Intent Required for Trespass Claim Case Florida Review
Premises Liability: A Notable Rift in the Police force of Foreseeable Crimes
The law surrounding premises liability in Florida is more than unsettled than nigh attorneys (and even judges) tend to suspect, especially with regard to third-party crimes.1 Although it often surprises the layperson, legal practitioners know well that a property owner may be held liable for a crime committed on the property by a total stranger, provided that the crime was "foreseeable."2 However here is where controversy emerges: Florida's appellate courts have parted ways on whether certain crimes versus others are foreseeable, which in turn has produced a measure of confusion in the trial courts. In i instance from Miami-Dade County, a gas station defended against a lawsuit by two young men who — while pausing at the station to swap cars with their friends — were brutally assaulted and injured by a group of thugs who fled the premises and escaped criminal punishment. The plaintiffs asserted a straightforward cause of action that the gas station had breached its duty to prevent a foreseeable criminal offence, and they began assembling a body of show showing that the station inhabited a high-crime area. Despite a rich vein of authority from the 3rd District Court of Appeal demonstrating that the assault was not foreseeable as a matter of police force, the judge opted to follow a lenient standard enunciated by other Florida jurisdictions, especially the neighboring Fourth District Court of Appeal. The guess refused to conclude that an assault could be unforeseeable given the general history of crimes in the surrounding area, a refusal at odds with precedent that requires a nexus between the crime at result and the time, identify, and manner of the prior crimes cited by the 2 plaintiffs.3 Although the example settled and never arrived at the 3rd District Courtroom of Appeal for review, a finding of reversible error was probable. This commodity explains why, and in then doing, it draws attention to the stark deviation in what Florida courts translate as a foreseeable crime.
Preliminary Consideration: The Plaintiff's Status on the Premises
The first stride in any premises liability instance in Florida is to ascertain the specific legal category that the plaintiff occupies, a determination that assumes unique importance in claims for third-party crimes because only certain types of individuals may assert such a claim. For example, the Tertiary District Court of Appeal has held that a landowner is non liable for foreseeable third-party crimes if the plaintiff came onto the state without invitation.four In the underlying case, three assailants had robbed a woman who was visiting a public beach when the beach was closed, and she brought a complaint alleging that the urban center knew of prior criminal attacks on the aforementioned embankment, yet failed to take necessary precautions. Her merits was defeated on summary judgment, and the Third District Courtroom of Entreatment affirmed past reasoning that a landowner'due south duty to an uninvited plaintiff is to refrain from willfully inflicting harm, and as well reasoning that "the danger of crime and criminal assaults is an open and obvious danger for which at that place is no duty to warn" the uninvited plaintiff.five On a split up occasion, the Third District Court of Appeal phrased the rule in an even more straightforward manner: "A landowner has a duty to protect an invitee on his premises from a criminal attack that is reasonably foreseeable."6 No district court of entreatment has rejected this estimation, and then it is helpful to review this basic bespeak of agreement before exploring the discord over whether a offense is indeed foreseeable.
Whenever a plaintiff seeks to recover confronting a premises owner/operator for a harmful defect or a crime committed thereon, Florida law volition classify him or her as falling under i of three broad headings:7 guest, licensee, or trespasser.
Most exalted is the first category, the invitee, which itself is subdivided into "public invitees" and "business organization invitees." A public invitee "is a person who is invited to enter or remain on state as a member of the public for a purpose for which the land is held open to the public."8 A business invitee "is a person who is invited to enter or remain on country for a purpose directly or indirectly continued with business dealings with the possessor of the land."nine Bounds liability plaintiffs naturally expend a great deal of endeavour to portray themselves as invitees because, as invitees, they may demand a high level of care from the accused in the maintenance of the property. Specifically, the possessor or operator of the property must maintain it in a reasonably prophylactic status and correct or warn of dangers that the accused knew or should have known of, and which the plaintiff did not or should not accept known of past the use of reasonable intendance.10 This duty also extends to social guests of the landowner, whom the law designates every bit "licensees by invitation."11
In stark contrast to invitees and invited licensees stand the ordinary, less welcome licensees — often termed "uninvited licensees" to avoid confusion — who are "persons who choose to come upon the premises solely for their ain convenience without invitation either expressed or reasonably unsaid under the circumstances."12 A landowner owes far less of a duty to licensees, as the Florida Supreme Court described in Stewart v. Texas Co., 67 Then. 2d 653, 654 (Fla. 1953), when denying relief to a plaintiff who was injured while visiting a gas station for the sole purpose of changing a $10 bill:
Mere licensees are most the least favored in law of men who are not actual wrongdoers. It has been stated that an owner or occupant owes one whom he permits to enter for the latter's convenience no duty except not to harm him willfully or wantonly, or to set traps for him, or to expose him to danger recklessly or wantonly.. . . No duty is imposed by law on an possessor or occupant to keep the premises in a safe condition for those who come at that place solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come up thereon, although their entry is permitted by the owner or occupant. Active vigilance is not required on the part of the property owner to see that his premises are kept safe for the do good of licensees . . . . 13
At the bottom of the barrel is the trespasser, whom Florida law defines every bit someone "who enters the premises of another without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his own convenience, or but as an idler with no apparent purpose, other than perhaps to satisfy his marvel."14 As with the possessor's legal duty toward uninvited licensees, the owner's meager duty toward a trespasser is to refrain from inflicting willful or wanton injury.xv
As explained previously, uninvited persons such every bit uninvited licensees or trespassers may not expect the premises owner to protect them from foreseeable 3rd-party crimes, since only invitees and invited licensees are entitled to that expectation. A breakdown of all the categories, along with their corresponding descriptions and rights, appears in the table on folio 22.
The Point of Divergence: What Crimes Are Foreseeable?
Even if a plaintiff seeking to recover for a third-political party offense surmounts the initial hurdle of qualifying as an invitee, the plaintiff must however prove that the crime in question was one that the premises owner should accept foreseen. I way of accomplishing this is to demonstrate that the premises owner knew or should accept known of the specific 3rd party's inclination toward crime, a test that is well-established in Florida law.16
A hit disagreement emerges, yet, with regard to whether prior crimes make the crime in the present case foreseeable. It was only in 1983 that the Florida Supreme Court confirmed this equally an boosted test, and controversy over the test's scope has raged ever since.17 The Tertiary District Courtroom of Appeal has staked out a unique position in this debate by announcing that a plaintiff must satisfy a rigorous test consisting of three separate criteria: 1) the similarity of the prior crimes; 2) the geographical proximity of the prior crimes; and 3) the temporal proximity of the prior crimes. Other jurisdictions, specially the 4th Commune Courtroom of Entreatment, have refused to tie plaintiffs' hands in this manner, and the debate remains unresolved.
• Similarity of the Prior Crimes —Co-ordinate to the Third Commune Court of Entreatment, whatever prior crimes that a plaintiff references in order to show foreseeability must exist like to the crime in the plaintiff's case. For example, as with the two immature men who were assaulted at the gas station, evidence of prior nonviolent crimes such as drug possession, drug use, and prostitution — or show of mere property crimes, such as larceny and vandalism — are inadmissible to show the foreseeability of a violent attack.18
Though some plaintiffs litigating in the Tertiary District have been immune to admit evidence of prior dissimilar crimes, those cases business concern the unique context of the landlord-tenant relationship.19 Equally one court noted:
Because there are often boosted considerations incident to the contractual and statutory obligations found in the usual landlord/tenant relationship, we do non perceive the foreseeability premise of the general rule governing landowner/guest liability to be the sectional basis for the landlord'southward liability to the tenant regarding criminal attacks committed on the leased premises.. . . In that location appears to exist a marked tendency in Florida decisions to recognize the rights of tenants to recover damages for criminal attacks on the leased premises on several additional legal theories.. . . [N]one of these decisions held that pleading and proof of prior similar incidents on the landlord'due south premises is the exclusive basis for imposing a duty on the landlord. 20
Quite contrary to all this, the Fourth District Courtroom of Appeal has practical the generous landlord-tenant standard to all premises liability cases, holding that evidence of prior unlike crimes is relevant and admissible to foreseeability in any context whatsoever.21 The Fifth Commune Court of Appeal has noticed this difference and taken sides with the Fourth District'southward lenient standard, allowing show of prior dissimilar crimes to attain a jury despite acknowledging that this would not be permitted under the Third District's test.22 Joining along, the First District Court of Appeal has opened the evidentiary door to a broad swath of prior dissimilar crimes:
[T]he lower court'due south finding that [defendant] "had not previously experienced any prior violent assaults on the premises" does not resolve the question of whether the assail on [plaintiff] was foreseeable. The lower court seems to exist requiring proof that the [defendant] had knowledge of prior similar violent criminal acts on the bounds in society for [the] stabbing of [plaintiff] to exist considered reasonably foreseeable. Such an error in analysis is not a slight one, in our stance, for it places upon plaintiffs. . . a bar to recovery which does not exist for subsequent victims of violent criminal offence. . . . 23
The lenient decisions from the Offset, Fourth, and 5th districts clearly conflict with the decisions from the Third District Courtroom of Appeal, which indeed crave a showing that whatsoever prior crimes be like to the crime at issue, and, therefore, the lenient decisions are non binding within the Third Commune.24
• Geographical Proximity of the Prior Crimes— Geographical proximity of prior crimes constitutes the second hurdle to proving a given crime's foreseeability, since the Third Commune Court of Entreatment held in Admiral'due south Port Condo. Ass'n, Inc. 5. Feldman, 426 So. 2nd 1054, 1055 (Fla. 3d DCA 1983) that any prior similar crimes must have occurred on the landowner'southward premises in order to be considered probative.25 Oddly, the court went the other way in Lomillo v. Howard Johnsons Co., 471 And then. 2d 1296, 1297 (Fla. 3d DCA 1985), past holding that off-premises crimes might contribute to a foreseeability analysis, then long as they did not occur "substantial distances away." This qualifying language comes from Feldman itself, where the court refused to admit bear witness of off-premises crimes that had taken place far abroad26 — an observation that the court in Lomillo took to mean that a nearby off-premises crime would be admissible. Over again, there is an exception for landlord-tenant relationships, where off-premises crimes may exist regarded as probative.27 On balance, though, the most recent and prevalent say-so in the Third District Courtroom of Appeal treats testify of off-bounds crimes as irrelevant to the foreseeability of a crime in a nonresidential setting.
The 4th District Court of Appeal — equally with the element of similarity — has rejected strict geographical requirements by allowing evidence of crimes in the general vicinity to support an inference of foreseeability.28 This fourth dimension, however, the First District appears to have sided with the Third Commune by adopting a strict geographical test.29
• Temporal Proximity of the Prior Crimes— A premises liability defendant litigating in the Third District confronting a claim of third-political party crime is entitled to prevail if no prior similar crimes occurred on the bounds during at least the 2 previous years.30 Although a crime occurring more recently may or may not evidence the present offense's foreseeability, an older criminal offense apparently does not.
Equally usual, an exception has arisen with regard to landlord-tenant arrangements, where crimes older than two years might play a role in the foreseeability assay.31 And as usual, the 4th District Courtroom of Appeal has transformed the exception into the rule itself, holding that no strict constraints as to the time frame of prior crimes will bar a jury from deciding whether the totality of the circumstances connotes foreseeability.32 The Fifth Commune Court of Entreatment has signaled its sympathy for a lenient temporal test as well.33
Determination
Although it is hard to define why Florida's appellate courts have diverged on the issue of criminal foreseeability in this manner, they certainly have generated a measure out of defoliation in the trial courts, where a jurisdiction'southward decision-making test of foreseeability may often exist discarded in favor of a more palatable examination from somewhere else. Information technology is possible that the Third District Courtroom of Appeal embraces a stricter standard in society to preserve the maxim that premises liability is non strict liability: "An possessor of existent property is not an insurer of the condom of persons on such property, nor is he field of study to strict liability or liable per se for injuries resulting from unsafe weather on owned property."34
In a earth where crime is proliferating, a lenient standard encompassing the totality of the circumstances renders virtually every offense foreseeable and threatens to transform every landowner into an insurer, which the Third Commune Court of Appeal seems to accept intuited for some fourth dimension. Maybe one day Florida will speak with ane phonation on this quandary, simply for at present, may practitioners and trial courts akin appreciate the different paths that each jurisdiction has chosen for itself.
1 "Tertiary political party" in the context of this article refers to persons unaffiliated with the defendant as employees or contractors. Affiliations of this sort raise unique duties and concerns not addressed hither. See, due east.grand., K.M. five. Publix Supermarkets, Inc., 895 So. 2d 1114 (Fla. 4th D.C.A. 2005).
2 Foreseeability alone does not suffice to concord a property owner liable for a third-political party crime. For case, a plaintiff would likewise accept to testify that the crime, though foreseeable, was also preventable if the property possessor had exercised reasonable precautions. Foreseeability is, yet, the essential precondition without which the merits cannot succeed.
three The referenced instance is not reported, but rather is ane in which the writer helped represent the defendant.
4 See Barrio 5. City of Miami Beach, 698 So. 2d 1241 (Fla. 3d D.C.A. 1997) (citing Lane 5. Estate of Morton, 687 So. second 53, 54 (Fla. 3d D.C.A. 1997);
Davis v. City of Miami, 568 Then. 2d 1301 (Fla. 3d D.C.A. 1990)).
v Barrio, 698 So. 2d at 1244.
6 Ameijeiras v. Metro. Dade Canton, 534 So. 2d 812, 813 (Fla. 3d D.C.A. 1988) (emphasis added).
7 See Mail service v. Lunney, 261 And then. 2d 146, 147 (Fla. 1972).
8 Id. at 148 (quoting Restatement (Second) of Torts §332(2) (1977)).
ix Id.
10 Id. at 150.
11 Encounter Wood v. Military camp, 284 So. 2nd 691, 694-95 (Fla. 1973).
12 Iber v. R.P.A. Int'l Corp., 585 So. 2nd 367, 368-69 (Fla. 3d D.C.A. 1991).
13 Stewart, 67 So. 2d at 654 (emphasis added).
xiv Post, 261 So. 2d at 147.
15 Id.
16 See Hall v. Billy Jack'due south, Inc., 458 Then. 2d 760, 761 (Fla. 1984) (citing Allen v. Babrab, Inc., 438 So. 2d 356 (Fla. 1983)); see too Gottschalk v. Smith, 334 So. second 102, 103 (Fla. 3d D.C.A. 1976).
17 See Stevens v. Jefferson, 436 And then. 2d 33, 35 (Fla. 1983).
xviii Run across Prieto five. Miami-Dade County, 803 Then. second 780 (Fla. 3d D.C.A. 2001) (requiring testify of prior similar crimes (assault)); Metro. Dade County five. Ivanov, 689 So. 2d 1267 (Fla. 3d D.C.A. 1997) (same); Levitz 5. Burger King Corp., 526 Then. 2d 1048 (Fla. 3d D.C.A. 1988) (reversing summary judgment for defendant because of disputed facts, but requiring a showing of prior similar crimes (assault)); Medina five. 187th St. Apartments, Ltd., 405 So. second 485 (Fla. 3d D.C.A. 1981) (reversing directed verdict for accused because of disputed facts, but requiring a showing of prior similar crimes (assault)); Ameijeiras, 534 So. 2d at 812 (discounting evidence of rampant illegal activities on the subject bounds due to the absenteeism of prior similar crimes (set on and robbery)).
19 See Czerwinski five. Sunrise Point Condo., 540 So. 2d 199, 200 (Fla. 3d D.C.A. 1989) (citing Paterson five. Deeb, 472 Then. second 1210, 1215 (Fla. 1st D.C.A. 1985)); encounter also Vazquez v. Lago Grande Homeowners Ass'n, 900 So. 2d 587, 592-93 (Fla. 3d D.C.A. 2004) (citing Paterson).
xx Paterson, 472 And so. 2nd at 1215 (emphasis in original).
21 See Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322, 331 (Fla. 4th D.C.A. 1991) (citing Czerwinski and Paterson), disapproved on other grounds, Angrand 5. Key, 657 Then. 2d 1146 (Fla. 1995); Prime number Hospitality Corp. v. Simms, 700 So. 2d 167, 169 (Fla. 4th D.C.A. 1997) (holding that testify of dissimilar crimes should become to a jury).
22 Run into Foster v. Po Folks, Inc., 674 So. 2d 843, 844-46 (Fla. 5th D.C.A. 1996).
23 Hardy v. Pier 99 Motor Inn, 664 Then. 2d 1095, 1098 (Fla. 1st D.C.A. 1995) (citing Shelburne and Paterson) (emphasis in original). But see Menendez 5. The Palms Due west Condo. Ass'due north, Inc., 736 So. 2d 58, 61 (Fla. 1st D.C.A. 1999) (rejecting evidence of prior dissimilar crimes as irrelevant to foreseeability).
24 See, e.g., Univ. of Miami v. One thousand.A., 793 So. 2nd 999, 1000 (Fla. 3d D.C.A. 2001) (reminding the trial court that it was obligated to follow a ruling from the Fifth District Court of Entreatment only because neither the Florida Supreme Court nor the Tertiary Commune Courtroom of Appeal had decided the legal upshot at hand).
25 Encounter also Ameijeiras, 534 So. 2nd at 812 (requiring prove of prior crimes at the park in question); Ivanov, 689 So. second at 1267 (rejecting evidence of prior crimes at a different nearby park); Prieto, 803 So. 2nd at 780 (requiring evidence of prior crimes at the railroad station in question); Medina, 405 Then. 2d at 486 (reversing directed verdict for defendant because of disputed facts, but requiring show of prior crimes "in the circuitous").
26 See Feldman, 426 Then. 2d at 1055 (rejecting prove of prior crimes "substantial distances abroad").
27 See Czerwinski, 540 Then. 2d at 201 (citing Paterson, 472 And so. second at 1210).
28 Meet Odice v. Pearson, 549 So. 2d 705, 706 (Fla. 4th D.C.A. 1989) (reversing trial court'due south exclusion of off-premises crimes from evidence); Eichenbaum v. Rossland, Real Estate, Ltd., 502 So. 2d 1333, 1334 (Fla. 4th D.C.A. 1987) (allowing evidence of crimes at unlike stores, simply inside the same mall).
29 See Menendez, 736 Then. second at 61 (Fla. 1st D.C.A. 1999) (rejecting evidence of the crime rate in the full general area, and requiring evidence of prior crimes at the complex itself).
30 See Ameijeiras, 534 So. second at 812 (property the assault unforeseeable absent evidence of trigger-happy crimes at the park in the previous two years).
31 Czerwinski, 540 And so. 2d at 201 (giving weight to show of sexual assault occurring four years prior); Paterson, 472 And then. second at 1213, 1218 (examining criminal assaults during the previous four years, and examining sexual assaults during the previous 7 years).
32 Run across, e.thousand., Simms, 700 Then. 2d at 168-69 (assuasive jury to consider bear witness of crimes that occurred more than ii years earlier the incident in question, equally role of a generic foreseeability analysis).
33 Foster, 674 So. 2nd at 845-46 (allowing jury to consider bear witness of crimes that occurred more than two years before the incident in question, as function of a generic foreseeability assay).
34 Fla. Dep't of Nat. Res. v. Garcia, 753 So. 2nd 72, 79 (Fla. 2000) (quoting Bovis v. 7-Eleven, Inc., 505 So. 2d 661, 662-63 (Fla. 5th D.C.A. 1987)).
Wilton H. Strickland is an associate in the Hollywood office of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A. He earned his undergraduate degree, magna cum laude and Phi Beta Kappa, from the Higher of William & Mary in 1996, and his J.D. from the University of Virginia in 2000. He practices in all areas of general liability.
Source: https://www.floridabar.org/the-florida-bar-journal/premises-liability-a-notable-rift-in-the-law-of-foreseeable-crimes/
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