IN THE SUPREME COURT STATE OF FLORIDA RESPONDENT'SANSWERBRIEF ON THE MERITS

Transcription

1 I tcdromcalk Fikd 05/31/20l3 09:23:5F Mi ET RECE]VED. 5/.11/ JN ih I homas D. Ela]L Clerk. Supreme Court IN THE SUPREME COURT STATE OF FLORIDA DEBBIE WEBER, as Personal Representative of the Estate of NICOLE MICHELE WEBER, Deceased, vs. Petitioner, MARINO PARKING SYSTEMS, INC.. ) Case No: SC ) ) ) Lower Tribunal Case No(s): ) Second District Court of Appeal ) 2Dll-3745 ) Collier County Circuit Coud ) CA Respondent. ) RESPONDENT'SANSWERBRIEF ON THE MERITS Christopher E. Mast, Psquire CHRISTOPHER E. MAST. P.A. Florida Bar No: * Avenue Nonh Naples, Horida (239) Fax: (239)

2 Table of Contents Table of Contents...i Table of Authorities...iii I. Statement of Case...1 II. Statement of Facts...3 III. Summary of Argument...4 IV. Standard of Review...6 V. Argument The Second District Court of Appeals correctly affirmed the Trial Court's granting of the Respondent's Motion for Dismissal, Respondent's status as a bailee of the non-party's automobile is outside the scope of the Florida Supreme Court's adoption of 390 of Restatement (second) of the Law of Torts (1965) in Kitchen v. K-Mart Corporation. A. Argument on the Merits The Second District Court of Appeals correctly affirmed the Trial Court's granting of the Respondent's Motion for Dismissal, Florida Law does not recognize a duty on the part of a bailee valet service to a third party injured following the return of an automobile to an intoxicated bailor owner. A. Argument on the Merits

3 3. Legislative policy noted by this Court in Kitchen v. K-Mart Corporation limiting the liability of a vendor of alcoholic beverages, precludes expansion of liability through judicial approval of a previously unrecognized cause of action against a valet service to a third party injured following the return of an automobile to an intoxicated owner operator. A. Argument on the Merits...22 VI. Conclusion...27 Certificate of Service...28 Certificate of Compliance with Font Size

4 Table of Authorities Cases: Avis Rent-A-Car System, Inc., v. Harrison Motor Company, 151 So. 2d 855, 856 (Fla. 2"d DCA 1963)...15 Bankston v. Brennan, 507 So. 2d 1385 (Fla. 1987)...9, 22, 23, 24, 26 Barnes v. B.K. Credit Service, Inc., 461 So. 2d 217 (Fla. 1" DCA)...20 Blocker v. WJA Realty Limited Partnership, 559 So. 2d 291 (Fla. 2nd DCA 1990)...6, 17, 18, 19, 20, 21 Boutilier v. Chrysler Insurance Company, 14 Fla. L. Weekly Fed. D 231 (M.D. Fla. 2001)...9 Dunham v. State, 140 Fla. 754, 192 So. 324 (Fla. 1939)...10 Frankel v. Fleming, 69 So. 2d 887 (Fla. 1954)...12, 13 Horne v. Vic Potamkin Chevrolet, 533 So. 2d 261 (Fla. 1988)...8, 10, 21, 22, 23, 24, 26 Insurance Company of State of Pennsylvania v. Guzman, 421 So. 2d 597 (4th DCA 1982)...14 Kitchen v. K-Mart Corp., 697 So. 2d 1200 (Fla. 1997)5, 6, 7, 8, 9, 10, 11, 18, 21, 22, 23, 24, 25, 26, 27 Knighten v. Sam's Valet Service, 206 Cal. App. 3"d 69, 74, 253 Cal. Rptr. 365, 366 (1988)...18, 19 Meeks v. Florida Power & Light, 816 So. 2d 1125, 1129 (Fla. 5th DCA 2002)

5 Mills v. Continental Parking Corporation, 86 Nev. 724, 475 P. 2d 673 (1970)...19, 20 Ming v. Interamerican Car Rental, Inc., 913 So. 2d 650 (5th DCA 2005)...16 Reed v. Black Caesar's Forae Gourmet Restaurant, Inc., 165 So. 2d 78 (Fla. 3'd DCA 1965)...20, 21, 22 Reserve Insurance Co., v. Gulf Florida Terminal Co., 386 So. 2d 550 (Fla. 1980)...14 Simon v. Tampa Electric Company, 202 So. 2d 209, 211 (Fla. 2"d DCA 1967)...6, 17 State Fruit Co., v. Eagle Lake Growers, Inc., 33 So. 2d 838 (Fla. 1948)...15 Thomas v. Parras, 562 So. 2d 786 (Fla. 2"d DCA 1990)...18 Villanueva v. Youngblood, 927 So. 2d 955 (2"d DCA 2006)...16 Warren v. K-Mart Corp., 765 So. 2d 235, 236 (Fla. l ' DCA 2000)...7 Weber v. Marino Parkine Systems, Inc., 100 So. 3'd 729 (2"d DCA 2012)...3, 6, 7, 11, 16, 25 Williams v. Bumpass, 568 So. 2d 979 (Fla. 5th DCA 1990)...6, 11 Statutes: , Fla. Stat. (1981)...8, , Fla. Stat (2010)...13, , Fla. Stat. (1983)...9, 16, 24, 26 1V

6 Rules: 390 of Restatement (second) of the Law of Torts (1965)...7, 9, 10, 11 v

7 L Statement of the Case. While Respondent, Marino Parking Systems, Inc., generally accepts the Petitioner's Statement of the Case for purposes of this Appeal, Respondent has provided some amplification, clarification, context or explanation where needed. The record does not demonstrate any specific factual allegation as to this Respondent, Marino Parking System, Inc., that the Decedent, Nicole Michele Weber, was killed by a "visibly intoxicated" driver that was "handed the keys to his car." Petitioner's Brief, pp. 1. Instead, the initial record reference is specific to the claim pending against the Defendant, 2 3/8 LLC d/b/a Sway Lounge, which is not a party to this appeal, R , and the latter factual allegation no where appears as a specific factual allegation in the record pertinent to this Respondent, Amended Complaint R Rather, the specifics of the record as to this Respondent reflect that on or about September 23, 2007, the Respondent, Marino Parking System, Inc., operated a valet service at 2 3/8 LLC d/b/a Sway Lounge located in Naples, Florida. R. 36. The Respondent, Marino Parking System, Inc., allowed the non-party, Michael Allen Price, Jr., to take his keys, knowing that he was already impaired and knew or should have known that Michael Allen Price, Jr., was well above the legal limit of intoxication at the time he requested his keys to leave 2 3/8 LLC d/b/a Sway Lounge in Naples, Florida. R

8 Michael Allen Price, Jr., was subsequently involved in an automobile wreck in which Mr. Price, driving under the influence of alcohol, wrecked his vehicle, ultimately killing the Decedent, Nicole Michele Weber. R Following the Decedent's death, the record reflects Appellant, Debbie Weber, as Personal Representative of the Estate of Nicole Michele Weber, Deceased, filed an initial complaint on September 17, 2009, against Defendants 2 3/8 LLC d/b/a Sway Lounge, a Florida Limited Liability Company, and Marino Parking Systems, Inc., a Florida corporation. R Thereafter, the Appellant filed an Amended Complaint against the Respondent asserting at Count II, only, that the Respondent, Marino Parking System, Inc., had a duty and responsibility to reasonably train and instruct employees regarding intoxication limits and the refusal of Respondent to retum keys to an obviously intoxicated driver, owed a duty to instruct employees to comply with Florida Law and to refuse to return keys to persons over the legal limit for consumption of alcohol and had an obligation to hire and retain employees who had the ability to exercise reasonable judgment in the appearance of inebriated persons. R After service of the Amended Complaint, the Respondent, Marino Parking Systems, Inc., filed a Motion for Dismissal of the Amended Complaint on November 12, 2009, R , based on the two fold argument that there is no 2

9 obligation on the part of an operator of a valet service to refrain from returning keys to a person obviously intoxicated above the legal limit or any duty whatsoever from Respondent to a third party injured by an intoxicated owner who then caused injury to a plaintiff and that Respondent's obligation as a bailee was to redeliver the automobile in question to the bailor who delivered it or keep the same until the bailor reclaimed it. R On hearing, the Honorable Cynthia A. Pivacek granted Respondent's Motion for Dismissal of the Amended Complaint with prejudice dismissing Marino Parking Systems, Inc., as a party to the case on July 15, R Subsequently, the Second District Court of Appeal affirmed the Trial Court's dismissal of the Amended Complaint in a published opinion at Weber v. Marino Parking Systems, Inc., 100 So. 3"d 729 (2"d DCA 2012). II. Statement of Facts. The Respondent, Marino Parking Systems, Inc., generally accepts Petitioner's Statement of the Facts but Respondent would provide some amplification, clarification, context or explanation as needed. Thus, the record does not reflect as to this Respondent that the non-party Michael Allen Price, Jr., "consumed copious amounts of alcohol at Sway Lounge in Naples, Florida" or that "Mr. Price who was habitually addicted to alcohol, became noticeably and visibly highly intoxicated" or that "still visibly intoxicated 3

10 Mr. Price left Sway Lounge" or that "despite the fact that Mr. Price was visibly highly intoxicated, Respondent's employee returned the keys..." Petitioner's Brief, pp.2-3. Instead, such record references are specific to the claim at Count I of the Amended Complaint pending against the Defendant, 2 3/8 LLC d/b/a Sway Lounge, which Defendant is not a party to this appeal. R Rather, the record reflects as to this Respondent that the Respondent, Marino Parking Systems, Inc., on September 23, 2007, operated a valet service at 2 3/8 LLC d/b/a Sway Lounge in Naples, Florida. R. 36. At the time the non-party, Michael Allen Price, Jr., requested his keys to leave the premises of 2 3/8 LLC d/b/a Sway Lounge, he was well above the legal limit of intoxication. R. 36. The Respondent, Marino Parking Systems, Inc., despite knowing that the non-party, Michael Allen Price, Jr., was already impaired, would operate an automobile upon leaving the 2 3/8 LLC d/b/a Sway Lounge, and would pose a substantial risk of harm to himself and the Decedent, Nicole Michele Weber; allowed the non-party, Michael Allen Price, Jr., to take his keys. R. 37. The non-party, Michael Allen Price, Jr., subsequently wrecked his automobile resulting in bodily injury to the Decedent, Nicole Michele Weber which caused her death. R IIL Summary of the Argument. The Petitioner's wrongful death claim against Respondent, Marino Parking 4

11 Systems, Inc., fails as a matter of law and the Second District Court of Appeal correctly affirmed the Trial Court's grant of the Respondent's Motion for Dismissal of the Appellant's Amended Complaint with prejudice. The Respondent, Marino Parking Systems, Inc., as a valet service took delivery of the automobile of the non-party, Michael Allen Price, Jr., on mere deposit and upon fulfillment of the purpose of the deposit, the Respondent as the bailee was obligated to redeliver the automobile to the non-party, Michael Allen Price, Jr., as bailor. Similarly, the wrongful death claim fails as a matter of law because Petitioner cannot establish an element necessary to establish a cause of action based on negligence. Namely, Florida Law does not recognize a duty or obligation on the part of a bailee operator of a valet parking service to refrain from returning keys to a person obviously intoxicated above the legal limit or recognize any duty whatsoever from the Respondent to the Petitioner. Lastly, public policy as articulated by this Court in Kitchen v. K-Mart Corp., 697 So. 2d 1200 (Fla. 1997) does not favor an expansion of liability pursuant to judicial approval of a previously unrecognized cause of action against a valet service for returning the automobile keys to an intoxicated bailee based on the legislative policy abrogating a alcohol vendor's liability for common law negligence and authorizing liability only under statute for "willfully and 5

12 unlawfully providing alcohol". Kitchen, supra, at IV. Standard of Review. The Court in Simon v. Tampa Electric Company, 202 So. 2d 209, 211 (Fla. 2nd DCA 1967) discussed the function of a motion to dismiss in the context of a negligence action noting, "the function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. For purposes passing upon a motion to dismiss the court must assume all facts alleged in the complaint to be true. Consequently a motion to dismiss a complaint must be decided on questions of law and questions of law only." The Order of Dismissal as to Respondent, Marino Parking Systems, Inc., R. 1-4, determined that as a matter of law that the holding of the Florida Supreme Court in Kitchen, supra was inapplicable to the instant matter and that pursuant to Blocker v. WJA Realty Limited Partnership, 559 So. 2d 291 (Fla. 2"d DCA 1990), no breach of duty exists on the part of a valet parking service for the return of a motor vehicle to an obviously intoxicated driver whose negligent driving then caused injury to a third party Plaintiff. In turn, the Second District Court of Appeal in Weber, supra, affirmed the trial court's ruling noting that contrary to the Defendants in Williams v. Bumpass, 568 So. 2d 979 (Fla. 5th DCA 1990), and Kitchen, supra, the Respondent in the instant matter is "one who was duty-bound to deliver the owner's property to him" 6

13 and is not legally entitled to refuse the owner's demand for the property. Weber, supra, at 730. As noted in Warren v. K-Mart Corp., 765 So. 2d 235, 236 (Fla. l'' DCA 2000) addressing a trial court's ruling on a motion to dismiss for failure to state a claim and the pertinent standard of review on appeal, the First District Court of Appeal noted, "we know that: when ruling on a motion to dismiss for failure to state a cause of action, the trial court must accept the allegations of a complaint as true. Likewise, the appellate court must accept the facts alleged in a complaint as true when reviewing an order that determines the sufficiency of the complaint. Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, a ruling on a motion to dismiss for failure to state a cause of action is reviewable on appeal by the de novo standard of review. Emphasis added by Court. V. Argument. (Restated) 1. Respondent's status as a bailee of the non-party's automobile is outside the scope of the Florida Supreme Court's adoption of 390 of Restatement (second) of the Law of Torts (1965) in Kitchen v. K-Mart Corporation. A. Argument on the Merits. 7

14 Petitioner contends that this Court's decision in Kitchen, supra, controls the outcome in the instant case and contends that the conclusion of Kitchen, supra, is that a valet parking company does owe a duty to not deliver a dangerous instrumentality to a noticeably intoxicated customer. The Kitchen, supra, case itself did not address an injury to a third party as a result of an intoxicated operator of a motor vehicle but rather presented a specific fact situation in which the "Petitioner, Deborah Kitchen was shot by her exboyfriend, Thomas Knapp... shortly after Knapp purchased a.22 caliber boltaction rifle from a local K-Mart retail store. Knapp testified that he had consumed a fifth of whiskey and a case of beer" before purchasing the rifle. at This Court in Kitchen, supra, found that "the [prior] decisions in Horne and Bankston are not controlling as to the issue" before the Court in Kitchen, supra, based on the Court's finding that "unlike the statutes relating to civil liability involved in Bankston and Horne, we find there are no analogous Florida Statutes which limit the civil liability of gun dealers for injuries caused by the negligent sale of a firearm to an intoxicated person". at The Court in Horne v. Vic Potamkin Chevrolet, 533 So. 2d 261 (Fla. 1988), had noted the existence of , Fla. Stat. (1981), which precludes imposition of civil liability upon an owner who has made a bona fide sale of a motor vehicle and delivered possession of the motor vehicle to the purchaser; with the court in 8

15 Kitchen, supra, indicating, "thus, we concluded in Horne that we could not hold an automobile seller responsible given the legislature's clear intent to bar any liability in section (2)." at Likewise, in the former decision of Bankston v. Brennan, 507 So. 2d 1385 (Fla. 1987) this Court addressed a situation where a social host served alcohol to a minor, who after becoming intoxicated, drove away in his motor vehicle and collided with a third party's motor vehicle causing injuries. However, the Court in Bankston, supra, found no liability on the part of the social host, reasoning that , Fla. Stat. (1983), which addresses the civil liability of a person who sells or furnishes alcoholic beverages "represents a limitation on a vendor's liability." at Thus, this Court in Kitchen, supra, did then "approve the application of the principles of Section 390 of the Restatement to the circumstances of this... [Kitchen]... case." at The narrowness of the holding was noted by the United States District Court in Boutilier v. Chrysler Insurance Company, 14 Fla. L. Weekly Fed. D 231 (M.D. Fla. 2001), in which the United States District Court addressed a fact situation in which the Plaintiff while test driving an unfamiliar motor vehicle in an unfamiliar area was involved in an accident with a third party and suffered physical injuries. While the Plaintiff sought to argue that the dealership owed a duty to investigate the driver's incompetency to operate a motor 9

16 vehicle, the Court disagreed noting based on Horne, supra, that "Cherokee has no duty to investigate or determine Loriann's competency to operate the automobile." at 4. Moreover, the United States District Court declined to apply Section 390 to Boutilier, supra, noting that the " Florida Supreme Court went on to once again apply the principles of negligent entrustment only to a specific set of facts - selling of a firearm to an intoxicated person." at 3. Similarly, the Petitioner's argument fails to note the specific definitional limitations set out by this Court in Kitchen, supra, as to 390 of the Restatement (second) of the Law of Torts (1965); by the very terms of this Court's discussion of comment (a), the rule for negligent entrustment articulated in Section 390 " applies to anyone who supplies a chattel for the use of another. It applies to sellers, lessors, donors, or lenders, and to all kinds of bailors, irrespective or whether the bailment is gratuitous or for a consideration." at 1208, emphasis added. The Florida Supreme Court in Dunham v. State, 140 Fla. 754, 192 So. 324 (Fla. 1939) in a case addressing embezzlement by a bailee noted that; "In corpus juris secundum bailment is defined: as a delivery of personality for some particular purpose, or on mere deposit, upon a contract, express or implied, that after the purpose has been fulfilled it shall be redelivered to the person who delivered it, or otherwise dealt with according to his directions, or kept until he reclaims it, as the case may be." at 759. With the 5th DCA in Meeks v. Florida Power & Light,

17 So. 2d 1125, 1129 (Fla. 5'h DCA 2002) at footnote 4, distinguishing between the concepts of abandonment and bailment; noting as to the latter, "bailment on the other hand, requires an owner of the object (the bailor) and the possessor (the bailee)." Thus, in the instant case, the non-party, Michael Allen Price, Jr., as the owner of the keys and of his motor vehicle, R. 34, 36., was the owner of the object and the bailor in this matter, with Respondent, Marino Parking Systems, Inc., as the valet service, R. 36., being the mere possessor and the bailee of the object. Pursuant to the legal relationship of the non-party, Michael Allen Price, Jr., to the Respondent, Marino Parking Systems, Inc., 390 of the Restatement (second) of the Law of Torts (1965) as articulated by this Court in Kitchen, supra, is simply inapplicable to this situation as this Court's articulation of its applicability is conspicuous in its failure to include the bailee of an object. Likewise, Petitioner's reliance on Williams, supra, is simply misplaced, the instant case involves a bailee returning the bailed object to the bailor, and wholly inconsistent with Williams, sup_lg, which involved an individual voluntarily obtaining a firearm from the owner's automobile glove box and handing the same to the owner of the firearm during the course of a physical altercation; the distinction being noted by the Second District Court of Appeal, in Weber, supra, at 730 as follows: 11

18 "Williams did not involve a bailment; neither did Kitchen. Indeed, neither of those cases addressed the imposition orliability for negligent entrustment on one who was duty-bound to deliver the owner's property to him the same is true of the potential Defendants listed in comment a to section 390 of the restatement; none of them - sellers, lessors, donors, lenders or bailors - have a legal duty to deliver property to anyone. Put another way, all of them are legally entitled to refuse the active tortfeasor's demand for the property, as were the Defendants in Williams and Kitchen." The Petitioner's raising of Frankel v. Fleming, 69 So. 2d 887 (Fla. 1954) is also misplaced and Petitioner's argument in reliance on such case completely ignores the clear factual and legal distinctions between the instant matter and Frankel, supra. Thus, in Frankel, supra, this court addressed a fact situation in which the Defendant Frankel had leased an automobile, then becoming in a bailee for hire under this Court's definition, but rather than redelivering the automobile to the bailor owner thereof as he was obligated, Frankel allowed his apparently common-law wife, Teri Hoffman, [a third party and a stranger to the bailment agreement] to operate the automobile and while she was driving the automobile she struck and injured the Appellee. Thus, the Court in Frankel, supra, ruling against the Appellant noted: "... we found no difficulty in now holding the Appellant, a bailee, responsible in the instant case for injury by the one to whom he entrusted the car, especially where, to all intents and purposes, as will be seen by referring to the opinion in Fleming v. Alter, supra, that person was the bailees' spouse." at

19 In the instant matter, the Respondent as bailee did not entrust the automobile to a third party spouse or to any other third party otherwise a stranger to the bailment agreement but rather pursuant to the bailment agreement upon demand redelivered the automobile at issue to its rightful owner, the non-party Michael Allen Price, Jr., as bailor, who then in turn was the active tortfeasor whose actions resulted in the death of Nicole Michele Weber. In essence, Frankel, supra, would only apply to the instant situation if the Respondent as the bailee had [which Respondent did not do and is not alleged to have done] entrusted the automobile to a third party, a stranger to and outside of the bailment agreement, which third party then caused the Decedent's death. Nor does Petitioner's citation of , Florida Statutes, provide any relief in this matter; the Statute itself providing in relevant part that " A bailee shall deliver the goods to a person entitled under a document of title if the person complies with subsections (2) and (3)"...such subsections in turn providing at "(2) A person claiming goods covered by a document of title shall satisfy the bailee's lien if the bailee so requests or if the bailee is prohibited by law from delivering the goods until the charges are paid" and at "(3) Unless a person claiming the goods is a person against which the document of title does not confer a right under s (1)..." Thus, even assuming that the provisions of the UCC apply, under the provisions of , Florida Statutes, the Respondent as bailee 13

20 would be obligated to deliver the goods [ignition key] to a person [the non-party, Michael Allen Price, Jr.] entitled under a document of title [certificate of title to automobile]. Nor do the cases cited support Petitioner's position with Insurance Company of State of Pennsylvania v. Guzman, 421 So. 2d 597 (4th DCA 1982), generally addressing a bailee's liability for failure to return goods in the same condition as they were delivered and Reserve Insurance Co., v. Gulf Florida Terminal Co., 386 So. 2d 550 (Fla. 1980), more generally addressing the shifting burden of proof in bailment negligence actions and the monetary transaction exemption; although the Court noted that a bailee's mandatory requirement to return goods could be excused by damage to the goods as provided by (b), Florida Statutes. However, nowhere in the Statute or the cases cited does it provide that a bailee may refuse to deliver the goods to the person entitled due to that individual's intoxication or otherwise excuse non-delivery due to the intoxication of the bailor; nor, is there any allegation in this matter that the automobile as redelivered to the non-party, Michael Allen Price, Jr., was somehow damaged in anyway due to the Respondent bailee's negligence or was otherwise not in the same condition as it was when placed on deposit pursuant to the bailment agreement with the non-party, Michael Allen Price, Jr. Likewise, the Petitioner's contention that Florida Law mandates that Respondent, Marino Parking Systems, Inc., "refuse to return keys to person", 14

21 Amended Complaint, 22, R. 36., ignores the Florida Law of bailment and as noted by the 2"d DCA in Avis Rent-A-Car System, Inc., v. Harrison Motor Company, 151 So. 2d 855, 856 (Fla. 2"d DCA 1963), "keeping in mind that Ferrucci was the bailee of the automobile in question, the existence of the bailor-bailee relationship prohibited him from committing any act in derogation of the bailor's title or possessory rights." Emphasis added. Thus, under Petitioner's view, Respondent, Marino Parking Systems, Inc., as bailee should have committed an act in derogation of the bailor's possessory rights and refused to return the automobile or automobile keys. However, Florida Case Law is not kindly towards bailee's who deprive an owner or bailor of possessory rights and as noted by this Court in State Fruit Co., v. Eagle Lake Growers, Inc., 33 So. 2d 858 (Fla. 1948) in discussing the essential element of conversion noted "it is obvious that the gist of conversion is found in the disseisin of the owner or in the interference with legal rights which are incident to ownership, such as possession" at 860, citations omitted. Thus, again, the Petitioner's argument and position in this matter would mandate that a bailee such as Respondent, Marino Parking Systems, Inc., interfere with legal rights incident to ownership, such as the possessory rights of the non-party, Michael Allen Price, Jr., and in essence and legal effect require Respondent to commit the tort of conversion. 15

22 The Second District Court of Appeal in Weber, supra, clearly was cognizant of the legal effect Respondent's wrongful retention of the automobile in the instant would have had and citing Villanueva v. Youngblood, 927 So. 2d 955 (2"d DCA 2006) which in turn relied upon Ming v. Interamerican Car Rental, Inc., 913 So. 2d 650 (5th DCA 2005), noted at 730: "...here, the valet service did not have a superior right to Price's car. To the contrary, Marino Parking could have been found liable for conversion had it failed to return the car. ("Conversion occurs when a person asserts a right of dominion over chattel which is inconsistent with the right of the owner and deprives the owner of the right of possession"). " Citations omitted. In conclusion, the Petitioner's argument and position in this matter would obligate the Respondent to choose between the lesser of two potential liabilities; returning the automobile and risking potential liabilities which under Petitioner's argument are potentially greater than the vendor who actually served the alcoholic beverages (and who possesses certain statutory immunities under , Florida Statutes, as hereinafter discussed) or retaining the automobile with no legal ability or legal excuse to establish a basis for retention and being held liable for conversion; neither a particularly appetizing approach. (Restated) 2. Florida Law does not recognize a duty on the part of a bailee valet service to a third party injured following the return of an automobile to 16

23 an intoxicated bailor owner. A. Argument on the Merits. The Court in Simon, supra, addressed the elements necessary to establish a cause of action founded upon negligence noting as follows: " '(1) A duty, or obligation, recognized by the law, requiring the actor to conform to a certain standard of conduct, for the protection of others against unreasonable risks. '(2) A failure on his part to conform to the standard required. * * * '(3) A reasonable close causal connection between the conduct and the resulting injury. * * * '(4) Actual loss or damage resulting to the interests of another. * * * at 213, Citations omitted. In the instant matter, the Second District Court of Appeal in an Appellate decision directly on point previously ruled in Blocker, supra, that; "in this personal injury action, we affirm the Trial Court's dismissal with prejudice. The dismissal was on the basis that there was no breach of duty to Plaintiff from Defendant Jai Alai Fronton owner, who operated a valet parking service, having returned a car to its obviously intoxicated owner whose negligent driving then caused injury to Plaintiff." at 291. Applying the Court's language in Blocker. supra, to the instant matter, the dismissal was on the basis that there was no breach of duty to Petitioner from Respondent, Marino Parking Systems, Inc., who operated a valet service, Amended 17

24 Complaint, l9, R. 36., for having returned the automobile keys and automobile to Michael Allen Price, Jr., whose negligent driving then caused injury and ultimately killed the Appellant. Amended Complaint, l0, R. 34. The Petitioner argues that this Court's holding in Kitchen, supra, apparently resulted in an implied reversal of the 2"d DCA's decision in Blocker, supra, as well as the subsequent Second District Court of Appeal decision in Thomas v. Parras, 562 So. 2d 786 (Fla. 2"d DCA 1990), relying on Blocker, supra, holding that a municipal airport was not liable to the heirs of the passenger killed following takeoff by the unlicensed owner of the aircraft. With the Court in Thomas, supra, noting the "contract with the City of Clearwater, in this case, created no additional right of action against Suncoast as the result of any negligence or wrongdoing on the part of Parras." at 787. However, Petitioner's contention is incorrect and again ignores the dichotomy of the Supreme Court's decision in Kitchen, supra, which differentiates between automobiles with incompetent or intoxicated drivers and firearms sold to intoxicated wielders of the same based on the limitation of civil liability in the former and the criminal laws addressing the latter. Addressing the Second District Court of Appeal ruling in Blocker, supra, the Court in ruling in favor of the valet service noted a number of decisions from sister courts. Thus, in Knighten v. Sam's Valet Service, 206 Cal. App. 3'd 69, 74,

25 Cal. Rptr. 365, 366 (1988), cited by Blocker, supra, at 292, the California Couit of Appeal addressed an issue of first impression and stated, "as the parties have noted, the issue of whether a restaurant or valet service has a duty to withhold automobiles from intoxicated patrons is one of first impression in California. We hold no such duty exists." With the California Court noting the relationship of the valet service and owner, "moreover, El Torito and valet were bailees as to Vanderwerff's car. A bailee does not "entrust" a chattel when returning it to the bailor. Indeed, the restatement describes those who may be liable for supplying dangerous chattels to incompetents as "seller, lessors, donors or lenders and [ ] all kinds of bailors, irrespective of whether the bailment is gratuitous or for consideration...[with the California Court of Appeal specifically noting]... conspicuously absent from the list, of course, are bailees." Citations omitted, emphasis added, at Knighten, supra, 206 Cal. App at p. 75, 253 Cal. Rptr. at p Likewise, in Mills v. Continental Parking Corporation, 86 Nev. 724, 475 P. 2d 673 (1970) cited by the Court in Blocker, supra, at 292, the Supreme Court in Nevada noted very clearly that "in the situation where the parking lot attendant collects a fee, has possession of the keys, assumes control of the car and issues a ticket to identify the car for re-delivery, the legal relationship of bailor-bailee is created. The negligent entrustment theory of tort liability does not apply to the 19

26 normal bailor-bailee relationship since the bailee is duty bound to surrender control of the car to the bailor upon demand or suffer a possible penalty for conversion. Indeed, if the bailee refuses to return the car at the end of the bailment it is presumed that the car was converted by him." Mills, supra, 86 Nev. at P , 475 P. 2d at p The Second District Court of Appeal in Blocker, supra, at 292, also cited Barnes v. B.K. Credit Service, Inc., 461 So. 2d 217 (Fla. 1" DCA) and the general rule in Florida which the Court in Barnes, supra, stated "echoes the common law and has been one of non-liability where tavern owners are concerned." at 218. With the Court in Barnes, supra, noting the basis of the rule being that "the voluntary drinking of the alcohol, not the furnishing of it was the proximate cause of the injury." at 219. More so on point and as well noted by the Second District Court of Appeal in Blocker, supra, at 292, the 3'd DCA in Reed v. Black Caesar's Forge Gourmet Restaurant, Inc., 165 So. 2d 787 (3'd DCA 1965), specifically held that a factual situation in which a restaurant delivered the keys and automobile to a seriously and obviously intoxicated customer, who then drove into the bay and drowned; did not give rise to a cause of action with the Court noting, "this is true because the death of the Plaintiff's husband was the result of his own negligence or his own voluntary act of rendering himself incapable of driving a car rather than the remote 20

27 act of the Defendant in dispensing the liquor, or delivering the ignition keys and possession of the automobile." at 788. Application of Reed, supra, to the factual situation at hand, the injury and the death of the Petitioner's Decedent was the direct result of the non-party, Michael Allen Price, Jr.'s, own negligence or his own voluntary act of rendering himself incapable of driving a car rather than the remote act of Respondent, Marino Parking Systems, Inc., in delivering the ignition keys and possession of the automobile. Moreover, Petitioner's argument fails to take into account that the Second District Court of Appeal's in Blocker, supra, specifically noted this Court's holding in Horne, supra, that "no duty owed to injured Plaintiffby automobile dealer who sold car to driver whom the dealer knew was incompetent behind the wheel and who then injured the Plaintiff in automobile accident." at 292. The latter holding in Horne, supra, was not disturbed by the Supreme Court in Kitchen, supra, with the Court concluding that "the decisions in Horne and Bankston are not controlling as to the issue before us", at 1204, an issue relating to the sale of a firearm to a purchaser known to be intoxicated not the return by the bailee of an automobile or ignition keys to the owner thereof. In closing, no Florida case law has recognized a duty or obligation, recognized by the law, cause of action or upheld liability on the part of a valet 21

28 service or a restaurant for returning the ignition keys or an automobile to its intoxicated owner whose negligent driving then caused injury to a Plaintiff or to himself and to paraphrase the 3'd DCA in Reed, supra, at 788, it is the intoxicated owner's "...own voluntary act of rendering himself incapable of driving a car rather than the remote act of the Defendant in...delivering the ignition keys and possession of the automobile" that caused the death of the Decedent. Restated 3. Legislative policy noted by this Court in Kitchen v. K-Mart Corporation limiting the liability of a vendor of alcoholic beverages, precludes expansion of liability through judicial approval of a previously unrecognized cause of action against a valet service to a third party injured following the return of an automobile to an intoxicated owner operator. A. Argument on the Merits. Again, Petitioner in arguing that public policy compels a reversal of the decision of the Second District Court of Appeal ignores the distinction between the civil liability of alcohol venders and the criminal liability of commercial gun retailers, this dichotomy is in Respondent's opinion the essence of this Court's decision in Kitchen, supra. Based on this dichotomy, the Court in Kitchen, supra, discussed the prior decisions in Bankston, supra and Horne, supra. The latter Florida Supreme Court 22

29 decision in Horne, supra, involved an automobile dealer who was sued by a thìrd party under a theory of negligent entrustment after the dealer sold an automobile to an incompetent driver who then promptly ran into a third party's automobile with resulting injuries. This Court in Horne, supra, noted the existence of , Fla. Stat. (1981), which precludes imposition of civil liability upon an owner who has made a bona fide sale of a motor vehicle and delivered possession of the motor vehicle to the purchaser; with the court in Kitchen, supra, indicating, "thus, we concluded in Horne that we could not hold an automobile seller responsible given the legislature's clear intent to bar any liability in section (2)." at An added problem was noted by the Court Horne, supra, and raised in Kitchen, supra, at footnote 2, in which the Court noted the difficulty for the Courts " to circumscribe the cause of action to instances where the seller becomes aware of the purchaser's incompetency as an incidental by-product of the normal sales routine." at An even greater public policy nightmare will be for the Courts to circumscribe the cause of action to instances where the valet service becomes aware of the owner/driver's incompetency or intoxication as an incidental byproduct of the normal valet parking routine. Likewise, in the former decision of Bankston, supra, the Florida Supreme Court addressed a situation where a social host served alcohol to a minor, who 23

30 after becoming intoxicated, drove away in his motor vehicle and collided with a third party's motor vehicle causing injuries. The Court in Bankston, supra, found no liability on the part of the social host, reasoning that , Fla. Stat. (1983), which addresses the civil liability of a person who sells or furnishes alcoholic beverages "represents a limitation on a vendor's liability." at As noted by the Court in Kitchen, supra, in addressing the prior Bankston, supra, decision stated, "given the legislature's statutory abrogation of a vendor's liability for common law negligence and its intent to permit liability only for "willfully and unlawfully" providing alcohol, we felt precluded by legislative policy expressed in the statute from expanding liability through judicial approval of a previously unrecognized cause of action against a social host". at The Kitchen, supra, case itself did not address an injury to a third party as a result of an intoxicated operator of a motor vehicle but rather presented a specific fact situation in which the "Petitioner, Deborah Kitchen was shot by her exboyfriend, Thomas Knapp... shortly after Knapp purchased a.22 caliber boltaction rifle from a local K-Mart retail store. Knapp testified that he had consumed a fifth of whiskey and a case of beer" before purchasing the rifle. at The dichotomy in the Court's approach to the Horne, supra, Bankston, supra, cases on one side and Kitchen, supra, presents itself very clearly as the Court 24

31 noted; "the language contained in Sections and , unlike the language in Section does not limit a commercial gun dealer's civil liability" Kitchen, supra, at This dichotomy was noted by the Trial Court in this matter, albeit disapproved by the Second District Court of Appeals in their Weber. supra, opinion at 730, in the Trial Court's Order of Dismissal as to Defendant, Marino Parking Systems, Inc., at 7, R. 3., as follows: "Moreover the decision in Kitchen specifically precludes the inclusion of Restatement 390 into Florida law where the legislature has already limited civil liability. "The language contained in section and , unlike the language in section , does not limit a commercial gun retailer's civil liability." Kitchen, suora, at "Simply put we chose not to expand liability in a field in which the legislature had so expressly chosen to restrict liability. Id at the Court "recognized traditional common law causes of action unless liability is limited or abrogated by legislative enactments. Under our rules of statutory construction, a statue will not displace the common law unless the legislature expressly indicates an intention to do so." Id at Finally, the court was specific in the decision to "approve the application of the principles of section 390 of the Restatement to the circumstances of this case", referring to Kitchen. Id at The analysis to apply section 390 of the Restatement from.kitchen is not applicable to the case before the Court because the legislature has specifically limited civil liability in the sale and distribution of alcohol. The Court will not impose general negligence principles where the legislature has created specific statutory ground for liability." Given this Court's distinction in Kitchen, suora, between the statutes which limit civil liability vis-à-vis statutes which are "purely criminal statutes imposing criminal sanctions" at 1204; this Court in Kitchen, supra, found that " the decisions 25

32 in Horne and Bankston are not controlling as to the issue" before the Court in Kitchen, supra, based on the Court's finding that " unlike the statutes relating to civil liability involved in Bankston and Horne, we find there are no analogous Florida Statutes which limit the civil liability of gun dealers for injuries caused by the negligent sale of a firearm to an intoxicated person". at However, in the instant matter, as noted by this Court in Kitchen, supra, there do exist analogous Florida Statutes which limit civil liability for injuries resulting from intoxication specifically , Florida Statutes, which provides as follows: "A person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person, except that a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age or who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages may become liable for injury or damage caused by or resulting from the intoxication of such minor or person." and as expressed by this Court in Kitchen, supra, in reliance on Bankston, supra, "the legislature's statutory abrogation of a vendor's liability for common law negligence and its intent to permit liability only for "willfully and unlawfully" providing alcohol" precluded the Court from "expanding liability through judicial approval of a previously unrecognized cause of action against a social host". at Likewise, the "legislature's statutory abrogation of a vendor's liability for common law negligence and its intent to permit liability only for "willfully and 26

33 unlawfully" providing alcohol" as found by the Court in Kitchen, supra, at 1203, would have an equally preclusive effect on an expansion of liability via judicial approval of a previously unrecognized cause of action against a valet parking service. IV. Conclusion. In this case, even construing all allegations in favor of the Petitioner, the Case Law cited herein leads to the conclusion that the decision of the Second District Court of Appeal affirming the Trial Court's decision was appropriate and this Court should uphold the decision below and affirm the decision of the Second District Court of Appeal upholding the Trial Court's dismissal of the Amended Complaint as to Respondent, Marino Parking System, Inc. CHRISTOPHER E. MAST, P.A. By: -'> Christopher E. Mast, Esquire Florida Bar No: Attorney for Marino Parking Systems, Inc th Avenue North Naples, Florida / Fax: 239/ c.e.mast@comcast.net 27

34 Certificate of Service I hereby certify that a true and correct copy of the foregoing was sent via regular U.S. Mail to Onier Llopiz, Esquire, 1221 Brickell Avenue, 19' Floor, Miami, Florida 33131, Attorney for 2 3/8 LLC d/b/a Sway Lounge and to Timothy M. O'Brien, Esquire, 316 South Baylen Street, Suite 600, P.O. Box 12308, Pensacola, Florida on this 3/s-r day of CHRISTOPHER E. MAST, P.A. By: d Christopher E. Mast, Esquire Florida Bar No: Attorney for Marino Parking Systems, Inc 'h Avenue North Naples, Florida / Fax: 239/ c.e.mast@comcast.net 28

35 Certificate of Compliance with Font Size By my signature below, I certify that I have complied with the Florida Rule of Appellate Procedure 9.210(a)(2), by using Times New Roman 14 - point font throughout the entirety of the foregoing brief. Christopher E. Mast, Esquire 29