The foreseeability of a harmful event is an essential element of every personal injury case. McCain v. Florida Power Corporation, 593 So. 2d 500 (Fla. 1992). This includes premises liability cases involving crimes such as rape, assault, and robbery committed by third parties.
Florida courts consider three primary factors in deciding if prior crimes by other criminals make the eventual crime foreseeable:
- Similarity of the prior crimes
- Geographical proximity of the prior crimes
- Temporal proximity of the prior crimes
Because the Florida Supreme Court has yet to come down definitively on how to analyze the factors, the outcome depends on where the event occurred.
Personal injury jury trials take place in circuit courts. Florida has twenty judicial circuits, grouped by county, in which these trial courts are located. For example, Miami-Dade County is in the Eleventh Judicial Circuit by itself, while the Third Judicial Circuit consists of Columbia, Dixie, Hamilton, Lafayette, Madison, Suwannee, and Taylor counties. Generally, a lawsuit may be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. Section 47.011, Florida Statutes (2014) and Brown v. Nagelhout, 84 So.3d 304 (2012).
Most appeals from circuit courts are first handled by a District Court of Appeal. There are five District Courts of Appeal in Florida, composed of the various judicial circuits. For example, the Third DCA is responsible for appeals arising from Miami-Dade County and Monroe County circuit courts.
Here’s how the DCAs address the factors:
SIMILARITY OF THE PRIOR CRIMES
- Narrow test — prior crimes must be similar to the one at issue. Third DCA, Medina v. 187th St. Apartments, Ltd., 405 So. 2d 485 (Fla. 3d DCA 1981) (reversing directed verdict for defendant because of disputed facts, but requiring a showing of prior similar crimes (assault); Ameijeiras v. Metro Dade County, 534 So. 2d 812, at 812 (Fla. 3d DCA 1988) (discounting evidence of rampant illegal activities on the subject premises due to the absence of prior similar crimes (assault and robbery)); Levitz v. Burger King Corp., 526 So. 2d 1048 (Fla. 3d DCA 1988) (reversing summary judgment for defendant because of disputed facts, but requiring a showing of prior similar crimes (assault)); Metro. Dade County v. Ivanov, 689 So. 2d 1267 (Fla. 3d DCA 1997); Prieto v. Miami-Dade County, 803 So. 2d 780 (Fla. 3d DCA 2001) (requiring evidence of prior similar crimes (assault).
- Broad test — allowing prior dissimilar crimes into evidence to prove foreseeability: First DCA, Hardy v. Pier 99 Motor Inn, 664 So. 2d 1095, 1098 (Fla. 1st DCA 1995) (citing Shelburne and Paterson v. Deeb, 472 So. 2d 1210, 1215 (Fla. 1st DCA 1985). But see Menendez v. The Palms West Condo. Ass’n, Inc., 736 So. 2d 58, 61 (Fla. 1st DCA 1999) (rejecting evidence of prior dissimilar crimes as irrelevant to foreseeability), Second DCA, Bellevue v. Frenchy’s South Beach Café, Inc., 136 So. 3d 640 (Fla. 2d DCA 2013), Fourth DCA, Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322, 331 (Fla. 4th DCA 1991) (citing Czerwinski and Paterson), disapproved on other grounds, Angrand v. Key, 657 So. 2d 1146 (Fla. 1995); Prime Hospitality Corp. v. Simms, 700 So. 2d 167, 169 (Fla. 4th DCA 1997) (holding that evidence of dissimilar crimes should go to a jury); and the Fifth DCA, Foster v. Po Folks, Inc., 674 So. 2d 843, 844-46 (Fla. 5th DCA 1996).
- Narrow test — prior crimes must have occurred on the premises to be considered relevant. First DCA, Menendez, 736 So. 2d at 61 (Fla. 1st DCA 1999) (rejecting evidence of the crime rate in the general area and requiring evidence of prior crimes on the premises), and Third DCA, Admiral’s Port Condo. Ass’n, Inc. v. Feldman, 426 So. 2d at 1055 (requiring evidence of prior crimes at condominium complex in question); Ameijeiras, 534 So. 2d at 812 (requiring evidence of prior crimes at the park in question); Ivanov, 689 So. 2d at 1267 (rejecting evidence of prior crimes at a different nearby park); Prieto, 803 So. 2d at 780 (requiring evidence of prior crimes at the railroad station in question); Medina, 405 So. 2d at 486 (reversing directed verdict for defendant because of disputed facts, but requiring evidence of prior crimes “in the complex”).
- Broad test — prior crimes allowed into evidence even if they occurred off the premises. Second DCA, Bellevue v. Frenchy’s South Beach Café, Inc., 136 So. 3d 640 (Fla. 2d DCA 2013); Fourth DCA, Odice v. Pearson, 549 So. 2d 705, 706 (Fla. 4th DCA 1989) (reversing trial court’s exclusion of off-premises crimes from evidence); Eichenbaum v. Rossland, Real Estate, Ltd., 502 So. 2d 1333, 1334 (Fla. 4th DCA 1987) (allowing evidence of crimes at different stores, but within the same mall); and the Fifth DCA, Foster v. Po Folks, Inc., 674 So. 2d 843 (Fla. 5th DCA 1996).
- Narrow test. Third DCA, Ameijeiras v. Metro Dade County, 534 So. 2d 812 (Fla. 3d DCA 1988); and Fourth DCA, Leitch v. City of Delray Beach, 41 So. 3d 411, 412 (Fla. 4th DCA 2010).
- Broad test. Fifth DCA, Foster v. Po Folks, Inc., 674 So. 2d 843, 844-46 (Fla. 5th DCA 1996) (this lenient standard was formerly applied by the Fourth).
- Unknown standard: First DCA and Second DCA.
As most lawyers know, the courts do not always speak with complete clarity. Besides taking different positions from one case to another, the opinions expressed within a single case can be murky. While the positions presented in this blog represent our best conclusions on the current state of the law, an historical analysis will help for a fuller understanding.
(Credit for much of the information contained in this blog goes to Attorney Wilton H. Strickland, who has written two excellent articles on this subject for the Florida Bar Journal. He is a walking encyclopedia on the subject.)
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