Orlando Senior Partner Laurette Balinsky, Esq., obtained a final summary judgment in a negligent security case involving the shooting death of a 16 year old, in the matter styled Shonte Bunch, as PR of the Estate of Martorell Williams v. Pilot Travel Centers LLC, SSA Delaware and Northlake Foods, d/b/a Waffle House in Brevard County, Florida. The PR alleged that Pilot/ SSA breached their non-delegable duty to decedent to provide a reasonably safe premise by allowing crowds to congregate on their premises, thereby creating a foreseeable zone of risk to invitees. The Complaint alleged that Defendants allowed hundreds of people to congregate on the premises and that multiple crimes purportedly occurred in the three years before the incident. The plaintiff was seeking $5M on the case.

Defendants moved for summary judgment shortly after the May 2021 amendment to Rule 1.510, Fla.R.Civ.P. Defendants’ Motion was based on two distinct grounds: (1) that Defendants owed no duty to the decedent; and (2) decedent’s claim was barred by Fla. Stat. §768.075(4) since he was involved in a felony at the time of the shooting.

Defendants’ primary argument as to lack of duty was predicated on the fact that the shooter fired the deadly shot from the premises of our client, and that there was no record evidence as to the exact location of the decedent to our property line when he was shot. Defendants argued that decedent was, at best, within an easement granted to the adjoining property owner, and not within a location controlled by Defendants. As such, it was Defendants’ position that there is no duty under Florida law to protect an invitee from a crime committed by a third party outside of its premises. To hold otherwise, would extend Florida law and turn premises liability on its head.

Plaintiff vigorously opposed Defendants’ Motion for Final Summary Judgment and filed an Affidavit by security expert, Michael Zoovas. Within their Reply brief, Defendants moved to strike the Affidavit, arguing that it was essentially a sham, because the expert ignored evidence and completely failed to acknowledge the location of the shooter. Defendants further argued that the expert’s opinion that the decedent was shot on Pilot’s premises should be stricken because the opinion was not supported by any evidence and fell outside the expert’s background, education, training, and expertise. Moreover, the location of the decedent was not germane to the duty argument, since it was clear that the tort was committed (i.e., the gun was fired) from a location outside of premises owned or controlled by Defendants. In other words, the expert’s Affidavit was simply a distraction.

The Court conducted two lengthy hearings. Plaintiff submitted a total of four briefs; one was submitted the day after the conclusion of the second hearing. After consideration of Plaintiff’s untimely Supplemental Memorandum of Law, the Court granted Defendants’ Motion for Final Summary Judgment. In its opinion, the Court stated that it was “loathe to find a ‘crowd’ as inherently dangerous a hazard as buried electric cables or to extend a duty to property owners for crimes that occur off their premises where that property owner has not caused the conditions for the injury.” The Court further found that the existence of an easement providing ingress and egress does not extend liability to Defendants, and that Defendants did not have a duty to decedent for criminal acts initiated on an adjoining property. This is a significant win for the defense bar, and protects property owners from an extension of liability for acts that occur outside of an owner’s premises, and from acts which are outside of their control.

Tampa Senior Partner Megan Theodore, Esq., and Senior Associate Matthew Moschell, Esq., recently obtained Summary Judgment in a premises liability action arising out of an alleged slip and fall in Pinellas County, Florida. In matter styled Cynthia Veenstra v. BJ’s Restaurants, plaintiff alleged that she slipped on a fork at BJ’s Restaurants while being led to her table by a hostess, and claimed that BJ’s neither maintained its premises nor warned of a dangerous condition. As a result of this incident, Plaintiff claimed injuries to her left shoulder, left arm, ribs, and back. She sought recovery of past and future economic and non-economic damages, including lost wages and loss of future earnings due to her purported inability to return to work.

On Summary Judgment, we argued that there were no genuine issues of material fact and that BJ’s was therefore, entitled to judgment as a matter of law. Specifically, we maintained that Plaintiff had not, and could not, prove that BJ’s had notice of the allegedly dangerous condition that led to the fall. We also argued that proof of BJ’s alleged negligence would require a jury to indulge in the prohibited mental gymnastics of constructing one inference upon another. Ultimately, our Motion was well-taken, and the Court granted Final Summary Judgment with prejudice.

Fort Myers Senior Partner Patrick Boland, Esq., Senior Associate Brittany Cocchieri, Esq., and Fort Lauderdale Managing Partner William Peterfriend, Esq., obtained a favorable result in a Hurricane Irma property claim for damages to a property located in Fort Myers, Florida. The matter styled Joe L. Pressler v. Tower Hill Signature Insurance Company involved a condemned property due to Hurricane Irma damage and pre-existing damage, as well as Plaintiff’s failure to conduct timely and adequate repairs after Hurricane Irma. The Defense was successful in having the trial issues limited to damages under Coverages A (Dwelling) and B (Other Structures) only, though Plaintiff was originally claiming damages under Coverages C (Personal Property) and D (Additional Living Expenses) as well. The Defense successfully had the claims under Coverages C and D abated, due to Plaintiff’s failure to timely provide any documentation in support of those claims until the month of trial. This significantly lessened the potential exposure at trial for our client, as before those claims were abated, Plaintiff’s demand was significantly more than what Plaintiff ultimately asked for at trial for Coverages A and B. At trial for Coverages A and B, Plaintiff asked for $317,450.38.

The case was tried over three days before Chief Judge Michael McHugh in Lee County. Our client, Tower Hill, insured the Plaintiff’s property at the time of Hurricane Irma. Plaintiff timely reported a claim for Hurricane Irma damage to Tower Hill, but was thereafter unresponsive and failed to maintain communication with Tower Hill, forcing Tower Hill to eventually close the claim due to inactivity and unresponsiveness. Tower Hill later re-opened the claim on its own volition, and ultimately issued a $100,667.24 check to Plaintiff for his property damages, after removal of recoverable depreciation at $35,288.70 and the applicable hurricane deductible of $5,100. Plaintiff received but did not endorse the check, later claiming a satisfied lienholder was incorrectly listed as a payee and the check amount was not enough for his damages. However, Plaintiff never advised Tower Hill of any issue or disagreement with the check amount or payees, and Plaintiff ultimately held onto the check for years after receiving it while the property continued to deteriorate to the point Lee County condemned the home.

The Defense did not dispute that the property was damaged by Hurricane Irma, but argued that the extent of the damages sustained was exacerbated by the Plaintiff’s failure to do anything with the $100,667.24 check he admitted at trial to receiving. Plaintiff also admitted at trial that despite receiving the check, he never advised Tower Hill of any disagreement he had with the amount and never advised Tower Hill that he could not cash the check because it listed a satisfied lienholder. Plaintiff also admitted at trial that it was the lienholder’s fault – not Tower Hill’s – for not timely filing the appropriate documentation regarding the satisfaction. Plaintiff also admitted that he never advised Tower Hill at any time that the lien was satisfied, despite his policy and the payment letter clearly requesting he advise Tower Hill if any of the lienholders listed are inaccurate. More than two years passed after Plaintiff received the check but before he filed a lawsuit against Tower Hill. At no point during those two-plus years did Plaintiff communicate with Tower Hill or request the check be re-issued so he could complete repairs to his property. All parties’ experts agreed at trial that the damages significantly worsened over time. 

The Defense also argued that the Plaintiff’s roof had pre-existing damage in the form of visible holes and depressions in the roof, and that the roof of this property was by no means in pristine let alone satisfactory condition. This was argued to illustrate the pre-loss condition of the property, as a property insurance policy only requires the insurer to put the property back in its pre-loss condition after a covered loss. Plaintiff at trial requested an amount not only in excess of policy limits but also in excess of what the property pre-loss was worth based on the poor condition of the roof. The Defense called the Plaintiff’s neighbor as a witness who testified that she has lived across the street from the Plaintiff for several years and saw the hole in the roof every single day. The neighbor testified that the hole in the roof significantly grew in size over time and existed long before Hurricane Irma. The neighbor also testified that she never saw any roof repairs done prior to Hurricane Irma – which was an issue, as Plaintiff argued repairs were completed just prior to Hurricane Irma. The Court did not allow the Defense to call a representative from Lee County Code Enforcement as a witness to testify regarding the pre-loss condition of the property or the several ongoing code violations the Plaintiff has received for his property for years before Hurricane Irma. 

Opposing counsel asked the jury in closing argument to award Plaintiff $317,450.38 total for damages under Coverage A - Dwelling and Coverage B - Other Structures ($242.19 for a light post on the property), for which the limits of coverage under the policy are $255,000.00 and $5,100.00 respectively. Ultimately the jury returned a verdict finding the total replacement cost value of damages to the Plaintiff’s property under Coverages A and B combined to be $153,125.80, and applicable depreciation to be $27,207.17. Based on the jury’s factual findings, the actual cash value of damages to the Plaintiff’s property is calculated to be $125,918.63. The Defense has filed a post-trial Motion to Determine Verdict Reductions or Application of Set-Offs, which is still pending before the Court. Read more.

Partners G. John Veith, Esq., and Deana Dunham, Esq., obtained a favorable verdict in a premises liability matter which was heavily litigated in the Circuit Court for Duval County, Florida. The trial was conducted over the course of a full week with the Plaintiff calling a forensic engineer and four medical experts. Plaintiff asked the jury for $3.6 million. However, after attributing 40% comparative fault on the Plaintiff, the jury returned a net verdict of $43,000. Because of a defense proposal for settlement filed well in advance of trial, the Defendant will be entitled to seek reimbursement of its attorney’s fees and costs.

Plaintiff alleged the retail store violated its internal inclement weather policy by failing to have an entrance mat, warning cone and umbrella bag holder in the correct places. Since it had been raining at the time of the accident, Plaintiff alleged that other customers had tracked water into the store on their feet, shopping carts and umbrellas, which created an unreasonably hazardous and slippery floor. Plaintiff alleged that the crutches he was using slid out from beneath him as he entered the vestibule to the store, causing him to fall forward, landing on his right knee and face. After his fall, Plaintiff consulted a neurosurgeon who performed an anterior decompression and cervical fusion (“ACDF”) surgery to alleviate symptoms of neck pain, numbness and tingling. Plaintiff also consulted an orthopedic surgeon who recommended surgery on his right knee to address a partial thickness, intrasubstance tear of the patellar tendon. Both doctors treated the Plaintiff under letters of protection. Plaintiff claimed past medical damages of $156,951.00, future medical damages of $425,000.00 and past and future wage loss of $672,000. Using a per diem argument, Plaintiff also sought more than $2,265,000 in compensatory damages for past and future pain & suffering, inconvenience and loss of enjoyment of life. All told, Plaintiff asked the jury to return a verdict in excess of $3.6 million.

The trial team worked closely with appellate counsel Dan Weinger, Esq., and Nicholas Christopolis, Esq., to successfully address delicate legal issues arising during the trial. These issues included an evidentiary Daubert hearing held outside the presence of the jury as well as foundational and Worley issues raised by the Plaintiff.

The defense strategy utilized a two-pronged approach, which focused on building a solid comparative fault defense while simultaneously exposing the lack of legal causation for Plaintiff’s alleged injuries. Read more.