GEORGE E. COOPER AND RUTH I. COOPER, APPELLANTS,
v.
IBI SECURITY SERVICE OF FLORIDA, INC., AND HARTFORD ACCIDENT & INDEMNITY COMPANY, APPELLEES
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The court held that the second amended complaint stated a cause of action for negligence and breach of contract, and thus should not have been dismissed.
[1] A third-party beneficiary to a contract may claim the benefit of that contract.
[2] Foreseeable acts of third persons do not necessarily insulate a prior tortfeasor from liability when such acts combine with the tortfeasor's negligence to cause harm.
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Join FLexlaw to unlock all legal intelligencePlaintiffs sued a security company and its insurer after the plaintiff employee was injured during a robbery while performing his duties. The security…
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The plaintiffs below filed this appeal from an order entered on motion of the defendants, dismissing their second amended complaint with prejudice. The question presented is whether the trial court erred in holding such complaint failed to state a cause of action.
The action was brought by George F. Cooper to recover damages for his injuries, and by his wife for loss of consortium, against IBI Security Service of Florida, Inc. (herein referred to as IBI), and its indemnity insurer Hartford Accident Indemnity Company. The allegations of the second amended complaint, summarized, were that as an employee of Interstate Life Insurance Company it was the plaintiff’s duty to make cash premium collections from insureds on routes throughout Dade County; that some of the routes were safe and others were known to be dangerous to “life, limb and property because of the known past record of the high incidents [sic] of criminal assaults within such areas”, and were such as to require protective guard service for a collector on such routes; that IBI had contracted with the employer insurance company to furnish armed guard protection to such employees, including the plaintiff; that because of the foreseeability and high likelihood of criminal assaults upon such collection agents on the known dangerous routes it was the purpose of the contract between the employer insurance company and IBI that armed uniformed guards would be supplied to accompany such agents on the known dangerous routes to “ward off, discourage, prevent, stop or forestall the likely and foreseeable criminal assaults on debit collectors (including the Plaintiff) while on route in said known danger area”; that on the day in question the guard to be supplied by the defendant IBI, who was to meet the plaintiff at a designated place and accompany him on a certain dangerous route, did not do so and was not supplied, whereupon the plaintiff in performance of his duty proceeded on the route without such guard protection, in the course of which the plaintiff was “criminally assaulted, robbed, shot and critically wounded”; that the plaintiff was so injured as a proximate result of the negligence of IBI in failing to supply protection as contracted for with the insurance company. By a second count it was alleged that plaintiff’s injuries were the proximate result of breach of contract by IBI in that respect.
Questions argued regarding the sufficiency of the complaint were whether the plaintiff employee was entitled to claim the benefit of his employer’s protection con*526tract with IBI, and whether it appeared from the facts alleged, as a matter of law, that negligence or breach of contract on the part of IBI could not have constituted a proximate cause of the injury of the plaintiff.
Since the plaintiff was one of the persons for whose benefit the protection contract was made, he had standing thereunder as a third party beneficiary. See Gallichio v. Corporate Group Service, Inc., Fla.App.1969, 227 So.2d 519, 521, and cases cited there. It was the purpose and object of the contract to obviate or protect the plaintiff from exactly that which occurred when he went unprotected, with foreseeability and likelihood thereof, and the basis therefor, sufficiently alleged to be known to exist. On the allegations of the amended complaint it could not be held that the facts disclosed showed absence of proximate cause as a matter of law. Florida East Coast R. Co. v. Booth, Fla.App.1963, 148 So.2d 536; Homan v. County of Dade, Fla.App.1971, 248 So.2d 235. In Homan the Court said: “Foreseeable acts of third persons are not superseding causes which insulate a prior tort fea-sor from liability as a matter of law, where such acts combine with the tort fea-sor’s negligence to bring about harm to an innocent party; they are merely concurrent causes.” The same principle as to proximate causation is applicable under the count on breach of contract, asserted by the plaintiff in the capacity of a third party beneficiary.1 See also Sparks v. Ober, Fla.App.1966, 192 So.2d 81. Distinguishable on the facts is Nicholas v. Miami Burglar Alarm Co., Fla.App.1972, 266 So.2d 64, where the degree of foreseeability or likelihood of loss resulting from default was substantially inferior to that alleged to exist and to be known to exist in the instant case. In our view the second amended complaint stated a cause of action, and the defendants’ motion to dismiss should have been denied.
The order appealed from is reversed.
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Citator
Cited By (18 total)
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Maybell Holley v. MT. Zion Terrace Apts., Inc., 382 So. 2d 98 (Fla. 3d DCA 1980)…Werndli v. Greyhound Corp., 365 So. 2d 177 (Fla.2d DCA 1978); Rosier v. Gainesville Inns Associates, 347 So. 2d 1100 (Fla.lst DCA 1977); Rotbart v. Jordan Marsh Co., 305 So. 2d 255 (Fla.3d DCA 1974); Cooper v. IBI Security Service of Florida, Inc., 281 So. 2d 524 (Fla.3d DCA 1973), cert. denied, 287 So. 2d 95 (Fla.1973); Homan v. Dade County, 248 So. 2d 235 (Fla.3d DCA 1971); Florida East Coast R. Co. v. Booth, 148 So. 2d 536 (Fla.3d DCA 1963), cert. denied, 155 So. 2d 551 (Fla.1963); see also Hernandez v. M…
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Nicholas v. Miami Burglar Alarm Co., Inc., 339 So. 2d 175 (Fla. 1976)…or the loss therefrom, is foreseeable, then the original actor’s negligence may be considered the proximate cause of the loss, and he may be liable, notwithstanding the intervening criminal act. Cooper v. I. B. I. Security Service of Florida, Inc., 281 So. 2d 524 (Fla.3d DCA 1973). In those cases dealing with the liability of a burglar alarm company whose system fails to function, it has consistently been held that the burglar alarm company is not liable for the loss, upon the theory that the burglary was a…1 / 2
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Slawson v. Fast Food Enters., 671 So. 2d 255 (Fla. 4th DCA 1996)…responsibility because the attack has actually taken place. See also Schwartz v. American Home Assurance Co., 360 So. 2d 383 (Fla.1978); Vining v. Avis Rent-A-Car Systems, Inc., 354 So. 2d 54 (Fla.1977); Cooper v. IBI Security Systems, Inc., supra [281 So. 2d 524 (Fla. 3d DCA1973)].” 382 So. 2d at 101. This rationale conduces to a similar conclusion in this case. Burger King’s liability is indistinguishable from Mt. Zion’s. We see little difference between avoiding the liability entirely by a summary judgm…
Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sparks v. Ober, 192 So. 2d 81 (Fla. 3d DCA 1966)
- Gallichio v. Corporate Grp. Serv., Inc., 227 So. 2d 519 (Fla. 3d DCA 1969)
- Nicholas v. Miami Burglar Alarm Co., Inc., 266 So. 2d 64 (Fla. 3d DCA 1972)
- Homan v. Cnty. OF Dade, 248 So. 2d 235 (Fla. 3d DCA 1971)
- Fla. E. Coast Ry. Co. v. Denver C. Booth, 148 So. 2d 536 (Fla. 3d DCA 1963)
- Port Carlos Trailer Park, Inc. v. Warren Bros. Co., 240 So. 2d 165 (Fla. 2d DCA 1970)