Let’s go back on the record.

FLORIDA LAW WEEKLY

VOLUME 49, NUMBER 15

APRIL 12, 2024

ALLEGATION THAT THE TRIAL COURT REFUSED TO ALLOW THE PRESENCE OF A COURT REPORTER, INSISTING THAT THE COURT CONDUCT THE HEARING OFF THE RECORD, WAS LEGALLY SUFFICIENT TO REQUIRE DISQUALIFICATION

Pimienta v. Rosenfeld, 49 Fla. L. Weekly D714 (Fla. 3rd DCA Apr. 3, 2024).

ERROR TO GRANT SUMMARY JUDGMENT FOR DEFENDANT WHEN THERE WAS A FACTUAL ISSUE REGARDING WHETHER THE PLAINTIFF ACTED UNDER HIS DIRECTION ON THE DAY OF THE ACCIDENT

Navarro v. Borges, 49 Fla. L. Weekly D713 (Fla. 3rd DCA Apr. 3, 2024):

The plaintiff worked for a general contractor and was paid biweekly basis. The defendant was the general contractor president. Plaintiff alleged he controlled and oversaw all aspects of the contractor’s construction projects.

The defendant president dispatched the plaintiff to place a tarp on the roof of a residence damaged during a hurricane. While the plaintiff was not provided with any safety equipment, the tarp was installed without incident.

A week or two later, the plaintiff overheard two of his coworkers discussing that the tarp had moved and caused the roof to leak. The record showed that the defendant had “programmed” the plaintiff, which the context clues supported meant that defendant ordered the plaintiff to take corrective action on the tarp, because an insurance inspection the following day created some urgency.

The plaintiff again mounted the roof without any safety equipment, but this time, sadly, he fell and sustained significant injuries.

The defendant moved for summary judgment contending that the record was devoid of evidence that he instructed the plaintiff to secure the tarp on the day of the incident.

However, viewing the facts in the light most favorable to the plaintiff, the record established that the defendant had given the initial order to place the tarp on the roof and did not provide any safety equipment. The plaintiff’s testimony that the defendant had “programmed” him to go out there the second time, caused the court to observe that the record showed use of an arguably nebulous word when considered in isolation, but in context, connoted an affirmative act precluding summary judgment.

There was no mention in this case of workers’ compensation or workers’ compensation immunity, so for whatever reason, that was not an issue (though it felt like it would have been).

TRIAL COURT ERRED IN DENYING DEFENDANTS’ MOTION FOR DIRECTED VERDICT BASED ON A PURPORTED NON-DELEGABLE DUTY OWED BY THE OWNER OF THE ADULT ENTERTAINMENT CLUB WHERE PLAINTIFF WAS SHOT – THE DEFENDANT OWNER AND PROPERTY MANAGER LACKED SUFFICIENT CONTROL OVER THE PREMISES NEEDED FOR THE COURT TO IMPOSE ANY DUTY

Johnson v. Garrett, 49 Fla. L. Weekly D756 (Fla. 6th DCA Apr. 4, 2024):

The plaintiff, who was shot at a strip club, sued the defendant owner and the defendant property manager for negligent security.

The plaintiff was at the club after a night of drinking. Upon his arrival, there was an armed guard posted at the entrance. No firearms were allowed to be carried inside the club.

Shortly after entering, the plaintiff, who by his own admission was intoxicated, slapped a dancer on the buttocks, and then turned his attention to a female patron. Her male companion did not like or appreciate the plaintiff’s attention, the two men exchanged words, punched each other, and ultimately, the male companion pulled out a pistol and shot the plaintiff in the abdomen.

By the time of trial, the two defendants that remained in the case were the owner of the property and the corporate entity that owner formed to manage the premises leased to the adult club. The suit claimed damages based on the defendant’s general breach of their duty to provide a reasonably safe premises for the plaintiff as a patron of the strip club.

At trial, multiple witnesses testified about the security measures at the club and the relationship between the owner, manager and the entity running the day-to-day operations. The terms of the lease required the property to be used solely for the purpose of continually operating an adult entertainment venue, and provided that the tenant’s failure to do so would constitute a default and give the management company the absolute and immediate right to enter the premises and operate its own adult entertainment business. There was additional evidence regarding profits and how often the owner visited the property etc.

The trial court had granted the plaintiff’s motion for a non-delegable duty against those defendants but found that there were disputed issues of fact regarding the existence of a duty based on foreseeability of the shooting.

At the close of the plaintiff’s case, the defendants moved for a directed verdict and reconsideration of the prior summary judgment ruling, asserting that neither the owner nor manager had sufficient control over the premises to establish a duty of care. The defendants also challenged a ruling that the manager and the owner were one and the same, and that the manager was liable to the same extent as the owner. The trial court denied both motions.

Under Florida law, the duty to protect third persons from injuries on the premises rests not on legal ownership but on the rights of possession, custody, and control of the premises.

On the non-delegable duty issue, the court considered the U.S. Security Services v. Ramada Inn case but found that the facts did not align with those present in Ramada. While the owner may have owed a non-delegable duty for the actions of the security company it hired, in this case, the court had to look at law that governs the responsibilities that an owner of a commercial property has after it has leased the premises to another.

In this case, the evidence showed that neither the owner nor the management company had control over the general operation of the strip club’s business practices and were not involved with security.

The plaintiff argued that the owner and management company did have sufficient control of the premises, but only for the purpose of establishing liability based on the lease provision allowing the manager or its agents to come on the premises to inspect or make repairs. The court found that did not constitute sufficient control for the purposes of establishing liability. Any control the manager retained to enter the premises was completely unrelated to the injuries that the plaintiff sustained in the shooting.

Finally, the court rejected the plaintiff’s suggestion that the lease provision requiring a tenant to “abide by the law” was enough for the court to treat the evidence of the landlord as having control over the premises for the purpose of imposing liability. To do so would risk eroding the established legal protections afforded to landowners who turn over complete possession and control of their properties.

Because neither the owner nor the management company maintained sufficient control over the premises to establish a duty towards the plaintiff, the court concluded that not only was there no nondelegable duty, there was no duty at all, entitling the defendants to a directed verdict.

“JUDICIAL ERROR” DOES NOT PROVIDE BASIS FOR RELIEF UNDER RULE 1.540(B) (THAT IS WHAT “APPEALS” ARE FOR)

Casado v. Doherty, 49 Fla. L. Weekly D755 (Fla. 5th DCA Apr. 5, 2024):

The rule 1.540(B) motion asserted that the trial court committed “judicial error” in entering a final judgment, after dismissing the plaintiff’s complaint for failing to comply with a condition precedent prior to filing the subject breach of contract action.

The appeal lacked merit because judicial error does not provide a basis for relief under this rule. Rule 1.540(B) is not a substitute for appellate review of judicial error. The court also upheld the sanctions the trial court levied against the plaintiff for bringing the motion.