A response to Duty Out of Control in Negligent Security Cases. The consumer’s perspective.
The author asks what a property owner should do if they have a business in a high crime area? He suggests that a business owner will be unable to secure a private security contractor because they are unwilling to take the risk of providing security due to a high risk of liability. This is not entirely accurate. Security can be had for even the highest crime areas, but it may be more expensive. Further, the author ignores the 800 pound gorilla in the room, liability insurance to cover the risk created by the business activity.
Many businesses in high crime areas combat crime through cost effective means. They become involved with community watch organizations forming close relationships with municipal law enforcement agencies to make their community safer. Moreover, important aspects of a security plan are established through environmental design: lighting, access control and security cameras that can be implemented at a reasonable cost. Surprisingly, over the course of time with persistent effort by business owners many neighborhoods have seen dramatic drops in crime rate.
The Broken Windows theory to criminology introduced in 1982 by Wilson and Kelling is one good example. A few broken windows will lead to more vandalism and deterioration of the building and surrounding community that includes a corresponding increase in other crimes. Proper maintenance can serve as a large measure of deterrence to both crimes against property and crimes against persons.
Some businesses in high crime areas not only lack security guards; they are generally rundown, are dimly lit and have no security cameras. Those would be criminals know the properties where they can hide undetected and undisturbed by security forces to prey upon the unsuspecting innocent. Property owners are in the best position to know crime trends on or near their property if they are paying attention. This information is readily available through local law enforcement agencies at little or no cost. Alternatively, the motorist that exits the tourist who exits the highway to ask for directions or fill the gas tank has no idea of the crime history in the area. If the property owners in high crime areas employed the same reasonable security measures as property owners in other parts of the community then it would be a good start and crime of opportunity would go down in those areas. Unfortunately, some property owners ignore the problem and place profits over consumer safety.
It is a corner stone of Florida law that a property owner has a duty to maintain their premises and reasonably safe condition and a duty to warn business of hidden dangers on their property if they are open for business. These duties are non-delegable as a matter of law, but the performance of activities to meet the duty may be contracted out to third parties such as a security contractor. Goldin v. Lipkind, 49 So. 2d 539, 541 (Fla. 1950); U.S. Security Services Corp. v. Ramada Inn, Inc., 665 So. 2d 268, 270 (Fla. 3d DCA 1996).
Civil jury verdicts are guaranteed by the Seventh Amendment to the United States Constitution. “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
The author refers to the recent decision of the Third District in the case of 50 State Sec. Serv., Inc. v. Giangrandi, 132 So. 3d 1128, 1133-34 (Fla. Dist. Ct. App. 2013). A close read of the opinion reveals that 50 State was guilty of significant breaches in its own written security plan: it failed to patrol continuously and during the crucial two-hour period when the murderer first saw an open bathroom window and stopped outside the victim’s home, to 3:00 a.m., when the murderer cut the window screen and climbed inside the house and took the victim’s life. The Third stated,
The jury could have credited record evidence indicating: (1) the roving guard was in the guardhouse and not patrolling from approximately 1:00 a.m. to 1:35 a.m.; (2) the roving guard disappeared off the checkpoint system entirely from 2:29 a.m. to 4:19 a.m.; and (3) the roving guard patrolled past Giangrandi’s home only twice during the crucial two-hour period, even though he should have patrolled past the home at least eight times if he had been patrolling continuously. These facts were sufficient to support a jury question on the issue of whether the security company breached its duty to patrol continuously. ***
In this record, the estate presented sufficient evidence for the jury to find that the murderer gained access to Giangrandi’s home in a manner that probably would have been detected or deterred had the breach in security not occurred. The jury heard evidence that the murderer waited outside and finally broke into the home during the time period when the roving guard should have been patrolling, but was not. It also heard evidence that this particular type of opportunistic crime would have been detected or deterred if the guard had been properly patrolling. We cannot state as a matter of law that the occurrence of the burglary at the very time when the breakdown in security occurred could only be a matter of coincidence.
In the final analysis, the sworn statement of the murderer describing how and when he broke into the home provides the necessary temporal and physical connection that links the failure in security to the criminal’s entry into the dwelling. *** Because the purpose of a roving patrol is to either detect or deter crime, the jury could reasonably infer that the failure to patrol outside the home during the critical time period created the opportunity for the murderer to break into Giangrandi’s window, and therefore that the security company’s breach was the proximate cause of Giangrandi’s murder.
50 State Sec. Serv., Inc. v. Giangrandi, 132 So. 3d 1128,
Mr. Parafinczuk suggests that land owners should read this opinion as a “cautionary tale”. Respectfully, this scribe would suggest that property owners owe the same duty to all customers to maintain their property in a reasonably safe condition and warn of hidden dangers regardless of whether they are open for business in a high crime or low crime environment. Civil jury verdicts are guaranteed by the Seventh Amendment to the United States Constitution. “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law. Jury verdicts effect social change to protect consumers against tortfeasors that violate basic safety rules by breaching the duty of reasonable care that is owed to all business invitees in premises liability cases. This is the role of negligent security litigation in our society.
Sam Coffey, is a trial lawyer devoted to representing individuals and their families who have been injured by the carelessness of others.
