Bryan v. Galley Maid Marine Prods., Inc.

• Decision Date: 15 January 2020
• Docket Number: No. 4D18-3699,4D18-3699
• Citation: 287 So.3d 1281
• Parties: Jacob BRYAN, Appellant, v. GALLEY MAID MARINE PRODUCTS, INC., a Florida corporation, d/b/a Off Road Innovations, a/k/a ORI, Appellee.
• Court: Florida District Court of Appeals

287 So.3d 1281

Jacob BRYAN, Appellant,

v.GALLEY MAID MARINE PRODUCTS, INC., a Florida corporation, d/b/a Off Road Innovations, a/k/a ORI, Appellee.

No. 4D18-3699

District Court of Appeal of Florida, Fourth District.

January 15, 2020

Linda Elise Capobianco of Stone & Capobianco, P.L., Stuart, for appellant.

Louis Reinstein and Jack T. Frost, of Kelley Kronenberg, Fort Lauderdale, for appellee.

Forst, J.

In this negligence case, plaintiff Jacob Bryan appeals from the circuit court's final summary judgment in favor of defendant Galley Maid. The case arose following an incident at Galley Maid's shop, after hours, in which Bryan was violently attacked twice by a third party, James Long. We conclude that genuine issues of material fact remain in this case regarding the reasonable foreseeability of Long's second attack on Bryan, and whether Galley Maid's owner had a duty to render or call for aid after the attacks. Therefore, we reverse the final summary judgment.

Background

The record presents the following facts. Bryan was out drinking at a bar one night with Ernest Tumoszwicz (Galley Maid's alleged owner/co-owner), and three other acquaintances, including Long. When the bar closed, the group left and went to Tumoszwicz's shop, Galley Maid. Galley Maid is a business which builds and manufactures equipment for yachts, and does outside machine shop work and job shop work for other companies. On this night, the group went to Galley Maid not for business, but to hang out and see a tank which Tumoszwicz had restored. At the shop, the group continued drinking, and some of the group (including Long) used cocaine.

About fifteen to twenty minutes after the group arrived at Galley Maid, Long attacked Bryan, suddenly and without provocation. Bryan recalled of the first attack: "I didn't know there was any problems. We were all talking, socializing, more or less enjoying our evening, and I go to the bathroom to use the restroom and I'm being hit in the back of [the] head, pulled out of the bathroom with my shirt over my head... [Long] picks me up and slams me head first on the concrete." As a result of the first attack, Bryan allegedly lost a tooth, was bleeding from the mouth, and was unconscious for approximately seventeen minutes.¹

While Bryan was "out," one of the women in the group walked over to him to see if he could sit up. He could not. No one administered first aid or attempted to contact the police or call an ambulance. Tumoszwicz had a cell phone in his truck, and telephones in the shop, but claimed he did not call 911 because he was scared of Long. At one point, Long gave him a threatening look and told him not to touch Bryan, and to leave him alone because he was fine. Yet, Tumoszwicz agreed that Long never verbally threatened him. Tumoszwicz also agreed that "everyone was free to walk through the premises." In fact, while Bryan lay unconscious for seventeen minutes, Tumoszwicz walked outside to get his iPod out of his truck so he could play music.

When Bryan regained consciousness, he asked Tumoszwicz what had happened, and the two men talked for several minutes. Tumoszwicz claimed he did not offer to help Bryan at that time because Bryan "was standing there talking to [him]," and "seemed to be okay." However, Tumoszwicz also gave sworn testimony that Bryan did not "look like he [was] in too good a shape," that he was "disoriented and ... not sure what was going on," and that Tumoszwicz was concerned for Bryan's safety "[e]ver since the first assault happened," and "throughout the entire evening."

After talking with Tumoszwicz, Bryan walked outside with Long to the parking lot, where Long attacked Bryan a second time. Long purportedly attacked Bryan again because "[Bryan] told him he didn't give him a fair chance. So he took him outside and gave him a fair chance." The second attack rendered Bryan unconscious again, and Tumoszwicz saw Bryan laying on the ground after the attack.

Shortly after the second attack, Long helped Bryan to get back on his feet, and the two men reentered the building. One of the women helped Bryan put his shirt back on, but again, no one called for medical attention. Tumoszwicz testified that he did not call 911, because he was "still scared" and because Bryan "was up and moving around." Instead, he told everyone to leave and went to bed in his RV on the property. Bryan left the shop in a car with Long. Long was later arrested, charged, and convicted of aggravated battery.

Bryan sued Galley Maid for negligence, alleging he was an invitee on Galley Maid's premises, and that Galley Maid, through its director/agent Tumoszwicz, knew or should have known that Bryan was injured and/or incapacitated and therefore had a duty "to exercise reasonable care and to take reasonable action to give or secure first aid." Bryan also alleged that Tumoszwicz knew or should have known that Long posed a risk of harm to Bryan and that he (Bryan) was permanently injured as a result of the incident, and that his injuries (a broken neck, facial fractures, nerve damage, and an avulsed tooth ) "occurred as a result of and were proximately caused by the careless, negligent, grossly careless, and reckless conduct of" Galley Maid.

Galley Maid moved for summary judgment. Galley Maid argued that Bryan was a licensee on its premises, not an invitee, so the only duty Galley Maid owed to Bryan was to refrain from wanton negligence, willful misconduct, or intentionally exposing Bryan to danger. Because Long's first attack was not foreseeable, Galley Maid argued, it did not breach any duty with respect to the first attack. As to the second attack, Galley Maid contended that (1) absent a "special relationship" between the parties, Galley Maid had no duty to protect Bryan, and (2) it did not breach any duty because it did not control the premises at the time of the second attack. Galley Maid argued in the alternative that, even if Bryan was an invitee, Galley Maid did not breach any duty because neither of Long's attacks was foreseeable. As to its alleged negligence in not seeking medical assistance for Bryan, Galley Maid argued only that the allegation was "also fatally flawed." Lastly, Galley Maid maintained that Bryan "cannot establish any proof of proximate causation since Galley Maid ... did not have actual or constructive knowledge that Mr. Long would assault the Plaintiff."

Bryan filed a response in opposition to the motion for summary judgment, and the circuit court held a hearing. At the conclusion of the summary judgment hearing, the court stated: "Morally, it's extremely bothersome that nobody did anything ... morally, I think it is just a horrific situation." Nevertheless, the circuit court ruled that no legal duty existed absent a "special relationship" between the parties:

The bottom line is [for] the Defendant[,] there was no benefit whatsoever for the Plaintiff being on the premises other than folks wanting to see this. It wasn't like [Tumoszwicz] was engaged in the course of business, he wasn't trying to sell ... the Plaintiff anything. There just was no special relationship that existed that would cause that.

The circuit court also concluded a duty did not exist because both attacks were "unforeseeable criminal act[s]." The court stated: "The first battery definitely was. And the second battery, quite frankly, the idea of somebody doing that the first time, let alone the second time, is pretty shocking. So I don't find either attack was at all foreseeable." The court also appeared to conclude that the plaintiff could not establish causation without an impermissible stacking of inferences:

[T]here's nothing showing that the failure to call or render aid is -- and without stacking inferences, ... I can't stack inferences. If [Tumoszwicz] or anybody would have called 911, then maybe 911 would have gotten there in time, then maybe the two, Mr. Bryan and Mr. Long, wouldn't have had words. Because, obviously, they -- Mr. Bryan didn't swing a punch or wouldn't have had words and then maybe the second attack wouldn't have occurred.

And, quite frankly, there hasn't been any evidence, there is no evidence which was the first attack or second attack that occurred that caused the injuries. Although, it was pretty obvious from the second -- from the video that the first attack was horrible, to say the least.

The circuit court subsequently entered its order granting Galley Maid's motion for summary judgment and final judgment. This appeal followed.

Analysis

On appeal, Bryan argues the circuit court erred in granting summary judgment in favor of Galley Maid as genuine issues of material fact existed regarding the duty of care owed to Bryan. Specifically, Bryan argues the court erroneously determined that because Bryan was not on Galley Maid's premises for a business purpose, he lacked a "special relationship" with Galley Maid such that Galley Maid owed Bryan no duty to protect him from Long, to summon law enforcement, or to call 911 for assistance. Bryan further contends that genuine issues of material fact existed regarding the foreseeability of Long's tortious conduct.

Galley Maid responds that summary judgment in its favor was proper because—regardless of Bryan's legal status on the property—no genuine issue of material fact remained on the element of duty, where Galley Maid's agent, Tumoszwicz, could not have reasonably foreseen either of Long's violent attacks. Galley Maid further argues that Tumoszwicz did not have a duty to procure first aid for Bryan under the circumstances.

We have de novo review. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P. , 760 So. 2d 126, 130 (Fla. 2000) (standard of appellate review applicable to grant of summary judgment is de novo); see also R.J. Reynolds Tobacco Co. v. Grossman , 96 So. 3d 917, 920 (Fla. 4th DCA 2012) ("The existence of a legal duty is purely a question of law and is subject to de novo review."); Demelus v. King Motor Co. of Fort Lauderdale , 24 So. 3d 759, 761 (Fla. 4th DCA 2009) (...