Premises liability: a notable rift in the law of foreseeable crimes.

• Author: Strickland, Wilton H.
• Position: Florida

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The law surrounding premises liability in Florida is more unsettled than most attorneys (and even judges) tend to suspect, particularly 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) Yet 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 one case 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 crime, and they began assembling a body of evidence showing that the station inhabited a high-crime area. Despite a rich vein of authority from the Third District Court of Appeal demonstrating that the assault was not foreseeable as a matter of law, the judge opted to follow a lenient standard enunciated by other Florida jurisdictions, particularly the neighboring Fourth District Court of Appeal. The judge 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 issue and the time, place, and manner of the prior crimes cited by the two plaintiffs. (3) Although the case settled and never arrived at the Third District Court of Appeal for review, a finding of reversible error was probable. This article explains why, and in so doing, it draws attention to the stark divergence in what Florida courts interpret as a foreseeable crime.

Preliminary Consideration: The Plaintiff's Status on the Premises

The first step in any premises liability case 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 Third District Court of Appeal has held that a landowner is not liable for foreseeable third-party crimes if the plaintiff came onto the land without invitation. (4) 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 city knew of prior criminal attacks on the same beach, yet failed to take necessary precautions. Her claim was defeated on summary judgment, and the Third District Court of Appeal affirmed by reasoning that a landowner's duty to an uninvited plaintiff is to refrain from willfully inflicting harm, and also reasoning that "the danger of crime and criminal assaults is an open and obvious danger for which there is no duty to warn" the uninvited plaintiff. (5) On a separate 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 appeal has rejected this interpretation, so it is helpful to review this basic point of agreement before exploring the discord over whether a crime is indeed foreseeable.

Whenever a plaintiff seeks to recover against a premises owner/operator for a harmful defect or a crime committed thereon, Florida law will classify him or her as falling under one of three broad headings: (7) invitee, licensee, or trespasser.

Most exalted is the first category, the invitee, which itself is subdivided into "public invitees" and "business invitees." A public invitee "is a person who is invited to enter or remain on land 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 land for a purpose directly or indirectly connected with business dealings with the possessor of the land." (9) Premises liability plaintiffs naturally expend a great deal of effort to portray themselves as invitees because, as invitees, they may demand a high level of care from the defendant in the maintenance of the property. Specifically, the owner or operator of the property must maintain it in a reasonably safe condition and correct or warn of dangers that the defendant knew or should have known of, and which the plaintiff did not or should not have known of by the use of reasonable care. (10) This duty likewise extends to social guests of the landowner, whom the law designates as "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 own convenience without invitation either expressed or reasonably implied under the circumstances." (12) A landowner owes far less of a duty to licensees, as the Florida...