by F. Robert Radel, II., Esq. & Andrew A. Labbe, Esq.

People outside the legal profession are often surprised to learn that they could be held liable for injuries sustained by others while on their premises, but which were caused by the actions of third parties. It undoubtedly seems inconceivable to those who have not spent time studying tort law that they could be sued because someone dropped a banana or spilled some milk in their store, or worse yet, for intentional, unlawful acts committed by third parties. Yet despite what most would consider this common sense reaction, one of the emerging civil actions of the past twenty years has been lawsuits by victims of violent crimes and slip and fall accidents occurring on the premises of shopping centers, motels and hotels, apartment complexes, office buildings, and other public facilities.


The focus of this paper is to analyze the recognized duties of owners and occupiers of land and premises, and more specifically, to discuss the approaches to liability, whether evolving or traditional, adopted by the various jurisdictions, including a more detailed discussion as to Florida law. It is imperative that business and home owners, as well as attorneys and claims handlers, be intimately familiar with this ever evolving area of the law to ensure appropriate steps are being taken to limit exposure and adequately gauge the risks involved in a given endeavor. This paper will also provide tips for limiting potential liability and investigating these claims.




It is well-settled that a possessor of land can be liable to an invitee[1] for slip-and-falls which occur on his or her premises. A store owner has a duty to exercise reasonable care to provide and maintain reasonably safe premises for the use of his customers.[2] The Restatement (Second) of Torts provides:


A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he


(a)      knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and


(b)     should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and


(c)      fails to exercise reasonable care to protect them against the danger[3].


With these general rules of law in mind, let’s consider an example. You are the owner of a grocery store. A shopper who is walking down the produce aisle slips on a banana and falls. Are you liable for the shopper’s injuries? Of course, there are a number of questions which need to be answered before we can analyze your potential liability.


How did the banana get on the ground? Were any of your employees aware it had fallen? How long had it been there? These are just some of the questions we need answered before liability can be assessed. This leads to the most difficult question of all: how on earth do we answer these questions? In the typical case (that makes it to trial), neither the plaintiff nor the employees know how the foreign object made its way to the ground, nor can they say with any certainty how long it had been there.


These issues have left courts struggling with how to balance two competing policy concerns. On the one hand, store owners should have a reasonable opportunity to discover and correct any hazards before liability attaches. On the other hand, plaintiffs may be faced with the sometimes insurmountable burden of proving how long a foreign object has been on the ground. It is these competing policy concerns that have led courts to develop at least four different tests[4] when dealing with liability for transitory foreign substances in a business establishment.


  1. The Traditional Approach


The traditional approach applies general premises liability principles to slip-and-fall cases. This approach is followed by more states than all other approaches combined (26 to 24). However, there is a definite modern trend towards more liberal approaches, and most courts that have addressed slip-and-fall cases in the past two decades have moved away from the traditional approach.


Under the traditional approach, in order to prove liability, a plaintiff must show that a dangerous condition existed, that this dangerous condition caused or contributed to their injuries, and that the store owner failed to exercise reasonable care by allowing the dangerous condition to exist.[5] As you can imagine, the existence of a dangerous condition and causation are generally straightforward. The crux of these cases is whether the store owner failed to exercise reasonable care. In order to make this showing, a plaintiff must demonstrate that the store owner either: (1) created the dangerous condition, or (2) had actual or constructive notice[6] of the dangerous condition.[7] If it can be proven that an employee created the dangerous condition or was notified of its existence (either by physically observing it or being notified by a customer) with sufficient time to correct it, the plaintiff has made their case – barring any defenses, which are outside the scope of this article. However, these cases are rare, and the plaintiff will generally have to prove constructive notice.


Proving constructive notice under the traditional approach typically[8] requires a showing that the object had been on the floor for such a length of time that the owner reasonably should have discovered it.[9] Proving an object had been on the ground for sufficient time to impute constructive notice is extremely difficult, resulting in the routine disposition of such cases by summary judgment. Although difficult, it is certainly not impossible to proffer sufficient evidence, typically circumstantial, to survive summary judgment. Examples of circumstantial evidence deemed sufficient to present a fact issue for the jury include: a dirty paper bag with a footprint impressed upon it,[10] a discolored grape near water on the floor when ice was present in the grape display,[11] an oil spot in a hotel parking lot when no cars had been seen driving through the parking lot for thirty minutes prior to the accident,[12] ice cream that was thawed, dirty and splattered,[13] and liquid detergent which had dried and become pink.[14]


  1. Mode of Operation Rule


Another approach to liability in slip and fall cases is the “mode of operation” rule. This is the second-most common approach to liability for slip-and-fall cases. The mode of operation rule focuses on the business’s choice of a particular mode of operation, rather than the specific events surrounding the plaintiff’s accident.[15] Under this theory of liability, a plaintiff need not prove notice if the store owner could reasonably anticipate the hazardous condition in question would regularly arise in light of the mode of operation.[16] A particular mode of operation only falls within this rule where “a business can reasonably anticipate that hazardous conditions will regularly arise.”[17]


When dealing with the mode of operation rule it is important to remember that the plaintiff’s burden of proof regarding notice is not altogether eliminated. Rather, the burden is satisfied if it is established that the injury “was attributable to a reasonably foreseeable dangerous condition on the owner’s premises that is related to the . . . mode of operation.”[18] Accordingly, for this rule to apply, the injury must be the result of a foreseeable risk incident to the business enterprise.[19] If the plaintiff is able to make such a showing, the burden is shifted to the defendant to prove it exercised reasonable care under the circumstances.[20] However, this burden is one of production, and the ultimate burden of persuasion remains with the plaintiff.[21] That is, the plaintiff must still persuade the jury that the defendant “failed to take reasonable steps to address a known hazard. . .”[22]


The justification for the mode of operation rule is the theory that “traditional notice requirements are unfair and unnecessary in the self-service context.”[23] Proponents of the rule argue that in these situations the typical notice requirements not only place an undue burden on the plaintiff, but incentivize business owners not to implement policies to prevent such accidents.[24] Opponents of the rule point out its obvious flaw: that it has the effect of making certain businesses, particularly self-service grocery stores and restaurants, absolute insurers for all accidents on the premises.[25] Although courts that have adopted this rule assert that there is no liability simply because an accident occurs, it is abundantly obvious that this rule represents a significant departure from the traditional theory of negligence, and imposes liability on a certain category of business owners far beyond that which would historically apply. In any event, owners of self-service grocery stores, restaurants, and other businesses where slip-and-fall accidents are foreseeable, must ensure not only that all reasonable precautions are taken, but that such policies and procedures are carried out and well documented. In a mode of operation jurisdiction, this is the most effective, if not the only, way to limit potential exposure for such accidents.


  1. Recurring Risk Approach


Another theory of liability followed by some jurisdictions is known as the “recurring risk” approach. This approach attempts to strike a balance between the narrow traditional approach and broad mode of operation rule. The recurring risk approach provides that a store owner may be charged with constructive notice of a risk if the plaintiff can establish that “the store owner was aware of the risk of a recurrence of a hazardous condition of the premises.”[26]


In Brookshires Grocery Co. v. Pierce,[27] the plaintiff brought suit for injuries sustained when he slipped on grapes. The jury returned a verdict in favor of the plaintiff and the defendant appealed the denial of its motions for directed verdict, arguing there was no substantial evidence to show the grapes were on the floor due to its negligence, or had been there long enough to impute constructive notice.[28] The court affirmed, holding that the traditional slip and fall analysis does not apply “where the slippery condition is not the result of an isolated incident but is instead a recurring one.”[29] The evidence presented by the plaintiff, that he had noticed produce on the floor during other shopping trips, and that, on the day he was injured, he notified an employee of two separate spills, was enough to meet the standard of a recurring risk.[30] Thus the only remaining question was “whether the business owner used ordinary care to keep his premises free from dangerous conditions likely to cause injury to invitees.”[31] The court ruled that evidence presented which indicated that management was aware the produce department was particularly dangerous for falls, the schedule for inspection for floors was not followed, and the clerk assigned on the day of the fall was known not to be diligent, was enough to support a finding in plaintiff’s favor.[32]


As you can see, the recurring risk approach seeks to deal with the notice issues presented by slip-and-fall cases, without imposing undue liability on store owners. The result is a much more balanced approach than that presented by the mode of operation rule. For example, under the mode of operation rule, the owner of a grocery store that has never experienced an incident where liquid spilled on the floor could be found liable the one time it happens simply because such spills are foreseeable in the grocery business generally. Conversely, the recurring risk approach, rather than approaching these situations in the abstract, looks to what has occurred at that particular grocery store. This ensures that diligent store owners who suffer unfortunate accidents due to one-time oversights are not held liable to the same extent as those store owners who take little or no precautions to prevent these incidents. Although the result may often be the same as the mode of operation rule,[33] the recurring risk approach accomplishes the same policy goals as the mode of operation rule without imposing unduly broad liability on the premises owner.


  1. Burden-Shifting Approach


The final approach to slip-and-fall cases, at the far end of the spectrum, is known as the burden-shifting approach. Under this approach, a plaintiff establishes a prima facie case of negligence when “he presents evidence that the nature of the defendant’s business gives rise to a substantial risk of injury to customers from slip-and-fall accident, and that the plaintiff’s injury was proximately caused by such an accident within the zone of risk.”[34] If the plaintiff presents such evidence, the burden of proof shifts to the defendant to prove “his employees did not cause the substance/object to be on the floor and that it had been there for an insufficient length of time to have been discovered and removed or warned of by his employees.”[35]


This approach turns ordinary premises liability principles on their head, and makes it virtually impossible for a store owner to succeed on summary judgment.[36] Not only is the summary disposition of cases unlikely under this approach, it makes a defense verdict significantly more difficult. Although opponents of the traditional approach are correct that store owners are likely in a better position to know how an object fell or how long it was on the ground, the fact remains that more often than not neither party will be able to present such proof with any certainty. The adoption of this approach will invariably lead to more lawsuits and force store owners and their insurers to settle meritless claims to avoid the heightened risk of an adverse jury verdict due to the shifted burden of proof. Luckily, this approach (or a form thereof) is only followed by four jurisdictions. Notably, the state legislatures of Louisiana and Florida enacted legislation overruling court decisions which adopted this approach.


  1. Recent Developments in Florida’s Approach to Slip-and-Falls


Nowhere is the proverbial tug-of-war of policy considerations better demonstrated than in Florida. Until 2001, Florida followed the traditional approach, requiring proof of actual or constructive notice of the dangerous condition. Then, in Owens v. Publix Supermarkets, Inc.,[37] the Florida Supreme Court adopted the burden-shifting approach, holding that “premises liability cases involving transitory foreign substances are appropriate cases for shifting the burden to the premises owner . . . to establish that it exercised reasonable care under the circumstances, eliminating the specific requirement that the customer establish that the store had constructive knowledge of its existence in order for the case to be presented to the jury.”[38] In response to the Owens decision, the Florida legislature enacted section 768.0710, Florida Statutes (2002), which reversed Owens in part, placing the burden of proof back on the plaintiff. However, section 768.0710 specifically provided that actual or constructive knowledge of the transitory foreign object was not a required element of proof.


Section 768.0710 remained the law in Florida until July 1, 2010, when it was repealed by section 768.0755, Florida Statutes (2010). Section 768.0755 provides:


  • If a person slips and falls on a transitory foreign substance in a business establishment, the injured person must prove that the business establishment had actual or constructive knowledge of the dangerous condition and should have taken action to remedy it. Constructive knowledge may be proven by circumstantial evidence showing that:


  • The dangerous condition existed for such a length of time that, in the exercise of ordinary care, the business establishment should have known of the condition; or


  • The condition occurred with regularity and was therefore foreseeable.


  • This section does not affect any common-law duty of care owed by a person or entity in possession or control of a business premises.


Thus, with section 768.0755, Florida has come full circle, and again follows the traditional approach to slip-and-fall accidents. The issue has now become whether this statute applies retroactively. This question was recently answered by the Third District Court of Appeals in Kenz v. Miami-Dade County & Unicco Service Company.[39] In Kenz the court held that section 768.0755 is procedural, not substantive, in nature because it does not create any new element of a cause of action, but merely codifies a “means and method by which a plaintiff shows that the defendant-business establishment has breached its duty of care.”[40] Accordingly, the Third District Court of Appeals concluded that section 768.0755 applies retroactively.[41] As of the date of this article, no other District Court of Appeals has addressed this issue, and it represents the law of the state until such time as there is a conflicting appellate or Florida Supreme Court decision.[42]


Another recent development in Florida involves the plaintiff’s ability to obtain discovery of prior accidents in order to demonstrate constructive knowledge under section 768.0755. In Publix Supermarkets, Inc. v. Santos,[43] the plaintiff brought suit for injuries sustained when he slipped and fell at a particular Publix supermarket. The plaintiff sought discovery of all slip-and-falls at the particular store where he fell within the previous three years, and discovered that no prior incidents had occurred at that store.[44] Plaintiff then sought discovery of “all incident reports relative to any occurrence at kiosks located in Publix stores within the State of Florida.”[45] Publix sought certiorari relief of the trial court’s order to produce such reports for the previous three years.[46] The court held that the use of the term “the business establishment” in section 768.0755, instead of the use of the term “person or entity” found in the repealed section 768.0710, evidenced the legislature’s intent to “construe premises liability based on the actual or constructive knowledge of the particular place or business establishment where the accident occurred.”[47]


  1. Conclusion and State-by-State Approach


The different approaches to slip-and-fall cases will have a significant, and potentially determinative, impact on whether liability is imposed in certain situations. While the traditional approach remains the most common, there is a definite trend among the states towards a more liberal interpretation of premises liability in these cases. The modern approaches increase a given plaintiff’s chance of success, which invariably leads to an increase in the number of claims brought. Thus, it is essential to know what rules are followed by the jurisdiction(s) in which you or your clients operate, and to ensure proper implementation of procedures and policies depending on these approaches.


To aid with this determination, below is a list of each state’s approach to slip-and-fall cases.


State Cases/Statutes Description of State’s Stance on
Slip-and-Fall Cases
AL Dolgencorp, Inc. v. Faye Hall, 890 So. 2d 98 (Ala. 2003) Traditional
AK Edenshaw v. Safeway, Inc., 186 P.3d 568 (Alaska 2008) Traditional
AZ Chiara v. Fry’s Food Stores of Arizona, Inc., 152 Ariz. 398 (1987) Mode of Operation
AR Brookshires Grocery Co. v. Pierce, 71 Ark. App. 203 (Ark. Ct. App. 2000) Recurrent Risk
CA Moore v. Wal-Mart Stores, Inc., 111 Cal. App. 4th 472 (Cal. Ct. App. 2003) Traditional
CO Safeway Stores, Inc. v. Smith, 658 P.2d 255 (Colo. 1983) Mode of Operation
CT Kelly v. Stop and Shop, Inc., 281 Conn. 768 (2007) Mode of Operation
DE Hazel v. Delaware Supermarkets, Inc., 953 A.2d 705 (Del. 2008) Traditional
FL Section 768.0755, Florida Statutes (2010) Traditional
GA Davis v. Bruno’s Supermarkets, Inc., 263 Ga. App. 147 (Ga. Ct. App. 2003) Burden Shifting
HI Gump v. Wal-Mart Stores, Inc., 93 Haw. 417 (2000) Mode of Operation
ID McDonald v. Safeway Stores, Inc., 109 Idaho 305 (1985) Mode of Operation
IL Donoho v. O’Connell’s, Inc., 13 Ill. 2d 113 (1958) Mode of Operation/Traditional hybrid
IN Golba v. Kohl’s Dept. Store, Inc., 585 N.E.2d 14 (Ind. Ct. App. 1992) Mode of Operation
IA Dorothy v. SDG Macerich Properties, L.P., 2003 Iowa App. LEXIS 930 (Iowa Ct. App. 2003) Traditional
KS Jackson v. K-Mart Corp., 251 Kan. 700 (1992) Mode of Operation
KY Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431(Ky. 2003) Burden Shifting
LA La. Rev. Stat.                 § 9:2800.6(B) (1991) Traditional
ME Budzko v. One City Center Associates Limited Partnership, 2011 Me. 37 (2001) Recurrent Risk
MD Maans v. Giant of Maryland, L.L.C., 161 Md. App. 620 (Md. Ct. Spec. App. 2005) Traditional
MA Sheehan v. Roche Brothers Supermarkets, Inc., 448 Mass. 780 (2007) Mode of Operation
MI Whitmore v. Sears, 89 Mich. App. 3 (Mich. Ct. App. 1979) Traditional
MN Norman v. Tradehome Shoe Stores, Inc., 270 Minn. 101 (1965) Traditional
MS Bonner v. Imperial Palace of Mississippi, LLC, 117 So. 3d 678 (Miss. Ct. App. 2013) Traditional
MO Emery v. Wal-Mart Stores, 976 S.W.2d 439(Mo. 1998) Mode of Operation
MT Demaree v. Safeway Stores, Inc., 162 Mont. 47 (1973), overruled on other grounds by 286 Mont. 309 (1997) Traditional
NE Herrera v. Fleming Companies, Inc., 265 Neb. 118 (2003) Traditional
NV Sprague v. Lucky Stores, Inc., 109 Nev. 247 (1993) Recurrent Risk
NH Rallis v. Demoulas Super Markets, Inc., 159 N.H. 95 (2009) Traditional
NJ Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559 (2003) Mode of Operation/Burden-Shifting hybrid
NM Mahoney v. J.C. Penney Co., 71 N.M. 244 (1962) Mode of Operation/Recurring Risk hybrid
NY Branham v. Loews Orpheum Cinemas, Inc., 8 N.Y.3d 931 (N.Y. 2007) Traditional
NC Nourse v. Food Lion, Inc., 127 N.C. App. 235 (N.C. Ct. App. 1997) Traditional
ND Johanson v. Nash Finch Co., 216 N.W.2d 271 (N.D. 1974) Traditional
OH Titenok v. Wal-Mart Stores East, Inc., 2013 Ohio App. LEXIS 2765 (Ohio Ct. App. 2013) Traditional
OK Lingerfelt v. Winn-Dixie Texas, Inc., 1982 Okla. 44 (1982) Mode of Operation/Burden-Shifting hybrid
OR Hagler v. Coastal Farm Holdings, Inc., 2013 Ore. LEXIS 718 (Ore. 2013) Traditional
PA Martino v. Great Atlantic & Pacific Tea Co., 419 Pa. 229 (1965) Traditional
RI Barone v. The Christmas Tree Shop, 767 A.2d 66 (R.I. 2001) Traditional
SC Wintersteen v. Food Lion, Inc., 344 S.C. 32 (2001) Traditional
SD Ballard v. Happy Jack’s Supper Club, 425 N.W.2d 385 (S.D. 1988) Traditional
TN Caire v. McLemore Food Stores, Inc., 1999 Tenn. App. LEXIS 28 (Tenn. Ct. App. 1999) Mode of Operation/Recurring Risk hybrid
TX Brookshire Grocery Co. v. Taylor, 222 S.W.3d 406 (Tex. 2006) Traditional
UT Canfield v. Albertsons, Inc., 841 P.2d 1224 (Utah Ct. App. 1992) Mode of Operation
VT Malaney v. Hannaford Bros. Co., 177 Vt. 123 (2004) Mode of Operation
VA Miracle Mart, Inc. v. Webb, 205 Va. 449 (1964) Traditional
WA Pimentel v. Roundup Co., 666 P.2d 888 (Wash. 1983) Mode of Operation
WV McDonald v. Univ. of W. Va., 191 W. Va. 179 (1994) Traditional
WI Steinhorst v. H.C. Prange Co., 48 Wis. 2d 679 (1970) Mode of Operation
WY Rhoades v. K-Mart Corp., 863 P.2d 626 (Wy. 1993) Mode of Operation





  1. Intentional Acts Committed on Premises


  1. Basis for Liability


Historically, the courts have hesitated to burden an owner of property with an affirmative duty to protect a resident or patron from the criminal activity of a third person. However, when a certain special relationship exists between the owner or occupier of a business and its guest, the courts have generally carved out exceptions to this no-duty rule.


The Restatement of Torts, underscores this willingness of the courts to find liability when such special relationships exist, stating:


Business Premises Open to Public: Acts of Third Persons or Animals


A possessor of land who holds it open to the public for entry for his business

purposes is subject to liability to members of the public while they are upon the

land for such a purpose, for physical harm caused by the accidental, negligent,

or intentionally harmful acts of third persons or animals, and by the failure of the

possessor to exercise reasonable care to:


  • discover that such acts are being done or are likely to be done, or


  • give a warning adequate to enable visitors to avoid the harm or

otherwise protect them against it.[48]


A comment to the Restatement section makes clear that the existence of the duty depends, to a great extent, on the foreseeability of criminal conduct by third persons.


Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.[49]


The comment emphasizes two distinct situations in which a special duty may arise. The first occurs when the owner knows or has reason to know that a third party is harming or is about to harm a guest. At this point, the owner may be able to protect the guest by warning him or her, alerting police authorities, or employing available security measures. The second situation may exist where the nature of the owner’s business or experience provides a basis for the reasonable anticipation on the owner’s part that prior or potential criminal activity may put guests at risk. In the latter scenario, the owner may be liable for failing to adopt security measures which might have prevented the third person from inflicting harm upon the guests. The distinction between these situations is critical, since the duty to foresee a general risk of criminal activity and to take necessary steps to safeguard guests from it may require substantial expenditures on the part of the owner or occupier.


Whichever approach is recognized by a jurisdiction under a given set of facts, however, the issue which must ultimately be addressed is that of foreseeability.


  1. Approaches to Foreseeability


Obviously, regardless of jurisdiction, liability for premises owners is still predicated upon fault. Thus, although it is established that the owner owed the victim a duty to protect him or her from harm, the question of the scope of that duty and whether the resulting injury was a direct result of the owner’s failure to carry out his duty must be resolved.


The nature and degree of proof a plaintiff must introduce in order to establish that the owner/occupier knew or had reason to know of a risk of criminal assault upon guests will depend largely upon whether the jurisdiction adopts a liberal or narrow (traditional) approach to foreseeability.


Under the latter, more restrictive, approach, which generally requires actual knowledge of imminent danger, evidence of prior assaults will be inadmissible. This approach is often labeled the “no duty rule.”


In jurisdictions adopting a somewhat less restrictive view, generally known as the “similar acts” rule, a duty may arise when the owner knows or has reason to know of prior incidents of the same or similar kind committed on the premises. In these jurisdictions, knowledge of prior purse snatching, for example, may not render the risk of forcible rape foreseeable.


In those jurisdiction adopting a still more expansive view of foreseeability, a jury question may arise when evidence is introduced showing that the owner had reason to foresee criminal assault when burglaries or unarmed robberies are common in the surrounding area. Under this rule, the courts are willing to analyze the “totality of the circumstances” in determining responsibility of the owner.


Few jurisdictions continue to recognize the no duty rule. The rationale of the no duty approach is perhaps best illustrated by the New Jersey Superior Court in a somewhat dated decision, Goldberg v. Housing Authority.[50] In Goldberg, the plaintiff was robbed and beaten in a self-service elevator while delivering milk to a housing project.[51] The court ruled that a commission of a crime is foreseeable virtually anywhere, anytime, and thus there is no need to provide protection against criminal activity.[52] The court reasoned that since criminal attacks are always foreseeable, a duty to protect patrons against such attacks would require “every residential curtilage, every shop, every store, every manufacturing plant . . . to be patrolled by the private arms of the owner.”[53]


In a more recent decision, the Supreme Court of Alabama affirmed the trial court’s granting of summary judgment against the decedent’s father who filed a wrongful-death action against the decedent’s employer after her husband shot and killed her at work.[54] Evidence established that the day prior to the incident, there was an altercation between the decedent and her husband, and she asked her co-workers for help hiding from him.[55] The next day, the decedent informed her manager about the incident and asked if she could be excused from work because she was afraid of her husband; her manager told her to come to work and she would call the police if her husband showed up.[56] The court reaffirmed that, absent a special relationship or special circumstances, “a person has no duty to protect another from the criminal acts of a third person.”[57] The court held that there was no genuine issue of material fact regarding whether the employer should have reasonably foreseen that the decedent’s husband would enter the restaurant and murder his wife.[58]


The Georgia Court of Appeals likewise affirmed the granting of a summary judgment against a claimant who was injured in a bar fight.[59] The court reasoned that although fights and arguments had occurred in the establishment in the past, there was no similarity to what occurred in this case sufficient to create a factual issue as to foreseeability.[60] Nor was there any evidence of an escalating course of conduct sufficient to put the employees on notice of the danger.[61] The court held that the attacker being “loud, rowdy, and inebriated” was insufficient to put the employees on notice of an impending attack on another customer.[62]


The Michigan high court also adopted a relatively conservative position, affirming summary judgment against a plaintiff who was injured when fellow concert goers began pulling up and throwing pieces of sod.[63] The court held that a merchant has no obligation to anticipate and prevent criminal acts, and is entitled to assume patrons will obey the law.[64] Importantly, the court held “[a] premises owner’s duty is limited to responding reasonably to situations occurring on the premises,” and it is only the present situation, not any past incidents, that creates a duty to respond.[65]


Courts following the no duty rule will also consider whether a special relationship exists. In Taboada v. Daly Seven, Inc.,[66] the Supreme Court of Virginia considered whether an innkeeper could be liable for injuries sustained by a guest who was shot in the parking lot. The court held that although Virginia follows the no duty rule, an exception to this rule applies where a special relationship exists.[67] The court determined that the relationship between an innkeeper and guest was such a special relationship,[68] imposing a duty upon the innkeeper of the “utmost care and diligence” to protect the guest against reasonably foreseeable injury from the criminal conduct of a third party.[69] In reversing the order of the trial court granting judgment in the innkeeper’s favor, the court held the plaintiff had alleged sufficient facts to permit a jury to find the innkeeper had breached his duty of care.[70] Specifically, the plaintiff submitted evidence that over a three year period the inn’s employees had reported acts of criminal conduct, including shootings, 96 times, and police had advised the defendant that its guest were at imminent risk of harm from uninvited third persons.[71]


Despite reported decisions following less stringent approaches to foreseeability, the trend among most jurisdictions is to adopt the totality of the circumstances rule.[72] Under this approach, even absent any prior similar acts, a landowner may be held liable for criminal attacks, depending upon an analysis of all surrounding facts and circumstances.


One of the earliest decisions adopting the “totality” approach was handed down by the

California Supreme Court in Isaacs v. Huntington Memorial Hospital.[73] In Isaacs, a doctor was severely injured after being shot while returning to his car in a hospital parking lot.[74] The doctor filed suit against the hospital alleging inadequate security measures to protect him against criminal acts.[75] The court soundly rejected the prior similar acts approach, noting that it was contrary to public policy.[76] The court reasoned:


The rule has the effect of discouraging landowners from taking adequate measures to protect premises which they know are dangerous. This result contravenes the policy of preventing future harm. Moreover, under the rule, the first victim always loses, while subsequent victims are permitted recovery. . . Surely a landowner should not get one free assault before he can be held liable for criminal acts which occur on his property.[77]


Interestingly, although initially adopting the trend toward liberality in finding owner liability in cases involving third-party criminal acts, the California Supreme Court has recently refined its approach to these cases.[78] The current rule in California is: (1) the prior similar acts rule applies to premises liability claims against business owners for failing to take precautions against possible future criminal conduct of third parties;[79] and (2) the totality of circumstances rule applies when the criminal conduct is ongoing or imminent.[80]


Unfortunately, other jurisdictions have not yet followed California’s lead in abandoning the totality of circumstances approach. The Kansas Supreme Court recently joined the trend toward liberality in Seibert v. Vic Regnier Builders. Inc.,[81] holding that the “totality of the circumstances is the better reasoned basis for determining foreseeability.”[82] The Court went on to state that the circumstances must, however, “have a direct relationship to the harm incurred in regard to foreseeability.”[83]


The Tennessee Supreme Court has likewise adopted a liberal approach, rejecting the no duty rule it had previously adopted.[84] The court rejected both the prior similar acts and totality of the circumstances approaches in favor of a “balancing” approach.[85] The court held that a business has a duty to take reasonable steps to protect its customers “if the business knows, or has reason to know, either from what has been or should have been observed or from past experience, that criminal acts against its customers on its premises are reasonably foreseeable, either generally or at some particular time.”[86] “In determining the duty that exists, the foreseeability of harm and the gravity of harm must be balanced against the commensurate burden imposed on the business to protect against that harm.”[87] That is, the degree of foreseeability needed to establish the duty decreases in proportion to the gravity of the foreseeable harm.[88]


Other jurisdictions have also recently adopted or reaffirmed their adherence to the totality of circumstances approach. See Taco Bell. Inc. v. Lannon,[89] (holding that an owner owes a non-delegable duty to use reasonable care to protect invitees from foreseeable misconduct, including intentional criminal conduct); Reitz v. May Co. Dept. Stores,[90] (disavowing the similar prior incidents approach and adopting the “totality of the circumstances” standard); Doud v. Las Vegas Hilton Corp.,[91] (holding that “the location and character of the . . . business, together with the past crimes committed on the . . . premises, provides the requisite foreseeability to impose the a duty to protect the plaintiff from the assault”).

  1. Intentional Acts Off-Premises


Another evolving issue in the area of premises liability is the liability of an owner for injuries to guests which occur off-premises. The gravamen of claims alleging such an injury is that the owner should have implemented security measures beyond his premises to protect the invitee from criminal assault.


In Ember v. B.F.D” Inc.,[92] a bar patron was injured in an assault in a parking lot across from a bar. Evidence showed that the lot was often used by bar patrons since the bar’s only parking lot was located behind the building.[93] The record was replete with evidence that the pub had incurred problems in the past with excessive noise, bottle-throwing and parking.[94] Additionally, the pub’s management was aware of at least five or six incidents of violence, both inside and outside the tavern.[95]


After holding that the proprietor knew that his patrons customarily utilized the adjacent lot for parking, the court reasoned:


An invitor’s duty normally extends only to its “premises.” However, we recognize that in this case “the premises” may not be limited to the area actually owned or leased by the Pub because its business activities extended beyond its legal boundaries. A duty of reasonable care may be extended beyond the business premises when it is reasonable for invitees to believe that the invitor control premises adjacent to his own or where the invitor knows his invitees customarily use such adjacent premises in connection with the invitation. Here, the record supports a reasonable inference the Pub knew its parking lot was insufficient for its patrons’ use; additionally, the Pub was aware its patrons customarily used the parking lot across the street while patronizing it.[96]


Other jurisdictions have also dealt with the issue of foreseeability with respect to off-premises criminal assaults. See Lewis v. Razzberries, Inc.,[97] (holding a tavern owed no duty of care for the wrongful death of a patron which occurred 23 feet beyond the boundaries of the tavern); DeMare v. Woodbridge 1985, Inc.,[98] (nightclub owner had no duty to prevent off-premises attack by one patron on another after the two were expelled from the club); Krinnick v. Sharac Restaurant Inc.,[99] (restaurant had no duty to illuminate rear alley used in common with other tenant to protect prospective patron from criminal attack); and Southland Corp. v. Superior Court,[100] (genuine issue of material fact existed as to whether store exercised actual or constructive control over vacant lot adjoining store where third parties attacked customer).


  1. Apportionment of Fault to the Tortfeasor


Finally, an issue which has generated concern among both the defense and plaintiff bars, is whether the trial court will allow apportionment of fault to an intentional tortfeasor in the premises liability setting. In other words, is the owner entitled to inclusion of the assailant on the jury verdict form?


California appears to have resolved the issue in favor of allowing possible allocation of fault to the assailant. In Weidenfeller v. Starr & Garter,[101] the plaintiff was a victim of an armed assault in the parking lot of a bar. The plaintiff sued the bar and the bar owner alleging negligent security.[102] The jury found the bar’s negligence caused plaintiffs injuries and attributed 75% to the assailant, 20% to the bar, and 5% to the plaintiff.[103] The Weidenfeller court affirmed the apportionment, relying upon Civil Code § 1431.2, Subdivision (a), which provides that a defendant is liable for non-economic damages only in direct proportion to his fault.


The plaintiff argued that the comparative fault principles do not apply when a party acts intentionally. In rejecting those arguments, the Weidenfeller court stated that it would be absurd to interpret the comparative fault statute as benefiting a negligent tortfeasor only when there are equally culpable defendants, but eliminating the benefit when the other tortfeasor acted intentionally.[104] The court held that penalizing the negligent tortfeasor under such circumstances frustrates the purpose of the statute, which is to prevent the unfairness of requiring a tortfeasor who was only minimally culpable as compared to other parties to bear all the damages.[105] The court also found that such an interpretation would violate the common sense notion that a more culpable party should bear the financial burden caused by its intentional act.[106]


The court specifically rejected arguments advanced by the plaintiff that applying the comparative fault statute to intentional and negligent acts would limit a plaintiff’s opportunity to obtain full recovery, that application of the comparative fault statute to intentional acts was against public policy because it would fail to effectively deter more culpable tortfeasors, and that application of the comparative fault statute to injuries caused by intentional and negligent acts would violate due process rights because the jury would have no standard under which it could compare intentional misconduct to ordinary negligence.[107]


Similar reasoning was adopted by the New Jersey court in Blazovic v. Andrich.[108] In that case, a customer at a bar received injuries in a fight with other customers at the bar and filed suit against those customers and the bar.[109] The trial court instructed the jury to compare only the relative fault of the negligent parties (apparently finding that the negligent conduct of those parties could not be compared with the intentional conduct of the remaining parties).[110]


The Blazovic court reasoned that the adoption of the New Jersey Comparative Negligence Act reflected a legislative decision to ameliorate the harsh results of the doctrine of contributory negligence.[111] The court also stressed that the Act’s application also applied to strict liability actions and covered fault in a broader sense than the narrow concept of “negligence.”[112] The court also rejected the concept that intentional conduct is “different in kind” from both negligence and wanton and willful conduct, instead viewing it as merely “different in degree.”[113] The court noted that the different levels of culpability involved in negligent, willful and wanton and intentional conduct would be reflected in the jury’s apportionment of fault.[114]


In Barth v. Coleman,[115] the Supreme Court of New Mexico likewise held that imposing full liability to a premises owner is inconsistent with holding tortfeasors responsible only for their percentage of fault. The Court reasoned that the liability of the premises owner must be reduced by the percentage of fault attributable to the tortfeasor.


Thus, Weidenfeller, Blazovic and Barth each rely upon many of the same policy considerations. Most importantly, all stress that the purpose of comparative fault is to limit a negligent tortfeasor’s liability to reflect only the fault incurred by that negligent tortfeasor.


At least three jurisdictions have apparently refused to permit apportionment of fault to the assailant. In Kansas State Bank & Trust Co. v. Specialized Transp. Services, Inc.,[116] an action was brought on behalf of a young girl against a school bus driver, a school bus transportation service, and the school district based on the bus driver’s alleged sexual molestation of the girl. The trial court held that, under Kansas Statute § 60-258(a), the bus driver’s intentional acts could not be compared to the school district’s and transportation services’ negligence in failing to take steps to protect the student from such intentional acts for the purpose of reducing the school district’s and transportation services’ percentage of fault.[117] The court affirmed this portion of the judgment, holding that negligent tortfeasors would not be allowed to reduce their fault by comparison to the intentional fault of another that they had a duty to prevent.[118]  The court insisted that it would be unfair to allow the intentional act of one defendant to be compared to the negligent act of a defendant whose duty it is to protect the plaintiff from the act committed by the intentional tortfeasor.[119]


The Michigan Supreme Court also refused to equate intentional acts with negligence when allocating fault. In Gibbard v. Cursan,[120] the court noted that “[i]f one willfully injures another … he is guilty of more than negligence. The act is characterized by willfulness, rather than by inadvertence, it transcends negligence-[it] is different in kind.”


Thus, as courts and legislatures continue to grapple with the issue of whether to allow allocation of fault to an intentional tortfeasor, it is likely that the argument will center on whether intentional acts are “different-in-kind” from negligence or, rather, “different in degree.” To the legislature and the courts, the issue may be one of semantics. To an owner, however, resolution of the issue may be a million dollar consideration.





  1. Florida’s Approach


  1. Foreseeability


The Florida Supreme Court has historically taken a liberal approach to foreseeability. See Hall v. Billy Jack’s, Inc.;[121] Allen v. Babrab, Inc.;[122] Stevens v. Jefferson.[123] However, the foreseeability issue is far from settled, and will often vary from jurisdiction to jurisdiction.


In Stevens, the widow of a bar patron who was shot and killed in a bar by another patron, brought an action against the bar owner.[124] The plaintiff introduced evidence at trial demonstrating that the bar had a history of fights and gun play, that the owner had terminated all security service and had left the premises in the hands of a female employee who was unable to maintain order.[125] The plaintiff, however, failed to allege or prove that the defendant was aware of any dangerous propensities on the part of the decedent’s assailant.[126] On appeal, the defendant contended that the plaintiff could not prevail due to the lack of knowledge of such propensities.[127]


The Florida Supreme Court affirmed the trial court’s judgment against the bar owner, stating that to impose liability on a tavern owner for injuries to patrons intentionally inflicted by third parties, the risk of harm to the bar’s patrons must be reasonably foreseeable.[128] With respect to the issue of foreseeability, the court maintained:


Although knowledge of a particular assailant’s propensity for violence is often found to be evidence of foreseeability in these cases, we reject the contention . . . that proof of foreseeability should be limited by law to evidence of actual or constructive knowledge of a particular assailant’s propensity for violence. A tavern owner’s actual or constructive knowledge, based upon past experience, that there is a likelihood of disorderly conduct by third persons in general which may endanger the safety of his patrons is also sufficient to establish foreseeability.[129]


Applying the facts of the case to this reasoning, the court found that a jury could determine that a foreseeable risk of harm to patrons existed, that the risk was either created or tolerated by the defendant, that the defendant could have remedied the danger but failed to do so, and that because of that failure to perform his duties a patron was killed.[130]


In Hall, a tavern customer brought an action against the tavern and another customer for injuries sustained in an assault while watching a pool game.[131] The Supreme Court reversed the appellate court’s ruling in favor of the tavern owner, holding that foreseeability may be established by demonstrating that the owner had actual or constructive knowledge of a particular assailant’s inclination towards violence or by proving that the owner had actual or constructive knowledge of a dangerous condition on the premises that was likely to cause harm to a patron.[132] The court further stressed:


A dangerous condition may be indicated if, according to past experience (i.e., reputation of the tavern), there is a likelihood of disorderly conduct by third persons in general which might endanger the safety of patrons or if security staffing is inadequate. These indicia are not exhaustive. If the lounge management knew or should have known of a general or specific risk to Hall and failed to take reasonable steps to guard against the risk and if, because of that failure, Hall was injured, Bill Jack’s may be shown to have breached its duty and may be held financially responsible for Hall’s injuries.[133]


Despite the liberal approach adopted by the Florida Supreme Court in the above cases, the Third District Court of Appeals has adopted the prior similar acts rule. See Prieto v. Miami-Dade Cty.,[134] (holding that absent any record evidence the defendant had “actual or constructive notice of similar criminal activity” at the location, it could not be found liable as a matter of law); Metro Dade Cty. v. Ivanov,[135] (affirming summary judgment in favor of defendant where plaintiff introduced evidence of crimes at a different park, but failed to introduce evidence of “prior similar criminal activity” in the park at issue). The Fourth, First and Fifth District Courts of Appeal have declined to follow the prior similar acts rule.[136]


Apart from the question of similarity, the Third District holds that prior crimes occurring “substantial distances away” do not make a future crime on the premises foreseeable.[137] Again, this is not necessarily the case in other districts.[138] Finally, courts will generally impose some manner of temporal limitation on when these crimes occurred. Namely, the First and Third Districts have allowed crimes occurring within the previous two years to be considered,[139] while the Fourth District has allowed consideration of crimes beyond two years.[140]


  1. Off-Premises Liability


A Florida appellate court was faced with the issue off-premises liability in Holiday Inns, Inc. v. Shelburne.[141] In this case, there was an altercation between two groups outside a hotel bar in a parking lot adjacent to the hotel.[142] It was undisputed that the defendant required its bar patrons to park off the premises.[143] The court held that although an invitor’s duty normally only extends to its “premises,” the “premises” is not necessarily limited to the area actually owned or leased by the defendant “because its business activities extended beyond its legal boundaries.”[144] The court stated that “a duty of reasonable care may be extended beyond the business premises when it is reasonable for invitees to believe the invitor controls premises adjacent to his own or where the invitor knows his invitees customarily use such adjacent premises in connection with the invitation.”[145] The court concluded that the record supported the inference that the bar knew its parking lot was insufficient for its patron’s use and was aware its patrons customarily used the parking lot across the street while patronizing it.[146] Accordingly, the plaintiffs did not lose their invitee status while in the parking lot.[147]


Since Shelburne, Florida courts have adopted a “foreseeable zone of risk” approach to off-premises liability. In GunLock v. Gill Hotels Co., Inc.,[148] the decedent, a guest at the hotel, was killed when he attempted to cross a highway separating defendant’s two buildings.[149] In reversing the trial court’s dismissal, the court stated that a landowner may be liable for injuries sustained off its premises where the landowner creates “a foreseeable zone of risk.”[150] Under such circumstances a landowner has a duty either to lessen the risk or take sufficient precautions to protect invitees from the harm the risk poses.[151] This approach is followed by other districts as well.[152]


The courts have employed three ways in which the foreseeable zone of risk can extend beyond the premises:[153] 1) the landowner creates a dangerous condition which makes it foreseeable an injury may occur off-premises;[154] 2) the landowner fails to properly maintain the area of ingress or egress to his property;[155] or 3) the landowner assumes a duty to protect invitees off premises.[156]


  1. Apportionment of Fault


Florida law provides different rules for allocation, depending on whether the tortfeasor acted intentionally. In Fabre v. Marin,[157] the Florida Supreme Court dealt with injuries sustained as a result of negligence. Marin alleged that Fabre had negligently changed lanes causing Marin to sustain injuries in a subsequent accident while a passenger in a car driven by her husband.[158] Marin did not sue her husband and brought suit against Fabre.[159] In holding that liability for non-economic damages should be apportioned to all potentially liable parties, whether or not joined in the action and despite any immunity which those parties might assert, the Court noted that the Florida Comparative Fault Statute[160] discarded the doctrine of contributory negligence, which prevented a plaintiff from any recovery if the plaintiff’s negligence contributed at all to the plaintiff’s injuries from the accident at issue.[161] The Court also noted that it had judicially abolished the rule against contribution against joint tortfeasors stating that “[i]t would be undesirable for this Court to retain a rule that under a similar system based on fault, cast the entire burden of a loss for which several may be responsible upon only one of those at fault.”[162]


By contrast, in Merrill Crossings Associates,[163] the plaintiff was shot in the parking lot of a shopping center owned by the defendant. The trial court did not allow the assailant on the verdict form and the district court affirmed.[164] In affirming the decision of the district court, the Florida Supreme Court held that the language in Florida’s Comparative Fault Statute expressly excluded actions “based on an intentional tort.”[165] The court noted that this exclusion “gives effect to a public policy that negligent tortfeasors . . . should not be permitted to reduce their liability by shifting it to another tortfeasor whose intentional criminal conduct was a foreseeable result of their negligent.”[166] Finally, the court adopted the reasoning that intentional wrongdoing differs not only in degree, but in kind, from negligent or willful and wanton wrongdoing.[167]


  1. Tips to Assist in the Investigation of Negligent Security Claims


  1. Crime Grids


In assessing foreseeability, it is important to find any and all evidence of prior crimes on the property. Most counties will provide a crime analysis or a police grid for the property address and for other addresses close by. A crime analysis will list all police reports of crimes that have occurred on the property. After the “crime grids” or crime analyses are obtained, police reports of each crime should be ordered and listed to review whether any of the crimes listed constitute evidence of foreseeability of the type of crime that allegedly harmed the plaintiff.


As noted supra, it is important to know the applicable rules for the jurisdiction where suit was brought, as the rules differ among the courts. Using these “crime grids” to determine frequency, geographic proximity and temporal proximity will be invaluable in determining potential liability in a given case. It is also important to understand the relationship between the parties, as Florida courts impose heightened duties when certain relationships exist.[168]


  1. Relationship between the parties


In addition to the relationship between the plaintiff and defendant, ascertaining whether the criminal and the victim have any personal or legal relationship to each other is important. Uncovering such a relationship may be grounds to show that the defendant did not have superior knowledge of the risk posed by the assailant to the plaintiff.


  1. Surveillance cameras


Video surveillance is common at many businesses today, and it is important to obtain any surveillance videos that may have existed at the subject property and other properties nearby. It is imperative to do this immediately in order to avoid loss of data.


  1. Lease agreements and insurance coverage/exclusions


Obtaining lease agreements and other contracts between a landlord, tenant, property manager, security contractor, and the like will aid in determining which parties may potentially owe a duty to defend and indemnify other parties. Similarly, securing the insurance policies for all potential defendants helps in determining whether coverage exists and whether the coverage is subject to one of the many exclusions or sub-limits that deal with intentional acts, such as assault and battery. Policies of tenants and/or contracting parties might also list or include an insured property owner as an additional insured.



  1. Meeting with the Insured and site inspection


The best time to meet with the Insured and conduct a site inspection is immediately after the alleged crime, or if too much time has passed, during the same month and time of day. It is important to note any property defects that may be asserted by the plaintiff’s counsel, such as holes in fences, fences that do not surround the property, inadequate lighting, missing light bulbs, broken locks, or evidence of carelessness regarding the safety or maintenance on the property.


  1. Conclusion


The issues of duty and foreseeability in the context of liability of owners and occupiers of land for violent crimes committed both on and off their premises are continuing to evolve. A duty may arise on the part of the owner when he or she knows or has reason to know that a third party is harming or is about to harm an invitee. Additionally, a duty may exist where the nature of the owner’s business or experience provides a basis for anticipating potential criminal activity.


Further, the courts have approached the issue of foreseeability with three approaches, namely: (1) the no-duty rule; (2) the similar acts rule; and (3) the totality of circumstances rule. Of the three approaches, the latter is clearly utilized by the majority of jurisdictions today. As can be seen by the Ann M. decision, however, at least

California has demonstrated a willingness to retreat from the liberal trend.


It can be expected that claims for injuries sustained as a result of third-party criminal activity will continue against premises owners. It is important, therefore, for owners, their attorneys and insurance carriers to be well aware of the case law developing in their respective jurisdictions, and to follow the tips for investigation outlined supra.


[1] The applicable rules for premises liability will vary given the plaintiff’s status as an invitee, licensee or trespasser.

[2] See, e.g., Maddox v. K-Mart Corp., 565 So. 2d 14, 16 (Ala. 1990).

[3] Restatement (Second) of Torts § 343 (1965).

[4] Five states (Illinois, New Jersey, New Mexico, Oklahoma and Tennessee) follow hybrid approaches.

[5] See, e.g., Maans v. Giant of Maryland, L.L.C., 871 A.2d 627, 632 (Md. Ct. Spec. App. 2005).

[6] Alaska is the only state which follows the traditional approach but does not require a showing of actual or constructive notice as a prima facie case in a slip and fall action. See Edenshaw v. Safeway, Inc., 186 P.3d 568, (Alaska 2008). Instead, notice is considered one factor a factfinder may consider when determining reasonableness. Id. The practical effect of this rule is making it virtually impossible to succeed on a motion for summary judgment.

[7] Id.

[8] Some jurisdictions will impute constructive notice where there is evidence that the problem is recurring or ongoing. See Tremblay v. Donnelly, 103 N.H. 498, 500 (1961) (upholding denial of defendants’ motion for nonsuit where there was evidence that defendants knew or should have known pears tended to fall from the tree onto the porch and could have taken steps to prevent it); see also Section 768.0755, Florida Statutes (2010).

[9] See Anaple v. Oil Co., 162 Ohio St. 537, 541 (1955).

[10] Ex parte Travis, 414 So. 2d 956 (Ala. 1982).

[11] Nourse v. Food Lion, 127 N.C. App. 235 (N.C. Ct. App. 1997).

[12] Anderson v. B.H. Acquisition, Inc., 771 So. 2d 914 (Miss. 2000).

[13] Carmina v. Parliament Ins. Co., 417 So. 2d 1093 (Fla. 3d DCA 1982).

[14] Furr v. K-Mart Corp., 142 N.C. App. 325 (N.C. Ct. App. 2001).

[15] See Chiara v. Fry’s Food Stores, 152 Ariz. 398 (1987).

[16] Id.

[17] Id.

[18] Sheehan v. Roche Brothers Supermarkets, Inc., 448 Mass. 780 (2007).

[19] See, e.g., Overstreet v. Gibson Product Co., 558 S.W.2d 58, 61 (Tex. Civ. App. 1977) (holding grocery store owner was not liable to customer bitten by rattlesnake).

[20] Kelly v. Stop & Shop, Inc., 281 Conn. 768, 791 (2007).

[21] Malaney v. Hannaford Bros. Co., 177 Vt. 123, 133 (2004).

[22] Id. at 132; see also Nisivoccia v. Glass Gardens, Inc., 175 N.J. 559, 565-65 (2003).

[23] Id. at 779.

[24] See Kelly, 281 Conn. at 789.

[25] See Dumont v. Shaw’s Supermarkets, Inc., 664 A.2d 846, 849 n.1 (Me. 1995).

[26] Id. at 848.

[27] 71 Ark. App. 203 (Ark. Ct. App. 2000).

[28] Id. at 205.

[29] Id.

[30] Id. at 206.

[31] Id. at 205.

[32] Id. at 206.

[33] See Sheehan, 448 Mass. at 789-790.

[34] Safeway Stores, Inc. v. Smith, 658 P.2d 255, 258 (Colo. 1983).

[35] Lanier v. Wal-Mart Stores, Inc., 99 S.W.3d 431, 435 (Ky. 2003), quoting Smith v. Wal-Mart Stores, Inc., 6 S.W.3d 829, 831-32 (Ky. 1999) (Cooper, J., concurring).

[36] See Burnett v. Ingles Markets, 236 Ga. App. 865, 867 (Ga. Ct. App. 1999) (finding jury question as to the reasonableness of a store’s inspection procedure when an inspection was performed 15 minutes before plaintiff’s fall).

[37] 802 So. 2d 315 (Fla. 2001) (superseded by statute).

[38] Id. at 331.

[39] 116 So. 3d 461 (Fla. 3d DCA 2013).

[40] Id. at 464 (emphasis in original).

[41] Id. at 466.

[42] See Vallot v. Logans Roadhouse, Inc., 2013 U.S. Dist. LEXIS 134899 (M.D. Fla. September 20, 2013).

[43] 118 So. 3d 317 (Fla. 3d DCA 2013).

[44] Id. at 3.

[45] Id.

[46] Id.

[47] Id. at 7.

[48] Restatement (Second) of Torts, Section 344 (1965).

[49] ld. at comment f.

[50] 38 N.J. 578 (1962).

[51] Id. at 579.

[52] Id. at 583.

[53] Id.

[54] Carroll v. Shoney’s, Inc., 775 So. 2d 753, 754 (Ala. 2000).

[55] Id. at 754.

[56] Id. at 754-55.

[57] Id. at 756.

[58] Id. at 757.

[59] Hunter v. Cabe Group, 244 Ga. App. 162 (Ga. Ct. App. 2000).

[60] Id. at 164.

[61] Id.

[62] Id.

[63] MacDonald v. PKT Inc., 464 Mich. 322, 325 (2001).

[64] Id. at 335.

[65] Id. (emphasis added).

[66] 271 Va. 313 (2006).

[67] Id. at 322-23.

[68] The court was careful to distinguish previous case law involving innkeepers and business invitees who were not guests at the inn. Id. at 324.

[69] Id. at 327.

[70] Id.

[71] Id.

[72] See McClung v. Delta Square Ltd. Pshp., 937 S.W.2d 891, 898 (Tenn. 1996).

[73] 695 P.2d 653 (Cal. 1985)

[74] Id. at 655.

[75] Id.

[76] Id. at 660.

[77] Id. at 658.

[78] See Morris v. De La Torre, 36 Cal. 4th 260, 279 (Cal. 2005) (Kennard, J., concurring).

[79] See Ann M. v. Pacific Plaza Shopping Ctr., 6 Cal. 4th 666 (Cal. 1993).

[80] See Kentucky Fried Chicken of Cal., Inc. v. Superior Court, 14 Cal.4th 814 (Cal. 1997).

[81] 253 Kan. 540 (1993).

[82] Id. at 549.

[83] Id.

[84] See McClung, 937 S.W.2d at 899.

[85] Id. at 901.

[86] Id. at 902.

[87] Id.

[88] Id. (internal citations omitted).

[89] 744 P.2d. 43 (Colo.1987).

[90] 66 Ohio App. 3d 188 (Ohio Ct. App. 1990).

[91] 109 Nev. 1096 (1993).

[92] 490 N.E.2d 764 (Ind. Ct. App. 1986), reh’g denied, 521 N.E.2d 981 (1988).

[93] Id. at 766.

[94] Id.

[95] Id.

[96] Id. at 772.

[97] 222 Ill. App. 3d 843 (III. App. Ct. 1991).

[98] 451 N.W.2nd 871 (Mich. Ct. App. 1990).

[99] 533 N.Y.S.2d 1013 (N.Y. 1988).

[100] 203 Cal.App.3rd 656 (Cal. 1988).

[101] 2 Cal.Rptr. 2d 14 (Cal. Ct. App. 1991).

[102] Id. at 15.

[103] Id.

[104] Id. at 16.

[105] Id.

[106] Id.

[107] Id. at 16-17.

[108] 590 A.2d 222 (N.J. 1991).

[109] Id. at 223.

[110] Id. at 224.

[111] Id. at 226.

[112] Id. at 226, 227.

[113] Id. at 231.

[114] Id.

[115] 878 P.2d 319 (N.M. 1994).

[116] 819 P.2d 587 (Kan. 1991).

[117] Id. at 606.

[118] Id.

[119] Id. at 605.

[120] 196 N.W.2d 230, 236 (Mich. 1923).

[121] 458 So. 2d 760 (Fla. 1984).

[122] 438 So. 2d 356 (Fla. 1983).

[123] 436 So. 2d 33 (Fla. 1983).

[124] Id. at 34.

[125] Id. at 35.

[126] Id. at 34.

[127] Id.

[128] Id.

[129] Id. at 35.

[130] Id.

[131] 458 So. 2d at 761.

[132] Id. at 762.

[133] Id.

[134] 803 So. 2d 780, 781 (Fla. 3d DCA 2001) (reh’g denied by 823 So. 2d 125 (Fla. 2002).

[135] 689 So. 2d 1267, 1268 (Fla. 3d DCA 1997).

[136] See Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322 (Fla. 4th DCA 1991); Hardy v. Pier 99 Motor Inn, 664 So. 2d 1095 (Fla. 1st DCA 1995); Foster v. Po Folks, Inc., 674 So. 2d 843 (Fla. 5th DCA 1996).

[137] Lomillo v. Howard Johnsons Co., 471 So. 2d 1296 (Fla. 3d DCA 1985).

[138] See LaRochelle v. Water & Way Ltd., 549 So. 2d 705 (Fla. 4th DCA 1989) (holding that incidents of crimes committed in a 4 to 12 block radius may be probative of foreseeability).

[139] See Harrison v. Housing Resources Management, Inc., 588 So. 2d 64 (Fla. 1st DCA 1991); Ameijeiras v. Metro Dade Cty., 534 So. 2d 812 (Fla. 3d DCA 1988).

[140] See Prime Hospitality Corp. v. Simms, 700 So. 2d 167 (Fla. 4th DCA 1997) (considering crimes committed in previous 2 ½ years).

[141] 576 So. 2d 322 (Fla. 4th DCA 1991) (overruled on other grounds by 657 So. 2d 1146 (Fla. 1995)).

[142] Id. at 324.

[143] Id. at 328.

[144] Id. at 329.

[145] Id.

[146] Id.

[147] Id.

[148] 622 So. 2d 163 (Fla. 4th DCA 1993).

[149] Id. at 163-64.

[150] Id. at 164.

[151] Id.

[152] See Johnson v. Howard Mack Productions, Inc., 608 So. 2d 937 (Fla. 2d DCA 1992).

[153] See Peter Lopez, Foreseeable Zone of Risk: An Analysis of Florida’s Off-Premises Liability Standard, 55 U. Miami L. Rev. 397 (2001).

[154] See Howard Mack Productions, 608 So. 2d 937 (summary judgment improper where plaintiff alleged decedent was forced to park across a highway due to defendant’s “woefully insufficient” parking); Rapp v. Tolbert Enters., Inc., 591 So. 2d 281 (Fla. 1st DCA 1991) (summary judgment improper when motel guest struck while crossing highway from remote parking), review denied, 601 So. 2d 554 (Fla. 1992); Thunderbird Drive-In Theatre v. Reed, 571 So. 2d 1341 (Fla. 4th DCA 1990) (jury question presented when inadequate entrance area on theatre premises resulted in congested conditions on adjacent highway), review denied, 577 So. 2d 1328 (Fla. 1991).

[155] See Dawson v. Ridgley, 554 So. 2d 623 (Fla. 3d DCA 1989) (summary judgment inappropriate where business invitees vision was partially impeded while pulling out of defendant’s shopping center due to its proximity to a telephone pole); Garcia v. Hialeah, 550 So. 2d 1158 (Fla. 3d DCA 1989) (summary judgment for landowner improper where plaintiff alleged his vision was impaired due to overgrowth of bushes); Thompson v. Gallo, 680 So. 2d 441 (Fla. 1st DCA 1996) (summary judgment for landowner reversed where evidence supported inference that accident was caused in part by defendant’s lack of clear signage).

[156] See Union Park Memorial Chapel v. Hutt, 670 So. 2d 64 (Fla. 1996) (holding that a funeral director who voluntarily undertook to organize and lead a funeral procession owed a duty of reasonable care to procession participants).

[157] 623 So.2d 1182 (Fla. 1993).

[158] Id. at 1183.

[159] Id.

[160] Florida Statute section 768.81 (1993).

[161] Id. at 1184-85.

[162] Id. at 1185, quoting Lincenberg v. Issen, 318 So. 2d 386, 391 (Fla. 1975).

[163] 705 So. 2d 560 (Fla. 1997).

[164] Id. at 561.

[165] Id. at 562.

[166] Id.

[167] Id.

[168] See, e.g., Czerwinski v. Sunrise Point Condo., 540 So. 2d 199 (Fla. 3d DCA 1989).