With crime on the rise, we are seeing more and more cases involving inadequate security or negligent security. These cases includes recovery for injuries caused by criminal assaults, rapes, robberies and attacks due to inadequate premises security, as well as other inadequate conditions in commercial and residential premises.
The key to these cases is proving that the attack, assault, rape, or robbery was foreseeable. In order to prove that the act was foreseeable, we look at the subject property and the surrounding area for prior acts. Foreseeability may be established “by proving that, based on past experience, a proprietor knew of or should have recognized the likelihood of disorderly conduct by third persons in general which might endanger the safety of the proprietor’s patrons.
The question of which prior acts are admissible was answered by the 2nd DCA in the case of Bellevue v. Frenchy’s South Beach Cafe, Inc.
The facts are that Bellevue sued Frenchy’s South Beach Café, Inc. (“Frenchy’s”), for personal injury damages that she sustained when she was attacked inside Frenchy’s premises by one or more intoxicated patrons who had been consuming alcohol there for several hours prior to “last call” when the attack occurred.
Bellevue alleged that the attack was foreseeable because Frenchy’s was on notice that its patrons had a propensity to become rowdy or violent and that it failed to maintain adequate security to protect its patrons. Specifically Bellevue sought to introduce into evidence sixty incidents that occurred either in Frenchy’s or near its premises. Frenchy’s contended that these incidents were inadmissible because they were not similar crimes or were not probative of the issue of foreseeability. Ms. Bellevue argued that the incidents, which dated back four-and-a-half years prior to the subject attack, were relevant on the issue of whether the attack was reasonably foreseeable and whether Frenchy’s took reasonable measures to prevent the attack. The incidents were obtained either from police reports or from Frenchy’s management logs. It was Ms. Bellevue’s intention to elicit testimony from her security expert that based upon the volume and nature of these prior incidents, Frenchy’s was negligent in not taking adequate measures to protect against the type of attack suffered by Ms. Bellevue. The trial court ruled that only 12 of the 60 attacks were admissible, and not surprisingly the jury found in favor of Frenchy’s.
Thankfully, the 2nd DCA got it right. The court held that The effect of the court’s ruling in this case was to preclude Ms. Bellevue from introducing into evidence a substantial number of incidents that were relevant to the foreseeability issue, including (1) the night cook being stabbed in front of the restaurant after he got off work; (2) multiple instances of patrons being kicked out of the bar for harassing employees, being vulgar, being rude, threatening employees, or being so drunk they fell off of a bar stool; (3) patrons being kicked out for fighting; (4) patrons drunk and fighting on the deck; (5) a car being broken into in the parking lot; (6) a minor in possession of alcohol who was armed with a knife out front; (7) a near-fight between two patrons and a waiter; (8) multiple instances of having to stop serving alcohol to patrons because they were “out of control”; (9) multiple instances of drunk patrons being loud and vulgar or threatening; and (10) the police having to be called because two patrons were about to fight.
These incidents, are evidence of Frenchy’s knowledge of “a likelihood of disorderly conduct by third persons in general which may endanger the safety of the patrons.
The case was reversed and a new trail was ordered.
The court specifically stated that: “The admissibility of a given incident should not be based on whether it occurred within the four walls of Frenchy’s or whether it was similar to what occurred in this case. Rather, it must be based on whether or not the event put Frenchy’s on notice that the attack resulting in Ms. Bellevue’s injury was foreseeable.”
Negligent security cases have a common theme, and that theme is “MONEY” Security is not viewed as a money maker, and thus establishments will seek to cut costs wherever possible. In the Bellevue case it was apparent from the 60 prior incidents, that the one thing this establishment needed was security, and yet they chose to place a premium on profits over safety.