Although 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.
The key issue in this appeal is whether negligent security is governed by the liability standards associated with premises liability or those associated with ordinary negligence. In an ordinary negligence case, a defendant owes a plaintiff a reasonable duty of care regardless of the relationship between the plaintiff and the defendant. See Fla. E. Coast Ry. Co. v. Southeast Bank, N.A., 585 So. 2d 314, 316 (Fla. 4th DCA 1991). Conversely, in a premises liability case, the defendant’s duty of care depends on the plaintiff’s status on the property. Id. Pursuant to § 768.075 of the Florida Statutes , “[a] person or organization owning or controlling an interest in real property. . . is not liable for any civil damages for the death of or injury or damage to any discovered or undiscovered trespasser,” but “[t]o avoid liability to undiscovered trespassers” the party must “must refrain from intentional misconduct that proximately causes injury” and “[t]o avoid liability to discovered trespassers … must refrain from gross negligence or intentional misconduct that proximately causes injury.” § 768.075 (2), (3) Fla. Stat. (2013).
The Fourth District Court of Appeal acknowledged that some overlap may exist “when the trespasser is injured as a result of the landlord’s active conduct as opposed to a condition of the premises.” However, the Fourth District noted that the overwhelming majority of informative case law suggests that negligent security should be governed by the standards for premises liability and held that these negligent security cases should thus be governed by premises liability theories of liability. The court bolstered this conclusion by noting that negligent security relates to passive negligence – a landowner’s failure to keep premises safe from foreseeable criminal activity – rather than active negligence. Since premises liability relates to passive negligence, while ordinary negligence relates to active negligence, it follows that negligent security would fall under the umbrella of premises liability negligence. Accordingly, the court concluded that the trial court did not err by instructing the jury on the standard for premises liability and admitting evidence relevant to a premises liability determination.
Although the Fourth District Court of Appeals decision comports with common practice among trial courts in Florida, it forecloses plaintiffs arguing ordinary negligence in a negligent security case and thus considerably raises the burden on such plaintiffs. Accordingly, if you’ve recently been harmed as a result of possible negligent security, you should consider enlisting the aid of competent counsel prepared to deal with the shift in the law. The South Florida negligent security attorneys at Frankl & Kominsky have litigated premises liability actions in Florida state courts for many years, and they are prepared to offer you assistance in your possible case. Feel free to contact us if you are interested in a free case consultation.