Las Olas Holding Co. v. Demella, 4D16–231

• Decision Date: 19 July 2017
• Docket Number: No. 4D16–231,4D16–231
• Citation: 228 So.3d 97
• Parties: The LAS OLAS HOLDING COMPANY, d/b/a Riverside Hotel, a foreign corporation, Appellant, v. Michael DEMELLA, a/p/r of the Estate of Alana Demella, Appellee.
• Court: Florida District Court of Appeals

228 So.3d 97

The LAS OLAS HOLDING COMPANY, d/b/a Riverside Hotel, a foreign corporation, Appellant,

v.Michael DEMELLA, a/p/r of the Estate of Alana Demella, Appellee.

No. 4D16–231

District Court of Appeal of Florida, Fourth District.

[July 19, 2017]

Hinda Klein of Conroy Simberg, Hollywood, for appellant.

Gary M. Farmer, Sr., Gary M. Farmer, Jr., and Bradley J. Edwards of Farmer Jaffe Weissing Edwards Fistos & Lehrman, P.L., Fort Lauderdale, and Daniel W. Cotter of The Maher Law Firm, Winter Park, for appellee.

Forst, J.

The Las Olas Holding Company d/b/a Riverside Hotel ("Riverside") appeals a negligence award in favor of the plaintiff, Michael Demella, as personal representative of the estate of his late wife, Alana Demella. The plaintiff sued Riverside for negligence related to a tragic incident in which an intoxicated driver recklessly drove her car into a wall of Riverside's pool cabana. This caused a collapse of the structure and killed the plaintiff's pregnant wife, who was a guest of Riverside. The jury returned a verdict finding Riverside's negligence was a partial cause of this death. On appeal, Riverside makes several arguments, one being that the trial court should have granted its motion for a directed verdict on the issue of negligence. As set forth below, we agree with this argument and therefore reverse and remand with instruction for the trial court to grant Riverside's motion. This opinion also briefly addresses several impermissible comments made by the plaintiff's counsel during opening and closing arguments.

Background

Shortly after one p.m. on a Sunday, Rosa Rivera Kim ("Kim") was driving east on SE 4th Street, also known as Sagamore Road ("Sagamore Road"), in Fort Lauderdale. Kim's blood alcohol content at the time of the incident was later determined to be three times the legal limit. As Kim approached a curve in the road, she allegedly failed to turn her steering wheel, failed to move her foot from the gas pedal to the brake pedal, and accelerated straight into Riverside's cabana which was located about fifteen feet away from the road.¹ The force of the impact collapsed the walls of the structure, killing Ms. Demella and slightly injuring her husband, the plaintiff. The latter, as personal representative of his wife's estate, sued Kim and Riverside for negligence. The jury ultimately found both Riverside and Kim responsible and awarded total damages of $24,057,283.00. The jury found that Kim's negligence caused eighty-five percent of the damages, and that Riverside's negligence caused the remaining fifteen percent. Accordingly, the plaintiff was awarded $3,608,592.45 in damages from Riverside.

At trial, the plaintiff introduced evidence to support the argument that Riverside's negligence caused the victim's death. The plaintiff introduced several aerial photographs showing that, as Sagamore Road curves, motor vehicles at one point travel straight toward the cabana before turning right. The plaintiff argued that the physical layout of the road created a foreseeable zone of risk encompassing the cabana. To buttress its case, the plaintiff utilized an expert who specialized in barriers and low speed accidents. The expert testified that if Riverside had placed palm trees in front of the cabana, the deadly incident may not have occurred.² However, per photographs taken of the premises prior to the incident, to reach the outer wall of the cabana—fifteen feet from the road—a vehicle would need to "jump" an approximately three-inch curb, cross a sidewalk, drive through a wall of bushes, and avoid hitting both a utility pole and a palm tree.

The plaintiff also sought to show that the road in front of the cabana was dangerous due to speeding. He introduced an email in which Riverside's then-general manager told the City Commissioner in 2011,

Sagamore Street at my hotel seems like a race track. My customers cross this street to get to the pool and the marina. My valet staff crosses the street to get to cars out of valet lots. Numerous times, I have seen cars drive this road at above the speed limit and nearly hit somebody. We need to do something to slow down that traffic and make sure—and clearly make the two crosswalks. I would love to meet with the traffic engineer to discuss some ideas.

The plaintiff then presented several former Riverside employees who testified that they and Riverside had known about the speeding on Sagamore Road. A former Riverside executive explained that he received "multiple reports from coworkers regarding concerns about speeding on [Sagamore Road]," and a former employee likened the road to I–95. The plaintiff also presented evidence that Riverside had previously erected, on at least two occasions, stop signs to slow traffic. Riverside's witness, who was an engineer for Broward County, later explained that the county removed the signs after conducting a traffic study and finding that the road did not merit them.³ To counter this traffic study, the plaintiff presented a separate study conducted by the county in 2011 which showed that about fifteen percent of vehicles sped on Sagamore Road on the day of observation. However, even though the study recognized that there was speeding, it contained the conclusion of an engineering technician that there were no "sight-distance limitations or other physical conditions that would indicate Southeast 4th [was] operating in an unsafe manner."

At the conclusion of the plaintiff's case, Riverside moved for a directed verdict. Riverside argued that the plaintiff "failed to sustain the burden of demonstrating that before this accident happened it was reasonably foreseeable that [an incident of this nature] would take place on [Riverside's] premises." Riverside noted that the cabana had complied with all building codes and zoning regulations since its creation in 1963. Moreover, while conceding that the plaintiff's evidence showed that there was some speeding on the road, Riverside argued that the speeding posed a foreseeable threat only to invitees crossing that road, and not to individuals in the cabana. Riverside also noted that, in the more than forty-nine-years of the road's existence, there had never been an off-road accident.⁴ The trial court was ultimately unpersuaded, and denied Riverside's motion.

Following the denial of its motion, Riverside presented its own evidence. First, it submitted expert testimony by a professional structural engineer who opined about the structural integrity of the cabana at the time of the incident. The engineer explained that the cabana contained solid concrete columns reinforced with steel and that each column weighed about one thousand pounds. Between the concrete columns was wood siding. Relying primarily on the pictures of the aftermath of the incident, the engineer concluded that when Kim crashed into the cabana, her vehicle mainly struck one of these concrete columns, knocking it back twelve feet. The expert calculated that Kim's car had to generate about 40,000 to 43,000 pounds of force to shear the column off its base and, in order to generate such force with her car, Kim must have been driving about fifty-three to fifty-four miles per hour.

Riverside then presented a second engineer who was an expert in traffic engineering and accident reconstruction. The expert began by noting that Sagamore Road was only three blocks long, situated in a central business district filled with shops, restaurants, and residences. The expert then focused on the road's curve, concluding it was "not a problem." The road lanes were a standard twelve feet wide. The radius of the road's curve was "right in line with typical curves in urban areas with a 25–mile-per-hour speed limit." There were also no sight limitations. The pavement was clearly marked, and a driver could tell from 600 feet away that the road would curve. The expert concluded, "And all of the factors: speed, volume, curvature, width, length, you name it, all indicated that this was a roadway that's functioning very well and does not have problems with its curve."

The same expert then testified that, based on historical data from various city and county documents, there had never been a car crash at or near the curve from 1963 until 2012. The expert then discussed the traffic volume on the road, estimating that about thirty million cars had driven on it from 1963 until 2012. In light of the historical data and volume statistics, the expert concluded that the chances of a car crash happening at the time of the instant drunk driving incident were "statistically as close to zero as you can get in a roadway transportation system." At the conclusion of the case, once the jury returned a verdict finding Riverside partly responsible, Riverside renewed its motion for a directed verdict, and the trial court again denied it.

Riverside also moved for a mistrial during opening and closing arguments because of various statements made by the plaintiff's counsel. In particular, the plaintiff's counsel stated during opening that, "the reason why we are in this courtroom today is that this corporation has refused to accept any responsibility for its role in this death." Riverside objected to this statement, and the trial court sustained the objection. Nevertheless, counsel made a similar statement moments later: "They will look at everyone else's conduct but their own. And these are defenses that are just attempts to avoid responsibility." In closing, when seeking damages for wrongful death, counsel remarked:

What do we put price tags on in our society today? What is it? I mean, if we—what do we pay LeBron James for the excitement that he brings? ... We pay $30 million a year for the value that he brings to Miami. We pay a boxer $180 million for 12 rounds of boxing. We pay this expert $500 an hour. If her life is worth what that expert .... If her life is worth that type of enjoyment, those are just ways to come about: What is this really worth? ....

The two arguments raised by...