Where the intervening act is a criminal act of a third party, and because a person usually has no reason to foresee the criminal acts of another, the criminal act generally breaks the chain of causation and thus the original negligence of the defendant cannot be the proximate cause of the injury resulting from the intervening criminal act. Singer v. I.A. Durbin, Inc., 348 So.2d 370 (Fla.App. 1977); Bryant v. Atlantic Car Rental, Inc., 127 So.2d 910 (Fla.App. 1961); Lingefelt v. Hanner, 125 So.2d 325 (Fla.App. 1960). Only where the intervening criminal act was foreseeable will the original tortfeasor's negligence be the proximate cause of the injury.
However, when an "intervening criminal act, 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." Singer v. I. A. Durbin, Inc., 348 So. 2d 370, 372 (Fla. 3d DCA 1977)(citation omitted). The issue "of foreseeability as it relates to proximate causation generally must be left to the fact-finder to resolve."
Honeywell's failure to honor its agreement to install by a date certain cannot elevate an ordinary breach of contract action into a negligence action. See Singer v. I.A. Durbin, Inc., 348 So.2d 370 (Fla. 3d DCA 1977) (contractor's damages in burglar alarm case limited to the cost of making the alarm system conform to the installation contract and not the value of the stolen property). In my view, the trial court correctly limited damages on the breach of contract claim.
ated safeguards is to detect and prevent losses caused by criminal acts such as embezzlement. Thus the threat of embezzlement is clearly within the zone of risk created by a bank's negligent security procedures. Consequently, the trial court properly determined that Johnson's criminal act was foreseeable and did not amount to a superseding cause breaking the causal chain between CGS L's negligence and the city's loss.See Carlisle v. Ulysses Line Ltd., 475 So.2d 248 (Fla. 3d DCA 1985); cf. Vining, 354 So.2d at 54 (criminal act of stealing car not, as a matter of law, an unforeseeable result of owner's negligence in having left keys in ignition); Nicholas, 339 So.2d at 175 (burglary not an unforeseeable criminal act superseding burglar alarm company's negligence in monitoring security system); McCord v. Sentry Protection, Inc., 427 So.2d 1132 (Fla. 5th DCA 1983) (burglary not an unforeseeable criminal act superseding alarm company's negligent repair and maintenance of security system); Singer v. I.A. Durbin, Inc., 348 So.2d 370 (Fla. 3d DCA 1977) (burglary not superseding cause of homeowners' loss where burglar alarm company performed installation negligently); Sosa, 646 F.2d at 991 (murder by escaped prisoner not superseding cause of decedent's death, as a matter of law, where sheriff's negligence facilitated prisoner's escape). We disagree with the suggestion of the dissent that the unique method of embezzlement affects the result.
The complaint alleges that plaintiff, owner of a lapidary shop having a burglar alarm that had been damaged by lightning, contracted with the defendant burglar alarm company to repair and maintain the burglar alarm; that in performance of such contract the defendant negligently made repairs leaving the alarm system defective and with a test light indicating that the alarm system was operational when, in fact, it was not; that while the burglar alarm system was so defective plaintiff suffered a loss and damages as the result of a burglary that would not have occurred, or that would not have resulted in plaintiff's loss, but for the defective burglar alarm. The defendant challenged the sufficiency of the complaint to state a cause of action citing Nicholas v.Miami Burglar Alarm Co., 339 So.2d 175 (Fla. 1976), and Singer v. I.A. Durbin, Inc., 348 So.2d 370 (Fla. 3d DCA 1977). Both Nicholas and Singer involved claims by an owner against a security or burglar alarm company for damages resulting from a burglary but neither case involved a defect in the burglar alarm system alleged to have been the direct result of a breach of contract to repair and maintain the system.
First, prejudgment interest is permissible even though a verdict fails to allow it or indicate a decision to allow interest. Broward County v. Sattler, 400 So.2d 1031 (Fla. 4th DCA 1981). Second, an insurance company may be entitled to prejudgment interest when a cause is based on breach of warranty and negligence even though the insured in not so entitled. Alarm Systems of Florida v. Singer, 380 So.2d 1162 (Fla. 3d DCA 1981) and Singer v. Durbin, 348 So.2d 370 (Fla. 3d DCA 1977). This case presents such a situation because the damages sought by FFB (reimbursement for sums paid) were separate and distinct from those sought by Suber (recovery of uninsured losses).
BARKDULL, Judge. Following the prior opinion in this cause, reported in Singer v. I.A. Durbin, Inc., 348 So.2d 370 (Fla. 3d DCA 1977), this matter recurred in the trial court for a trial of the issues as made by the pleadings. The trial resulted in a judgment in favor of St. Paul Fire Insurance Co. on the amount it had paid on the loss occasioned by the burglary of scheduled items of personal property, and liquidated the amount claimed by the Singers to have been the loss of non-scheduled property, to wit: certain jewelry; and thereupon entered a final judgment for said amounts and incorporated pre-judgment interest from the date of the burglary for Singer and from date of payment by St. Paul Fire Insurance Co. Alarm Systems filed a notice of appeal and thereafter filed a motion to amend the judgment by striking the pre-judgment interest.
A careful review of the record supports the trial judge's ruling that, as a matter of law, there was no basis for a recovery based upon punitive damages. Tuel v. Hertz Corporation, 296 So.2d 597 (Fla. 3d DCA 1974); De Witt v. Seaboard Coast Line Railroad Company, 268 So.2d 177 (Fla. 2d DCA 1972); see also Singer v. I.A. Durbin, Inc., 348 So.2d 370 (Fla. 3d DCA 1977) and Carter v. Lake Wales Hospital Association, 213 So.2d 898 (Fla. 2d DCA 1968). Therefore, the final judgment appealed from is affirmed, as modified.
The underlying operative principle in both these cases is that the security service will be held answerable for all reasonably foreseeable losses ensuing from the nonperformance by its employees of the security service's contractual undertakings. See also Gold Mills, Inc. v. Orbit Processing Corp., 121 N.J. Super. 370 (Law Div. 1972); Nicholas v. Miami Burglar Alarm Co., Inc., 339 So.2d 175 (Fla. 1976); Singer v. I.A. Durbin, Inc., 348 So.2d 370 (Fla.Dist.Ct.App. 1977); Cf. Home Ins. Co. v. Commercial Ind. Sec. Serv., 57 Mich. App. 143, 225 N.W.2d 716 (Mich.Ct.App. 1974). In view of the foregoing disposition it is unnecessary for us to decide plaintiff's contention that the trial court erred in refusing to impose liability on the basis of N.J.S.A. 45:19-15.