity in area or in similar business enterprises, presence of suspicious persons, and peculiar security problems posed by [hotel's] design. Orlando Executive Park v. P.D.R., 402 So.2d 442 (Fla. 5 DCA 1981) VI. PROXIMATE CAUSATION Causation need not be demonrated by conclusive proof; it is enough at plaintiff introduces evidence from which reasonable men may conclude at it is more probable at event was caused by defendant an at it was not. Orlando Executive Park v. P.D.R., 402 So.2d 442 (Fla. 5 DCA 1981). Queion wheer an intervening cause is foreseeable is for trier of fact. Person who creates a dangerous situation may be deemed negligent because he violates a duty of care and sets in motion of chain of events resulting in injury. Gibson v. Avis Rent-A-Car, 386 So.2d 520 (Fla. 1980)[non-security] 17

19 If such an intervening cause is eier foreseeable or might reasonably have been foreseen by e defendant, his negligence may be considered e proximate cause of injury notwianding intervening cause. Rosier v. Gainsville Inns Assoc., 347 So.2d 1100 (Fla. 1 DCA 1977) An actor is liable for all e natural and probable consequences of his negligence if his negligence was a subantial factor in producing e injury complained of. Pope v. Pinkerton-Hays Lumber Co., 120 So.2d 227 (Fla. 1 DCA 1960) Key to proximate cause is FORESEEABILITY. Reteneller v. Dean Ross Putnam, 589 So.2d 328 (Fla. 5 DCA 1991) Issue of foreseeability goes to proximate cause, raer an duty, and was a queion for e jury) Prime Hospitality Corp. v. Simms, 700 So.2d 167 (Fla. 4 DCA 1997) Wheer or not e injury which occurred is in e scope of danger created by e foreseeable intervening criminal activity is a queion of fact for e jury. Newell v. Be Security Syems, 560 So.2d 395 (Fla. 4 DCA 1990) Liability of premises owner does not depend on wheer negligent acts were a direct cause of e plaintiff's injuries as long as ey were reasonably foreseeable consequences of tortfeasor's conduct, and if at harm occurs wiin e scope of danger created by defendant's negligent conduct, en such harm is reasonably foreseeable consequence of negligence. Stevens v. Jefferson, 436 So.2d 33 (Fla. 1983). Location of incident: Fact at shooting occurred off premises of bar did not preclude liability where owner knew at patrons used adjacent premises for parking and security gua suggeed at to patrons. 18

20 Holiday Inns v. Shelburne, 576 So.2d 322 (Fla. 4 DCA 1991); See also: Marinacci v. 219 Sou Atlantic Bouleva, 855 So.2d 1272 (Fla. 4 DCA 2003)(attack at city-owned parking lot down e reet; plaintiff advised by bouncer at it was safe) A. Comparative Negligence VII. DEFENSES 4 Plaintiff was beaten, abbed and robbed at self service car wash at 8:00 p.m. The jury returned a veict for e plaintiff but found him 68% comparatively negligent. On appeal e court held at ere was evidence at could have allowed e jury to conclude at e plaintiff was aware of e danger. Haee v. Cunningham & Smi, Inc., 679 So.2d 1316 (Fla. 4 DCA 1996) compare wi... Hotel gue as a matter of law was not guilty of comparative negligence where she walked by man in hallway of her hotel and he followed her, pulled gun, and raped her. Defendant contended at gue should have gone back to lobby to report suspicious activity raer an exit elevator. Prime Hospitality Corp. v. Simms, 700 So.2d 167 (Fla. 4 DCA 1997)(?The reality of hotel accommodations makes it impractical to eablish a rule at a gue mu take precautions again anyone at he or she meets in e public hallway of a hotel. ) B. Intervening Cause Florida cases have addressed intervening cause as a defense. In general, e foreseeable intentional criminal act will not serve as an intervening cause to break e chain of causation. See Holley v. Mt. Zion Terrace Apts., Inc., 382 So.2d 98 (Fla. 3 DCA 1980) (e deliberate act of e rapi and muerer did not conitute an independent intervening cause which would insulate e landlo from liability for failing to provide 4 See Leighton, Fighting New Defenses in Inadequate Security Cases, Trial, Vol. 35, No. 4, April 2000, pp

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