Negligent Security Claims In Florida: the “Victim-Targeted” Defense
Defense Digest, Vol. 23, No. 1, March 2017
by Michael G. Archibald, Esquire
Insurers of business owners and property managers pay large settlements for injuries and certainly deaths caused by criminal conduct of others that occur on their insureds’ properties. Accounting for many of these settlements are claims that can be described as “victim-targeted” crimes. These are crimes that occur on business property owned by another wherein the perpetrators sought out a specific person to victimize. Typically, and especially if the perpetrator remains at large, circumstantial evidence is all that is available to demonstrate the motive for such crimes.
Circumstantial evidence and justifiable inferences are applicable in civil cases. Nielsen v. City of Sarasota, 117 So.2d 731 (Fla. 1960). In fact, Florida Jury Instruction 401.3, Greater Weight of The Evidence, specifically directs judges that no distinction should be made between direct evidence and circumstantial evidence. In Florida, there is no statutory law on negligent security claims, and, unfortunately, Florida’s case law on negligent security claims prevents defendants from presenting circumstantial evidence that would tend to show that an event was not foreseeable and, therefore, preventable.
In a recent case, I represented a defendant in a negligent security/wrongful death case. The property owner was a landlord of a 200-unit affordable housing complex located in a high-crime area. The property lacked video surveillance cameras, roving security patrols or access control. Suit was brought after a young male tenant was found dead in a common area on the property. He had been shot once in the head. Cash and his debit bank card remained in his pockets. Marijuana and other paraphernalia were found next to his body. Tenants living in close proximity to the scene saw nothing but did report hearing a single gunshot sometime between 10:00 p.m. and 10:30 p.m. The murder remained unsolved.
Deposition testimony from a friend of the young man was favorable to the defense. It revealed that at about 8:30 p.m. that night, the decedent called him asking to borrow his gun. He denied the request.
The defense security expert opined that, based on the crime scene photographs and the testimony from the friend, it was his opinion that the decedent had been targeted. If somebody really wants to do harm to another, there is nothing that can be done to prevent that from happening.
Prior to trial, the plaintiff moved to exclude this expert’s testimony. In support, the plaintiff cited the cases of Florence Smithson v. V.M.S. Realty, Inc. 536 So.2d 260 (Fla. 3d DCA 1988) and L.B. v. The Naked Truth III, Inc. d/b/a Pleasure Emporium North, 117 So.3d 1114 (Fla. 3d DCA 2012). The trial court granted the motions in limine, excluding the evidence.
In Smithson, the appellate court overturned a negligent security/wrongful death jury verdict, finding for the defendant, a mall owner. The decedent was the manager of a movie theater located inside the mall. He was killed while attempting to make a deposit at a bank drop located inside the mall. The assailants were eventually captured.
In preparation for trial, the defense expert interviewed the assailants. At trial, the expert testified that the assailants revealed that the movie manager would not have been killed had he complied with their demands for the money. The theater owner had an employee robbery policy, which apparently was not followed by the manager. The policy called for immediate and complete compliance with all demands from any robber.
After the defense verdict was returned, the plaintiff appealed, claiming the trial court erred in permitting the defense expert to testify about the assailants’ motive. The appellate court found that expert testimony regarding the assailants’ motive was beyond the scope of expertise and irrelevant to the issue of whether the defendant breached a duty to provide reasonable security.
Likewise, in The Naked Truth III, Inc., the appellate court overturned a negligent security jury verdict in favor of the defendant. A former employee sued her employer/property owner for a robbery and rape that occurred while she was working alone during the midnight to 8:00 a.m. shift. Her attacker was eventually captured.
At trial, the defense expert recited deposition testimony from another employee who recognized the attacker as being a man who had entered the store about three days prior to the attack and had asked for the plaintiff (by name). The employee told the man that she (plaintiff) was not there. Upon hearing this, the man abruptly turned and left the store.
The defense expert opined that the victim/plaintiff had been targeted for the rape. He based his opinion on the fact that the assailant asked for the plaintiff by name just a few days before the attack. His ultimate opinion was that, because it was a victim-targeted crime, the landlord could not have foreseen that the event would occur, and this was the reason the event was unpreventable. In overturning the jury’s verdict, the appellate court held that the defense expert should not have been permitted to testify that the sexual assault was a victim-targeted crime.
To conclude, Florida’s state of the law on a negligent security claims continues to uniquely favor a recovery for plaintiffs, and from all appearances, it does not look as though this is going to change any time in the near future. Through use of circumstantial evidence, experts should be permitted to provide their true and whole opinions as to whether an event was foreseeable and, therefore, preventable. Otherwise, the Florida business property owner does, in fact, become the insurer for anything and everything that happens on the property, regardless of fault.
*Michael is a shareholder in our Tampa, Florida office. He can be reached at 813.898.1803 or firstname.lastname@example.org.
Defense Digest, Vol. 23, No. 1, March 2017. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2017 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact email@example.com.