Pandemic: An Outbreak of Negligent Security Litigation

Perhaps only Maleva the gypsy fortune teller can predict the nature and scope of lawsuits to come out of the myriad scenarios associated with the Coronavirus (COVID-19).  However, one such concern may be “negligent-security” claims brought against retailers and grocers during the rationing sale of goods, or even health care providers offering access to limited testing or inoculations.  Negligent security is an extension of a normal negligence case.  In other words, a claimant must establish that: they were injured by an unrelated third party on a defendant's property, and the property-owning defendant didn’t act with reasonable care, because that injury was legally foreseeable.  

Already we have heard of three combatants engaged in a fist fight over toilet paper at a Woolworths supermarket in Sydney, Australia.  In the advent of such heightened fears and irrational reactions by the general public, clients should consider the legal definition of what constitutes a “foreseeable crime” for purposes of protecting themselves against negligent-security allegations.

In Florida, a property owner owes two basic duties to invitees: first, to use reasonable care in maintaining the premises in a reasonably safe condition, and second, to warn of concealed perils which are or should be known by the property owner, but which are unknown to the invitee, and which cannot be discovered through exercise of due care. See, AHL v. Stone Southwest, Inc., 666 So. 2d 922 (Fla. 1st DCA 1995).  While a landowner is not an insurer of the safety of its invitees, the landowner does owe a duty not only to react to hazards of which it has notice but also to inspect to ensure conditions are safe or, at least, that hazards (unless open and obvious) are discovered and warned against. Cruz v. Wal-Mart Stores E., LP, 268 So. 3d 796, 798 (Fla. 4th DCA 2019). Likewise, while the burden of establishing a lack of reasonable care remains on a claimant, Section 768.0710, Florida Statutes, places the focus on whether a business owner exercised reasonable care in maintaining its premises or in its mode of operation.  The “mode of operation” theory of negligence recognizes that the duty of care required under the circumstances may consist of taking reasonable precautions to minimize or eliminate the likelihood of a dangerous condition arising in the first instance.  See, Wells v. Palm Beach Kennel Club, 160 Fla. 502 (1948).  The basis for this theory is that the specific mode of operation selected by a business – i.e., failing to provide any, or providing insufficient security - resulted in a dangerous or unsafe condition.  Similarly, in Georgia, if a proprietor has reason to anticipate a criminal act, they have a duty to exercise “ordinary care to guard against injury from dangerous characters.”  Days Inn of America v. Matt, 265 Ga. 235 (1995).  What is required is that the prior incident be sufficient to attract the owner or occupier's attention to the dangerous condition which resulted in the litigated incident.  Georgia courts have generally determined that whether a criminal attack is reasonably foreseeable is usually for a jury’s determination rather than summary adjudication by the courts.  Drayton v. Kroger Co., 297 Ga. App. 484 (2009), and see, Hall v. Billy Jack’s Inc., 458 So. 2d 760 (Fla. 1984).  

As a result, subsequent claims and defenses will focus on whether the “mode of operation” of a retailer or service provider was reasonable, i.e., whether a retailer or health care provider could reasonably have anticipated that a member of the public, participant or mere bystander, might panic, fight or be injured in a scuffle; and thus, if the mode of operation was negligent and was a legal cause of a claimant’s injury.

However, where undisputed facts show that there is no negligence of a party, or, that the negligence of the claimant appreciably caused or contributed to the incident, there is nothing to submit to the jury.  See, Nielsen v. City of Sarasota, 110 So. 2d 417, 419 (Fla. 2d DCA 1959).  Moreover, the mere occurrence of an incident will not give rise to an inference of negligence.  St. Joseph’s Hosp.  v. Cowart, 891 So. 2d 1039, 1041 (Fla. 2d DCA 2004), and, Harvey v. Bryant, 238 So. 2d 462, 463 (Fla. 1st DCA 1970) (a party is not an insurer of an invitee… it is incumbent upon the claimant to show affirmative acts of negligence).  Similarly, foreseeability of injury remains a pre-requisite to the imposition of a duty upon a defendant.  If an injury is not reasonably foreseeable, there can be no recovery.  Aaron v. Palatka Mall, L.L.C. 908 So.2d 574, 2005 WL 1923084 (Fla. 5th DCA 2005) citing to,  Ashcroft v. Calder Race Course, Inc., 492 So. 2d 1309 (Fla. 1986), and see, Goode v. Walt Disney World Co., 425 So. 2d 1151, 1155 (Fla. 5th DCA 1982) (Foreseeable consequences are not what might possibly occur).  

Nevertheless, in December 2013, the Second District Court of Appeal in Bellevue v. Frenchy’s South Beach Café, Inc., 136 So. 3d 640 (Fla. 2d DCA 2013) identified a broad test of “foreseeability.”  There have been differing legal opinions evaluating foreseeability of crime in general, incorporating a perpetrator’s suspicious behavior, the occurrence of prior crimes, geographical and temporal proximity.  While Florida appellate courts address the right of invitees to demand reasonable protection against crime, those opinions are not yet clear regarding what constitutes a “foreseeable” incident occurring as a result of uncontrollable crowds, panic, or rationing – or failing to provide security or to restrict purchases to permit more even distribution.

The owner of a premises with the right to control access has a duty to exercise due care to maintain the premises in a reasonably safe condition commensurate with the activities conducted thereon, to use every reasonable effort to maintain order among the patrons, employees, or those who come upon the premises, and to protect others from injury. Stevens v. Jefferson, 436 So.2d 33 (Fla. 1983).  On one occasion in 2010, the Fourth District affirmed a directed verdict against a premises liability plaintiff, relying in part on Ameijeiras v. Metro. Dade County, 534 So. 2d 812 (Fla. 3d DCA 1988) holding that an attack in a county-owned park was unforeseeable because “no similar violent crimes were reported to have occurred there in the preceding two years.” See, Leitch v. City of Delray Beach, 41 So. 3d 411, 412 (Fla. 4th DCA 2010).  

In April 2018, an Orange County Circuit Court denied a motion to dismiss by venue owner related to the shooting death of a performer who was shot and killed in 2016 after a show at the Plaza Live Theater in Orlando, Florida.  Although the case was later settled, the issues involved analysis of a special relationship and whether there was a duty owed to provide security.  

Because the question of foreseeability has been held to be a question for the jury, the issue remains whether a retailer can assert that crowd control, fear and rioting was not foreseeable under the unusual and special circumstances inherent in dealing with crowd control and a frightened public during a public health crisis such as a pandemic.