Concord Florida, Inc. v. Lewin, s. 75--1502

• Decision Date: 23 December 1976
• Docket Number: 75--1503,Nos. 75--1502,s. 75--1502
• Citation: 341 So.2d 242
• Parties: The CONCORD FLORIDA, INC., a Florida Corporation, d/b/a Concord Cafeteria, etc., et al., Appellants, v. Sara LEWIN and Rose Lerner, Appellees.
• Court: Florida District Court of Appeals

Page 242

341 So.2d 242

The CONCORD FLORIDA, INC., a Florida Corporation, d/b/a Concord Cafeteria, etc., et al., Appellants, v. Sara LEWIN and Rose Lerner, Appellees.

Nos. 75--1502, 75--1503.

District Court of Appeal of Florida, Third District.

Dec. 23, 1976.

Rehearing Denied Jan. 17, 1977.

Wicker, Smith, Blomqvist, Davant, McMath, Tutan & O'Hara and Richard A. Sherman, Miami, for appellants.

Law offices of Joe N. Unger, Miami Beach, Podhurst, Orseck & Parks, Miami, for appellees.

Before PEARSON, HENDRY and NATHAN, JJ.

HENDRY, Judge.

Appellants were the defendants below and appellees were the plaintiffs. Appellants bring this consolidated appeal from the entry of three final judgments which held appellant, The Concord Florida, Inc., negligent and in violation of the Dade County Fire Prevention and Safety Code and assessed damages in favor of appellees.

The factual scenario began on February 2, 1973, when a madman ran in the front door of the crowded Concord Cafeteria on Miami Beach, threw a five gallon container of gasoline on the ran away. In the fire gasoline and then ran away. In the fire that ensued, many patrons, including appellees, were burned and/or suffered smoke inhalation, while others were injured in their chaotic attempts to flee the burning building.

As a result of this incident, over seventy individuals filed suit against appellant-Concord, the owner of the careteria, alleging injuries suffered as a result of appellant's failure to provide ample emergency fire exits, failure to clearly designate the location of the present fire exits and failure to provide a reasonably safe place for its patrons--all in violation of the Metropolitan Dade County Fire Prevention and Safety Code.

Eventually, many of these cases were consolidated at the trial level by the formation of a 'Plaintiff's Committee.'

By order of the circuit court, a bifurcated trial was held separating the issues of damages for each appellee from the initial question of negligence on the part of appellant-Concord in the maintenance of its facilities. During the pre-trial conference which occurred prior to the negligence hearing, attorneys for appellants unsuccessfully attempted to persuade the court to allow them to present to the jury the defense of 'intervening cause,' i.e., the criminal act of the madman. The court, however, determined that 'intervening cause' was in reality a part and parcel of proximate causation and should be tried in the series of damage suits that would follow, if in fact the jury initially held appellant-Concord liable for negligence.

The negligence trial commenced on April 14, 1975. At the end of said trial, the trial judge instructed the jury, Inter alia, as follows:

'Violations of the Miami Beach Fire Code is negligence whether the defendant knew of the existence of the ordinance or not. If you find that the person alleged to have been negligent violated the ordinance, such person would be negligent.'

It is uncontradicted that the aforementioned instruction amounted to a 'negligence per se' charge.

The Miami Beach Fire Code is one paragraph which adopts the Dade County Fire Prevention and Safety Code (hereinafter referred to as the Code). The pertinent portion of said Code is Section 1.02(1) which provides that:

'The provisions of this Code shall apply equally to new and existing conditions except that existing conditions not in strict compliance with the terms of this Code shall be permitted to continue where the exceptions do not constitute a distinct hazard to life or property.'

The jury, by way of special interrogatories, found appellant-Concord negligent in seven respects as to its maintenance of the premises in violation of said Code.

The second portion of the bifurcated process was then commenced. Individual trials were held as to various appellees to ascertain their damages, if any. At these trials, appellants were permitted to introduce to the jury the defense of 'intervening cause' as a break in the chain of proximate causation. Despite this defense, the juries nevertheless found for appellees and awarded each money damages for injuries sustained in the fire.

It is from those final judgments awarding appellees' money damages that appellants bring their consolidated appeal.

Appellants cite as error the trial judge's pre-trial ruling prohibiting appellants from presenting to the jury the issue of intervening cause in the 'negligence' portion of the bifurcated trial. Appellants also claim that in instructing the jury that a violation of the Code was 'negligence per se,' the trial judge committed reversible error.

Appellants fistly contend that negligence includes the element of foreseeable risk. As such, appellants argue that they were entitled to present to the jury the question of whether or not the possibility of a gasoline throwing maniac was so foreseeable that appellants were negligent in not guarding against such an occurrence. Appellants argue that by prohibiting them from presenting their defense of interveningg cause to the jury, during the negligence portion of the trial, the trial judge effectively conceded the issue of negligence to appellees.

Inherent in appellants' contention is the idea that the act in question was an intervening cause which would insulate appellants from liability. Appellees, however, rely upon the case of Mozer v. Semenza, 177 So.2d 880 (Fla.3d DCA 1965), in support of their contention that such an act does not in fact constitute an intervening cause.

The facts of that case are very similar to the case sub judice. There, an arsonist set fire to a hotel, injuring patrons who attempted to flee over a negligently maintained open stairwell. The defendants in that trial attempted to defend on the ground of intervening cause (the arsonist).

In rejecting the claim, we held that:

'(T)he...