Cascante v. 50 State Sec. Serv., Inc.

• Decision Date: 26 December 2019
• Docket Number: No. 3D18-1085,3D18-1085
• Citation: 300 So.3d 283
• Parties: Nancy CASCANTE and Sean Hutchins, Appellants, v. 50 STATE SECURITY SERVICE, INC., etc., et al., Appellees.
• Court: Florida District Court of Appeals

300 So.3d 283

Nancy CASCANTE and Sean Hutchins, Appellants,

v.50 STATE SECURITY SERVICE, INC., etc., et al., Appellees.

No. 3D18-1085

District Court of Appeal of Florida, Third District.

Opinion filed December 26, 2019

Rehearing Denied February 20, 2020

Hunter & Lynch, P.A., and Christopher J. Lynch ; Downs Law Group, and C. David Durkee, for appellants.

Kubicki Draper, P.A., Caryn L. Bellus, and Barbara E. Fox, for appellee 50 State Security Service, Inc.

Before FERNANDEZ, MILLER, and GORDO, JJ.

MILLER, J.

Appellants, Nancy Cascante and Sean Hutchins, challenge a final summary judgment rendered in favor of appellee, 50 State Security Service, Inc. ("50 State"), in their negligent security action.¹ 50 State was contractually obligated to furnish a crime analyst and security services at a parking garage owned by Miami-Dade County (the "County"). Under the terms of the contract, the County retained unilateral control over both the shift schedule and number of guards assigned to the premises. Cascante was attacked and injured in the parking garage during the early evening hours. At the time of the attack, there was no security guard on duty in the garage. Accordingly, the lower tribunal determined that 50 State did not assume the County's legal duty to protect Cascante. For the reasons explicated below, we discern no error and affirm.

FACTS AND BACKGROUND

On June 27, 2008, the County extended a Public Invitation to Bid (the "Bid"), seeking "to establish a contract for the purchase of security guard services in conjunction with the needs of the Miami-Dade Transit." The types of services required were: "(1) armed security; (2) unarmed security; and (3) security management and supervision." Although the vendor was required to provide security personnel, under the Bid, the County was solely charged with determining "the number of security officers, the shift schedule, and level of training required."

The bidder was specifically required to furnish a crime analyst. The tasks and responsibilities of the analyst were as follows:

The vendor shall provide a full time Crime Analyst to compile criminal statistics to an electronic database and analyze crime trends for all modes of [Miami-Dade] transit. Specifically, this individual is responsible for monthly generation of crime statistics reports and the reporting of crime trends to management in a timely manner to effect proactive prevention of criminal activity. This individual is also responsible for generating other MDT reports such as MDT bus incident reports and MDT Maintenance Repair Reports.

The analyst was further charged with identifying "evolving and existing crime patterns and series," forecasting "future crime trends," and providing "data to support departmental planning activities."

In the third addendum to the Bid (the "Addendum"), the County specified that minimum coverage for the South Miami Metrorail parking lot would be a single armed security guard assigned to work from seven o'clock in the morning until seven o'clock in the evening, seven days per week. 50 State was the winning bidder, hence, the terms of the Bid morphed into the contract, which has become the focal point of this litigation.

On May 29, 2014, at approximately eight o'clock p.m., Cascante was violently assaulted by two men in the South Miami Metrorail Station parking garage. No roving security guard was on duty, as the shift of the last watchman ended at seven o'clock that evening. Vigorous efforts by the assailants to force Cascante into her own vehicle were only thwarted by an approaching vehicle. Cascante sustained permanent, debilitating injuries.

Appellants filed suit in the lower tribunal, seeking to hold both 50 State and the County liable for the injuries inflicted upon Cascante. In their first amended complaint, appellants cited various provisions of the contract for the proposition that 50 State "owed a duty to patrons who utilized [the] parking garage to provide reasonable security, prevent foreseeable crimes from taking place, and to audit the activity on the premises and make recommendations so that the security at the premises remained reasonable." They further alleged that, 50 State failed to "timely identify" the two perpetrators on the premises, "take reasonable measures so that these suspicious persons would be deterred from committing this violent crime, take reasonable steps so that criminals ... would be deterred from committing crimes at [the] garage," analyze the data, and "make reasonable recommendations and enact reasonable measures so that foreseeable crime would be prevented on" the parking garage.

50 State sought final summary judgment, contending the County retained the exclusive right to determine the scope of appropriate security measures. Finding that 50 State harbored no duty to provide security beyond that directly circumscribed by the County, the lower court granted the motion. The instant appeal ensued.

STANDARD OF REVIEW

"Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law." Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) (citing Menendez v. Palms W. Condo. Ass'n, Inc., 736 So. 2d 58 (Fla. 1st DCA 1999) ). The court "view[s] the facts in a light most favorable to the nonmoving party and conduct[s] a de novo review of such a judgment." Maronda Homes, Inc. v. Lakeview Reserve Homeowners Ass'n, Inc., 127 So. 3d 1258, 1268 (Fla. 2013) (citations omitted).

LEGAL ANALYSIS

Whether a duty in tort exists is a question of law. McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992). "Crucial to the duty inquiry is ‘whether the defendant's conduct foreseeably create[s] a broader "zone of risk" that poses a general threat of harm to others.’ " Knight v. Merhige, 133 So. 3d 1140, 1144-45 (Fla. 4th DCA 2014) (alterations in original) (citation omitted). "[T]he zone of risk created by a defendant defines the scope of the defendant's legal duty and the scope of the zone of risk is in turn determined by the foreseeability of a risk of harm to others." Smith v. Fla. Power & Light Co., 857 So. 2d 224, 229 (Fla. 2d DCA 2003).

Pursuant to Florida law, "[w]henever one undertakes to provide a service to others, whether one does so gratuitously or by contract, the individual who undertakes to provide the service—i.e., the ‘undertaker’—thereby assumes a duty to act carefully and to not put others at an undue risk of harm." Clay Elec. Co-op., Inc. v. Johnson, 873 So. 2d 1182, 1186 (Fla. 2003).

Accordingly, under well-entrenched jurisprudence, 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.² See 50 State Sec. Serv., Inc. v. Giangrandi, 132 So. 3d 1128 (Fla. 3d DCA 2013) ; see also 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"); Travelers Ins. Co. v. Securitylink from Ameritech, Inc., 995 So. 2d 1175 (Fla. 3d DCA 2008). This is because "the purpose and object of the [security services] contract is to obviate or protect" from that which may occur if a party went unprotected. Cooper v. IBI Sec. Serv. of Fla., Inc., 281 So. 2d 524, 526 (Fla. 3d DCA 1973). Nonetheless, "the extent of the undertaking" as defined under the terms of the contract "should define the scope of the duty." McGee By & Through McGee v. Chalfant, 248 Kan. 434, 806 P.2d 980, 985 (1991) ; see also 6 Causes of Action 659 Cause of Action against Security System Company for Failure to Provide Security Services § 12 (2019) ("Because the defendant's duties to the plaintiff are usually based on the express terms of the contract between the parties, the contract itself is the best evidence of the exact nature and extent of those duties.").

In the instant case, appellants contend 50 State owed a specific duty to provide reasonable security, audit criminal activity, and render prudent private policing recommendations. Although the parties agree with the general principle that 50 State's duty to appellants is measured by the terms of its agreement with the County, they disagree on the specific scope of that legal duty, as evidenced by the contractual language. "[T]he court is not only required to begin its analysis with the language of the contract, but if such language is unambiguous, that is also where inquiry should end." W. Am. Ins. Co. v. Johns Bros., Inc., 435 F. Supp. 2d 511, 518 (E.D. Va. 2006) (citation omitted); see M & G Polymers USA, LLC v. Tackett, 574 U.S. 427, 435, 135 S. Ct. 926, 933, 190 L. Ed. 2d 809 (2015) ("Where the words of a contract in writing are clear and unambiguous, its meaning is to be ascertained in accordance with its plainly expressed intent.") (citing 11 Williston, Williston on Contracts § 30:6 (4th ed. 2012) ); Walgreen Co. v. Habitat Dev. Corp., 655 So. 2d 164, 165 (Fla. 3d DCA 1995) ("When a contract is clear and unambiguous, the court is not at liberty to give the contract ‘any meaning beyond that expressed.’ ") (quoting Bay Mgmt., Inc. v. Beau Monde, Inc., 366 So. 2d 788, 791 (Fla. 2d DCA 1978) ).

Here, under the unambiguous contractual terms, the County alone was charged with determining "the number of security officers, the shift schedule, and level of training required." Indeed, as demonstrated by the record, for the duration of the contract, the County never strayed from its initial determination that the South Miami Metrorail...