Petrogram - Winter 2013 - (Page 17)

Legal BRIEF Staying Away from Negligent Security Lawsuits By Lourdes Espino Wydler, Esq., Marrero & Wydler C rime happens almost everywhere. The effect of a criminal act can impact not only a victim and suspect, but also the place where it happens. Florida law holds businesses accountable for crimes committed on their property when it involves a third party. Whether it is a strong arm robbery or violent assault, gasoline station convenience stores must know the law to protect their customers or employees as well as themselves from a negligent security lawsuit. Courts have found that c-stores have a duty to protect invitees from criminal attacks that are reasonably foreseeable. To determine whether a duty exists, they look at the foreseeability of the crime. The general Florida rule, with some exceptions, is that any crime, similar or not, occurring in approximately the half-mile radius surrounding the property for a two- or three-year period can be used as evidence of foreseeability against the business. Once there is actual or constructive knowledge of a foreseeable danger on the premises, the business owner has a duty to take reasonable measures to protect against any criminal acts. For late night c-stores, the Florida Convenience Business Security Act spells out the safety devices and standards that should be in place under §812.173: The verdicts on negligent security cases vary greatly depending on the kind of attack, the plaintiff's damages, the foreseeability and preventability by the c-store. * A security camera system. * A drop safe or cash management device. * A lighted parking lot illuminated with certain requirements. * A conspicuous notice at the entrance stating the cash register contains $50 or less. * Window signage that allows a clear and unobstructed view from outside the building. * Height markers at the entrance. * A cash management policy to limit the cash on hand at all times after 11 p.m. * No window tinting that reduces exterior or interior view in a normal line of sight. * A silent alarm to law enforcement or a private security agency. If a murder, robbery, sexual battery aggravated assault, aggravated battery kidnapping or false imprisonment has occurred at the convenience business after July 1, 1989, it should implement at least one of the following security measures from 11 p.m. to 5 a.m.: have two employees working; install a secure safety enclosure; provide a security guard; lock the business and only transact business through an indirect pass-through trough, trapdoor or window; or close the business. The Act also requires c-stores to provide to its employees within 60 days of employment proper robbery deterrence and safety training by an approved curriculum from the Attorney General consistent with Florida Statute §812.174. It is critical every two years to have the training curriculum approved by the Attorney General. Violations of the Act for convenience businesses can result in civil penalties and they may be required to show proof of compliance after being given notice. All of the security measures should be followed because it is the uniform standard in Florida and it is supposed to prevent crimes against the late-night consumer public and employees. When defending a negligent security lawsuit, the importance of complying with the Act gives c-store owners and operators a presumption against liability in connection with criminal acts on the premises under Florida Statute §768.0705. Even when preventative security measures are in place, there is no guarantee that a crime will not occur and a lawsuit is likely to follow. As part of the security investigation during litigation: * Preserve any video evidence that shows the suspect or the plaintiff. * Collect any employee drafted incident reports documenting criminal acts on the property. * Examine maintenance records for faulty video cameras, alarms, locks, and lights. * Review any security recommendations for the premises like fencing or gating the surrounding area. * Check with the local law enforcement agency for police reports regarding the property. * Obtain neighborhood crime grids. * Confirm the employees completed company safety training and followed policies. These key evidentiary items will help a c-store establish a strong legal defense. The verdicts on negligent security cases vary greatly depending on the kind of attack, the plaintiff's damages, the foreseeability and preventability by the c-store. There is no substitute for implementing security measures to prevent crime and lawsuits, but they also ultimately appeal to the public. When a c-store has the appearance of being safe it attracts more customers, increases its profitability and reduces potential liability. ❍ Lourdes Wydler, Esq. (lew@marrerolegal.com) is a partner at Marrero & Wydler, a law firm concentrating its practice in personal injury, negligent security, liquor liability, and employment law. Petrogram | Winter 2013 | 17

Table of Contents for the Digital Edition of Petrogram - Winter 2013

Chair’s Perspective
2013 FPMA Patron Members
Florida’s Petroleum Cleanup Program is Undergoing an Overhaul
As C-stores Branch Out, Channel Blurring Blossoms
Just Say No…to (Synthetic) Drugs
Staying Away from Negligent Security Lawsuits
FPMA’s 2013 Scholarship Golf Tournament and Conference of Committees
FPMA Featured Advertiser Marketplace
Calendar of Events
Index of Advertisers/Advertiser.com

Petrogram - Winter 2013

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