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Jury Refuses to Hold Homebuilder Liable for Home Invasion

Published: April 16th, 2018

By: Anna E. Ketcham Michael J. Furbush

A homebuilder faced a $6 million lawsuit after a pregnant woman was kidnapped and shot by intruders who entered an upscale residential subdivision through open gates. But a Florida jury took just 30 minutes on Feb. 28, 2018, to find for Meritage Homes in a negligent security case that rested largely on whether leaving the gates open during construction would be regarded as an act of negligence.

“A terrible crime was committed against this woman, but the case turned primarily on whether the crime was foreseeable and preventable, and it was not,” said Michael J. Furbush, a board certified business litigation attorney in Dean Mead’s Orlando office who led the defense team in the eight-day trial in Orange County Circuit Court. “The jury followed the law, which says property owners can’t be held responsible for unforeseeable criminal activity that occurs on their property,” said Furbush, who tried the case with colleague Anna E. Ketcham.

Plaintiffs’ lawyers often try to hold owners and developers of residential properties liable for violent crimes that occur on their property, and such lawsuits are common in Florida, where property owners and possessors have a legal duty to employ reasonable security measures to protect against foreseeable crimes of third parties. While there often is pressure to settle these lawsuits to avoid the uncertainties of litigation, this case shows that a defendant who is confident it has acted reasonably to protect residents against foreseeable dangers can be vindicated in court.

Couple Targeted, Held at Gunpoint

The crime was so bizarre that a Discovery Channel TV show, “Surviving Evil,” documented the events that unfolded Sunday morning, Nov. 15, 2009. The plaintiff, a 27-year-old woman pregnant with her second child, was eating breakfast with her husband in their Winter Garden home when the doorbell rang. When her husband opened the door without looking outside, three armed men stormed inside.

The intruders took the couple and their 5-year-old son as hostages over the next three days and demanded money. At one point, the robbers played Russian roulette, pointing a revolver at the woman’s son and pulling the trigger on empty cylinders. Infuriated when they found only $30,000 in the couple’s home safe, they took the woman to a bank where she withdrew more than $23,000, knowing that her husband and child were being held at gunpoint.

Apparently determined to steal $200,000, they forced the couple to call business associates and ask for money.

On Tuesday morning, the woman was pistol-whipped after she grabbed a kitchen knife and courageously tried to fight a masked woman who planned the robbery. The mask slipped off in the fight, and as the woman lay bound with duct tape, she heard the robbers in the next room discuss killing her. Determined to save herself and her family, the woman jumped out of a second story window and ran for help. One of the robbers fired several shots, hitting her in the back and arm. Minutes later the police arrived, ending the three-day ordeal.

Two of the robbers were sentenced to life in prison while the ringleader fled the country with her mother. Fortunately, the woman recovered from the gunshot wounds, and she and her family continue to live in the subdivision. Her doctor at the time testified she was in his top five percent of successful outcomes and “one tough lady.” The baby she was carrying is now a healthy young boy, and the woman told a Florida TV station in 2013 that the family calls him the “miracle baby.”

Lawsuit Filed Four Years Later

Four years after the incident, she filed suit against the homebuilder, Meritage Homes, the sixth-largest homebuilder in the United States, claiming physical injuries, mental anguish and pain and suffering. A new doctor brought in by the plaintiff would testify that the woman, who had been working out, playing with her kids and had gone back to school, could now look forward only to a lifetime of pain and physical hardship. The plaintiff sought more than $6 million in damages at trial.

The lawsuit alleged Meritage was negligent in providing security for the subdivision, citing the open gates as plaintiff’s main argument and adding that the homebuilder should have had a security guard at the entrance while the homes were being built. Leaving the gates open without a guard, the plaintiff said, created a “foreseeable risk of harm” to the residents.

The defense countered that while the plaintiff certainly had endured a horrible ordeal, there is nothing the homebuilder reasonably could have done to foresee the crime or to keep the robbers out of the subdivision.

Furbush said his team focused on these key points:

The crime was not a random act. The robbery was orchestrated by a woman whose mother’s company provided business and tax services to the husband’s trucking business, and who targeted him because she believed he had access to substantial amounts of cash. “It wouldn’t have mattered where they lived; the robbers would have found them,” Furbush said. It was later learned that the woman’s mother was under investigation by the Internal Revenue Service for filing fraudulent tax returns and that the robbers demanded a specific sum of money ($200,000) that paralleled the amount claimed by the IRS.

Crime data showed the community to be safe. The upscale community of $500,000-plus homes is a low-crime area, and previous crimes in the new subdivision were limited to stealing construction material, vandalism and other minor thefts. A 13-year veteran of the Winter Garden police department testified that the home invasion robbery was “unheard of” in the community, and even a security expert hired by the plaintiff to analyze crime trends conceded there were so few incidents in the area that he was not able to compile a statistically significant sample size. Under the circumstances, the homebuilder had no reason to take extraordinary security measures such as stationing a guard at the entrance to the subdivision.

It was not unreasonable to leave the gates open during construction. It is a common practice for builders of gated communities to leave gates open during the day while homes are being built. Construction workers were constantly going in and out of the subdivision where homes still were under construction, and Meritage had told residents in writing to expect this traffic as it continued to build houses. Leaving the gates open was necessary to accommodate the heavy construction traffic in the subdivision.

Battle of the Experts

As in most negligent security cases, the issue of liability depended heavily on expert testimony. The plaintiff’s security expert was a former security guard who frequently testifies for plaintiffs in negligent security cases. He opined that the incident was foreseeable based on the prior crimes occurring in the community but conceded that he never visited the property or reviewed the actual incident reports. One of the defendant’s experts was a former FBI profiler and renowned expert in criminal behavior who testified that the crime was highly unusual and unforeseeable, and would not have been prevented by additional security measures. The defense also presented testimony from a gated community security specialist that security measures in the community were completely consistent with industry standards.

Homebuilder Trusted Jury to Do the Right Thing 

Furbush said that while the victim had a compelling story that justifiably would have elicited sympathy from the jurors, they understood it wasn’t fair to make the homebuilder pay for this targeted act of violence that likely would have occurred regardless of where the victims lived. Still, such claims often settle because defendants fear juries will want to find a way to compensate sympathetic plaintiffs who are the victims of violent crimes, regardless of where the blame lies.

“The plaintiff is a brave woman who should be admired for saving her family, but the jury realized that this was not what the case was about. Our client firmly believed they had not done anything wrong and were not responsible for this crime, and from the very beginning they were willing to risk going to trial to prove that,” Furbush said.

“A lot of people distrust the jury system, but I am not one of them,” said Furbush. “We had six reasonable people who used their common sense, followed the law, and reached the right result.”

The plaintiff has filed a notice of appeal of the jury’s verdict.

To gain more insight from the attorney quoted in this article, feel free to contact Mike at mfurbush@deanmead.com. Mike is an experienced trial lawyer who represents homebuilders, developers, and property owners in court cases throughout the state of Florida.  He is Board Certified by the Florida Bar in Business Litigation law.