Does a property owner have a duty to protect invitees from a criminal attack?

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Last Update: 6/12/18

According to Florida case law as of the date of this article, a property owner does not have a duty to protect invitees from a criminal attack, and the owner will not be held responsible for the criminal act of a third person that could not be foreseen or anticipated.

See: Drake v. Sun Bank and Trust Co. of St. Petersburg, 377 So. 2d 1013 (Fla. Dist. Ct. App. 2d Dist. 1979)

The Case of the Bank Kidnapping

In Drake, the day began routinely for David Drake as he ran errands which including stopping at his bank, Sun Bank and Trust Company of St. Petersburg.  Tragically, David Drake never made it into the bank’s lobby.   While in the Sun Bank and Trust parking lot, Mr. Drake was approached by criminals who demanded that he go with them.  David Drake was kidnapped in that bank parking lot and taken against his will in a vehicle with these wrongdoers.  They drove out of town and into a remote area of Pinellas County.

There, David Drake was robbed and murdered.

Widow Sues Bank for Husband’s Murder

David’s widow, Donna Drake, sued Sun Bank and Trust under Florida premises liability law.  She argued in her complaint that Sun Bank and Trust knew its banking customers often carried cash – as well as other valuables (think jewelry, stocks, bonds, etc.) as they entered the bank’s parking lot.

They would do so in order to transact business, like making deposits or making loan payments.  They might have valuables to place in their safety deposit box, or have assets they had removed from the bank’s vault.  (This was a time when most banking transactions were done in person, at the bank and not over the internet.)

Drake’s widow argued that despite Sun Bank and Trust knew being fully aware  that its customers often carried cash and other valuable items while using the bank’s parking lot, Sun Bank and Trust never bothered to provide adequate security for its clientele.  She claimed there were not enough security devices on the site.  Mrs. Drake also alleged that Sun Bank did not have enough security guards outside the bank, monitoring the parking lot, in order to protect bank customers.

Accordingly, she argued, David Drake was murdered as a direct and proximate result of Sun Bank and Trust’s negligence in failing to provide protection and security in its parking lot.

The bank defended itself based upon long standing common law.  No matter how sympathetic this plaintiff was and despite the tragedy that had occurred to its customer, Sun Bank and Trust moved that the widow’s lawsuit be dismissed.

The bank’s defense?  Her complaint must be dismissed with prejudice against it being refiled again, because it failed to state a cause of action recognized by the State of Florida.

The trial judge agreed with the bank, which led to Mrs. Drake appealed his ruling.

Appeals Court Must Decide if Widow’s Lawsuit Has Merit

There was no Florida case “on point,” i.e., that had similar facts and a clear answer to this issue, so the appeals court looked to “secondary sources,” which were scholarly discussions of premises liability law, as well as the case precedent of other states.

From a review of American Jurisprudence, the court noted that as a general rule a property owner has no duty to protect a person on his or her premises from the criminal attack of a third party. 62 Am.Jur.2d Premises Liability § 200 (1972).  Of course, the general rule has its exceptions.  There have been occasions where courts have found the circumstances warranted imposing liability on a property owner.  These circumstances have involved (1) the owner’s prior knowledge of the danger or (2) there was a special relationship between the parties. See, 10 A.L.R.3d 619 (1966).

Why?  Generally speaking, it is to be assumed by everyone that under all “ordinary and normal circumstances” people will obey the criminal laws.  It is not reasonable to expect someone will do things like intentionally tamper with a railway track, blow up a powder magazine, forge a check, push another man into an excavation, assault a railway passenger, or hold up a bowling alley and shoot a patron.

These kinds of events are not everyday occurrences.  Accordingly, the law has taken the position that the burden of taking continual precautions against them exceeds the apparent risk.

Still, there may be times when this general rule does not apply.  These situations may involve a defendant who has a specific duty or special responsibility to protect the plaintiff. They might also involve a defendant whose actions or activities provide a temptation or opportunity for criminal misconduct.  If so, then the defendant has a legal duty to take reasonable precautions to protect against someone succumbing to that temptation for crime.   See, W. Prosser, Prosser on Torts 173-74 (4th ed. 1971).

QUICK FACT: A victim of a criminal attack has 4 years from the date of the incident to file a personal injury lawsuit. However, if a death resulted from the incident, the deadline to file a lawsuit is 2 years.

Scales of Justice Balance Foreseeability

In deciding whether or not the general rule (no responsibility) applies, or if an exception (legal duty exists) controls, the courts of other states (California, Tennessee) have decided the matter through terms “foreseeability.”

Some states go further, looking at both the foreseeability of the crime itself as well as whether a duty exists to take measures to guard against it. See, Goldberg v. Housing Authority of Newark, 38 N.J. 578, 186 A.2d 291 (1962).

A few state courts make the call by applying principles of fairness. Atamian v. Supermarkets General Corp., 146 N.J. Super. 149, 369 A.2d 38 (1976); Stevenson v. Kansas City, 187 Kan. 705, 360 P.2d 1 (1961).

There is one thing that all these sister states agree must be found:  before the exception can apply to the general rule, and the defendant held liable for a crime on its premises, it must be shown that (1) the likelihood of the misconduct, and the unreasonable risk of it, outweighs (2) the burden of protecting against it.

Delving into past Florida case law, there were some case precedents that provided help in making the decision for Mrs. Drake’s case.

  1. In Murray v. Osenton,126 So.2d 603 (Fla.2d DCA 1961), a service station was sued for the death of its employee, who was shot and killed on the premises during an armed robbery one night.  The employee was alone at the time, and there had been other nighttime service station robberies in the Orlando area.  It was held that the owner of a service station was not liable for the shooting, because while he knew of the likelihood of service station robberies in Orlando, the circumstances did not constitute “exceptional circumstances or conditions creating a foreseeable danger which would give rise to a duty by the defendant to protect the plaintiff from the assaults of criminals.” 126 So.2d at 605.

2.In Gottschalk v. Smith,334 So.2d 102 (Fla.3d DCA 1976),another service station employee was injured while on the job in a violent act by a third party.  Here, a customer got into an argument with the employee and the plaintiff received injuries during the ensuing fight.  The court held that the service station owner could not have anticipated the attack, “… in order for the proprietor of a public place to be held liable for a breach of a duty to a customer he must have either actual or constructive knowledge of the particular risk involved and/or a reasonable opportunity to protect him from that risk.” Gottschalk, 334 So.2d at 103.  Failure to prove the element of foreseeability prevented the premises liability claim from going forward.

The appeals court then took the Drake Complaint and asked if there were “sufficient facts been alleged to meet the test of foreseeability which would impose a duty upon the bank to furnish protection to appellant’s decedent?”

The court held there was not.  It compared the Drake case with that of Pitts v. Metropolitan Dade County, 374 So.2d 996 (Fla.3d DCA 1979),  which dealt with the negligence of security guards already in place.

Sun Belt and Trust did not have security guards on duty in that parking lot who failed to perform.  There were no outside security guards at the time.

Donna Drake alleged only that since Sun Bank and Trust was in the business of banking, it knew or should have known its customers often carried cash on its premises.  Donna Drake argued, therefore, that Sun Bank and Trust could anticipate that customers might be robbed in the parking lot.

However, Donna Drake did not give any evidence or make any allegations that there had been any advance warning of the attack, nor any similar incidents having previously occurred in the parking lot.

The kidnapping happened in the daytime.  There was no issue about the adequacy of lighting provided by the bank.

There was no suggestion by Donna Drake that her husband had requested protection from Sun Bank and Trust.  There was no evidence that Sun Bank and Trust offered or agreed to provide it.

The key here for the appeals court was the public good:  in order to allow the Widow Drake to prevail on her claim against Sun Bank, the court would have to create law that meant every Florida bank with a parking lot would become a “virtual guarantor of the safety of its patrons.”

The court was not willing to create this new duty for Florida banks.  In its explanation to Mrs. Drake, and others, it shared the views of a Massachusetts court, which state in the case of  Burgess v. Chicopee Savings Bank, 336 Mass. 331, 145 N.E.2d 688, 690 (1957):

It is true that bank robberies are not uncommon occurrences. But banks are not obliged to go to unreasonable lengths to prevent them. They are required to exercise reasonable care to protect those who are upon their premises to transact business. They are not insurers. And they cannot be held accountable for the criminal acts of third persons under any and all circumstances.

Mrs. Drake’s complaint was dismissed by the appeals court, with an invitation that she fix (amend) her pleading so it met the principles set forth in its opinion.

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