Articles Posted in Negligent Security

hospital hallwayMany find an extended stay in a medical facility to be a nerve-wracking affair. Likely not among the many fears that one considers in advance of a stay at a hospital, however, is the risk that the staff would intentionally exploit one’s vulnerability. Nevertheless, even the unexpected has the potential of becoming reality. For instance, in a recent decision, Florida’s Second District Court of Appeal tackled issues arising from an unfortunate case involving a woman who was allegedly sexually assaulted while receiving care at at a hospital’s mental health care facility.

In her complaint, the plaintiff alleged that while she was a patient at the aforementioned mental health care facility, a technician employed by the hospital sexually assaulted her in her room. She further alleged that she reported this attack to hospital officials, whom she claims intimidated her and declined to investigated the incident. She also asserted that there was a high prevalence of sexual assaults at this facility and that the hospital and its agents failed to exercise reasonable care in preventing the attack. Specifically, the plaintiff alleged that the purported assaulter had ready access to her room and acted suspiciously prior to the incident in common areas where his conduct was observable to others.

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bedroom windowFlorida is among many states that apply the “impact rule” in tort litigation. Generally, the impact rule provides that “a plaintiff can recover damages for emotional distress caused by the negligence of another” only if “the emotional distress suffered . . . flow[s] from physical injuries the plaintiff sustained in an impact.” Fla. Dep’t of Corrs. v. Abril, 969 So. 2d 201, 206 (Fla. 2007). Although there are many exceptions to the application of the impact rule, this limitation on recovery for emotional damages leads to considerable chagrin among many litigants in Florida courts. For instance, in a recent decision, G4S Secure Solutions USA, Inc. v. Golzar, the Third District Court of Appeal foreclosed the recovery of emotional damages in a case involving a Peeping Tom employed as a security guard at a South Florida residential community.

The defendant in this action, G4S Secure Solutions USA, Inc. (“Wackenhut”), provides private security services throughout the United States. Around November 2008, Wackenhut hired the security officer who performed in the aforementioned peeping incident at the heart of this case. At the time of the security officer’s hiring, Wackenhut performed an investigation of the security officer’s background and uncovered a California misdemeanor conviction for disorderly conduct in 2004. Although the security officer had not disclosed the incident on his application, Wackenhut chose not to investigate the incident further. It was later revealed that the specific conduct for which the security officer was convicted under California’s disorderly conduct statute was prowling and peeking into an inhabited building.

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Swimming poolArbitration clauses are a common part of many types of contracts, from employment agreements to recreational waivers. Although arbitration is quite popular, at least among contract drafters, agreeing to arbitrate often means relinquishing many important procedural and substantive rights associated with formal legal proceedings. Since many are unaware of the implications of arbitration at the moment of contract formation, courts frequently are called upon to determine the enforceability of these clauses. Fortunately for many hapless prospective litigants, not all such clauses are valid. For instance, the Third District of Appeal affirmed a Miami trial court’s denial of arbitration in Club Mediterranee, SA v. Fitzpatrick.

The plaintiff in Fitzpatrick worked as a costume designer at a Club Med in the Bahamas. While sleeping in an employer-provided dormitory room on the resort, the plaintiff was allegedly attacked by an unknown assailant. Following the alleged attack, the plaintiff brought suit against Club Mediterranee (Bahamas), Ltd. and several parent and affiliate corporate entitles. The defendants made a motion to either compel arbitration or, alternatively, for dismissal on the ground of forum non conveniens. The trial court denied the motion in its entirety, and the defendants appealed the decision.

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photo_1517_20060504The Supreme Court of Florida recently issued an opinion reversing a Fourth District Court of Appeal decision we cited in a previous post. The decision, Sanders v. ERP Operating Limited Partnership, examines when a defendant is entitled to a directed verdict in negligent security action.

The events leading to the Sanders case started in late 2004 when two young adults moved into an apartment complex that was marketed as a gated community. A year after they moved into the complex, the two were shot to death inside their apartment by unknown assailants. There were no signs of forced entry, but possessions including an engagement ring, cash, and credit cards had been taken. Evidence adduced during discovery showed that in the three years prior to the murders there had been two prior “violent” incidents at the gated community when the gate had been broken and criminals followed residents onto the property. During the year of these murders, the gate had been inoperable for a total of four months. One incident resulted in an armed robbery, the other in an assault. Though a governing manual provides that notice be given to residents when such acts occur, no notice was provided after these incidents.

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Private Property sign on a treeAlthough negligence predicated on a failure to provide adequate security is not a novel cause of action, there are many questions regarding its application that have yet to be resolved by Florida’s highest court. Foremost among these unresolved questions is whether the standard for premises liability or the standard for ordinary negligence applies when determining liability in a negligent security case. In a recent opinion, Nicholson v. Stonybrook Apartments, LLC, the Fourth District Court of Appeal established what standard would be applied in cases arising in its jurisdiction, which encompasses Broward County and Palm Beach County.

 Nicholson arose from a shooting during a party at an apartment complex managed by the defendant. The plaintiff was shot in the apartment complex’s common area and brought suit against the apartment complex, arguing that it failed to maintain its premises in a safe condition and failed to provide adequate security on the property. The suit went to trial, and a jury ruled in favor of the apartment complex, finding that management was not grossly negligent. However, the plaintiff appealed the judgment, arguing that the trial court erred in both allowing the defense to admit evidence regarding her status as a trespasser at the time of the injury and instructing the jury that the plaintiff’s status as an invitee or trespasser was pertinent to the standard of care to be applied.

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