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Florida Third DCA affirms trial court order granting summary judgment to security guard company that had no personnel on duty at time of attack in county-owned parking garage

On December 26, 2019, in Cascante v. 50 State Security Service, Inc. et al.,. No. 3D18-1085, the Florida Third DCA affirmed a summary judgment by the trial court in favor of the defendant security guard company. The plaintiff, who had been attacked in a parking garage owned by Miami-Dade County, was suing both the County and the security guard company which provided security services at the garage. The Third DCA noted that under the terms of the County’s contract with the security guard company, the County retained unilateral control over both the shift schedule and number of guards assigned to the premises and had chosen not assigned a guard to the premises on the evening of the attack. The Third DCA opined that an action sounding in tort will lie where a security agency contractually undertakes a duty to protect persons lawfully on defined premises and the agency fails to exercise reasonable care in performing its obligation, citing, 50 State Sec. Serv., Inc. v. Giangrandi, 132 So. 3d 1128 (Fla. 3d DCA 2013); Restatement (Second) of Torts § 324A (Am. Law Inst. 1965) (allowing for liability where one has failed to exercise reasonable care to “protect his undertaking” and “has undertaken to perform a duty owed by the other to the third person” or “the harm is suffered because of reliance of the other or the third person upon undertaking”), and Travelers Ins. Co. v. Securitylink from Ameritech, Inc., 995 So. 2d 1175 (Fla. 3d DCA 2008). However, the Court also opined that “the extent of the undertaking” as defined under the terms of the contract “should define the scope of the duty,” quoting McGee By & Through McGee v. Chalfant, 806 P.2d 980, 985 (Kan. 1991). Although the security company also had the responsibility for identifying “evolving and existing crime patterns and series,” forecasting “future crime trends,” and providing “data to support departmental planning activities,” the Third DCA noted that despite recommendation to the contrary by the security company, the County had refused to vary its staffing schedules.