The Duty of Care Element in a Negligence Action is a Question of Law

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The Duty of Care Element in a Negligence Action is a Question of Law

There are four elements to proving a negligence (tort) claim: (1) a duty of care; (2) breach of that duty; (3) proximate causation; and (4) damages.  Stated differently, the plaintiff must prove that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, and the defendant’s breach proximately caused damages to the plaintiff.

Whether a duty of care exists is a question of law, meaning it is a question for the court.  Cascante v. 50 State Security Service, Inc., 45 Fla. L. Weekly D8a (Fla. 3d DCA 2019).  If there is no duty, there is no negligence claim.

In Cascante, the trial court entered summary judgment, affirmed by the appellate court, holding that the defendant did not owe a duty of care to the injured plaintiff.  In this case, defendant provided security guard services for Miami-Dade County.  The defendant bid on the security guard services pursuant to a public solicitation that required, among other things, the defendant to provide a security guard at a Metrorail parking lot.  The public solicitation, and corresponding contract, set the hours for the defendant’s services, the number of security guards, and the control the County had over the services.

The plaintiff was injured in the parking lot and sued the defendant in negligence – a negligent security claim. “[A]n action sounding in tort [negligence] 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.”  Cascante, supra.

However, the plaintiff was injured during a time where the defendant was contractually NOT required to provide a security guard (i.e., after-hours).  Further, per the County’s contract with the defendant, the County was responsible for determining the shift schedule for the security guards, the number of security guards, the level of training required for the security guards, and the ultimate decisions for security measures.   Therefore, as a matter of law, the Court held that the defendant owed NO duty to the plaintiff as the duty to protect persons such as the plaintiff after-hours resided solely with the County.  The defendant owed no duty beyond its contractual obligation.  If the defendant owed no duty of care to the plaintiff, the plaintiff’s negligence action failed.

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

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