Ryan v. Nat'l Marine Mfrs. Ass'n

• Decision Date: 19 December 2012
• Docket Number: No. 3D11–1702.,3D11–1702.
• Citation: 103 So.3d 1001
• Parties: Constance RYAN, as Personal Representative of the Estate of David Collins, Appellant, v. NATIONAL MARINE MANUFACTURERS ASSOCIATION and Oscar Beguiristain, Appellees.
• Court: Florida District Court of Appeals

103 So.3d 1001

Constance RYAN, as Personal Representative of the Estate of David Collins, Appellant,

v.NATIONAL MARINE MANUFACTURERS ASSOCIATION and Oscar Beguiristain, Appellees.

No. 3D11–1702.

District Court of Appeal of Florida, Third District.

Dec. 19, 2012.

Middlebrooks & Middlebrooks; Burlington & Rockenbach and Andrew A. Harris, West Palm Beach, for appellant.

Clark, Robb, Mason, Coulombe & Buschman and James K. Clark, for appellees.

Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.

EMAS, J.

Constance Ryan, as personal representative of the Estate of David Collins (“Ryan”), appeals a summary final judgment entered in favor of National Marine Manufacturers Association (“NMMA”) and Oscar Beguiristain (“Beguiristain”). We affirm.

In anticipation of the Miami International Boat Show at the Miami Beach Convention Center in 2008, NMMA, the national trade association for the recreational boating industry, entered into an agreement with the Housing Authority of the City of Miami Beach (“the City”). The agreement provided NMMA the right to use a City-owned, private parking lot for the purpose of parking several tractor trailers used in conjunction with the boat show. Entitled a “Temporary License and Use Agreement” (“Agreement”), this Agreement was effective from January 28, 2008 through February 22, 2008.

On the afternoon of February 7, 2008, David Collins wandered onto the subject property, climbed under a parked and unhitched trailer, and fell asleep. Shortly thereafter, Beguiristain, an NMMA employee, drove his truck onto the property to unload one trailer and pick up another trailer. After unloading and unhitching the first trailer, he backed up his truck to the trailer under which Collins was sleeping, hitched the trailer to his truck, and pulled out, running over Collins and causing injuries which later led to his death. After an investigation, it was determined that Beguiristain was not aware Collins was under the truck. The investigation also revealed that, at the time of his death, Collins had a blood alcohol level of nearly three times the legal limit. ¹ Beguiristain was not cited for the incident, but Collins' mother Ryan, the personal representative of his estate, filed suit against Beguiristain and NMMA, alleging Beguiristain was negligent in failing to maintain a proper look-out during operation of the tractor-trailer and/or in failing to “check around and under the tractor-trailer so as to avoid striking a pedestrian in the vicinity,” causing him to run over Collins, resulting in his death.

NMMA and Beguiristain moved for summary judgment, asserting they were not liable for Collins' death, pursuant to section 768.075(1), Florida Statutes (2009), which provides:

a person or organization owning or controlling an interest in real property, or an agent of such person or organization, shall not be held liable for any civil damages for death of or injury or damage to a trespasser upon the property when such trespasser was under the influence of alcoholic beverages with a blood-alcohol level of 0.08 percent or higher.... ²

(Emphasis added).

Ryan argued section 768.075 did not apply because NMMA and Beguiristain were licensees and did not control an interest in the property. The trial court found the immunity provision applicable, granted NMMA's motion and entered final summary judgment in favor of NMMA and Beguiristain. This appeal followed.

Our standard of review is de novo, Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000), and summary judgment is proper only if, viewed in a light most favorable to the non-moving party, there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law. Id. In addition, whether a defendant in a negligence action owes a duty to the plaintiff is a question of law. Williams v. Davis, 974 So.2d 1052 (Fla.2007).

The sole question we must determine is whether, as a matter of law, NMMA and Beguiristain are entitled to the immunity provided by section 768.075, Florida Statutes.³ Ryan argues that because the Agreement between NMMA and the City was a license, NMMA did not have exclusive control of the property and cannot avail itself of the immunity provision. NMMA asserts its Agreement with the City, although titled a “Temporary License and Use Agreement,” was actually a short-term lease, granting NMMA exclusive control of the property and thereby the protection afforded by the immunity provision. ⁴

A review of the Agreement reveals the following relevant provisions:

— The Agreement is entitled “Temporary License and Use Agreement.”

— The Agreement describes a particular piece of property, which is identified by exact address and is described as the “the Premises”.

— The Agreement is for a set term beginning on a date certain and ending on a date certain (a total of 26 days), referred to as “the Term” of the Agreement.

— The parties agreed that “this agreement constitutes a month-to-month agreement.”

— NMMA was required to pay a “security deposit” of $3445 at the time of execution of the Agreement.

— NMMA was required to “quit and deliver the Premises ... at the end of the term....”

— NMMA was required to pay “any and all sales and use taxes levied upon the use and occupancy of the Premises.”

— NMMA agreed “that it will occupy and maintain the Premises in a good condition” and “will not commit, or suffer to be committed, any waste of or on the Premises.”

— NMMA agreed that it “will not assign this Agreement, or any interest therein” and “may not sublease without the prior written agreement” of the City.

— NMMA was required to “properly maintain the gated entranceway and all vehicles coming on the Premises, and shall be responsible for all automobiles on the Premises at all times during this Agreement.”

— NMMA agreed that the City “shall have the right to enter upon the Premises at such times and at such places during reasonable business hours, for the purpose of inspecting the Premises or for any purpose whatsoever.”

— Nothing contained in the Agreement was to be construed as creating any relationship between the parties “other than the relationship of [the City] as owner/licensor and NMMA as licensee.”

— NMMA was required to provide a minimum of one million dollars in liability and personal property insurance coverage “related to NMMA's possession of the Premises....”

— In the event NMMA failed to perform any of the terms and conditions of the Agreement, the City was required to give NMMA a five-day written notice to cure a default. The five-day written notice also...