||IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD
DISTRICT JULY TERM A.D., 2004
||CASE Nos. 3D03-1234 & 3D03-961
||December 8, 2004
||JUAN CARLOS VAZQUEZ, AS PERSONAL REPRESENTATIVE OF
THE ESTATE OF VICTORIA VALLE, DECEASED, AND ON BEHALF OF JACLYN AND
ANDREWS VALLE, THE MINOR NATURAL CHILDREN OF THE DECEDENT; AND CARMEN
MARTIN, INDIVIDUALLY, APPELLANTS,
LAGO GRANDE HOMEOWNERS ASSOCIATION AND CENTURION PROTECTIVE SERVICES,
||Appeals from the Circuit Court for Miami-Dade County,
Herbert Stettin, Judge. LOWER TRIBUNAL No. 94-18765.
||Podhurst Orseck and Joel S. Perwin; Beckham &
Beckham and Pamela Beckham; Stabinski & Funt and Todd Stabinski;
Friedman Rodman & Frank and Ronald Rodman, for appellants.
||Hunter, Williams & Lynch and Christopher Lynch;
Butler Pappas Weihmuller Katz Graig and Anthony J. Russo; Ponzoli
Wassenberg Sperkacz & Keller and Ronald Ponzoli, for appellees.
||Before Schwartz, C.J., and Cope and Fletcher, JJ.
||The opinion of the court was delivered by: Schwartz,
||This is an appeal from judgments entered for the
defendants Lago Grande Homeowners Association, a condominium association,
and Centurion Protective Services, Inc., the security company it hired to
protect its premises, notwithstanding a jury verdict for the plaintiffs in
consolidated wrongful death and personal injury actions. The cases arise
from a shooting incident perpetrated by the ex-husband of a guest of a
unit owner who, though the security guards on duty were specifically
warned not to do so because of his potential dangerousness, was
negligently permitted access to a condominium apartment. After gaining
entry, he shot and killed his ex-wife, shot and wounded another occupant
and then committed suicide. We reverse the judgments under review.
||We draw the factual and procedural history of the
case from the appellants' brief which correctly treats the record in the
light most favorable to the verdict:
||The Lago Grande complex is bordered by S.W. 87th
Avenue (Galloway Rd.), 122nd Avenue and 68th Street, containing
1,100-1,300 units with 2500-3000 residents--owners and renters. There are
three entrances, on the north, east and south sides, each containing a
guardhouse. There is a 5-6 foot wall around the entire perimeter,
interspersed with sections of six-foot fencing. The developer first began
selling units in 1984, when the Homeowners Association was created; it
took over management of the property in 1988.
||The developer advertised the complex on the basis of
safety, and collected a specific part of the condominium fee for the
safety provisions offered by the complex. Although the Defendants argued
that the guards at the complex were only there to monitor the comings and
goings of residents and guests, the President of the Homeowners
Association verified that they were there to protect the safety of
residents and guests, and that the residents and guests had a right to
expect that the complex would be safe, as promised, and that all visitors,
as promised, would be screened. She also acknowledged that Lago Grande had
delegated to Centurion its own responsibility for the safety of the
||To that end, Miami Management secured bids for
security services, and the Homeowners Association Board eventually hired a
company called Florida Patrol. It was given by the Board a set of
protocols, called Post Orders, which required the guards at all three
stations to stop everyone entering the complex--resident or visitor, in a
car or on foot; check the I.D. cards which all residents were given; and
in the case of visitors, call the resident being visited to obtain
permission to let the visitor come in. If the resident said no, the
visitor would be asked to leave, and if necessary the police called. This
was ¶3.3 of the Post Orders, which was specifically promulgated to
protect the security of the residents. When Florida Patrol abruptly walked
off the job in June of 1993, Lago Grande turned to the previous low
bidder, Centurion, which took over the job the same day. Centurion
specifically agreed--indeed contracted--to obey the existing Post Orders.
||There were numerous complaints to Lago Grande that
visitors were not being logged in, and were entering the complex without
authorization. This was especially true of people on foot. In the
Plaintiffs' expert's review of a year of security logs, pedestrians were
very rarely logged in, or residents called before their admittance. This
of course directly violated Centurion's contractual obligation to obey the
||Centurion protested that it asked Lago Grande to hire
more station guards and a second roving guard, and to put up a fourth
gate, but was told the complex couldn't afford them; and the Plaintiffs'
expert agreed that the complex was understaffed. The expert testified that
Centurion should never have accepted the contract, and with it the
responsibility of adequately policing the complex, if the funding was not
sufficient for that purpose. However, the expert also testified that there
were enough people on duty at the north guardhouse on the night of this
tragedy--anywhere from two to three guards--to have stopped Frank Valle
from entering, and killing his wife.
||The Valles were not residents of Lago Grande.
However, their former neighbor, Carmen Martin, had moved to Lago Grande
(her house was two streets from the north entrance) because it was
"safe, secure and it was gated"; and Victoria and her children,
Jaclyn and Andrews, visited Mrs. Martin at Lago Grande almost every day.
Frank Valle, Carmen's estranged husband, also came to the complex to pick
up the children, until Mrs. Martin had quarrels with him, and told him not
to come back to her house. When Frank continued to enter the complex even
after that, Carmen went to the north guardhouse and specifically told the
guards to call her if Frank showed up again, and not to let him in. That,
of course, was their standard protocol anyway. Had they followed it,
Carmen Martin would have instructed that he not be admitted, and according
to the Plaintiffs' expert, this tragedy would not have occurred.
||Instead, at 7:45-8:00 p.m., as his son Andres [sic]
Valle, who was playing outside, watched, Frank Valle walked through the
north entrance into the complex, unimpeded. He walked right through the
middle of the entranceway, between the two gates which are set up for
visitors and residents. He wasn't calm or rational; he was acting strange.
He walked into Carmen Martin's house, which was unlocked, holding a
revolver; confronted Victoria Valle inside; talked to her for 15-20
minutes; shot her in the stomach and then in the back of the head, killing
her; and then shot Carmen Martin when she tried to run out of the
||The Plaintiffs' expert witness was Dr. Randall Atlas,
an architect, criminologist and security specialist. Without objection,
Dr. Atlas testified extensively concerning the duties which both Lago
Grande and Centurion assumed to protect the safety of Lago Grande's
residents and guests. The bottom line is that Lago Grande assumed and
contracted to fulfill a duty to protect the safety of its residents and
guests, and Centurion assumed a contractual obligation to do so.
||Without question, Centurion assumed a contractual
obligation to protect the safety of the residents. Dr. Atlas also said
that regardless of any general obligations of a landowner or condominium
association under Florida's common law, once Lago Grande advertised
security and collected a fee for providing it, it was required to do so
with reasonable care:
||So the challenge here is that once the developer
chose to make security a selling point, they marketed security as a
selling point, and it's mentioned in some of the memos they've got here
about how they marketed and that this is going to be a safe place and now
"we're living in a living hell" is one of the [resident's] memos
addressed here that I saw.
||And once they chose to put in the walls they had a
duty to maintain the walls. Once they chose to put in a gatehouse, they
had a duty to man it. Once they chose to man it, then they had a duty to
make sure it was operated well and supervise it. Once you had a duty to
have lighting, you have a duty to maintain that lighting.
||What I read into that [resident's memo] was the fact
that when you went to the leasing agent, whether it is the property
management company and that you are renting an apartment, that they are
marketing the idea that this is a safe gated community, we have security
guards, we have walls, we have, you know, rovers with little cars or
whatever, then they are marketing the fact that security is a priority in
||Here it is. A Vivian Alvarez writes February 11 1992
. . . that they picked Lago Grande for "its security and quiet
atmosphere, now it is a living hell." "The property is marketed
as a secure gated community and did not take the necessary steps to
||This testimony was confirmed by the President of the
Homeowners Association. She confirmed that security was in place at Lago
Grande "to make it a safer community . . ."; that the rules
instituted by the developer were "still the same" "at the
time of this incident", and "Lago Grande was still required to
maintain the security company", absent a two-thirds vote of the
residents amending the rules; and that therefore "it was reasonable
for Mrs. Martin to expect to have her visitors to be screened before
coming in and [that] they be announced". She also said flatly that
although the Homeowners Association had hired numerous companies to
perform its obligations--like pool maintenance and lawn services, and
security--all of these remained Lago Grande's responsibilities.
||According to Dr. Atlas, both Lago Grande and
Centurion were negligent causes of this tragedy. He said the security at
this complex was grossly inadequate--both in design and implementation. In
design, he blamed Lago Grande, in part for too few guards, both roving and
at the stations. Moreover, Lago Grande was negligent in failing to insure
that the Post Orders were complied with. He blamed Centurion in part for
contracting to provide adequate security with inadequate resources. In
implementation, the guards were grossly negligent--in general and on this
occasion--in failing to log in visitors--especially those on foot. He said
that this specific incident could and should have been prevented, by the
three guards at the north guardhouse at the time Frank Valle walked right
through the center of the north entranceway, undetected. And he said that
if the guards had stopped Frank Valle, this murder would not have
||The plaintiffs originally sued three defendants--Lago
Grande Homeowners Association, Miami Management, Inc., and Centurion
Protective Services, Inc. The amended complaint alleged that Lago Grande
had the "power, authority, and legal duty to provide adequate
security for the residents and guests of the condominium complex,
including Plaintiffs and Plaintiffs' decedent." Centurion "was
[allegedly] responsible for providing security guard personnel to the
||In the order now on appeal, the trial judge
summarized the plaintiffs' evidence: "Viewed in a light most
favorable to the Plaintiffs, the evidence at trial was that Frank Valle,
the father of Plaintiffs Jaclyn Valle and Andrews Valle, came through a
guarded entrance to the Lago Grande complex without being challenged, went
to the apartment of Plaintiff, Carmen Martin, where he shot to death
Victoria Valle,. . . shot Carmen Martin in the leg, and then committed
suicide in the presence of his daughter, Jaclyn Valle." Moreover,
"the guard service had previously been told by Carmen Martin not to
admit Frank Valle to the complex. . . .Carmen Martin asked that he not be
allowed into the complex because she was upset with his conduct during
prior visitation with his son, Andrews." The jury found both
defendants negligent, allocating 90% of the fault to Centurion, 9% to
Miami Management (a Fabre non-party), and 1% to Lago Grande. It awarded
$3.15 million to Jaclyn Valle; $1.67 million to Andrews Valle; $362,500.00
to Carmen Martin; and $25,000.00 to Rolando Martin.
||Centurion and Lago Grande moved for judgments in
accordance with their prior motions for directed verdict. They argued (1)
that neither defendant had any duty to prevent the death of Victoria Valle
in the absence of prior similar crimes at the condominium complex or any
information suggesting that Frank Valle was a dangerous person *X1
; (2) that Centurion's contract with Lago Grande required only that it
direct traffic at the entrances of the complex--not provide security; and
(3) that there was no evidence of negligence by Centurion. After extensive
discussion of these questions at the post-trial hearing, the court
rejected the second and third arguments, with which we agree, but accepted
the first, with which we do not.
||As has been seen, the trial court's ruling was based
entirely *X2 upon its conclusion
that, as a matter of law, and notwithstanding the plaintiffs' reliance
upon abundant evidence that both the association and the security company
had undertaken the duty of exercising reasonable care to secure
condominium occupants from criminal activity of just the kind which
actually occurred, evidence of prior such crimes (which the court found
was not introduced) *X3 was
required to justify liability. *X4
There is no support in the law, prior precedent or legal logic for this
||In the situation in which a duty to prevent harm from
criminal activity arises only as an aspect of the common law duty to
exercise reasonable care to keep the premises safe, prior offenses, giving
rise to the forseeability of future ones, may be deemed indispensable to
recovery. See Prieto v. Miami Dade Co., 803 So. 2d 780 (Fla. 3d DCA 2001),
review denied, 823 So. 2d 125 (Fla. 2002); Metropolitan Dade Co. v. Ivanov,
689 So. 2d 1267 (Fla. 3d DCA 1997), review denied, 698 So. 2d 543 (Fla.
1997); Ameijeiras v. Metropolitan Dade Co., 534 So. 2d 812 (Fla. 3d DCA
1988), review denied, 542 So. 2d 1332 (Fla. 1989); Levitz v. Burger King
Corp., 526 So. 2d 1048 (Fla. 3d DCA 1988); Admiral's Port Condo. Ass'n v.
Feldman, 426 So. 2d 1054 (Fla. 3d DCA 1983), pet. for review denied, 434
So. 2d 887 (Fla. 1983); Medina v. 187th Street Aparts. Ltd., 405 So. 2d
485 (Fla. 3d DCA 1981); Ten Associates v. McCutchen, 398 So. 2d 860 (Fla.
3d DCA 1981), review denied, 411 So. 2d 384 (Fla. 1981); Winn-Dixie
Stores, Inc. v. Johstoneaux, 395 So. 2d 599 (Fla. 3d DCA 1981). Otherwise,
a duty and thus a perhaps intolerable burden to provide reasonable
security might exist in every instance. Cf. Johstoneaux, 395 So. 2d at 600
n.4 ("We have not implied either in the cited cases or in this one
that when criminal activity is foreseeable it is invariably a jury
question as to whether the duty of reasonable care has been discharged. In
the case of a mom-and-pop store with one or two employees, for example, it
might be unreasonable as a matter of law to require that a full-time guard
||In contrast, the duty to guard against crime in this
case is founded upon particular undertakings and hence obligations of the
defendants to do so. See, e.g., Williams v. Office of Security &
Intelligence, Inc., 509 So. 2d 1282 (Fla. 3d DCA 1987), review denied, 518
So. 2d 1277 (Fla. 1987); Johnson v. Thoni, 453 So. 2d 188 (Fla. 3d DCA
1984); Lambert v. Doe, 453 So. 2d 844 (Fla. 1st DCA 1984); Holley v. Mt.
Zion Terrace Apartments, Inc., 382 So. 2d 98 (Fla. 3d DCA 1980)(jury
question on both issues); Cooper v. IBI Security Serv., 281 So. 2d 524
(Fla. 3d DCA 1973), cert. denied, 287 So. 2d 95 (Fla. 1973). See generally
Clay Electric Cooperative Inc. v. Johnson, 873 So. 2d 1182 (Fla. 2003);
Restatement (Second) of Torts § 324A (1965).
||As to this well-recognized, and entirely separate,*fn6
basis of liability, prior-offenses evidence is not necessary. This is
simply because such a requirement is entirely superfluous to the
fundamental basis of the underlying claim itself. It simply makes no sense
that liability arising from what is essentially a breach of contract or
voluntary undertaking would require a prior breach of the agreement to
establish responsibility. Stating it a different way, since the very
purpose of what the association and Centurion agreed to do was to exercise
reasonable care to prevent any criminal incident from occurring, it cannot
matter that the deadly incident in question was the first one. See Mata v.
Mata, 105 Cal. App. 4th 1121, 1129-30, 130 Cal. Rptr. 2d 141, 145-46
(2003) ("Mata employed a security guard at El Rio Bar, and that guard
was on duty the night of the shooting. The duty to protect had already
been assumed and therefore the issue of foreseeability becomes irrelevant.
. . . Under these circumstances, the injured patron need not prove the
proprietor had notice of prior similar acts."); Trujillo v. G.A.
Enterprises, Inc., 36 Cal. App. 4th 1105, 1108, 43 Cal. Rptr. 2d 36, 38
(1995)(relation between security guard and contracting business for
security services sufficient to impose obligation to protect customers as
would reasonable guard under similar circumstances); but cf. Delgado v.
Trax Bar & Grill, 134 Cal. Rptr. 2d 548 (2003)(holding contrary to
Mata that no duty to prevent crime arises from mere fact that, unlike this
case, bar owner voluntarily hired security guard without obligation to do
so), review granted, 4 Cal. Rptr. 3d 102, 75 P.3d 29 (2003); see also
Paterson v. Deeb, 472 So. 2d 1210, 1215 (Fla. 1st DCA 1985)("Because
there are often additional considerations incident to the contractual and
statutory obligations found in the usual landlord/tenant relationship, we
do not perceive the foreseeability premise of the general rule governing
landowner/invitee liability to be the exclusive basis for the landlord's
liability to the tenant regarding criminal attacks committed on the leased
premises."), review denied, 484 So. 2d 8, 9 (Fla. 1986).
||Because we find that the defendants' other
contentions are without merit, the judgments under review against both
appellants are accordingly reversed with directions to enter judgments for
the plaintiffs against both appellees on the jury verdict. *X7
||Reversed and remanded.
Of course, under Merrill Crossings Assocs. v. McDonald, 705 So. 2d 560
(Fla. 1997), the actual perpetrator of the crimes, Valle, cannot be
considered a Fabre party.
The trial judge stated:
I'm going to tell you . . . but for the case law which we've been talking
about, I think [the Plaintiffs' evidence is] enough to have let the jury
make the finding.
We need and do not reach the correctness of this ruling.
In the post trial order the trial judge, in accordance with his comments
at the hearing, stated:
Because there was no record evidence of prior similar criminal conduct at
the Lago Grande complex, the Lago Grande Homeowners Association, Inc.,
owed no duty to the plaintiffs to prevent the criminal acts committed by
Frank Valle. Since Centurion Protective Services, Inc., was acting for the
Association and fulfilling its non-delegable duty to provide security, it
also owed no duty to the Plaintiffs and, therefore, is not liable to the
* * *
Without evidence of the predicate prior similar criminal acts, there is no
duty owed by either the homeowners association or its agent-security
For a possible explanation as to how this genuinely outstanding trial
judge got so off the track as to reach a result based on what he himself
correctly characterized as "awful," see Doctor v. State, 677 So.
2d 1372 (Fla. 3d DCA 1996)(Schwartz, C.J., specially concurring),
approved, 698 So. 2d 1224 (Fla. 1997).
It is significant that Cooper, based on contractual duty, was decided
seven years before Holley, the first Florida case to recognize a common
law duty (based on notice of previous offenses) to protect against
the security company was the entity plainly guilty of "actual"
negligence in fulfilling its contractual obligations and those of due
care, the condominium association is properly held liable for those
actions both (a) because of its own negligence in retaining Centurion
after ample notice of its prior security deficiencies, see 2A Fla. Jur. 2d
Agency and Employment § 263 (1998), and (b) as vicariously responsible
for Centurion's negligence because of its legal inability to delegate the
non-delegable contractual duties it assumed in its agreements with its
owner-members. See City of Coral Gables v. Prats, 502 So. 2d 969 (Fla. 3d
DCA 1987), and cases cited, review denied, 511 So. 2d 297 (Fla. 1987);
Mills v. Krauss, 114 So. 2d 817 (Fla. 2d DCA 1959), cert. denied, 119 So.
2d 293 (Fla. 1960).