Premises Liability Revisited: The Law of Foreseeable Crimes Becomes Clearer and Murkier
In December 2009, The Florida Bar Journal published my article1 exploring the different paths taken by Florida’s appellate courts as to what constitutes a “foreseeable crime” for purposes of establishing premises liability. Back then, the Second District Court of Appeal had not weighed in on the issue, but in December 2013 the court staked out its position in Bellevue v. Frenchy’s South Beach Café, Inc., 136 So. 3d 640 (Fla. 2d DCA 2013). While the opinion adds clarity to Florida law by proclaiming a broad test of foreseeability within the Second District, it also muddies the waters when discussing the narrow test applied by the Third District, attributing that test to only two decisions2 that the opinion labels outdated or anomalous. Yet the narrow test of foreseeability appears in a large number of decisions, not just the two criticized in Bellevue, so it is far too early to treat this matter as closed. Practitioners should remain alert to the differing standards governing foreseeability of crimes and not be lulled into thinking Florida law is uniform on this important issue.
The Interdistrict Debate Over Foreseeable Crimes for Purposes of Premises Liability
As explained in my original article,3 Florida courts speak with one voice as to the right of invitees — whether on public or private land — to demand reasonable protection against foreseeable crimes committed by third parties. Opinions vary, however, as to what exactly constitutes a foreseeable crime. While courts agree that suspicious behavior by a third party makes his or her own crime foreseeable, they differ markedly on when prior crimes by other criminals make the eventual crime foreseeable.4 This distinction often surfaces in any or all of three variables, as follows:
• Similarity of the prior crimes
• Geographical proximity of the prior crimes
• Temporal proximity of the prior crimes
A body of precedent from the Third District strictly applies all three variables to determine whether prior crimes make a future one foreseeable. First, the prior crimes must be similar to the one at issue.5 For instance, a mere property crime does not presage an assault. Second, the prior crimes must have occurred on the premises to make the future one foreseeable.6 While the Third District once allowed nearby off-premises crimes into evidence,7 it is an older decision that does not reflect the current approach of multiple other decisions. And third, the prior crimes must have occurred at least within the previous two years.8 Other decisions by the Third District may appear more lenient with these requirements, but they concern landlord-tenant relationships and, thus, raise exceptional, heightened duties not normally at issue.9
Other courts have handled these variables quite differently.
Regarding similarity, the First,10 Fourth,11 and Fifth12 district courts of appeal have employed a broad test that allows prior dissimilar crimes into evidence to prove foreseeability. With the advent of Bellevue, the Second District now joins them. It’s interesting to note, though, that, on more recent occasions, the Fourth District has expressed agreement with the narrow test prevailing in the Third District, stating that prior crimes should be similar to the future one in order to be relevant.13
Regarding geographical proximity, the First District actually agrees with the Third and holds that the prior crimes must have occurred on the premises to be considered relevant.14 The Fourth District has allowed prior crimes into evidence even if they occurred off the premises, and with no apparent requirement for those crimes to have occurred nearby.15 Once again, the Fourth District more recently has expressed agreement with the narrow foreseeability test, though it has not yet excluded evidence of off-premises crimes as irrelevant.16 The Fifth District has taken a broad geographical approach on at least one occasion, holding that an assault at a restaurant parking lot might be considered foreseeable based on prior reports of criminal activity at a nearby street intersection.17 As for the Second District in Bellevue, it does not offer any analysis of geographical proximity, but its ruling allowed the plaintiff to introduce evidence of crimes that occurred “in” or “near” the premises, thus, confirming a more lenient approach than that of the Third District.18
Regarding temporal proximity, it appears more certain that the Fourth District has reversed course and linked arms with the Third. Previously there were no time limits as to what prior crimes would be admissible;19 in 2010, however, the court cited Ameijeiras v. Metro Dade County, 534 So. 2d 812 (Fla. 3d DCA 1988), and held that crimes older than two years are not predictive of future crimes.20 The Fifth District observes the lenient standard formerly applied by the Fourth.21 What the First and Second district courts think remains a mystery, even with the benefit of Bellevue, which does not discuss the time criterion.
The evolution of the law of foreseeable crimes has become interesting, indeed. On one hand, the Second District has broken its silence and announced a broad test that allows a large number of prior crimes into evidence even if they are dissimilar or occurred off-premises. On the other hand, the Fourth District has retreated somewhat from the broad test of foreseeability and now cites the narrow test to require evidence of prior similar crimes within at least the preceding two years. The other districts haven’t changed.
What makes the picture somewhat confusing, though, is the Second District’s assertion in Bellevue that the narrow test of foreseeability is a mere historical curiosity, which it is not.
Bellevue ’s Unwarranted Criticism of the Narrow Test of Foreseeability
Bellevue adds clarity to Florida law by announcing that within the Second District, a prior crime is admissible to prove the foreseeability of a future crime even if the prior crime was of a different type, and even if the prior crime occurred off the premises in question. Specifically, the court reversed an evidentiary ruling that had excluded a large number of such prior crimes, holding that the jury should decide for itself whether those crimes gave the defendant restaurant sufficient notice that its own patrons would harm the plaintiff in a drunken brawl.
In explaining its approach, however, the court denied the ongoing vitality of the narrow foreseeability test observed by the Third District, attributing that test to only two decisions that are supposedly defunct: Admiral’s Port Condo. Ass’n, Inc. v. Feldman, 426 So. 2d 1054 (Fla. 3d DCA 1983), and Ameijeiras. This conclusion is questionable, for the narrow test remains the law applicable within the Third District and also has received new life in the Fourth District.
Unwarranted Criticism of Admiral’s Port
Admiral’s Port holds that when a plaintiff relies on evidence of prior crimes to prove the foreseeability of a future one, only on-premises crimes are relevant.22 Bellevue criticizes this holding as outdated and overshadowed by three subsequent Florida Supreme Court decisions: Hall v. Billy Jack’s, Inc., 458 So. 2d 760 (Fla. 1984); Allen v. Babrab, Inc., 438 So. 2d 356 (Fla. 1983); and Stevens v. Jefferson, 436 So. 2d 33 (Fla. 1983).23 Yet, there is no conflict between Admiral’s Port and those decisions, which recognize merely that premises liability may emerge based on either the suspicious behavior of the criminal in question or prior criminal activity.
For example, Hall holds that foreseeability “may be established by proving that a proprietor had actual or constructive knowledge of a particular assailant’s inclination toward violence or by proving that the proprietor had actual or constructive knowledge of a dangerous condition on his or her premises that was likely to cause harm to a patron.”24 Allen holds that “specific knowledge of an individual’s dangerous propensities is not the exclusive method of proving foreseeability. It can be shown by proving that, based on past experience, a proprietor knew of or should have recognized the likelihood of disorderly conduct by third persons, in general, that might endanger the safety of the proprietor’s patrons.”25 Stevens holds that “specific knowledge of a dangerous individual is not the exclusive method of proving foreseeability. It can be shown by proving that a proprietor knew or should have known of a dangerous condition on his premises that was likely to cause harm to a patron.”26 In none of these holdings did the Florida Supreme Court specify whether a prior crime must be on-premises or may be off-premises to be considered relevant to a foreseeability analysis. That was the issue under review in Admiral’s Port, and the Florida Supreme Court has not addressed it in Hall, Allen, Stevens, or anywhere else yet.
Moreover, the Third District has upheld the strict geographical requirement on at least four other occasions subsequent to Admiral’s Port.27 Until the Florida Supreme Court steps in or the Third District changes its mind, the holding of Admiral’s Port remains sound. It’s also worth remembering that the First District has upheld the strict geographical requirement as well,28 making it anything but outdated.
Unwarranted Criticism of Ameijeiras
The court in Bellevue also criticized the Third District’s decision in Ameijeiras, which held that any prior crimes must have occurred on the premises and also be similar to the crime in question in order to be relevant.29 Labeling this holding an “anomaly,” Bellevue again opines that it has been overshadowed by subsequent precedent.30 It has not and for a host of reasons.
First, the Third District has cited Ameijeiras favorably on at least eight subsequent occasions, either to uphold the narrow foreseeability criteria31 or to recognize the decision’s general validity.32
Second, an earlier decision by the Third District, Medina v. 187th St. Apartments, Ltd., 405 So. 2d 485, 486 (Fla. 3d DCA 1981), held that prior crimes must not only be similar to the one in question, but also must have been perpetrated against invitees in order to be relevant. Both Admiral’s Port and Ameijeiras cite Medina,33 a decision that never has been overruled, further demonstrating that there is nothing anomalous about excluding dissimilar off-premises crimes from consideration.
Third, and as alluded to previously, the Fourth District has cited Ameijeiras favorably in recent years.34 This is ironic when considering that Bellevue claims to follow the Fourth District’s lead.35 On one occasion in 2010, the Fourth District affirmed a directed verdict against a premises liability plaintiff, relying in part on Ameijeiras and describing it in a parenthetical as follows: “holding that attack in a county-owned park was unforeseeable because no similar violent crimes were reported to have occurred there in the preceding two years.”36 On another occasion in 2000, the court reversed a dismissal of a premises liability complaint, but on the ground that the plaintiff would likely be able to satisfy Ameijeiras.37 Clearly, the narrow test of foreseeability in Ameijeiras remains relevant rather than anomalous, and in a jurisdiction whose precedent Bellevue itself treats as persuasive.
Fourth, Bellevue again relies on the Florida Supreme Court’s decisions in Hall, Allen, and Stevens to portray Ameijeiras as out of step with controlling precedent.38 And, again, this misconstrues those decisions because they recognize that premises liability may emerge based on either the suspicious behavior of the criminal in question or prior criminal activity. Ameijeiras, like Admiral’s Port, concerns the latter and sets forth the criteria for establishing what prior activities are relevant versus irrelevant, an issue never addressed by Hall, Allen, or Stevens. It’s interesting to note that Bellevue cites a federal decision from the Middle District of Florida on this point, Mulhearn v. K-Mart Corp., Case No. 6:01-cv-523-Orl-31KRS, 2006 U.S. Dist. LEXIS 59433 (M.D. Fla. Aug. 23, 2006). In a footnote, Mulhearn also labels Ameijeiras an anomaly for supposedly contradicting Hall, Allen, and Stevens.39 T his also is questionable and compounds the confusion, not only for the reasons stated above, but also because the 11th Circuit Court of Appeals has recognized that Mulhearn ignores and contradicts the more recent precedent from the Third District.40
Fifth, Bellevue asserts that Ameijeiras was rendered obscure the very next year by Czerwinski v. Sunrise Point Condo., 540 So. 2d 199 (Fla. 3d DCA 1989), where the Third District allowed prior dissimilar crimes into evidence to prove foreseeability.41 This assertion ignores the later precedents reaffirming Ameijeiras, and it also ignores that Czerwinski concerns the duties of landlords to their tenants, an exceptional circumstance raising heightened duties as described in an earlier decision cited in Czerwinski itself, as follows:
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.42
Sixth and finally, Bellevue asserts that Ameijeiras is limited to the context of public parks and should not influence the analysis of foreseeable crimes on private land such as the restaurant in question, citing the Third District’s later decision in Hill v. City of N. Miami Beach, 613 So. 2d 1356 (Fla. 3d DCA 1993).43 Y et Hill acknowledges that the standard for public parks is derived from the standard for private land: “ Like a private landowner, the [c]ity had the duty to protect invitees from risks that are reasonably foreseeable.”44 While it once was the case that public parkland did not trigger a heightened duty of care to invitees, it was Ameijeiras and other similar decisions that raised the bar and required public parks to follow the demanding private standard, as acknowledged by none other than the Fourth District (which Bellevue claims to follow).45 Quite naturally, the narrow test of foreseeability is not limited to public parks and has been applied to private land as well.46
Conclusion
In premises liability lawsuits, some district courts of appeal have opted for a broad approach that allows a large number of prior crimes into evidence to prove the foreseeability of a future crime. With its ruling in Bellevue, the Second District has adopted the broad approach as well. However, it is a mistake to conclude — as Bellevue does — that the broad approach is the only game in town; ample case law rejects the broad approach and treats prior crimes as irrelevant to foreseeability unless they have a strong nexus to the future crime in terms of type, location, and timing. The narrow test of foreseeable crimes remains alive and well in Florida, not only in the Third District where it has held sway for decades, but increasingly within the Fourth District where it has surfaced on at least two occasions in more recent years. Practitioners litigating in those two jurisdictions should avoid presuming that they may prove the foreseeability of a crime with evidence of prior crimes that are dissimilar or occurred somewhere else long ago. To paraphrase the conclusion of my original article, perhaps one day Florida will speak with one voice on this quandary, but for now, let us hope that practitioners and courts alike appreciate the different paths that each jurisdiction has chosen for itself.
1 Wilton H. Strickland, Premises Liability: A Notable Rift in the Law of Foreseeable Crimes, 83 Fla. B. J. 21 (Dec. 2009).
2 Admiral’s Port Condo. Ass’n, Inc. v. Feldman, 426 So. 2d 1054 (Fla. 3d DCA 1983); Ameijeiras v. Metro. Dade County, 534 So. 2d 812 (Fla. 3d DCA 1988).
3 See Wilton H. Strickland, Premises Liability: A Notable Rift in the Law of Foreseeable Crimes, 83 Fla. B. J. 21 (Dec. 2009).
4 Id.
5 Medina v. 187th St. Apartments, Ltd., 405 So. 2d 485 (Fla. 3d DCA 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)); Levitz v. Burger King Corp., 526 So. 2d 1048 (Fla. 3d DCA 1988) (reversing summary judgment for defendant because of disputed facts, but requiring a showing of prior similar crimes (assault)); Metro. Dade County v. Ivanov, 689 So. 2d 1267 (Fla. 3d DCA 1997) (same); Prieto v. Miami-Dade County, 803 So. 2d 780 (Fla. 3d DCA 2001) (requiring evidence of prior similar crimes (assault)).
6 Admiral’s Port, 426 So. 2d at 1055 (requiring evidence of prior crimes at condominium complex in question); 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”).
7 Lomillo v. Howard Johnsons Co., 471 So. 2d 1296, 1297 (Fla. 3d DCA 1985) (allowing evidence of off-premises crime if not committed “substantial distances away”).
8 Ameijeiras, 534 So. 2d at 812.
9 See Vazquez v. Lago Grande Homeowners Ass’n, 900 So. 2d 587, 593 (Fla. 3d DCA 2004) (quoting Paterson v. Deeb, 472 So. 2d 1210, 1215 (Fla. 1st DCA 1985)); Czerwinski v. Sunrise Point Condo., 540 So. 2d 199, 200 (Fla. 3d DCA 1989) (citing Paterson).
10 Hardy v. Pier 99 Motor Inn, 664 So. 2d 1095, 1098 (Fla. 1st DCA 1995) (citing Shelburne and Paterson ). But see Menendez v. The Palms West Condo. Ass’n, Inc., 736 So. 2d 58, 61 (Fla. 1st DCA 1999) (rejecting evidence of prior dissimilar crimes as irrelevant to foreseeability).
11 Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322, 331 (Fla. 4th DCA 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 DCA 1997) (holding that evidence of dissimilar crimes should go to a jury).
12 Foster v. Po Folks, Inc., 674 So. 2d 843, 844-46 (Fla. 5th DCA 1996).
13 Leitch v. City of Delray Beach, 41 So. 3d 411, 412 (Fla. 4th DCA 2010); Cunningham v. City of Dania, 771 So. 2d 12, 13-16 (Fla. 4th DCA 2000).
14 Menendez, 736 So. 2d at 61 (Fla. 1st DCA 1999) (rejecting evidence of the crime rate in the general area and requiring evidence of prior crimes on the premises).
15 Odice v. Pearson, 549 So. 2d 705, 706 (Fla. 4th DCA 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 DCA 1987) (allowing evidence of crimes at different stores, but within the same mall).
16 Leitch, 41 So. 3d at 412; Cunningham, 771 So. 2d at 13-16.
17 Foster, 674 So. 2d at 844-47.
18 Bellevue, 136 So. 3d at 642.
19 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).
20 Leitch, 41 So. 3d at 412.
21 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).
22 Admiral’s Port, 426 So. 2d at 1055.
23 Bellevue, 136 So. 3d at 644.
24 Hall, 458 So. 2d at 761.
25 Allen, 438 So. 2d at 357.
26 Stevens, 436 So. 2d at 34.
27 Ameijeiras, 534 So. 2d at 812; Ivanov, 689 So. 2d at 1267; Prieto, 803 So. 2d at 780; Medina, 405 So. 2d at 486.
28 Menendez, 736 So. 2d at 61.
29 Bellevue, 136 So. 3d at 644.
30 Id.
31 Ivanov, 689 So. 2d at 1267; Prieto, 803 So. 2d at 780.
32 Dist. Board of Trustees of Miami Dade Cmty. College v. M.H., 578 So. 2d 8 (Fla. 3d DCA 1991); Barrio v. City of Miami Beach, 698 So. 2d 1241, 1244 (Fla. 3d DCA 1997); Casecuberta v. City of Coral Gables, 774 So. 2d 21 (Fla. 3d DCA 2000); Prendes v. Miami-Dade County, 821 So. 2d 1196 (Fla. 3d DCA 2002); Zapata v. City of Homestead, 867 So. 2d 644 (Fla. 3d DCA 2004); Vazquez, 900 So. 2d at 592.
33 Admiral’s Port, 426 So. 2d at 1054; Ameijeiras, 534 So. 2d at 813.
34 Leitch, 41 So. 3d 411, 412; Cunningham, 771 So. 2d at 13-16.
35 Bellevue, 136 So. 3d at 643.
36 Leitch, 41 So. 3d at 412.
37 Cunningham, 771 So. 2d at 13-16.
38 Bellevue, 136 So. 3d at 644.
39 Mulhearn, 2006 U.S. Dist. LEXIS 59433, at *8 n.1.
40 Banosmoreno v. Walgreen Co., 299 Fed. Appx. 912, 914 n.1 (11th Cir. 2008).
41 Bellevue, 136 So. 3d at 644.
42 Paterson v. Deeb, 472 So. 2d 1210, 1215 (Fla. 1st DCA 1985), cited in Czerwinski, 540 So. 2d at 200.
43 Bellevue, 136 So. 3d at 644.
44 Hill, 613 So. 2d at 1357 (emphasis added).
45 Cunningham, 771 So. 2d at 13-16.
46 Medina, 405 So. 2d at 485; Levitz, 526 So. 2d at 1048; Admiral’s Port, 426 So. 2d at 1054.
Wilton H. Strickland is a partner in Strickland & Baldwin, PLLP, a law firm that provides legal research, writing, and support services to other attorneys. He earned his J.D. from the University of Virginia in 2000 and practiced general civil litigation in Florida through 2010. He now lives and works in Missoula, Montana, but he remains licensed to practice law in Florida.
