A jury gave a $4.5 Million verdict where a Broward County, Fl apartment complex had gaps in security that allowed criminals to more easily gain access and kill the two victims.
In the case of Sanders v. ERP Operating Ltd. Partnership, 157 So. 3d 273 – Fla: Supreme Court 2015, two young adults moved into an apartment complex.
It was marketed as a “gated community” with a gated front entrance. ERP owned the apartment complex.
Water surrounded approximately seventy percent of the complex, and a wall or 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. Although there was no sign of forced entry, an engagement ring, cash, credit cards, and a computer modem were stolen from the apartment.
In the three years prior to the murders, there were two criminal incidents where the gate had been broken and perpetrators followed the residents onto the premises. One of these incidents resulted in an armed robbery; the other resulted in an assault.
The entrance gate was broken for approximately two months prior to the murders. The defendant, a national company owning approximately one hundred properties, owned the complex.
It had a manual providing that a notice to residents is recommended when “a significant crime” occurs on the property, especially a violent crime or forced entry burglary. The manual recommended that such notice be provided to residents on the same day that management becomes aware of the incident, and provided a form for such notices.
No notices were sent to the residents of the twenty criminal incidents (including seven apartment burglaries, two robberies, and ten motor vehicle thefts) that occurred in the three years prior to the murders.
The plaintiff, as personal representative of the decedents’ estate[s], sued the defendant, alleging the defendant’s negligence was a proximate cause of the deaths.
The lawsuit alleged the defendant 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 conditions and criminal acts.
One of the decedent’s boyfriends said that he was on the phone with the decedent prior to eleven o’clock in the evening. The call ended when the decedent told him that two identified people known to the decedent were at the door.
When the boyfriend called back, no one answered. The case proceeded to trial.
The plaintiff offered the testimony of a criminology expert. He testified that most of the crimes at the complex in the three years prior to the murders were opportunistic in nature.
Opportunistic crimes are those committed by perpetrators who look for easy targets. He testified that such precursor crimes need to be monitored by the landowner because awareness is the cornerstone of crime prevention.
He also noted that the defendant’s training video informed its personnel that they needed to minimize such problems “through awareness.”
The expert noted that the training video also addressed the importance of repairs to mechanical failures. Yet, the evidence demonstrated the gate had been inoperable for four months during the year of these murders.
The expert testified that it appeared the murders occurred in the course of another felony, such as a home invasion — an opportunistic crime. However, the expert agreed that there had never been a murder, shooting, or rape at the complex.
The expert acknowledged there was no way of knowing precisely how the murders took place.
The defense expert, a security consultant, testified that the murders were not foreseeable. Of the twenty crimes which occurred on the premises in the three years leading up to the murders, none were violent crimes nor predicted homicide.
The defense expert explained that crimes such as stabbings, shootings, murders, or rapes constitute “predictors” of future violent crimes, but none of those had occurred at the location so there was no reason to foresee these murders.
The defense expert said that the security measures were “more than reasonable” and met or exceeded the industry standard of security for complexes in that location. He did not believe the gate was necessary given the low level of crime reported at that location.
The defense expert said that the complex provided the decedents with a secure locked environment, an apartment with one entrance, a steel door, and a dead bolt lock. There is no sign of forced entry. The materials that he received lead him to believe that the door was opened to the person that committed this particular crime.
The jury found the defendant forty percent comparatively negligent, and awarded damages of 4.5 million dollars apportioned to various survivors of the decedents.
It talked about the criminal activity that occurred on the premises within the three-year period before the decedents’ deaths.
There were twenty incidents on the premises of the apartment complex in that time:
- one armed robbery of a female victim who was robbed at gunpoint while walking from her car to her apartment;
- one strong-armed robbery of a pizza delivery man (where three supposed non-tenants exited a car and stole pizza and money from the delivery man, without a weapon);
- one domestic violence forced entry (where an ex-boyfriend confronted an ex-girlfriend in the common area and forced her to unlock the door to her apartment);
- nine car thefts; one attempted car theft; one criminal mischief incident involving teenagers who damaged the complex’s property;
- one burglary of a dwelling (which may or may not have been occupied); and
- five burglaries (four involving unoccupied dwellings and one involving a dispute between tenants where one broke into the other’s apartment to gain possession of a phone).
Sanders’ expert witness, Dr. George Kirkham, said regarding the five crimes that occurred on the property during the time that the victims lived there, one of those crimes being the burglary of an unoccupied apartment, and the others being attempted and completed car thefts.
Kirkham admitted that there were no violent crimes on the property in the four months preceding this event, when the gate was inoperable.
He explained, however, that of the twenty crimes that occurred on the property within the previous three-year period, two were violent crimes, i.e. the robbery of a pizza man and the robbery of a female tenant, at gunpoint.
In the case of the female tenant who was robbed, she believed that a car had followed her into the complex but could not say with certainty whether the assailant came from that particular car. Neither victims of the robberies were physically injured.
The defense attorney implied that Dr. Kirkham’s theory that the female victim may have been accosted by someone in the parking lot while getting out of her Mercedes-Benz was pure speculation.
However, based on the history of car thefts in the complex that the residents were not notified about, the robbery of the pizza man by supposed unauthorized non-residents, the robbery of a different female tenant in the same manner approximately one year prior and the fact that on the night of the incident, the gate was not serving its purpose to limit access only to people authorized to be on the premises, this theory does not appear to be pure speculation, but a reasoned presumption based on the evidence.
Whether or not it was foreseeable that the residents were in danger of harm because of criminals being allowed on the premises and that ERP’s failure to limit the unauthorized access caused the deaths of the decedents was an issue of fact for the jury to decide.
Similar to the Third District’s decision in Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 98 (Fla.3d DCA 1980), it appears that Sanders raised a reasonable inference that the landlord’s breach on the outside of the apartment, the inoperable gate, may have contributed to what happened on the inside of the apartment.
Even considering ERP’s argument, and the Fourth District’s apparent conclusion, that the decedents opened the door for their assailants, this is something which should properly be considered by a jury in a comparative negligence analysis and is not a basis for a directed verdict. See generally Green Cos. v. Divincenzo, 432 So.2d 86 (Fla. 3d DCA 1983).
Sanders’ evidence created a question of fact as to whether ERP more likely than not caused the decedents’ deaths. Sanders’ expert testified that the majority of the crimes that happened at the apartment complex were opportunistic crimes, including an armed robbery initiated when a resident was accosted in the parking lot of the complex.
The fact that the apartment complex in this case had an inoperable security gate distinguishes this case from Brown v. Motel 6 Operating, L.P., Ltd., 989 So.2d 658 (Fla. 4th DCA 2008). In Brown, the motel was described as “an open type, with room access through outside stairways and balconies.”
In this case, the decedents lived on the property for approximately nine months before they were murdered. The jury heard the criminal activity that occurred on the premises within the three-year period before the decedents’ deaths.
The gate in this case was designed to limit access to the premises only to those authorized to be on the grounds.
A reasonable jury could have determined that ERP’s failure to maintain the security gate and failure to have the courtesy officer visible probably allowed the assailant(s) to get to the decedents’ door more easily without being detected, which may not have been a consideration in Brown, where the motel only had two security cameras to observe what was happening on the premises, but not necessarily to limit the access to the resident’s door.
The Florida Supreme Court said that the lack of forced entry in both cases is not dispositive of the causation issue. The Florida Supreme Court let the verdict stand.
Attorneys from Miami, Plantation and West Palm Beach represented the personal representative of the estates.
Fort Lauderdale and Miami lawyers represented the business that owned the apartment complex.
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