Bellevue v. Frenchy's S. Beach Café, Inc., 2D12–4537.

• Citation: 136 So.3d 640
• Decision Date: 04 December 2013
• Docket Number: No. 2D12–4537.,2D12–4537.
• Parties: Jennifer BELLEVUE, Appellant, v. FRENCHY'S SOUTH BEACH CAFÉ, INC., Appellee.
• Court: Court of Appeal of Florida (US)

136 So.3d 640

Jennifer BELLEVUE, Appellant,

v.FRENCHY'S SOUTH BEACH CAFÉ, INC., Appellee.

No. 2D12–4537.

District Court of Appeal of Florida,

Second District.

Dec. 4, 2013.

Celene H. Humphries and Maegen P. Luka of Brannock & Humphries, Tampa; Cory A. Baird of Baird Law Group, Tampa; and Jeffery Gordon of Maney & Gordon, P.A., Tampa, for Appellant.

John A. Guyton, III, Gregory D. Jones, and David P. Mitchell of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellee.

BLACK, Judge.

Jennifer Bellevue sued Frenchy's South Beach Café, Inc. (“Frenchy's”), for personal injury damages that she sustained when she was attacked inside Frenchy's premises by one or more intoxicated patrons who had been consuming alcohol there for several hours prior to “last call” when the attack occurred. Before trial, following a hearing on Frenchy's motion in limine, the court ruled that only twelve of sixty prior incidents occurring in and around Frenchy's would be admissible at trial. Benefitting from the court's ruling, Frenchy's successfully advanced its principal defense that Frenchy's was a family restaurant and that the attack on Ms. Bellevue was unforeseeable. The jury returned a verdict in favor of Frenchy's. Because the trial court's ruling as to the admissibility of the prior incidents was contrary to Florida law, we reverse.

I. Background

Frenchy's is a popular restaurant and beach bar located in Clearwater just one block from the beach. On the night Ms. Bellevue was attacked she arrived at Frenchy's just before it closed, planning to give a ride home to her roommate, Shelly Kneuer, one of the bartenders. Testimony at trial established that a family of tourists from Ireland (“the Irish family”) who had been drinking heavily and were rowdy and disorderly remained inside the restaurant. The only other people in the restaurant at this time were Ms. Bellevue's friend Christopher Malek, a manager named Jonathan Kirby, and Ms. Kneuer.

Just prior to the fight that resulted in Ms. Bellevue's injuries, words were exchanged between one of the Irish family members and Mr. Malek. The restaurant manager told Mr. Malek to let Ms. Kneuer, the bartender, handle the issue as he walked upstairs to begin his closeout routine for the night. This left Ms. Kneuer, a petite woman, as the only employee managing the escalating rowdiness. The verbal exchange intensified, and soon thereafter Ms. Kneuer was physically bumped or shoved by one of the Irish family members. Mr. Malek and Ms. Bellevue entered the fray, which became physically violent. By the time the police arrived, Ms. Bellevue had been severely beaten. The Irish family was arrested but subsequently jumped bail and left the country.

Ms. Bellevue filed suit against Frenchy's for her injuries. The essence of the complaint is that Frenchy's was on notice that its patrons had a propensity to become rowdy or violent and that it failed to maintain adequate security to protect its patrons.

II. Frenchy's Motion in Limine

Prior to trial, Frenchy's moved in limine to preclude Ms. Bellevue from introducing into evidence sixty incidents that occurred either in Frenchy's or near its premises. Frenchy's contended that these incidents were inadmissible because they were not similar crimes or were not probative of the issue of foreseeability. Ms. Bellevue argued that the incidents, which dated back four-and-a-half years prior to the subject attack, were relevant on the issue of whether the attack was reasonably foreseeable and whether Frenchy's took reasonable measures to prevent the attack. The incidents were obtained either from police reports or from Frenchy's management logs. It was Ms. Bellevue's intention to elicit testimony from her security expert that based upon the volume and nature of these prior incidents, Frenchy's was negligent in not taking adequate measures to protect against the type of attack suffered by Ms. Bellevue.

The court ruled that only those incidents “involving damage to persons or property” and “starting [on], ending [on], or involving the premises” would be admitted. As a result, only twelve of the sixty incidents were admitted. The court cited no case law in support of its ruling; however, the transcript of the motion in limine hearing reflects a misinterpretation of Florida law as to prior incidents which are probative of foreseeability.

III. Analysis

A. Case law

Generally, rulings on motions in limine are reviewed for an abuse of discretion.See, e.g., SourceTrack, LLC v. Ariba, Inc., 958 So.2d 523, 526 n. 2 (Fla. 2d DCA 2007). However, because the court's ruling in this case was based upon an erroneous interpretation of the applicable case law, our review is de novo. See Sottilaro v. Figueroa, 86 So.3d 505, 507–08 (Fla. 2d DCA 2012) (citing Pantoja v. State, 59 So.3d 1092, 1095 (Fla.2011) (reviewing a trial judge's ruling on a motion in limine)).

The issue of admissibility of prior incidents to establish foreseeability and risk of harm in this context has not been previously addressed by this district. As they did below, the parties have cited instructive case law from the Florida Supreme Court and each of the other four districts. These cases have produced a set of guiding principles.

The starting point is a trilogy of Florida Supreme Court cases: Hall v. Billy Jack's, Inc., 458 So.2d 760 (Fla.1984), Allen v. Babrab, Inc., 438 So.2d 356 (Fla.1983), and Stevens v. Jefferson, 436 So.2d 33 (Fla.1983). In each case, the plaintiff sued a bar or bar operator for injuries sustained during a criminal attack in or around the bar. Stevens and Allen hold that foreseeability may be established “by proving that, based on past experience, a proprietor knew of or should have recognized the likelihood of disorderly conduct by third persons in general which might endanger the safety of the proprietor's patrons.” Allen, 438 So.2d at 357;accord Stevens, 436 So.2d at 35 (“A tavern owner's actual or constructive knowledge, based upon past experience, that there is a likelihood of disorderly conduct by third persons in general which may endanger the safety of his patrons is also sufficient to establish foreseeability.”). The court in Hall further elucidated:

For[e]seeability may be established by proving that a proprietor had actual or constructive knowledge of a particular assailant's inclination toward violence or by proving that the proprietor had actual or constructive knowledge of a dangerous condition on his premises that was likely to cause harm to a patron. A dangerous condition may be indicated if, according to past experience (i.e., reputation of the tavern), there is a likelihood of disorderly conduct by third persons in general which might endanger the safety of patrons or if security staffing is inadequate. These indicia are not exhaustive.

458 So.2d at 761–62 (citations omitted).

Recognizing and applying the holdings of Stevens,Allen, and Hall, the Fourth District concluded that “[f]oreseeability is determined in light of all the circumstances of the case rather than by a rigid application of a mechanical ‘prior similars' rules.” Holiday Inns, Inc. v. Shelburne, 576 So.2d 322, 331 (Fla. 4th DCA) (citation omitted), dismissed,589 So.2d 291 (Fla.1991), and disapproved on other grounds, Angrand v. Key, 657 So.2d 1146 (Fla.1995).

While evidence of prior similar incidents [is] helpful, a rule limiting evidence of foreseeability to prior similar incidents deprives the jury of its role in determining the question of foreseeability. Although evidence of a violent crime against a person may be necessary initially to establish the issue of foreseeability, evidence of lesser crimes against both persons and property is also relevant and admissible to determining that issue.

Id. (citations omitted); accord Czerwinski v. Sunrise Point Condo., 540 So.2d 199, 201 (Fla. 3d DCA 1989).

In Shelburne, the plaintiffs were shot in the Rodeo Bar parking lot after they and others involved had been drinking at the bar. The defendant argued that in order to establish foreseeability, the plaintiffs had to demonstrate that the owner had actual or constructive knowledge of “similar criminal acts against invitees on their property.” 576 So.2d at 331. The court rejected the argument and allowed into evidence fifty-eight offense reports pertaining to prior criminal incidents on the bar's premises. In affirming the trial court's ruling, the Fourth District stated that had the trial court excluded the fifty-eight offense reports at the Rodeo Bar, “the exclusion effectively would have prevented [the victims] from showing foreseeability through [the proprietors'] knowledge of their patrons' dangerous and ‘disorderly conduct.’ ” Id. The court concluded that “a ruling limiting admissibility to those reports containing only similar criminal activity would be irreconcilable with the supreme court's holdings in Stevens,Allen, and Hall.” Id. We agree with this statement of the law.

The First and Fifth Districts have also recognized and applied the holdings in Stevens,Allen, and Hall, as well as Shelburne.See Hardy v. Pier 99 Motor Inn, 664 So.2d 1095, 1097–98 (Fla. 1st DCA 1995); Foster v. Po Folks, Inc., 674 So.2d 843, 844 (Fla. 5th DCA 1996).

Frenchy's relies heavily on a pair of Third District cases, Admiral's Port Condominium Ass'n v. Feldman, 426 So.2d 1054 (Fla. 3d DCA 1983), and Ameijeiras v. Metropolitan Dade County, 534 So.2d 812 (Fla. 3d DCA 1988). The Admiral's Port court concluded that the trial court erred in admitting evidence of “violent crime[s] which had occurred substantial distances away from the premises,” and generally that “[e]vidence of similar crimes committed off the premises and against persons other than the landowner's invitees is not probative of foreseeability.” 426 So.2d at 1055.Admiral's Port, decided in January 1983, is of questionable validity in light of the later decided Stevens,Allen, and Hall. The Ameijeiras court more specifically held that “[t]he...