By Beau Blackwell
Foreseeability of previous criminal activity is of chief concern when investigating negligent security claims. So, what establishes the foreseeability of criminal attacks in a premises liability action? Each Florida District Court of Appeal handles the question of foreseeability in negligent security cases differently, and an interested party must know the differences. This article will examine what makes a tort foreseeable, and how foreseeable crimes shape whether an owner was negligent. Additionally, this article will examine whether a plaintiff can bring a claim even if the criminal attack was not foreseeable.
The strongest method of demonstrating foreseeability is by introducing “evidence as to similar criminal conduct in the relevant location over a relevant period of time.” The next question is usually what kind of similar crimes establish foreseeability. Navigating what prior crimes establish foreseeability is frustrating because Florida district courts disagree on what types of prior crimes establish foreseeability.
When determining foreseeability, Florida District Courts of Appeal vary on how or if they use the follow factors: (1)similarity of the prior crimes, (2) geographical proximity of the prior crimes, and (2)temporal proximity of the prior crimes.
The Third District Court of Appeal employs the most rigid test for determining previous crimes that establish foreseeability. This Third District’s test is referred to as the “narrow test” and plaintiff must establish all three of the above-mentioned elements.
Below, is an explanation of how each Florida District Court of Appeal describes the types of prior crimes that establish foreseeability.
The Same Type of Criminal Activity
The Third District Court of Appeal currently requires the same type of previous crime to establish foreseeability. So, for example, a previous crime of drug possession is not the same type of crime as assault, and thus, would not establish foreseeability for the assault.
Different Types of Prior Criminal Activity
The First, Fourth, and Fifth district courts of appeal have used an expansive test that permits past dissimilar crimes to demonstrate foreseeability.
In Holiday Inns v. Shelburne, the Forth District Court allowed evidence of prior thefts, sex crimes, and criminal mischief to establish that a shooting was foreseeable.
The Fourth District Court of Appeal further explained their reasoning behind allowing dissimilar crimes to establish foreseeability by stating that “a rule limiting evidence of foreseeability to prior similar incidents deprives the jury of its role in determining the question of foreseeability. Although evidence of a violent crime against a person may be necessary initially to establish the issue of foreseeability, evidence of lesser crimes against both persons and property is also relevant and admissible in determining that issue.”
The Fourth District Court of Appeal in Wal-Mart Stores, Inc. v. Caruso ruled that a property owner is only required to protect against criminal acts by third parties if the act is reasonably expected and the owner had actual or constructive knowledge of the threat.
The Walmart holding is great for plaintiffs, but worrisome for property owners. This is because there is not a clearly defined principle to guide their conduct, and there is a wider group of conduct that establishes foreseeability.
It is worth noting that in recent decisions the Fourth District has voiced its dissatisfaction with permitting dissimilar, off-property crimes to establish foreseeability, but the court has yet to overturn its allowance of these types of crimes.
Location of Previous Criminal Activities
The First and Third districts require a prior crime to occur on the premises for it to establish foreseeability. For Example, in Mendez v. The Palms West, Florida’s First District Court of Appeals refused evidence of prior crimes in the area and required evidence of past crimes at the property in question. In Admiral's Port Condo. Ass'n, Inc. v. Feldman, the court stated that “[e]vidence of similar crimes committed off the premises and against persons other than the landowner’s invitees is not probative of foreseeability.”
The Fourth, Fifth, and Second districts allow showings of prior off-premises crimes to establish foreseeability.
The Fourth District has voiced its displeasure with permitting off-premises crimes, but still permits them. The Fifth District permits showing of prior crimes that occurred “nearby.” The Second District also allows a showing of prior crimes that occur “near” the premises when establishing foreseeability.
Time Restrictions on Allowance of Previous Criminal Activity
The Third and Fourth Districts do not allow a plaintiff to use crimes that occurred more than two years in the past to establish foreseeability. Conversely, The Fifth District Court of Appeal does not employ a set amount of time. As of right now, it is unclear where the First or Second Districts stand on this issue.
 Fredric S. Zinober, Litigating the Negligent Securty Case: Who's in Control Here?, 44 Stetson L. Rev. 289, 315 (2015)
 Id. at 316
 Wilton H. Strickland, PREMISES LIABILITY, 88-DEC Fla. B.J. 8 (2014)
 Medina v. 187th St. Apartments, Ltd., 405 So. 2d 485 (Fla. 3d DCA 1981).
 Ameijeiras v. Metro. Dade County, 534 So. 2d 812 (Fla. 3d DCA 1988).
 Wilton H. Strickland, PREMISES LIABILITY, 88-DEC Fla. B.J. 8 (2014).
 Holiday Inns., Inc. v. Shelburne 576 So. 2d 322, 331 (Fla. 4th Dist. Ct. App. 1991)
 Wal-Mart Stores, Inc. v. Caruso, 884 So. 2d 102, 103-05 (Fla. 4th Dist. Ct. App. 2004).
 Leitch v. City of Delray Beach, 41 So. 3d 411, 412 (Fla. 4th DCA 2010)
 Wilton H. Strickland, PREMISES LIABILITY, 88-DEC Fla. B.J. 8, 9-10 (2014)
 Mendez v. The Palms West, 736 So. 2d at 61 (Fla. 1st D.C.A. 1999)
 Admiral's Port Condo. Ass'n, Inc. v. Feldman, 426 So. 2d 1054, 1055 (Fla. 3d DCA 1983)
 Wilton H. Strickland, PREMISES LIABILITY, 88-DEC Fla. B.J. 8, 9-10 (2014).
 Odice v. Pearson, 549 So. 2d 705, 706 (Fla. 4th DCA 1989).
 Foster v. Po Folks, Inc., 674 So. 2d 843, 844-47 (Fla. 5th DCA 1996).
 Bellevue v. Frenchy's South Beach Cafe, Inc., 136 So. 3d 640, 642 (Fla. 2d DCA 2013).
 Leitch v. City of Delray Beach, 41 So. 3d 411, 412 (Fla. 4th DCA 2010); Ameijeiras v. Metro Dade County, 534 So. 2d 812 (Fla. 3d DCA 1988).
 Foster v. Po Folks, Inc., 674 So. 2d 843, 844-46 (Fla. 5th DCA 1996).
 Wilton H. Strickland, PREMISES LIABILITY, 88-DEC Fla. B.J. 8, 10 (2014).