Premises Liability: A Notable Rift in the Law of Foreseeable Crimes
The law surrounding premises liability in Florida is more unsettled than most attorneys (and even judges) tend to suspect, particularly with regard to third-party crimes.1 Although it often surprises the layperson, legal practitioners know well that a property owner may be held liable for a crime committed on the property by a total stranger, provided that the crime was “foreseeable.”2 Yet here is where controversy emerges: Florida’s appellate courts have parted ways on whether certain crimes versus others are foreseeable, which in turn has produced a measure of confusion in the trial courts. In one case from Miami-Dade County, a gas station defended against a lawsuit by two young men who — while pausing at the station to swap cars with their friends — were brutally assaulted and injured by a group of thugs who fled the premises and escaped criminal punishment. The plaintiffs asserted a straightforward cause of action that the gas station had breached its duty to prevent a foreseeable crime, and they began assembling a body of evidence showing that the station inhabited a high-crime area. Despite a rich vein of authority from the Third District Court of Appeal demonstrating that the assault was not foreseeable as a matter of law, the judge opted to follow a lenient standard enunciated by other Florida jurisdictions, particularly the neighboring Fourth District Court of Appeal. The judge refused to conclude that an assault could be unforeseeable given the general history of crimes in the surrounding area, a refusal at odds with precedent that requires a nexus between the crime at issue and the time, place, and manner of the prior crimes cited by the two plaintiffs.3 Although the case settled and never arrived at the Third District Court of Appeal for review, a finding of reversible error was probable. This article explains why, and in so doing, it draws attention to the stark divergence in what Florida courts interpret as a foreseeable crime.
Preliminary Consideration: The Plaintiff’s Status on the Premises
The first step in any premises liability case in Florida is to ascertain the specific legal category that the plaintiff occupies, a determination that assumes unique importance in claims for third-party crimes because only certain types of individuals may assert such a claim. For example, the Third District Court of Appeal has held that a landowner is not liable for foreseeable third-party crimes if the plaintiff came onto the land without invitation.4 In the underlying case, three assailants had robbed a woman who was visiting a public beach when the beach was closed, and she brought a complaint alleging that the city knew of prior criminal attacks on the same beach, yet failed to take necessary precautions. Her claim was defeated on summary judgment, and the Third District Court of Appeal affirmed by reasoning that a landowner’s duty to an uninvited plaintiff is to refrain from willfully inflicting harm, and also reasoning that “the danger of crime and criminal assaults is an open and obvious danger for which there is no duty to warn” the uninvited plaintiff.5 On a separate occasion, the Third District Court of Appeal phrased the rule in an even more straightforward manner: “A landowner has a duty to protect an invitee on his premises from a criminal attack that is reasonably foreseeable.”6 No district court of appeal has rejected this interpretation, so it is helpful to review this basic point of agreement before exploring the discord over whether a crime is indeed foreseeable.
Whenever a plaintiff seeks to recover against a premises owner/operator for a harmful defect or a crime committed thereon, Florida law will classify him or her as falling under one of three broad headings:7 invitee, licensee, or trespasser.
Most exalted is the first category, the invitee, which itself is subdivided into “public invitees” and “business invitees.” A public invitee “is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.”8 A business invitee “is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of the land.”9 Premises liability plaintiffs naturally expend a great deal of effort to portray themselves as invitees because, as invitees, they may demand a high level of care from the defendant in the maintenance of the property. Specifically, the owner or operator of the property must maintain it in a reasonably safe condition and correct or warn of dangers that the defendant knew or should have known of, and which the plaintiff did not or should not have known of by the use of reasonable care.10 This duty likewise extends to social guests of the landowner, whom the law designates as “licensees by invitation.”11
In stark contrast to invitees and invited licensees stand the ordinary, less welcome licensees — often termed “uninvited licensees” to avoid confusion — who are “persons who choose to come upon the premises solely for their own convenience without invitation either expressed or reasonably implied under the circumstances.”12 A landowner owes far less of a duty to licensees, as the Florida Supreme Court described in Stewart v. Texas Co., 67 So. 2d 653, 654 (Fla. 1953), when denying relief to a plaintiff who was injured while visiting a gas station for the sole purpose of changing a $10 bill:
Mere licensees are about the least favored in law of men who are not actual wrongdoers. It has been stated that an owner or occupant owes one whom he permits to enter for the latter’s convenience no duty except not to harm him willfully or wantonly, or to set traps for him, or to expose him to danger recklessly or wantonly.. . . No duty is imposed by law on an owner or occupant to keep the premises in a safe condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come thereon, although their entry is permitted by the owner or occupant. Active vigilance is not required on the part of the property owner to see that his premises are kept safe for the benefit of licensees. . . . 13
At the bottom of the barrel is the trespasser, whom Florida law defines as someone “who enters the premises of another without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his own convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity.”14 As with the owner’s legal duty toward uninvited licensees, the owner’s meager duty toward a trespasser is to refrain from inflicting willful or wanton injury.15
As explained previously, uninvited persons such as uninvited licensees or trespassers may not expect the premises owner to protect them from foreseeable third-party crimes, since only invitees and invited licensees are entitled to that expectation. A breakdown of all the categories, along with their corresponding descriptions and rights, appears in the table on page 22.
The Point of Divergence: What Crimes Are Foreseeable?
Even if a plaintiff seeking to recover for a third-party crime surmounts the initial hurdle of qualifying as an invitee, the plaintiff must still prove that the crime in question was one that the premises owner should have foreseen. One way of accomplishing this is to demonstrate that the premises owner knew or should have known of the specific third party’s inclination toward crime, a test that is well-established in Florida law.16
A striking disagreement emerges, however, with regard to whether prior crimes make the crime in the present case foreseeable. It was only in 1983 that the Florida Supreme Court confirmed this as an additional test, and controversy over the test’s scope has raged ever since.17 The Third District Court of Appeal has staked out a unique position in this debate by announcing that a plaintiff must satisfy a rigorous test consisting of three separate criteria: 1) the similarity of the prior crimes; 2) the geographical proximity of the prior crimes; and 3) the temporal proximity of the prior crimes. Other jurisdictions, particularly the Fourth District Court of Appeal, have refused to tie plaintiffs’ hands in this manner, and the debate remains unresolved.
• Similarity of the Prior Crimes —According to the Third District Court of Appeal, any prior crimes that a plaintiff references in order to prove foreseeability must be similar to the crime in the plaintiff’s case. For example, as with the two young men who were assaulted at the gas station, evidence of prior nonviolent crimes such as drug possession, drug use, and prostitution — or evidence of mere property crimes, such as larceny and vandalism — are inadmissible to prove the foreseeability of a violent assault.18
Though some plaintiffs litigating in the Third District have been allowed to admit evidence of prior dissimilar crimes, those cases concern the unique context of the landlord-tenant relationship.19 As one court noted:
Because there are often additional considerations incident to the contractual and statutory obligations found in the usual landlord/tenant relationship, we do not perceive the foreseeability premise of the general rule governing landowner/invitee liability to be the exclusive basis for the landlord’s liability to the tenant regarding criminal attacks committed on the leased premises.. . . There appears to be a marked tendency in Florida decisions to recognize the rights of tenants to recover damages for criminal attacks on the leased premises on several additional legal theories.. . . [N]one of these decisions held that pleading and proof of prior similar incidents on the landlord’s premises is the exclusive basis for imposing a duty on the landlord.20
Quite contrary to all this, the Fourth District Court of Appeal has applied the generous landlord-tenant standard to all premises liability cases, holding that evidence of prior dissimilar crimes is relevant and admissible to foreseeability in any context whatsoever.21 The Fifth District Court of Appeal has noticed this divergence and taken sides with the Fourth District’s lenient standard, allowing evidence of prior dissimilar crimes to reach a jury despite acknowledging that this would not be permitted under the Third District’s test.22 Joining along, the First District Court of Appeal has opened the evidentiary door to a broad swath of prior dissimilar crimes:
[T]he lower court’s finding that [defendant] “had not previously experienced any prior violent assaults on the premises” does not resolve the question of whether the attack on [plaintiff] was foreseeable. The lower court seems to be requiring proof that the [defendant] had knowledge of prior similar violent criminal acts on the premises in order for [the] stabbing of [plaintiff] to be considered reasonably foreseeable. Such an error in analysis is not a slight one, in our opinion, for it places upon plaintiffs. . . a bar to recovery which does not exist for subsequent victims of violent crime. . . . 23
The lenient decisions from the First, Fourth, and Fifth districts clearly conflict with the decisions from the Third District Court of Appeal, which indeed require a showing that any prior crimes be similar to the crime at issue, and, therefore, the lenient decisions are not binding within the Third District.24
• Geographical Proximity of the Prior Crimes— Geographical proximity of prior crimes constitutes the second hurdle to proving a given crime’s foreseeability, since the Third District Court of Appeal held in Admiral’s Port Condo. Ass’n, Inc. v. Feldman, 426 So. 2d 1054, 1055 (Fla. 3d DCA 1983) that any prior similar crimes must have occurred on the landowner’s premises in order to be considered probative.25 Oddly, the court went the other way in Lomillo v. Howard Johnsons Co., 471 So. 2d 1296, 1297 (Fla. 3d DCA 1985), by holding that off-premises crimes might contribute to a foreseeability analysis, so long as they did not occur “substantial distances away.” This qualifying language comes from Feldman itself, where the court refused to admit evidence of off-premises crimes that had taken place far away26 — an observation that the court in Lomillo took to mean that a nearby off-premises crime would be admissible. Once again, there is an exception for landlord-tenant relationships, where off-premises crimes may be regarded as probative.27 On balance, though, the most recent and prevalent authority in the Third District Court of Appeal treats evidence of off-premises crimes as irrelevant to the foreseeability of a crime in a nonresidential setting.
The Fourth District Court of Appeal — as with the element of similarity — has rejected strict geographical requirements by allowing evidence of crimes in the general vicinity to support an inference of foreseeability.28 This time, however, the First District appears to have sided with the Third District by adopting a strict geographical test.29
• Temporal Proximity of the Prior Crimes— A premises liability defendant litigating in the Third District against a claim of third-party crime is entitled to prevail if no prior similar crimes occurred on the premises during at least the two previous years.30 Although a crime occurring more recently may or may not prove the present crime’s foreseeability, an older crime apparently does not.
As usual, an exception has arisen with regard to landlord-tenant arrangements, where crimes older than two years might play a role in the foreseeability analysis.31 And as usual, the Fourth District Court of Appeal has transformed the exception into the rule itself, holding that no strict constraints as to the time frame of prior crimes will bar a jury from deciding whether the totality of the circumstances connotes foreseeability.32 The Fifth District Court of Appeal has signaled its sympathy for a lenient temporal test as well.33
Although it is difficult to ascertain why Florida’s appellate courts have diverged on the issue of criminal foreseeability in this manner, they certainly have generated a measure of confusion in the trial courts, where a jurisdiction’s controlling test of foreseeability may often be discarded in favor of a more palatable test from somewhere else. It is possible that the Third District Court of Appeal embraces a stricter standard in order to preserve the maxim that premises liability is not strict liability: “An owner of real property is not an insurer of the safety of persons on such property, nor is he subject to strict liability or liable per se for injuries resulting from dangerous conditions on owned property.”34
In a world where crime is proliferating, a lenient standard encompassing the totality of the circumstances renders virtually every crime foreseeable and threatens to transform every landowner into an insurer, which the Third District Court of Appeal seems to have intuited for some time. Perhaps one day Florida will speak with one voice on this quandary, but for now, may practitioners and trial courts alike appreciate the different paths that each jurisdiction has chosen for itself.
1 “Third party” in the context of this article refers to persons unaffiliated with the defendant as employees or contractors. Affiliations of this sort raise unique duties and concerns not addressed here. See, e.g., K.M. v. Publix Supermarkets, Inc., 895 So. 2d 1114 (Fla. 4th D.C.A. 2005).
2 Foreseeability alone does not suffice to hold a property owner liable for a third-party crime. For example, a plaintiff would also have to prove that the crime, though foreseeable, was also preventable if the property owner had exercised reasonable precautions. Foreseeability is, however, the essential precondition without which the claim cannot succeed.
3 The referenced case is not reported, but rather is one in which the author helped represent the defendant.
4 See Barrio v. City of Miami Beach, 698 So. 2d 1241 (Fla. 3d D.C.A. 1997) (citing Lane v. Estate of Morton, 687 So. 2d 53, 54 (Fla. 3d D.C.A. 1997);
Davis v. City of Miami, 568 So. 2d 1301 (Fla. 3d D.C.A. 1990)).
5 Barrio, 698 So. 2d at 1244.
6 Ameijeiras v. Metro. Dade County, 534 So. 2d 812, 813 (Fla. 3d D.C.A. 1988) (emphasis added).
7 See Post v. Lunney, 261 So. 2d 146, 147 (Fla. 1972).
8 Id. at 148 (quoting Restatement (Second) of Torts §332(2) (1977)).
10 Id. at 150.
11 See Wood v. Camp, 284 So. 2d 691, 694-95 (Fla. 1973).
12 Iber v. R.P.A. Int’l Corp., 585 So. 2d 367, 368-69 (Fla. 3d D.C.A. 1991).
13 Stewart, 67 So. 2d at 654 (emphasis added).
14 Post, 261 So. 2d at 147.
16 See Hall v. Billy Jack’s, Inc., 458 So. 2d 760, 761 (Fla. 1984) (citing Allen v. Babrab, Inc., 438 So. 2d 356 (Fla. 1983)); see also Gottschalk v. Smith, 334 So. 2d 102, 103 (Fla. 3d D.C.A. 1976).
17 See Stevens v. Jefferson, 436 So. 2d 33, 35 (Fla. 1983).
18 See Prieto v. Miami-Dade County, 803 So. 2d 780 (Fla. 3d D.C.A. 2001) (requiring evidence of prior similar crimes (assault)); Metro. Dade County v. Ivanov, 689 So. 2d 1267 (Fla. 3d D.C.A. 1997) (same); Levitz v. Burger King Corp., 526 So. 2d 1048 (Fla. 3d D.C.A. 1988) (reversing summary judgment for defendant because of disputed facts, but requiring a showing of prior similar crimes (assault)); Medina v. 187th St. Apartments, Ltd., 405 So. 2d 485 (Fla. 3d D.C.A. 1981) (reversing directed verdict for defendant because of disputed facts, but requiring a showing of prior similar crimes (assault)); Ameijeiras, 534 So. 2d at 812 (discounting evidence of rampant illegal activities on the subject premises due to the absence of prior similar crimes (assault and robbery)).
19 See Czerwinski v. Sunrise Point Condo., 540 So. 2d 199, 200 (Fla. 3d D.C.A. 1989) (citing Paterson v. Deeb, 472 So. 2d 1210, 1215 (Fla. 1st D.C.A. 1985)); see also Vazquez v. Lago Grande Homeowners Ass’n, 900 So. 2d 587, 592-93 (Fla. 3d D.C.A. 2004) (citing Paterson).
20 Paterson, 472 So. 2d at 1215 (emphasis in original).
21 See Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322, 331 (Fla. 4th D.C.A. 1991) (citing Czerwinski and Paterson), disapproved on other grounds, Angrand v. Key, 657 So. 2d 1146 (Fla. 1995); Prime Hospitality Corp. v. Simms, 700 So. 2d 167, 169 (Fla. 4th D.C.A. 1997) (holding that evidence of dissimilar crimes should go to a jury).
22 See Foster v. Po Folks, Inc., 674 So. 2d 843, 844-46 (Fla. 5th D.C.A. 1996).
23 Hardy v. Pier 99 Motor Inn, 664 So. 2d 1095, 1098 (Fla. 1st D.C.A. 1995) (citing Shelburne and Paterson) (emphasis in original). But see Menendez v. The Palms West Condo. Ass’n, Inc., 736 So. 2d 58, 61 (Fla. 1st D.C.A. 1999) (rejecting evidence of prior dissimilar crimes as irrelevant to foreseeability).
24 See, e.g., Univ. of Miami v. M.A., 793 So. 2d 999, 1000 (Fla. 3d D.C.A. 2001) (reminding the trial court that it was obligated to follow a ruling from the Fifth District Court of Appeal only because neither the Florida Supreme Court nor the Third District Court of Appeal had decided the legal issue at hand).
25 See also Ameijeiras, 534 So. 2d at 812 (requiring evidence of prior crimes at the park in question); Ivanov, 689 So. 2d at 1267 (rejecting evidence of prior crimes at a different nearby park); Prieto, 803 So. 2d at 780 (requiring evidence of prior crimes at the railroad station in question); Medina, 405 So. 2d at 486 (reversing directed verdict for defendant because of disputed facts, but requiring evidence of prior crimes “in the complex”).
26 See Feldman, 426 So. 2d at 1055 (rejecting evidence of prior crimes “substantial distances away”).
27 See Czerwinski, 540 So. 2d at 201 (citing Paterson, 472 So. 2d at 1210).
28 See Odice v. Pearson, 549 So. 2d 705, 706 (Fla. 4th D.C.A. 1989) (reversing trial court’s exclusion of off-premises crimes from evidence); Eichenbaum v. Rossland, Real Estate, Ltd., 502 So. 2d 1333, 1334 (Fla. 4th D.C.A. 1987) (allowing evidence of crimes at different stores, but within the same mall).
29 See Menendez, 736 So. 2d at 61 (Fla. 1st D.C.A. 1999) (rejecting evidence of the crime rate in the general area, and requiring evidence of prior crimes at the complex itself).
30 See Ameijeiras, 534 So. 2d at 812 (holding the assault unforeseeable absent evidence of violent crimes at the park in the previous two years).
31 Czerwinski, 540 So. 2d at 201 (giving weight to evidence of sexual assault occurring four years prior); Paterson, 472 So. 2d at 1213, 1218 (examining criminal assaults during the previous four years, and examining sexual assaults during the previous seven years).
32 See, e.g., Simms, 700 So. 2d at 168-69 (allowing jury to consider evidence of crimes that occurred more than two years before the incident in question, as part of a generic foreseeability analysis).
33 Foster, 674 So. 2d at 845-46 (allowing jury to consider evidence of crimes that occurred more than two years before the incident in question, as part of a generic foreseeability analysis).
34 Fla. Dep’t of Nat. Res. v. Garcia, 753 So. 2d 72, 79 (Fla. 2000) (quoting Bovis v. 7-Eleven, Inc., 505 So. 2d 661, 662-63 (Fla. 5th D.C.A. 1987)).
Wilton H. Strickland is an associate in the Hollywood office of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A. He earned his undergraduate degree, magna cum laude and Phi Beta Kappa, from the College of William & Mary in 1996, and his J.D. from the University of Virginia in 2000. He practices in all areas of general liability.