Premises liability revisited: the law of foreseeable crimes becomes clearer and murkier.

• Author: Strickland, Wilton H.

In December 2009, The Florida Bar Journal published my article (1) exploring the different paths taken by Florida's appellate courts as to what constitutes a "foreseeable crime" for purposes of establishing premises liability. Back then, the Second District Court of Appeal had not weighed in on the issue, but in December 2013 the court staked out its position in Bellevue v. Frenchy's South Beach Cafe, Inc., 136 So. 3d 640 (Fla. 2d DCA 2013). While the opinion adds clarity to Florida law by proclaiming a broad test of foreseeability within the Second District, it also muddies the waters when discussing the narrow test applied by the Third District, attributing that test to only two decisions (2) that the opinion labels outdated or anomalous. Yet the narrow test of foreseeability appears in a large number of decisions, not just the two criticized in Bellevue, so it is far too early to treat this matter as closed. Practitioners should remain alert to the differing standards governing foreseeability of crimes and not be lulled into thinking Florida law is uniform on this important issue.

The Interdistrict Debate Over Foreseeable Crimes for Purposes of Premises Liability

As explained in my original article, (3) Florida courts speak with one voice as to the right of invitees--whether on public or private land--to demand reasonable protection against foreseeable crimes committed by third parties. Opinions vary, however, as to what exactly constitutes a foreseeable crime. While courts agree that suspicious behavior by a third party makes his or her own crime foreseeable, they differ markedly on when prior crimes by other criminals make the eventual crime foreseeable. (4) This distinction often surfaces in any or all of three variables, as follows:

* Similarity of the prior crimes

* Geographical proximity of the prior crimes

* Temporal proximity of the prior crimes

A body of precedent from the Third District strictly applies all three variables to determine whether prior crimes make a future one foreseeable. First, the prior crimes must be similar to the one at issue. (5) For instance, a mere property crime does not presage an assault. Second, the prior crimes must have occurred on the premises to make the future one foreseeable. (6) While the Third District once allowed nearby off-premises crimes into evidence, (7) it is an older decision that does not reflect the current approach of multiple other decisions. And third, the prior crimes must have occurred at least within the previous two years. (8) Other decisions by the Third District may appear more lenient with these requirements, but they concern landlord-tenant relationships and, thus, raise exceptional, heightened duties not normally at issue. (9)

Other courts have handled these variables quite differently.

Regarding similarity, the First, (10) Fourth, (11) and Fifth (12) district courts of appeal have employed a broad test that allows prior dissimilar crimes into evidence to prove foreseeability. With the advent of Bellevue, the Second District now joins them. It's interesting to note, though, that, on more recent occasions, the Fourth District has expressed agreement with the narrow test prevailing in the Third District, stating that prior crimes should be similar to the future one in order to be relevant. (13)

Regarding geographical proximity, the First District actually agrees with the Third and holds that the prior crimes must have occurred on the premises to be considered relevant. (14) The Fourth District has allowed prior crimes into evidence even if they occurred off the premises, and with no apparent requirement for those crimes to have occurred nearby. (15) Once again, the Fourth District more recently has expressed agreement with the narrow foreseeability test, though it has not yet excluded evidence of off-premises crimes as irrelevant. (16) The Fifth District has taken a broad geographical approach on at least one occasion, holding that an assault at a restaurant parking lot might be considered foreseeable based on prior reports of criminal activity at a nearby street intersection. (17) As for the Second District in Bellevue, it does not offer any analysis of geographical proximity, but its ruling allowed the plaintiff to introduce evidence of crimes that occurred "in" or "near" the premises, thus, confirming a more lenient approach than that of the Third District. (18)

Regarding temporal proximity, it appears more certain that the Fourth District has reversed course and linked arms with the Third. Previously there were no time limits as to what prior crimes would be admissible; (19) in 2010, however, the court cited Ameijeiras v. Metro Dade County, 534 So. 2d 812 (Fla. 3d DCA 1988), and held that crimes older than two years are not predictive of future crimes. (20) The Fifth District observes the lenient standard formerly applied by the Fourth. (21) What the First and Second district courts think remains a mystery, even with the benefit of Bellevue, which does not discuss the time criterion.

The evolution of the law of foreseeable crimes has become interesting, indeed. On one hand, the Second District has broken its silence and announced a broad test that allows a large number of prior crimes into evidence even if they are dissimilar or occurred off-premises. On the other hand, the Fourth District has retreated somewhat from the broad test of foreseeability and now cites the narrow test to require evidence of prior similar crimes within at least the...