Wal-Mart Stores, Inc. v. McDonald

• Citation: 676 So.2d 12
• Decision Date: 11 June 1996
• Docket Number: WAL-MART,No. 95-1612,95-1612
• Parties: 21 Fla. L. Weekly D1369 STORES, INC., a corporation, and Merrill Crossings Associates, a Florida general partnership, Appellants, v. Lawrence Howard McDONALD, individually, Renee Helen McDonald, individually, Lawrence Howard McDonald, III, individually, and Mathew Adam McDonald and Ashlee Elizabeth McDonald, by and through their natural guardian and next best friend Lawrence Howard McDonald, Appellees.
• Court: Court of Appeal of Florida (US)

Page 12

676 So.2d 12

21 Fla. L. Weekly D1369

WAL-MART STORES, INC., a corporation, and Merrill Crossings Associates, a Florida general partnership, Appellants, v. Lawrence Howard McDONALD, individually, Renee Helen McDonald, individually, Lawrence Howard McDonald, III, individually, and Mathew Adam McDonald and Ashlee Elizabeth McDonald, by and through their natural guardian and next best friend Lawrence Howard McDonald, Appellees.

No. 95-1612.

District Court of Appeal of Florida,

First District.

June 11, 1996.

Rehearing Denied July 25, 1996.

Jeffrey P. Gill, of Bridgers, Gill & Holman, Pensacola, for Appellant/Cross-Appellee Wal-Mart Stores, Inc.

Richard A. Sherman & Rosemary B. Wilder, of Law Office of Richard A. Sherman, P.A., Fort Lauderdale, and Noah H. Jenerette, of Boyd & Jenerette, P.A., Jacksonville, for Appellant/Cross-Appellant Merrill Crossings Associates.

Jeffery B. Morris, of Morris & Bernard, Jacksonville; Daniel A. Smith, Jacksonville, for Appellees.

MICKLE, Judge.

Wal-Mart Stores, Inc. ("Wal-Mart"), appeals both 1) a final judgment in which Wal-Mart and the other defendant below, Merrill Crossings Associates ("Merrill Crossings"), were found jointly and severally liable for total economic damages to appellee Lawrence Howard McDonald and other members of his family ("McDonald"); and in which Wal-Mart was found liable for an additional sum for total non-economic damages; and 2) a final judgment on Count I in Merrill Crossings' cross-claim against Wal-Mart. Merrill Crossings cross-appeals the final judgment and cost judgment entered in favor of McDonald as well as the order denying its post-trial motions. We affirm the judgments, and we certify two questions of great public importance.

Lawrence Howard McDonald was shot and injured by an unknown assailant on the night of July 30, 1993, in a shopping center parking lot outside a Wal-Mart Store in Jacksonville. Mr. McDonald and other members of his family, the appellees, brought a personal injury lawsuit against Wal-Mart and against the owner and developer of the shopping center, Merrill Crossings, Wal-Mart's lessor. McDonald's complaint against Wal-Mart and Merrill Crossings alleged that the appellants had failed to employ reasonable security measures and that this omission resulted in the shooting of McDonald. The appellants answered by denying their liability and asserting that McDonald's injuries had been caused by a non-party to the lawsuit. The jury found Wal-Mart 75 percent negligent, Merrill Crossings 25 percent negligent, and McDonald not negligent at all. As a result of a summary judgment entered before trial, Merrill Crossings moved for and was granted final judgment on Count I of its cross-claim for indemnity against Wal-Mart in the amount of its liability to McDonald plus attorney's fees and costs. The appellants filed motions for new trial and judgment notwithstanding the verdict, all of which were denied. The appellants allege several errors on appeal.

Failure to Admit Into Evidence Crime Data From a Different Mall

The appellants contend that the trial court erred by not admitting certain reports of crimes committed in the vicinity of a much larger regional retail center in Jacksonville, Regency Square Mall. The records in question relate to the appellants' efforts to show that prior to McDonald's shooting at Merrill Crossings' shopping center, the same perpetrator attempted an armed robbery of a bank patron at an automated teller machine on the same evening five miles away across a service road from Regency Square Mall. The bank site had no security, but there was security about 200-400 yards away at the mall. The parking lot in which McDonald was shot did not have security on the date of the incident. We conclude that the appellants did not lay an adequate predicate showing how the two locations and circumstances are "substantially similar." Frazier v. Otis Elevator Co., 645 So.2d 100 (Fla. 3d DCA 1994). We note that the appellants have not demonstrated prejudice, as the lower court permitted Wal-Mart's expert to use the "calls to service" records as a basis for his opinions, and Wal-Mart's counsel was allowed to mention that the expert had referred to these records. Accordingly, the trial court did not abuse its discretion in excluding the records. Forester v. Norman Roger Jewell & Brooks Intern., Inc., 610 So.2d 1369 (Fla. 1st DCA 1992).

Denial of Merrill Crossings' Motion for Directed Verdict

Merrill Crossings contends that the trial court erred as a matter of law in failing to direct a verdict in its favor. We disagree. A directed verdict should not be entered unless, as a matter of law, no proper view of the evidence could possibly sustain a verdict for the non-moving party. Sun Life Ins. Co. of America v. Evans, 340 So.2d 957 (Fla. 3d DCA 1976). The law in Florida is settled that if a lessor (such as Merrill Crossings) surrenders possession and control of the premises to a lessee (such as Wal-Mart), the lessor will not be liable for injuries to third parties occurring on the premises. Federated Dep't Stores, Inc. v. Doe, 454 So.2d 10 (Fla. 3d DCA 1984); Arias v. State Farm Fire & Cas. Co., 426 So.2d 1136 (Fla. 1st DCA 1983). This is because, generally, the duty to protect third persons from injuries on the premises rests not on legal ownership of the premises, but on the rights of possession, custody, and control of the premises. Kline v. 1500 Massachusetts Ave. Apt. Corp., 439 F.2d 477 (D.C.Cir.1970); Bovis v. 7-Eleven, Inc., 505 So.2d 661, 663-64 (Fla. 5th DCA 1987).

The premises in question here are the shopping center parking lot outside the Wal-Mart, where the assailant shot McDonald soon after McDonald and his girlfriend exited the store and got to their vehicle. The specific site is designated in the record as within the Wal-Mart Tax Plat Area. Both a landlord and a tenant can have concurrent duties to provide reasonably safe premises. City of Pensacola v. Stamm, 448 So.2d 39 (Fla. 1st DCA), rev. den., 456 So.2d 1181 (Fla.1984); Bovis, 505 So.2d at 661. The lease between Merrill Crossings and Wal-Mart did not specifically address security. Even if we assume that the lease placed the greater share of general duties and responsibilities upon Wal-Mart, we conclude there is competent substantial evidence showing that Merrill Crossings exercised some control over the shopping center parking lot and public access thereto. Bovis, 505 So.2d at 664 (duty to protect others from dangerous condition on premises rests on right to control access to third parties). Thus, neither of the appellants exercised the type of exclusive control over the parking lot that existed in Publix Super Markets, Inc. v. Jeffery, 650 So.2d 122 (Fla. 3d DCA 1995) (tenant/grocery store was not liable to invitee who was shot as he attempted to stop purse-snatcher in shopping center parking lot adjacent to tenant's store, where responsibility to provide security guards, to patrol common areas, and to warn of prior criminal attacks in lot had been assumed entirely by landlord/shopping center pursuant to lease), and in Federated Dep't Stores, 454 So.2d at 10. Viewed in a light most favorable to the appellees as non-movants, the evidence supports the ruling. Sears, Roebuck & Co. v. McKenzie, 502 So.2d 940 (Fla. 3d DCA), rev. den., 511 So.2d 299 (Fla.1987).

Merrill Crossings' Cross-Claim Issue

Merrill Crossings brought a cross-claim against Wal-Mart for breach of contract in Count I, alleging 1) that the lease agreement required lessee Wal-Mart to obtain liability insurance to cover Merrill Crossings in the tax plat area where the shooting occurred and 2) that Wal-Mart failed to meet this obligation. Merrill Crossings claimed entitlement to indemnity against Wal-Mart. Wal-Mart denied having breached an agreement, and it claimed that the lease obligated Wal-Mart only to provide coverage for itself and Merrill Crossings on "the demised premises," an area comprising the store and its garden center but not the parking lot, pursuant to sections (1)(A) and (12)(A) of the lease. On the other hand, Merrill Crossings relied on section (12)(B) of the lease, which provided that the lessor shall maintain insurance "on the Common Areas (except the Wal-Mart Tax Plat Area)." The trial court determined that the appellants "foresaw the risk from premises liability and clearly bargained for a contractual provision with the intent to shift the risk of loss onto a liability insurer." The court granted Merrill Crossings' motion for summary judgment and denied Wal-Mart's motion for summary judgment on this issue. The effect of the ruling is that, to the extent Merrill Crossings sustained damages in McDonald's lawsuit by Wal-Mart's failure to procure such insurance for the tax plat area, Wal-Mart would be liable to Merrill Crossings for breach of contract and for reimbursement to the lessor for damages. Final judgment was entered in favor of Merrill Crossings on its cross-claim against Wal-Mart. The movants agreed that the issue before the trial court was solely a question of law, namely, whether the lease required Wal-Mart to require liability insurance to protect Merrill Crossings from premises liability at the site of the shooting. National Luggage Services, Inc. v. Reedy Forwarding Co., Inc., 339 So.2d 305 (Fla. 3d DCA 1976) (where liability rests on construction of written instruments and their legal effect, issue is one of law and is properly determined by summary judgment). We affirm the rulings on the appellants' motions for summary judgment, as these determinations come to us clothed in a presumption of correctness, and Wal-Mart has not shown the rulings to be clearly erroneous. Randy Intern., Ltd. v. American Excess Corp., 501 So.2d 667 (Fla. 3d DCA 1987); Gars v. Woodard, 214 So.2d 385, 386 (Fla. 3d DCA 1968).

Exclusion of Intentional Criminal Attacker From Verdict Form

The trial court held that because the perpetrator who shot McDonald had committed an...