Following recent tort reform in Florida, the landscape of negligent security claims has undergone significant changes, particularly with new statutory provisions allowing an intentional criminal third-party tortfeasor to be listed on a jury verdict form. Before the 2023 tort reform changes introduced through House Bill 837 and Florida Statute Section 768.0701, negligent security cases involving injuries caused by criminal third-party tortfeasors only considered the fault of the commercial tenant, property manager, property owner and also the plaintiff. A criminal third-party tortfeasor could not be named a Fabre defendant. Instead, the actions of a criminal third-party were generally only considered in assessing the foreseeability of the crime and the negligence of the defendants.
Negligent Security Litigation
A negligent security claim arises when a plaintiff becomes a victim of criminal activity such an assault, robbery, or other violent acts while on commercial property. Plaintiffs argue that the property owner, property manager, or commercial tenant failed to implement adequate security measures including, but not limited to, proper lighting, surveillance cameras, or security personnel, which could have prevented the plaintiff's incurred damages. Common examples of where such lawsuits arise include:
- Apartment complexes
- Nightclubs
- Bars
- Shopping malls
- Parking lots
- Gas stations and other commercial properties.
Impact of Tort Reform
The post-tort reform development allowing a criminal third party tortfeasor to be named on a jury verdict form marks a pivotal shift in how liability is apportioned in cases where a plaintiff is injured by a third party. By enabling juries to consider the fault of a criminal third-party actor, the reform aims to provide a more equitable distribution of liability among all parties involved.
Specifically, Section 768.0701, Florida Statutes, states, "in an action for damages against the owner, lessor, operator, or manager of commercial or real property brought by a person lawfully on the property who was injured by the criminal act of a third party, the trier of fact must consider the fault of all persons who contributed to the injury."
The timing of these changes is an important consideration to pending and future claims. Notably, because changes to Section 768.0701 were signed into law by Florida Governor Ron DeSantis through House Bill 837, which states in pertinent part,"[T]his act shall apply to causes of action filed after the effective date of this act," the negligent security shift is not retroactively applied and instead it is only applicable to lawsuits filed after March 24, 2023.
While it is far too early to see how Section 768.0701 will shift liability, we foresee that commercial tenants, property managers, and/or property owners may see reduced liability under Section 768.0701. Although the total damages awarded might not change, the portion recoverable from property owners, property managers or commercial tenants could decrease. As for property owners and businesses, however, it is important to continue to invest and focus on providing security on commercial premises.
Case Examples
This year alone, two negligent security cases filed before March 24, 2023, involving criminal third-party actions have been decided. Both cases concluded favorably for the commercial property owners and property managers regarding their respective duties, which are discussed below. Also included is a discussion of how Section 768.0701 could be applied to similar cases in the future.
In Brownlee v. 22nd Ave. Apartments, LLC, an invitee of an apartment complex brought a negligent security lawsuit against the property owner and property manager of the apartment complex after being shot by an unknown third-party shooter who shot from an area along the property's perimeter. The trial court granted summary judgment in favor of the property owner and property manager. The Third District Court of Appeals affirmed the trial court's finding. The Court found that the owner and property manager owed no duty to protect an invitee from unforeseeable criminal conduct absent evidence that they had created a dangerous condition that expanded their zone of risk outside of the property limits. Had the case been filed after Section 768.0701 was enacted, the defense could argue that the criminal assailant should be included on the verdict form. The criminal actor's inclusion would provide another avenue for significant reduction in the property owner's liability.
In a Sixth District Court of Appeals case decided on April 4, 2024, Johnson v. Garrett, the plaintiff was a patron at a local strip club and brought a negligent security lawsuit against the business entity that ran a strip club, the property owner and the property manager. While on the premises, the plaintiff exchanged words and began to brawl with another patron within the subject strip club. That patron then pulled out a weapon and shot the plaintiff in the abdomen causing serious injuries.
At the trial level, the property owner and property manager's motions for directed verdict and for reconsideration of the prior summary judgment rulings were denied and the jury returned a verdict in favor of the plaintiff. However, on appeal, the Sixth DCA reversed the trial court's decision, and amongst other things found that the property owner and property manager owed no duty to protect the plaintiff in this scenario.
Like Brownlee, this case also demonstrates how placing a criminal third party on a verdict form could drastically shift liability. By acknowledging the role of the criminal actor who shot the plaintiff, the tort reform promotes a more balanced and equitable distribution of responsibility. Ultimately, the new developments promote and increase the reduced risk of exposure of a property owner, property manager or commercial tenant.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.