In Demelus v. King Motor Company of Fort Lauderdale, the Plaintiff brought suit against King Motor for damages he sustained in a motor vehicle accident involving a vehicle stolen from the Defendant. Relying upon a purported security expert's affidavit that contained conclusory statements that King Motor was negligent and could have prevented the theft, the Plaintiff moved for summary judgment. King Motor also moved for summary judgment and argued the theft of the vehicle was unforeseeable. The trial court granted King Motor's summary judgment, and the Fourth District Court of appeal affirmed.

The Fourth District applied the standard as set forth in McCain v. Fla. Power Corp., 593 So.2d 500, 503 (Fla. 1992), which states:

"Where a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses."

The Court further acknowledged that "Duty, however, is not limitless. To impose a duty, it is not enough that a risk merely exists or that a particular risk is foreseeable; rather, the defendant's conduct must create or control the risk before liability may be imposed" as stated in Aguila v. Hilton, 878 So.2d 392, 395-97 (Fla. 1st DCA 2004).

Applying this standard, the Fourth District determined that the negligent security practices of an auto dealership did not create a foreseeable zone of risk as compared to the storage of an ultra-hazardous material such as anthrax. As explained by the Court, King's conduct, which sought to prevent use of stored vehicles, consisted of maintaining the vehicles behind a locked, chained gate with the keys to the vehicles locked within the building. Thus, the Defendant did not affirmatively create a risk of harm as a matter of law.

The Court further explained that to the extent the Defendant failed to implement sufficient security practices, the deficiency did not constitute an affirmative act, but an omission or failure to act. In other words, the Defendant placed the Plaintiff in no worse a position by securing the automobile on its premise. To have created a risk, the Defendant would have needed to make its vehicles available to the thieves. Finally, the Fourth District agreed that summary judgment was proper because the question of foreseeability is fact dependent, and King Motor had not experienced similar thefts in the past.

* * *

For more information on this topic, you may send an email to Dorothy Venable DiFiore at .