Stanley Marcus, U.S. Atty., Miami, Fla., Eloise E. Davies, Civ. Div., Appellate Section, U.S. Dept. of Justice, Washington, D.C., for defendant-appellant, cross-appellee.

Philip M. Gerson, P.A., Miami, Fla., for plaintiff-appellee, cross-appellant.

Appeals from the United States District Court for the Southern District of Florida.

Before KRAVITCH and JOHNSON, Circuit Judges, and LYNNE,* District Judge.

This is an appeal from an award of damages made pursuant to a finding that plaintiff-appellee, Jane Doe, had been injured by the negligence of defendant-appellant, the United States. The District Court, 533 F. Supp. 245, found that the Government owed a duty of care to plaintiff, that it breached such duty, that plaintiff's injuries were proximately caused by its negligence, and that plaintiff could maintain her action under the Federal Tort Claims Act, 28 U.S.C. Secs. 1346, 2671-2678, 2680 (the Act). We reverse.

On Sunday, June 24, 1979, plaintiff, twenty-four years of age, a resident of North Miami Beach, returned to her home from Catholic Mass at approximately 7:30 p.m. After addressing invitations which she planned to mail that evening, she rode her bicycle to the nearby 163rd Street Shopping Center where she purchased stamps. To ensure that her invitations would go out in the next morning's mail, she proceeded to the North Miami Beach Post Office, arriving there at approximately 8:15 p.m. When she entered the lobby and approached the desk toward its rear she encountered an adult male patron who was leaving the building.

Plaintiff saw another adult male, a stranger, open the door and peer into the lobby area. He then entered and brutally raped her. She subsequently escaped from her assailant and, battered and wearing shredded clothing, rode home. She reported the incident to the police and then went to the Rape Treatment Center at Jackson Memorial Hospital where she was treated and released.

The North Miami Beach Post Office, leased by the Government from private individuals, is a one-story concrete block and stucco structure located on the corner of two intersecting streets. It is divided by two glass doors, bordering on the street, into two main areas, a service section and a lobby which houses rental lockboxes. The lobby area is lit by overhead lights. Its windows begin some six feet above the floor. One set of double doors opens onto the sidewalk, providing the only access to and from the street when the service area is closed. One must open these doors to see inside from the street.

The lobby itself is rectangular. Lockboxes are located on the wall directly across from the double doors to the street and on the adjacent wall, directly opposite the wall containing the doors to the service area. The desk at which plaintiff was stamping her invitations when she was attacked is located near the end of the lobby, against the wall containing the double doors to the street.

The schedule observed by the post office on June 24, 1979, which had existed for many months prior thereto, required the closing of the service area at 5:00 p.m. on Monday through Friday, at 12:00 noon on Saturday, and all day on Sunday, whereas the rental lockbox area was continuously open to the public. Postal employees were infrequently on the premises when the service area was closed, and none were present on the day of the rape.1

Initially, we consider arguments of counsel for the respective parties persistently urged upon the lower court and renewed here. Positing her action upon the provisions of Sec. 1346(b) of the Act,2 plaintiff asserts that the violation by defendant's employees of two extant regulations of the United States Postal Service3 constituted negligence per se. We disagree and recognize that the court below did not go that far. Aside from their obvious vagueness and overbreadth, we have held that such internal regulations do not have the force of law and that violation thereof will not support a determination of negligence per se. Tringali Bros. v. United States, 630 F.2d 1089 (5th Cir.1980).

For its part, defendant insists that the facts of this case bring it squarely within the exception provided by Sec. 2680 of the Act.4 In its trilogy of Dalehite v. United States, 346 U.S. 15, 73 S. Ct. 956, 97 L. Ed. 1427 (1953), Indian Towing Co. v. United States, 350 U.S. 61, 76 S. Ct. 122, 100 L. Ed. 48 (1955), and Rayonier, Inc. v. United States, 352 U.S. 315, 77 S. Ct. 374, 1 L. Ed. 2d 354 (1957), the Supreme Court has considered the impact of the discretionary function upon the scope of Sec. 1346(b) of the Act.

In Dalehite, the seminal case in this area, the Court stated:

It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the "discretionary function or duty" that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications, or schedules of operations.

346 U.S. at 35, 73 S. Ct. at 968. Neither Indian Towing nor Rayonier appears to retreat from this principle. They do, however, substantially erode the additional statement in Dalehite immediately following the above:

Where there is room for policy, judgment and decision, there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable.

346 U.S. at 36, 73 S. Ct. at 968. See Pigott v. United States, 451 F.2d 574 (5th Cir.1971).

It is not our task to explore the limits of discretion to which the exception applies. In our opinion, the decisions of the postal authorities to locate a post office in North Miami Beach and to schedule its operations for serving its local patrons were discretionary functions and in the absence of other facts could not form a basis for suit under the Act. But it was the presence of additional facts upon which the plaintiff relied and to which we now turn.

Concededly, plaintiff was a business invitee upon defendant's premises. It is the general rule, a crystalization of common sense, that an owner of premises has no duty to protect such a person from criminal attack and will not be held responsible for the willful criminal act of a third person which could not be foreseen or anticipated. 62 Am.Jur.2d Premises Liability Sec. 200 (1972). Florida adheres to this rule, Relyea v. State, 385 So. 2d 1378, 1383 (Fla.App.1980)5 and it is to the law of that jurisdiction that we must look in measuring the liability of the defendant. Sec. 1346(b) of the Act.

Foreseeability is a question of fact. See, e.g., Gibson v. Avis Rent-A-Car System, Inc., 386 So. 2d 520 (Fla.1980);6 Orlando Executive Park, Inc. v. P.D.R., 402 So. 2d 442, 446 (Fla.App.1981). The lower court explicitly found "that the type of criminal acts to which the plaintiff fell prey were foreseeable" (sic). This finding of ultimate fact is protected by the clearly erroneous standard of Rule 52(a), F.R.C.P., and we are forbidden to substitute our interpretation of the evidence for that of the trial court. Pullman-Standard v. Swint, 456 U.S. 273, 102 S. Ct. 1781, 72 L. Ed. 2d 66 (1982); Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S. Ct. 2182, 2190, 72 L. Ed. 2d 606 (1982). We do no more than test the sufficiency of its subsidiary factual underpinnings.

It is settled that a finding is clearly erroneous within the meaning of Rule 52(a) when "although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525, 542, 92 L. Ed. 746 (1948). We consider the validity of the district court's above-quoted finding to be the pivotal issue on this appeal and have undertaken a painstaking review of the record evidence.

Prior to June 24, 1979, there had never been a crime against the person committed upon the premises of the post office or in its immediate vicinity.7 In a two year period preceding the rape the only incidents reported at the post office with criminal overtones did not involve actual or threatened injury to invitees.8 Over the timely objection of defendant as to relevancy, the Court admitted into evidence crime statistics compiled by the North Miami Beach Police Department to support her contention that the post office was located in a high crime area.9

Thereupon, defendant attempted to call Chief Whitaker of the North Miami Beach Police Department and proffered his testimony that although some areas of North Miami Beach are crime ridden, the post office area is not one of them; that the post office was located in a low crime area. In excluding such testimony the district judge abused his discretion and for that reason alone reversal would be required. In his deposition, Robert Weaver, a postal inspector from February 21, 1958, until August 1980, whose duties were performed at the North Miami Beach Post Office from time to time since 1960, testified that from his standpoint such post office was not considered to be in a high crime area. Evidence of his opinion obviously did not render cumulative the proffered testimony of Chief Whitaker analyzing the very crime statistics, compiled by his department, upon which plaintiff relied.

We find persuasive the opinion of the District Court of Appeals of Florida, Fourth District, in Relyea v. State, 385 So. 2d 1378 (Fla.App.1980). The court firmly declared the Florida rule as to premises liability to be:

In order to impose a duty upon a landowner to protect an invitee from criminal acts of a third person a plaintiff, invitee, must allege and prove that the landowner had actual or constructive knowledge of prior, similar criminal acts committed upon invitees. The landowner is not bound to anticipate criminal activities of third persons where, as here, the wrongdoers were complete strangers to the landowner and to the victims, and where the incident occurred precipitously. (citations omitted). Appellants simply failed to allege or prove that any prior assaults upon persons had been committed in the area of the abduction and murder, or for that matter, anywhere on the campus. In fact, the proof showed there had not been one serious crime against the person since the school was founded in 1963. The reported incidents involved minor larcenies from automobiles and school buildings, hit and run complaints for minor automobile damage, and miscellaneous incidents such as malicious mischief. These facts do not give rise to the foreseeability of violent assaults which, in turn, may give rise to a duty to protect.

Id. at 1383.

Later, the same court, quoting the foregoing, in Highlands Ins. Co. v. Gilday, 398 So. 2d 834 (Fla.App.1981), held that, where only non-assaultive criminal incidents involving the defendant hotel had been reported, evidence of the crime statistics for a period of twenty months (including serious crimes against the person) for the zone (approximately three miles long and one-half mile wide) in which the hotel was located, was not probative of notice to the hotel that there was a necessity to protect its guests against criminal attacks. Indeed, that court held that the trial court erred in admitting such crime statistics.10 We do not predicate error upon the reception of evidence of similar criminal acts in the one square mile area in which the post office was located. Rather, we hold that such evidence, undifferentiated with respect to the proximity of such acts to the post office is insufficient to support a finding of the foreseeability of plaintiff's tragic injury. A thorough review of the entire evidence leaves us with the definite and firm conviction that the ultimate conclusion of the district court that plaintiff's injuries were proximately caused by defendant's negligence is clearly erroneous. We therefore reverse the judgment below in favor of plaintiff and direct the entry of a judgment for defendant.

Our disposition of the direct appeal renders inappropriate discussion of plaintiff's cross-appeal based upon her contention that the damages awarded by the district court were grossly inadequate.

REVERSED and REMANDED with direction.