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1. Defendant owed a duty to plaintiff to protect the plaintiff from a particular injury or damage;
2. Defendant breached this duty;
3. Defendant’s breach was the proximate cause of injury or damage to plaintiff; and
4. Plaintiff suffered damages caused by the breach.

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1. Defendant owed a duty to plaintiff to protect the plaintiff from a particular injury or damage;
2. Defendant breached this duty;
3. Defendant’s breach was the proximate cause of injury or damage to plaintiff; and
4. Plaintiff suffered damages caused by the breach.

The owner of a business owes a duty of care to invitees on the premises, to protect against a reasonably foreseeable criminal attack. See Mulhearn v. K-Mart Corp., No. 6:01 CV 523 ORL 31KR, 2006 WL 2460664, at *2 (M.D. Fla. Aug. 23, 2006).

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FLORIDA STATE COURTS

Supreme Court: Merrill Crossings Assocs. v. McDonald, 705 So.2d 560, 562 (Fla. 1997).


First District: Hardy v. Pier 99 Motor Inn, 664 So.2d 1095, 1098 (Fla. 1st DCA 1995).


Second District: Drake v. Sun Bank & Tr. Co., 377 So.2d 1013, 1014-15 (Fla. 2d DCA 1979).


Third District: 50 State Sec. Serv., Inc. v. Giangrandi, 132 So.3d 1128, 1135 (Fla. 3d DCA 2013); Ten Assocs. v. McCutchen, 398 So.2d 860, 862-63 (Fla. 3d DCA 1981).


Fourth District: Nicholson v. Stonybrook Apartments, LLC, 154 So.3d 490, 493-94 (Fla. 4th DCA 2015) (holding that negligent security cases are governed by premises liability rather than ordinary negligence).


Fifth District: Foster v. Po Folks, Inc., 674 So. 2d 843, 844 (Fla 5th DCA 1996).

FLORIDA FEDERAL COURTS

Eleventh Circuit: Sapp v. United States, 2022 WL 110227, *2 (11th Cir. Jan. 12, 2022); Banosmoreno v. Walgreen Co., 299 F. App’x 912, 913 (11th Cir. 2008).


Southern District: Collins v. City of Miami, 2022 WL 426510, *4 (S.D. Fla. Feb. 12, 2022); Stewart v. Carnival Corp., 365 F. Supp. 3d 1272, 1274 (S.D. Fla. 2019).


Middle District: S. Y. v. Wyndham Hotels & Resorts,Inc., 521 F. Supp. 3d 1173, 1192 (M.D. Fla. 2021); Hammer v. Lee Mem’l Health Sys., No. CV218347FTMPAMMRM, 2020 WL 999775, at *3 (M.D. Fla. Mar. 2, 2020)(holding that negligent security cases are governed by premises liability rather than ordinary negligence).

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2 Defenses to Claim for Negligent Security

(1) Fla. R. Civ. P. 1.110(d) (pleading affirmative defenses), and other standard defenses. See § 1.

(2) Statute of Limitations: Fla. Stat. § 95.11(4)(a) (2023) (two years); Fla. Stat. § 95.11(3)(a) (2022)(four years for claims accruing prior to March 24, 2023).

(3) Specific Knowledge: Defendant need not have had specific knowledge of a dangerous individual, and may be liable if plaintiff can show actual or constructive knowledge of a dangerous condition on the premises which could have harmed patrons. Stevens v. Jefferson, 436 So. 2d 33, 34 (Fla. 1983); Goines v. Lee Mem’l Health Sys., No: 2:17-cv-656-FtM-29CM, 2019 WL 497706, at *10 (M.D. Fla. Feb. 8, 2019).

(4) Foreseeability: “Factors to be considered in proving foreseeability include: (1) industry standards, (2) community crime rate, (3) extent of assaults or criminal activity in the area or in similar business enterprises, and (4) the presence of suspicious persons and the peculiar security problems posed by the premises design.” Satchwell v. La Quinta Motor Inns, Inc., 532 So. 2d 1348, 1349 (Fla. 1st DCA 1988).

(5) “[T]ort liability in Florida is premised on pure comparative negligence, which means that a jury should apportion fault between the plaintiff, defendant, and any third parties alleged to have been at fault, and render an award based on a defendant’s percentage of fault in causing an injury.” Williams v. Davis, 974 So. 2d 1052, 1061 n.1 (Fla. 2007); Fla. Stat. § 768.81(2).  For negligence claims that accrue on or after March 24, 2023, Florida will apply a comparative negligence standard, which bars a plaintiff from recovery if the plaintiff is more than fifty (50) percent at fault. § 768.81(6), Fla. Stat. (2023).

(6) Open and Obvious: The open and obvious doctrine does not completely bar recovery, but will be considered as in landowner’s comparative negligence defense, where plaintiff knew of the danger. CSX Transp., Inc. v. Whittler, 584 So. 2d 579 (Fla. 4th DCA 1991); but see Brookie v. Winn-Dixie Stores, Inc., 213 So.3d 1129, 1133 (Fla. 1st DCA 2017) (holding open and obvious doctrine to completely bar recovery when either (1) the condition is “open and obvious and not inherently dangerous”; or (2) the condition may be dangerous, but is “so open and obvious that an invitee may be reasonably expected to discover them to protect himself.”).

(7) Tavern: A tavern owner may have had knowledge of a dangerous condition where the owner knows of an third party’s past disorderly conduct which may endanger patrons; or where the security employed is inadequate. Hall v. Billy Jack’s, Inc., 458 So. 2d 760 (Fla. 1984); Bellevue v. Frenchy’s South Beach Café, Inc., 136 So.3d 640, 643 (Fla. 2d DCA 2013).

(8) Plaintiff’s contributory negligence serves to diminish the recovery of damages through principles of comparative negligence, by apportioning defendant’s degree of negligence against that of the plaintiff. Hoffman v. Jones, 280 So. 2d 431, 436 (Fla. 1973); § 768.81, Fla. Stat.

(9) Plaintiff’s injuries resulted from an intervening, superseding cause. Golden Gate Homes, LC v. Levey, 59 So.3d 275, 281 (Fla. 3d DCA 2011); Townsend v. W. Side Dodge Inc., 642 So. 2d 49, 50 (Fla. 1st DCA 1994), rev. denied, 651 So. 2d 1197 (Fla. 1995); Restatement (Second) of Torts §§ 440, 441 (1965).

(10) Assumption of the risk will diminish the plaintiff’s recovery through comparative negligence. Blackburn v. Dorta, 348 So. 2d 287, 298 (Fla. 1977); Restatement (Second) of Torts § 496 (1965).

(11) Good Samaritans are immune from civil liability. § 768.13, Fla. Stat.

(12) Execution of a valid release is an absolute bar to liability. Bruce v. Heiman, 392 So. 2d 1026, 1026 (Fla. 5th DCA 1981); Beck-Ford Constr., LLC v. TCA Global Credit Master Fund, LP, 240 F. Supp. 3d 1256, 1279 (S.D. Fla. 2017).

(13) Patent danger, also known as the “open and obvious hazard doctrine” is an absolute bar to liability when plaintiff’s negligence claim is premised on failure to warn, and otherwise serves as a defense to reduce the defendant’s liability through principles of comparative negligence when plaintiff failed to exercise reasonable care under the circumstances. E.g., Hunnings v. Texaco, Inc., 29 F.3d 1480, 1486-1487 (11th Cir. 1994).

(14) Consent is a defense to negligence claims. Restatement (Second) of Torts § 892 (1965).

(15) Statutory Negligence requires showing that plaintiff (a) is a member of class for which protection was intended, (b) suffered an injury which the statute was designed to prevent and (c) violation of the statute proximately caused the injury. DeJesus v. Seaboard Coast Line R.R. Co., 281 So. 2d 198, 201 (Fla. 1973).

(16) Security companies voluntarily assume the duty to guard against crime by contractually agreeing to do so; thus, proof of prior criminal offenses is not necessary to establish the element of duty in cases against such defendants. See Vazquez v. Lago Grande Homeowners Ass’n, 900 So. 2d 587, 593 (Fla. 3d DCA 2004); Burns Int’l Sec. Servs. Inc. of Fla. v. Philadelphia Indem. Ins. Co., 899 So. 2d 361, 364-65 (Fla. 4th DCA 2005).

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