Holiday Inns, Inc. v. Shelburne

• Decision Date: 30 January 1991
• Docket Number: Nos. 88-0592,88-0593,s. 88-0592
• Citation: 576 So.2d 322,16 Fla. L. Weekly 341
• Parties: 16 Fla. L. Weekly 341 HOLIDAY INNS, INC., Hospitality Venture, a Texas joint venture of Vista Management, Inc., a Texas corporation, and Leisure Dynamics, Inc., a Texas corporation, and the Insurance Company of North America, Appellants/Cross Appellees, v. Robert SHELBURNE, Lewis Friend, State Farm Insurance Co., Danny Mullin d/b/a Aristocrat Security Company, Lester Carter and Wayne Bennett, Appellees/Cross Appellants. HOLIDAY INNS, INC., Hospitality Venture, a Texas joint venture of Vista Management, Inc., a Texas corporation, and Leisure Dynamics, Inc., a Texas corporation, and the Insurance Company of North America, Appellants/Cross Appellees, v. G. Julius RICE, as Personal Representative of the Estate of David Lamar Rice, deceased, G. Julius Rice, individually and Evelyn Rice, individually, Lewis Friend State Farm Insurance Co., Danny Mullin d/b/a Aristocrat Security Company, Lester Carter and Wayne Bennett, Appellees/Cross Appellants.
• Court: Florida District Court of Appeals

Page 322

576 So.2d 322

16 Fla. L. Weekly 341

HOLIDAY INNS, INC., Hospitality Venture, a Texas joint venture of Vista Management, Inc., a Texas corporation, and Leisure Dynamics, Inc., a Texas corporation, and the Insurance Company of North America, Appellants/Cross Appellees, v. Robert SHELBURNE, Lewis Friend, State Farm Insurance Co., Danny Mullin d/b/a Aristocrat Security Company, Lester Carter and Wayne Bennett, Appellees/Cross Appellants.

HOLIDAY INNS, INC., Hospitality Venture, a Texas joint venture of Vista Management, Inc., a Texas corporation, and Leisure Dynamics, Inc., a Texas corporation, and the Insurance Company of North America, Appellants/Cross Appellees, v. G. Julius RICE, as Personal Representative of the Estate of David Lamar Rice, deceased, G. Julius Rice, individually and Evelyn Rice, individually, Lewis Friend State Farm Insurance Co., Danny Mullin d/b/a Aristocrat Security Company, Lester Carter and Wayne Bennett, Appellees/Cross Appellants.

Nos. 88-0592, 88-0593.

District Court of Appeal of Florida,

Fourth District.

Jan. 30, 1991.

Rehearing and Rehearing En Banc Denied April 10, 1991.

Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., West Palm Beach, for appellants/cross appellees.

John S. Shipley of Searcy, Denney, Scarola, Barnhart & Shipley, and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellees/cross appellants.

OPINION ON REHEARING

HERSEY, Chief Judge.

Appellants' motion for rehearing is granted and our original opinion is vacated and replaced by the following opinion.

These are two consolidated appeals from final judgments against appellants, defendants below, in two personal injury actions and a wrongful death action.

The injuries and the death resulted from an altercation between two groups of individuals who had been drinking at the Rodeo Bar in the Fort Pierce Holiday Inn.

One group was composed of the following couples: the Bennetts, the Smiths, the Carters, and the Parramores. The second group consisted of Robert Shelburne, Scott Turner, David Rice, Lisa Fuston, and others.

On the night of the incident the driver of the car carrying the latter group attempted to park at the Holiday Inn. A security guard prevented him from doing so. Consequently, he parked in the adjacent parking lot of Ingram's Fruit Stand, a business that was temporarily closed.

Both groups spent time in the Rodeo Bar, leaving at closing time. According to the record, as some individuals were moving toward their respective vehicles, they exchanged remarks and ultimately a fight erupted. The evidence shows that during the course of the physical combat Carter shot Turner, Rice, and Shelburne. Rice died from his wounds.

In the subsequent jury trial appellants were found liable and Turner was awarded $3,825,000 for his injuries, Shelburne received $1,000,000, and the Rice interests were awarded $1,000,000. The corporate defendants appeal. We turn our attention first to appellants' contention that they were entitled to a directed verdict.

A. DEFENDANTS' MOTION FOR DIRECTED VERDICT

Generally, the proprietor of a place of public entertainment owes an invitee a duty to use due care to maintain the premises in a reasonably safe condition commensurate with the activities conducted thereon. Central Theatres, Inc. v. Wilkinson, 154 Fla. 589, 18 So.2d 755 (1944). Although not an insurer of a patron's safety, the proprietor of a bar or saloon is bound to use every reasonable effort to maintain order among the patrons, employees, or those who come upon the premises and are likely to produce disorder to the injury or inconvenience of patrons lawfully in the place of business. Stevens v. Jefferson, 436 So.2d 33 (Fla.1983). The risk of harm must be foreseeable, and the determination of a breach of this duty depends on the facts of each individual case. Id.

1. Evidence Not Limited to Prior Similar Acts.

As the initial basis for their argument that the trial court erred in refusing to direct a verdict, appellants maintain that in order to impose a duty upon them, the appellees were required to prove that the appellants had actual or constructive knowledge of prior, similar criminal acts against invitees on their property. Appellants argue that they were not bound to anticipate criminal acts of third persons where, as in the present case, the wrongdoers were complete strangers to them and the victims, and the incident occurred precipitously and off appellants' property. Appellants point out that they are not insurers of the safety of appellees and as a matter of law are not liable for the consequences of Carter's criminal acts. In support of these propositions, appellants rely primarily upon Crown Liquors of Broward, Inc. v. Evenrud, 436 So.2d 927 (Fla. 2d DCA 1983), rev. denied, 447 So.2d 886 (Fla.1984); Highlands Ins. Co. v. Gilday, 398 So.2d 834 (Fla. 4th DCA), rev. denied, 411 So.2d 382 (Fla.1981); Relyea v. State, 385 So.2d 1378 (Fla. 4th DCA 1980), overruled on other grounds, 493 So.2d 1002 at 1005 (Fla.1986); Worth v. Stahl, 388 So.2d 340 (Fla. 4th DCA 1980); and Gottschalk v. Smith, 334 So.2d 102 (Fla. 3d DCA), cert. denied, 341 So.2d 1085 (Fla.1976).

Appellants rely upon this line of cases, specifically Relyea, Worth and Gottschalk, for the proposition that a landowner must have knowledge of prior, similar criminal acts in order to impose a duty to protect invitees from criminal acts of a third person. However, since these cases were decided, the Florida Supreme Court has held differently. Hall v. Billy Jack's, Inc., 458 So.2d 760 (Fla.1984); Allen v. Babrab, Inc., 438 So.2d 356 (Fla.1983); Stevens v. Jefferson, 436 So.2d 33 (Fla.1983).

In Stevens, the widow of a bar patron who was shot and killed in a bar by another patron brought an action against the bar owner. Plaintiff showed at trial that the bar was a "rough" place with a history of fights and gunplay, and that the owner had terminated all security service and had left the premises in the charge of a female employee who could not maintain order. However, plaintiff failed to allege or prove that defendant knew of any dangerous propensities of decedent's assailant, and defendant contended on appeal that plaintiff could not prevail because of that lack of knowledge.

The supreme court affirmed the trial court's judgment against the bar owner. Following the general rule, the court stated that to impose liability on a tavern owner for injuries to patrons intentionally inflicted by third parties, the risk of harm to his patrons must be reasonably foreseeable. In its determination of foreseeability, the court held:

Although knowledge of a particular assailant's propensity for violence is often found to be evidence of foreseeability in these cases, we reject the contention ... that proof of foreseeability should be limited by law to evidence of actual or constructive knowledge of a particular assailant's propensity for violence. 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.

436 So.2d at 35 (emphasis added).

Under the facts proven by plaintiff, the court found that a jury could determine that a foreseeable risk of harm to patrons existed, that the risk was either created or tolerated by defendant, that defendant could have remedied the danger but failed to do so, and that because of that failure to perform his duties, a patron was killed.

In Allen, the supreme court found that implicit in this court's opinion was the view that a tavern owner may be liable for injuries to its patrons caused by the tortious conduct of third parties only if the tavern owner knew or should have known of the dangerous propensities of that specific assailant. However, the court noted that this was the proposition rejected by the court in Stevens.

Allen reiterated the rule set out in Stevens that specific knowledge of an individual's dangerous propensities is not the exclusive method of proving foreseeability. Foreseeability also can be shown by proving that, based on past experience, a proprietor knew or should have known of the likelihood of disorderly conduct by third persons in general which might endanger the safety of the proprietor's patrons. Id. at 357. Furthermore, Allen stated that foreseeability of an intervening cause is a question for the trier of fact. Id.

In Hall, a tavern patron brought a negligence action against another patron and the tavern for injuries sustained in an assault. Plaintiff was assaulted by a patron as he watched a pool game in the tavern. The second district affirmed the trial court's judgment against the assailant. However, in reversing the judgment against the tavern, the district court held that Billy Jack's was not shown to have breached its duty to plaintiff because there was no evidence that Billy Jack's knew or should have known that the assailant would attack plaintiff without provocation.

On application for review, the supreme court noted that the district court had relied upon a theory of liability more narrow than that which the court had enunciated in Allen and Stevens. In accordance with Allen and Stevens, the court held that foreseeability may be established by proving that a proprietor had actual or constructive knowledge of a particular assailant's inclination towards 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. The court in Hall went further than either Allen or Stevens by stating:

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...