Protecting Licensees Against Claims of Negligent Security

By: Stephen K. Talpins

08.01.13

Introduction
One party generally is not responsible for the intentional torts or criminal acts of another. However, the rule is not absolute. Proprietors must maintain their premises in a reasonably safe condition and make “every reasonable effort” to maintain order among those who patronize their business. Borda v. East Coast Entertainment, 950 So. 2d 488 (Fla. 4th DCA 2007). Thus, establishments have a duty to exercise reasonable care to protect their patrons against reasonably foreseeable criminal conduct.

This exception poses a special danger peculiar to Florida licensees. Florida is a “comparative fault state;” courts generally apportion damages according to each party’s percentage of fault. However, in cases where one patron injures another during or after a reasonably foreseeable criminal act, the owner of the premises may be held legally responsible for a claimant’s damages. Merrill Crossings Associates v. McDonald, 705 So. 2d 560 (Fla. 1997). In this article, we explore the basic principles underlying claims for negligent security and the different options available to licensees to be proactive and protect their businesses.

General Liability for Negligence Security
Licensees may be held liable for failing to exercise reasonable care to protect their patrons against reasonably foreseeable criminal conduct. Foresee ability may be established by proving a proprietor had actual or constructive knowledge of (1) a particular assailant’s inclination toward violence; or (2) the “dangerous condition” of the premises. Hall v. Billy Jack’s, Inc., 458 So. 2d 760 (Fla. 1984). A plaintiff may prove that a “dangerous condition” existed either by showing that there was a “likelihood” of disorderly conduct that might endanger the safety of patrons or that security staffing was “inadequate.” Key factors include local crime rates, prior incidents (including calls to law enforcement), the crime’s location (whether it occurred on the premises, next to the premises, or close to the premises), the type of crime, the specific circumstances of the crime, and whether security measures could have deterred the crime.

In the case of Allen v. Babrab, 438 So. 2d 356 (Fla. 1983), an intoxicated male patron assaulted a woman in an club’s parking lot after she rebuffed his advances. The establishment had a history of fighting and disorderly conduct by its patrons. Thus, in the past the club had employed security personnel to maintain security on their premises. However, on the night of the incident with Plaintiff, no security was present even though the club recognized that there was a likelihood of disorderly conduct by third persons. The court held that establishments have a duty to protect patrons from foreseeable harms and found that the establishment was negligent and liable for the incident because it failed to address a known danger.

Minimizing Risk and Exposure
Licensees can protect themselves from liability and minimize exposure by being proactive.   Some of the actions they make take include :

  • Identifying who is responsible for security in their leases
  • Drafting and implementing policies that set out the licensees practices for:
    •  Hiring and retention
    •  Crime reporting
    •  Maintenance
    •  Safety
    • Security
    • Alcohol and drugs
       
  • Familiarizing managers with local crime statistics
  • Maintaining the premises
    • Ensure appropriate lighting
    • Prevent overgrown landscaping that may provide criminals with cover to hide
    • Installing walls or fences if appropriate
  • Recordkeeping
  • Documenting and tracking incidents
  • Maintaining appropriate staff
  • Hiring security if necessary
  • Discouraging overconsumption or over-service
  • Removing customers in appropriate cases
  • Contacting the police for backup when necessary

Investigation and Defense
Accidents happen and many patrons are quick to file claims or suits, irrespective of their validity. Unfortunately, patrons typically have between two and four years to file their suits. During that time, memories fade, employees switch jobs, and evidence disappears. This makes it very difficult for establishments to defend themselves. Thus, it is important that licensees investigate all incidents as quickly as possible and document their findings by taking written or stenographic statements of witnesses and taking photographs or video if possible. In cases involving significant injuries or death, licensees may want to contact counsel early on to confirm that all bases are covered.

Insurance
Of course, it is virtually impossible to eliminate risk entirely, particularly in our extremely litigious society. In December 2011, a Texas woman sued a bar when she was raped by two police officers after leaving a local club. She claimed that the establishment was responsible because employees served her alcohol until she became intoxicated, continued serving her even after she became visibly drunk, and then allowed her to leave the club when she posed a clear danger to herself and others. While we are skeptical that a similar suit could be successfully prosecuted in Florida since it is unforeseeable that police officers would rape anyone, it serves as a great reminder of how important it is for licensees to be aware of their potential liability and obtain and maintain insurance coverage. 

Conclusion
We live in an imperfect and litigious world fraught with risk, both seen and unseen. Businesses are cautioned to protect themselves as much as they reasonably can against all such dange