On August 2, 2013, the Florida Supreme Court accepted review of a case to examine the issue of proximate cause in a negligent security case. See Sanders v. ERP Operating Ltd. Partnership, 96 So. 3d 929 (Fla. 4th DCA 2012) (No.SC12-2416). Two young adults moved into an apartment complex marketed as a “gated community.” Water surrounded approximately 70% of the complex and a fence surrounded the remainder. The complex had a policy of providing reasonable lighting, locks, and peepholes. The apartments contained alarm systems, which the residents could activate.
A year after they moved in, the victims were shot to death by unknown assailants inside their apartment. While there was no sign of forced entry, cash and other valuables were stolen from the apartment.
The plaintiff, as personal representative of the decedents’ estates, filed a complaint alleging that the complex owner’s negligence was a proximate cause of the deaths. The complaint alleged that the complex owner did not maintain the premises in a reasonably safe condition by failing to: (1) maintain the front gate; (2) have adequate security; (3) prevent dangerous persons from gaining access to the premises; and (4) protect and warn residents of dangerous condition and criminal acts. The complex owner had a manual recommending notice to residents when a “significant crime” occurred on the property, especially a violent crime or forced-entry burglary. The owner did not notify the residents of 20 criminal incidents that occurred in the 3 years before the decedents’ murders. Three years before the murders, there was an armed robbery and assault on the property after the perpetrators broke the entrance gate and followed residents onto the property. The gate was broken for about 2 months before the murders.
The owner’s expert, a security consultant, testified that the murders were not foreseeable because the 20 prior crimes were not violent crimes or predictive of future homicides. The expert opined that the existing security measures were more than reasonable and that there was no sign of forced entry and that he believed that the door was opened to the person that committed the murders.
The plaintiff’s expert, a criminology expert, testified that most of the prior crimes at the complex were opportunistic and that the murders also occurred in the course of an opportunistic crime (i.e., a home invasion). The expert conceded, however, that there had not been a murder, shooting, or rape at the complex previously and that there was no way of knowing precisely how the murders took place.
The defendant moved for a directed verdict arguing that the plaintiff had not established proximate cause. The trial court denied the motion. The jury found the defendant 40% comparatively negligent and awarded damages of $4.5 million. The defendant moved for a new trial and a judgment notwithstanding the verdict, which the trial court denied.
In negligence actions, Florida courts follow the “more likely than not” standard of causation and require proof that the negligence “probably” caused the plaintiff’s injuries. In this case, although there was evidence to support a breach of duty to provide adequate security, the plaintiff could not establish that the breach was the proximate cause of the murders. The victims were murdered inside their apartment, there was no sign of a forced entry, and the plaintiff’s expert acknowledged that it was unknown what happened on the night of the murders. Without proof of how the assailants gained entry into the apartment, the appellate court concluded that the plaintiff could not prove causation. As such, the appellate court reversed and remanded the matter to the trial court.
The parties concluded their briefing on October 7, 2013. Because the Florida Supreme Court dispensed with oral argument, it should release its decision in the next 3 to 6 months. I will update this article after the Florida Supreme Court has ruled.