Aguila v. Hilton, Inc.

• Decision Date: 03 June 2004
• Docket Number: No. 1D02-5061.,1D02-5061.
• Parties: Felix AGUILA, as personal representative of the Estate of Marilyn Aguila, Appellant, v. HILTON, INC., a Florida corporation, Charles Hilton, an individual, and Best Western Casa Loma Motel, Appellees.
• Court: Florida District Court of Appeals

878 So.2d 392

Felix AGUILA, as personal representative of the Estate of Marilyn Aguila, Appellant, v. HILTON, INC., a Florida corporation, Charles Hilton, an individual, and Best Western Casa Loma Motel, Appellees.

No. 1D02-5061.

District Court of Appeal of Florida, First District.

June 3, 2004.

Rehearing Denied August 2, 2004.

Clifford C. Higby of Bryant & Higby, Panama City; C. Steven Yerrid and Theresa L. Fiset of The Yerrid Law Firm, Tampa, for Appellant.

John M. Fite of Barron, Redding, Hughes, Fite, Fensom, Sanborn & Kiehn, P.A., Panama City, for Appellees.

PADOVANO, J.

This is an appeal from a final order dismissing a wrongful death case against the owners of a motel. The plaintiff's daughter was killed in a car wreck caused by an intoxicated young man who had been at a party at the motel. The theory of the plaintiff's case is that the defendants are liable for the death because they promoted and sponsored underage drinking. We conclude that the complaint fails to state a cause of action for wrongful death against these defendants, because it does not allege any facts that could support a conclusion that the defendants owed a legal duty of care to the plaintiff's daughter. Therefore, we affirm.

The event that has become the subject of the controversy in this case took place in Panama City Beach on March 13, 2001, at a motel owned and operated by the defendants. At that time, the motel was filled with college students who were in town for spring break. A security guard walked past an open doorway to room 319 of the motel where a large number of young people had gathered and noticed that one of the occupants of the room was injured and lying on the floor. The security guard ordered everyone to leave the room while she called the police and emergency medical personnel. Among those asked to leave the room was Derrick Smith, an unregistered guest. The security guard knew that Smith and some of the others in the room were intoxicated. Derrick Smith went down to the parking lot, got into his truck, and drove away. A short distance from the motel, Smith drove his truck into the rear end of a car, killing one of its occupants, Marilyn Aguila. Another person in the automobile, Glenn Permuy, Jr., was seriously injured. He filed a suit against the defendants in this case, as well. Derrick Smith was convicted of manslaughter for the death of Marilyn Aguila and sentenced to ten years in prison.

The case against the defendants was based on a general claim that they created the atmosphere for a serious act of negligence. The plaintiff alleged that the defendants promoted their motel as the ideal place to "party" during spring break and that this term is understood to refer to drinking. According to the complaint, the defendants knew that some of the motel guests and their visitors were underage drinkers and that some of them drove automobiles. Additionally, the plaintiff alleged that the defendants were negligent in that they hired only one security guard, who was unable to adequately monitor the premises or patrol the parking lot. All of these facts, the plaintiff argued, created a risk to the motel guests and to the general public.

The defendants moved to dismiss the complaint for failure to state a cause of action. They argued that the death was caused by the actions of Derrick Smith and that the facts alleged in the complaint did not bring the case within any exception to the general rule that a defendant cannot be held liable for the negligence of a third party. The trial court agreed and granted the motion.

In the order dismissing the case, the court reasoned that the duty element of negligence would have to be "stretched totally out of shape" to impose liability on the defendants for harm caused by someone who was not staying at the motel and had not been served alcohol by the motel, to someone else who was also not staying at the motel. To hold the defendants liable under these circumstances, the trial court concluded, "would make a motel an insurer for all visitors during spring break." The complaint was not amended after the entry of the order, and the dismissal became final. The plaintiff then filed the present appeal to seek review of the order.

Whether the allegations of a complaint are sufficient to state a cause of action is a question of law. See Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla.2002); Rittman v. Allstate Ins. Co., 727 So.2d 391, 393 (Fla. 1st DCA 1999). It follows that an order dismissing a complaint for failure to state a cause of action must be evaluated on appeal by the de novo standard of review. See Sarkis v. Pafford Oil Co. Inc., 697 So.2d 524, 526 (Fla. 1st DCA 1997). The appellate court must accept the allegations of the complaint as true, but is not required to defer to the trial court's conclusions regarding the legal sufficiency of the allegations.

The issue in this case is whether the allegations of the complaint are sufficient to show that the defendants owed a duty of care to the plaintiff's daughter. To properly address this issue, we must first consider the general test for determining the existence of a legal duty as an element of negligence. In the leading case of McCain v. Florida Power Corp., 593 So.2d 500, 503 (Fla.1992), the Florida Supreme Court held that a legal duty exists if the defendant's conduct creates a foreseeable zone of risk that poses a general threat of harm to others.¹ In the McCain case, an employee of the power company had improperly marked the location of an underground power line. The plaintiff, an operator of a mechanical trenching machine, was injured when the machine came in contact with the line located in an area not marked as dangerous. On these facts, the court concluded that the power company owed a duty to prevent the kind of injury that was sustained by the machine operator.

One important attribute of a legal duty that is assumed in many cases but not expressed is that the defendant must have had the ability to avoid the risk. This point is made in the McCain opinion by implication. Quoting its earlier opinion in Kaisner v. Kolb, 543 So.2d 732 (Fla.1989), the court said that a defendant who creates a foreseeable zone of risk has a duty "either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses." McCain 593 So.2d at 503. In this part of the opinion, the court clearly implied that the defendant must be in a position to control the risk. That was certainly the case in the controversy then before the court. The power company had exclusive control of the underground cable, and no one else knew of its exact location. The company could have minimized the risk of electrocution or avoided it altogether simply by marking the correct location of the cable.

In the present case, the plaintiff alleges that the defendants created a zone of risk to others by promoting underage drinking during spring break. However, this conduct connects the defendants with the death of the plaintiff's daughter only in the most general way. The collision leading to the death took place on a public road off the premises of the motel, and the risk that such a collision might have occurred did not arise from any act or omission of the defendants.

Perhaps it crossed the security guard's mind that Derrick Smith might attempt to leave the motel in a motor vehicle, that he might be driving the vehicle, and that he might injure someone. But that much could be said of anyone who may have taken notice of the fact that Smith and the other young men and women at the party were intoxicated. A passerby in the hallway may have had the same fear, but that would not give rise to a legal duty on his part to take some kind of preventive action.

We acknowledge that the duties of a motel security guard would differ from those of a bystander in some situations, but the example illustrates that a legal duty does not exist merely because the harm in question was foreseeable. To the contrary, it is clear from McCain that the defendant's conduct must "create" the risk.² With this in mind, we can safely conclude that a legal duty is not established by evidence of foreseeability alone. See, e.g., Thompson v. Baniqued, 741 So.2d 629 (Fla. 1st DCA 1999) (holding that a neighbor had no duty to supervise a young child playing in her yard, even though she knew the child could injure himself if he ran into the street). There must also be some evidence that the risk was created by the alleged negligence of the defendant. In the present case, a reasonable person might think that the collision was foreseeable, but the allegations do not show that the risk of the collision was created by any act or omission of the defendant.

To illustrate this point, we need only ask ourselves what the security guard might have done differently. If she had not asked all of the intoxicated students to leave the room, they would have been free to stay. Perhaps no one would have left the room at that time. It does not follow, however, that the act of ordering all of the students out of the room created the risk. They were all free to leave of their own accord, and we cannot say how long they may have remained at the party had they not been asked to leave.

We find it significant that the security guard did not eject the students from the motel grounds. Some of them may have decided to remain at the motel in common areas. Others may have decided to walk to other parties in nearby motels. In this respect, the case is very different from Bardy v. Walt Disney World Co., 643 So.2d 46 (Fla. 5th DCA 1994). There, a Disney security guard ejected a drunken Disney employee from the premises and ordered the employee to remove his car, despite his protestations that he was too intoxicated to drive. We certainly agree that, on those facts, the risk of harm to the driver and others was a risk created by the defendant's conduct. In the...