CHRISTOPHER PAUL SHERWOOD v. QUIETWATER ENTERTAINMENT, INC., d/b/a CAPT'N FUN BEACH BAR, d/b/a JUBILEE RESTAURANT & OYSTER BAR
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
CHRISTOPHER
SHERWOOD,
NOT FINAL UNTIL TIME EXPIRES TO
P A U L FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D04-0763
v.
Q U I E T W A T E R
ENTERTAINMENT, INC., d/b/a
CAPT'N FUN BEACH BAR, d/b/a
JUBILEE RESTAURANT &
OYSTER BAR,
Appellees.
___________________________/
Opinion filed July 5, 2005.
An appeal from the Circuit Court for Escambia County.
Linda Nobles, Judge.
Bobby J. Bradford, of Green & Bradford, P.A., Pensacola, for Appellant.
Kathy J. Maus and James P. Waczewski, of Butler, Pappas, Weihmuller, Katz, Craig,
LLP, Tallahassee, for Appellees.
BROWNING, J.
The trial court concluded that Appellee did not owe a duty of care to Appellant
and entered summary judgment in Appellee’s favor on Appellant’s personal injury
claim seeking damages arising from his grievous injuries. Appellant argues that the
trial court reversibly erred; we agree and reverse.
Background & Facts
Appellant suffered injury from a physical altercation with an undetermined
assailant at the “Bushwacker” Festival (“Festival”) sponsored by Appellee. He
sought damages for such injuries from Appellee and others. The Festival is a “goodtime event” featuring food and libations and showpiecing an alcoholic beverage
named “Bushwacker” that provides the Festival’s name. While attending the
Festival, Appellant became embroiled in an altercation with another person on Santa
Rosa Island Authorities’ (SRIA) boardwalk, which spilled over into SRIA’s parking
lot, where Appellant was slugged by an undetermined person. Appellant was
knocked down by the blow and struck his head on the parking lot pavement, resulting
in his paralysis. He seeks damages for these injuries.
Appellee is SRIA’s lessee, which, other than during the Festival, retains
exclusive control over the parking lot where Appellant was injured. Because the
Festival requires more space and security, and draws an extraordinary number of
invitees, SRIA required Appellee to sign a temporary-use agreement.
Such
agreement permitted Appellee to use its “public facilities” and required Appellee to
be responsible for, and fully compensate, the additional security personnel prescribed
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by the Escambia County Sheriff’s Department and furnished by off-duty deputy
sheriffs to augment their incomes.
The temporary-use agreement does not define “public facilities”; however, the
permanent lease between Appellee and SRIA defines it as follows:
The term “public facilities” or “public portions” or “public
areas” as used in this lease agreement shall refer to those
portions of the demised premises which are open to the
public on a regular non-fee basis and which do not
contribute income to the Lessee, its sublessors or assigns.
All public rest room facilities, public picnic areas, the
amphitheater, board walk, beach front and dock and
parking areas shall be deemed “public facilities.”
(Emphasis added.) Furthermore, Mary Bolman, SRIA’s manager in charge of
leasing, testified in deposition that the temporary-use agreement gave Appellee the
right to place beverage and food stands on the parking lot and to use it as a staging
area for bands, etc., as well as for use by Appellee’s invitees attending the Festival.
Appellant maintains that Appellee owed to him a legal duty of care as
Appellee’s invitee to the Festival, because Appellee created a foreseeable zone of risk
by hosting the Festival and breached that duty by not providing adequate provision
of security for the Festival. Further, Appellant alleges that Appellee, as a temporary
lessee (entitled to, and exercising, control over SRIA’s parking lot
during the Festival), owed Appellant a legal duty of care. After extensive discovery,
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Appellee renewed its previously denied motion for summary judgment, and the trial
court agreed. The trial court reasoned:
Additionally, the record evidence establishes that the Santa
Rosa Island Authority (SRIA) retained exclusive control
over the parking lot. There is no record evidence that the
SRIA surrendered control of the parking lot or that
defendant assumed permanent, on-going control of the
parking lot. As such, Defendant owed no duty of care to
Plaintiff in the parking lot. Federated Dept. Stores v. Doe,
454 So. 2d 10 (Fla. 3rd DCA 1984). See also Publix
Supermarkets v. Jeffery, 650 So. 2d 122 (Fla. 3rd DCA
1995).
Analysis
The standards for entry of a summary judgment are well-known and will not
be repeated. See Moultrie v. Consol. Stores Int’l Corp.,764 So. 2d 637 (Fla. 1st DCA
2000).
Whether Appellee owed a duty of care to Appellant requires a review of the
test for determining the existence of a legal duty in a negligence action. The
principal case is McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992), in
which the Florida Supreme Court held that a legal duty is created when a defendant’s
conduct creates a foreseeable zone of risk of harm to others. See id. at 503. This
principle has been applied to bar owners, making them liable for foreseeable harm
precipitated by third persons on invitees, both on the premises and off. See Stevens
v. Jefferson, 436 So. 2d 33 (Fla. 1983); Holiday Inns, Inc. v. Shelburne, 576 So. 2d
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322 (Fla. 4th DCA 1991). Of course, the risk of harm must be foreseeable, and
whether the duty is breached varies with the facts and circumstances of each case.
Applying these principles to the record facts here, we conclude that the entry
of summary judgment was inappropriate. The Festival is based upon drinking and
revelry, which create large crowds and, based upon Festival history and human
nature, create an abnormal number of fights and unruly conduct. That Appellee is
aware of these risks is clear; the temporary-use agreement provides for additional
insurance to cover SRIA’s potential liability and additional security, to be provided
at Appellee’s expense. These circumstances create genuine issues of material fact
as to the existence of, and breach of, a duty of care owed by Appellee to Appellant
for injuries arising out of inadequate Festival security.
Moreover, a lessee of a parking lot owes a concurrent duty with its lessor to
provide a reasonably safe premises as a specific part of the zone of risk consideration.
See Wal-Mart Stores, Inc. v McDonald, 676 So. 2d 12 (Fla. 1st DCA 1996). Here,
Appellee, under the temporary-use agreement, secured the right, albeit temporary, to
use and control SRIA’s parking lot. Appellee cannot avoid its legal duty of care to
its invitees under McDonald simply because the use and control were not permanent,
as determined by the trial judge. A duty of care is owed by the lessee to invitees
under McDonald, whether the control is temporary or permanent.
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Appellee argues that it did not control the parking lot under the temporary-use
agreement and, therefore, owes no duty of care to Appellant; however, that argument
cannot be resolved on summary judgment. The definition of “public facilities”
adopted in Appellee’s permanent lease with SRIA includes the parking lot, and
SRIA’s general manager in charge of leasing testified that the temporary-use
agreement included the parking lot. How this issue may be resolved as this
proceeding progresses cannot be determined now, and summary judgment on that
issue is inappropriate.
Nor can the trial judge’s ruling be sustained on the authority of Publix Super
Markets, Inc., v. Jeffery, 650 So. 2d 122 (Fla. 3rd DCA 1995); and Federated Dep’t
Stores, Inc. v. Doe, 454 So. 2d 10 (Fla. 3rd DCA 1984), as argued by Appellee. These
cases are substantially distinguishable. In neither case is a risk factor presented, as
is the case here. The Publix and Federated parking lots were for general mall
customers, and not for a festival that historically produced a large crowd and
occurrences of unruly conduct. Moreover, there was no question of joint control,
either permanent or temporary, of the parking areas involved in those situations at the
time of the assaults, as we have here under the temporary-use agreement. For these
reasons, we conclude Publix and Federated are not controlling.
Accordingly, we REVERSE and REMAND for further proceedings.
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WEBSTER, J., CONCURS; BARFIELD, J. DISSENTS WITH OPINION.
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BARFIELD, J., dissenting.
I would affirm the summary judgment. The undisputed evidence shows that
the temporary use agreement clearly defined the "public facilities" as Jubilee
Restaurant Complex & Boardwalk with an attached schematic outlining the entire
boardwalk and no mention of the parking lot. The testimony of Mary Bolman
consistently stated that the booths were limited to the boardwalk and added that a
motorhome was set up in the parking lot for use of the entertainers. It was never
described as a facility for invited guests.
There is no evidence that an altercation began on the boardwalk and "spilled
over into SRIA's parking lot." The only evidence shows that a telephone was located
at the curb adjacent to the parking lot. James Hess had left the boardwalk,
descending a ramp to the parking lot. He was at the telephone when plaintiff
approached. They had words which continued when they moved farther out into the
parking lot. The evidence does not show the boardwalk was implicated in the
confrontation.
There is no evidence the SRIA ever relinquished any control over the parking
lot or its security. Because increased security was required by SRIA, appellant was
obligated to pay the cost of that security. It had no voice in the selection of the
security or the control of the "public facilities" not described in the temporary use
agreement.
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