IN THE SUPREME COURT STATE OF FLORIDA

Transcription

1 RECEIVED, 5/16/ :23:33, Thomas D. Hall, Clerk, Supreme Court IN THE SUPREME COURT STATE OF FLORIDA Appeal Case No. 2D Second District Court of Appeal Lower Tribunal No CA Collier County Circuit Court DEBBIE WEBER, as Personal ) Representative of the Estate of ) Nicole Michele Weber, Deceased, ) ) CASE NO.: SC Plaintiff/Petitioner, ) ) vs. ) PETITIONER S INITIAL ) BRIEF ON THE MERITS MARINO PARKING SYSTEMS, ) INC., ) ) Defendant/Respondent. ) ) LEVIN, PAPANTONIO, THOMAS, MITCHELL, RAFFERTY& PROCTOR, P.A. TIMOTHY M. O BRIEN, Esquire Florida Bar Number: South Baylen Street, Suite 600 Pensacola, Florida Attorney for Petitioner

2 TABLE OF CONTENTS Table of Contents Table of Authorities... /... ii I. Statement of the Case II. Statement of the Facts... 2 III. Standard ofreview and Statement of Facts... 3 IV. Argument and Citations of Authority... 4 A. This Court Should Reverse the Opinions Below Because they Depart from and Conflict with this Court's Holding in Kitchen v. K-Mart Corporation... 5 B. This Court Should find that Public Policy Compels the Conclusion that Valet Parking Companies Should Exercise Reasonable Care and Refrain from Returning Keys to Noticeably Intoxicated Drivers V. Conclusion Certificate of Service Certificate of Compliance with Font Size

3 TABLE OF AUTHORITIES Cases Aetna Cas. & Surety Co. v. Pappagallo Restaurant. Inc., 547 So.2d 243 (Fla. 3rd DCA 1989) Blocker v. WJA Realty Ltd. P'ship, 559 So. 2d 291 (Fla. 2nd DCA 1990)... 5, 8-9 Clermont Marine Sales, Inc. v. Harman, 347 So.2d 839 (Fla. 2nd DCA 1977) Frankel v. Fleming, 69 So. 2d 887 (Fla. 1954)... ~... 10, 12 Hammonds v. Buckeye Cellulose Corp., 285 So. 2d 7 (Fla. 1973)... 3 Horne v. Vic Potamikin Chevrolet. Inc., 533 So.2d 261 (Fla. 1988) Ingram v. Pettit, 340 So. 2d 922 (Fla. 1976)... 7, Insurance Co. of State of Pennsylvania v. Guzman, 421 So.2d 597 (Fla. 4 1 h DCA 1982) Kitchen v. K-Mart Corp., 697 So. 2d 1200 (Fla. 1997) , 8-10, McCain v. Florida Power Corp., 593 So. 2d 500 (Fla. 1992)... 9 Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253 (Fla 2nd DCA 1994)... 3 ii

4 Oguz v. Oguz, 478 So. 2d 437 (Fla. 5 1 h DCA 1985)... 3 Reserve Ins. Co. v. GulfFlorida Terminal Co., 386 So.2d 550 (Fla. 1980) Rutherford v. Allen Parker Co., 67 So.2d Skinner v. Ochiltree, 5 So. 2d 605 (1941)... 6 Weber v. Marino Parking Sys., Inc., 100 So.3d 729 (Fla. 2nct DCA 2012)...,... 2, 3, 7-9 Williams v. Bumpass, 568 So. 2d 979 (Fla. DCA. 1990)... 8, 9, 13 Wilson v. Burke, 53 So.2d Statutes Fla. Stat (1)(b) Section (2), Florida Statutes Rules Fla. R. App. P (d)... 2 Fla. R. App. P (g)(2) Other Authorities Restatement (Second) of Torts :. 4-9, 14 iii

5 I. STATEMENT OF THE CASE. On September 23, 2007, Nicole Michele Weber was killed by a drunk driver who left a Naples bar, visibly intoxicated, and was handed the keys to his car by an employee of Respondent, Marino Parking Systems, Inc. (R ) On September 17, 2009, Petitioner Debbie Weber as Personal Representative of the Estate ofnicole Michele Weber, Deceased, filed in the Circuit Court of Collier County her Wrongful Death Complaint agairist Defendants 2 3/8 LLC d/b/a Sway Lounge, a Florida Limited Liability Company; and Marino Parking Systems, Inc., a Florida Corporation ( R.13-19). On November 9, 2009, an Amended Complaint for Wrongful Death was filed by Petitioner 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.33-39). Ms. Weber, as Personal Representative of her deceased daughter, Nicole Michele Weber, asserted a claim for wrongful death against Defendant Marino Parking Systems, Inc., for its failure to reasonably train and instruct employees regarding intoxication limits. (R ) Respondent/Defendant Marino Parking Systems, Inc., filed a Motion to Dismiss Amended Complaint on November 12, 2009 ( R.40-52), arguing that it owed no duty to refrain tendering automobile keys to a noticeably intoxicated driver. 1

6 A hearing was held in the Circuit Court in and for Collier County, Florida, on June 28, The Honorable Cynthia A. Pivacek granted the motion and thereby dismissed Respondent Marino Parking as a party to the case on July 15, ( R. 1-4) The ruling did not affect the claim pending against Defendant Sway Lounge. Petitioner timely filed her Notice of Appeal as to the dismissal ofrespondent Marino Parking. On November 2, 2012, the Second District Court of Appeals affirmed the trial court's dismissal of the Petitioner's complaint in a published opinion which can be foundatweberv. Marino Parking Sys., Inc., 100 So.3d 729 (Fla. 2nctDCA2012). On December 4, 2012, Petitioner timely filed her Rule 9.120( d) Petition to Invoke Discretionary Jurisdiction of the Supreme Court. This Court granted the petition and accepted jurisdiction of this matter on April 23, II. STATEMENT OF THE FACTS. On September 23,2007, non-party Michael Allen Price, Jr., consumed copious amounts of alcohol at Sway Lounge in Naples, Florida. (R.34; Weber, 100 So.3d at 730.) Mr. Price, who was habitually addicted to alcohol, became noticeably and visibly highly intoxicated. (R.34; Weber, 100 So.3d at 730.) Still visibly highly intoxicated, Mr. Price left Sway Lounge and requested the keys for his vehicle from 2

7 an employee of Respondent Marino Parking, the valet service operating a parking business at Sway Lounge. (R.36; Weber, 100 So.3d at 730.) Despite the fact that Mr. Price was visibly highly intoxicated, Respondent's employee returned the keys to Mr. Price, knowing that he would pose a substantial risk of harm to himself and members of the public, including Nicole Weber. Mr. Price wrecked his vehicle and thereby killed Nicole Weber. (R.34, 37; Weber, 100 So.3d at 730.) III. STANDARD OF REVIEW AND STATEMENT OF FACTS. "'Motions to dismiss are looked on with disfavor by the court, and are granted sparingly and with care."' Oguz v. Oguz, 478 So. 2d 437, 439 n. 9 (Fla. 5th DCA 1985). "The purpose of a motion to dismiss is to determine whether the plaintiff has alleged a good cause of action, and for purposes of passing on a motion to dismiss a complaint, the court must assume that all facts allegedin the complaint are true." Hammonds v. Buckeye Cellulose Corp., 285 So. 2d 7, 11 (Fla. 1973). Accordingly, the Court must confine its review to the "four corners of the complaint." Mettler, Inc. v. Ellen Tracy, Inc., 548 So.2d 253, 254 (Fla. 2nd DCA 1994). As summarized in by the Second DCA at Weber, 100 So.3d at 730, in the Amended Complaint below, the following material allegations were presented. When Mr. Price and Ms. Weber left Sway Lounge, Mr. Price was noticeably intoxicated. (Amended Complaint, TT20, 25, R )RespondentMarino Parking ran the valet 3

8 service at Sway Lounge. (Amended Complaint,~ 19, R ) Even though Mr. Price was noticeably intoxicated, Respondent Marino Parking's employee gave Mr. Price the keys to his vehicle and allowed him to drive away, with Respondent's employee "knowing that he was already impaired and posed a substantial risk ofharm to himself or others." (Amended Complaint. If 25, R ) Further, Respondent knew that Mr. Price, by operating the motor vehicle, would "pose a substantial risk of harm to himself and members of the public, including Plaintiffs decedent." (Amended Complaint,~ 26, R ) Petitioner's decedent, Nicole Michele Weber, died as a result. (Amended Complaint,~ 29, R ). IV. ARGUMENT AND CITATIONS OF AUTHORITY. The trial court and Second District Court of Appeal erred in their respective opinions by finding that valet parking companies cannot be held liable for returning a dangerous instrumentality to a noticeably intoxicated driver. This Court should find that Florida law does not carve out a valet parking exception for negligent entrustment of a dangerous instrumentality. Such a finding by this Court will be consistent with Section 390 of the Restatement (Second) of Torts, and is well supported by public policy consideration of keeping drunk drivers off Florida's roadways. 4

9 A. THIS COURT SHOULD REVERSE THE OPINIONS BELOW BECAUSE THEY DEPART FROM AND CONFLICT WITH THIS COURT'S HOLDING IN KITCHEN V. K-MART CORPORATION. The trial court's order granting Respondent's motion to dismiss derived from the finding that Respondent Marino Parking had no duty to withhold delivery of the car keys to a noticeably intoxicated driver. The Second District Court of Appeal erred by affirming the trial court's dismissal ofpetitioner' s Complaint and incorrectly relied upon Blockerv. WJARealtyLtd. P'ship, 559 So. 2d291 (Fla. 2nd DCA 1990). Blocker was decided before this Court's holding in Kitchen v. K-Mart Corp., 697 So. 2d 1200 (Fla. 1997), adopting 390 of Restatement (Second) of the Law of Torts. This Court's decision in Kitchen, 697 So. 2d 1200 controls the outcome in the instant case and compels the conclusion that a valet parking company does owe a duty to not deliver a dangerous instrumentality to a noticeably intoxicated customer. In Kitchen, 697 So. 2d 1200, a woman who was shot by her intoxicated ex-boyfriend sued the store for negligently selling a firearm to her boyfriend while he was intoxicated. Id. at The case went to trial on a common law negligence theory and the jury returned a verdict in favor of the injured woman; the trial court thereafter entered judgment in her favor. Id. at The Fourth District Court of Appeal reversed the judgment, ruling that the seller, as a matter oflaw, could 5

10 not be held liable for negligence in selling a gun to an intoxicated person. Id. This Court accepted the case to answer the following certified question: "SHOULD FLORIDA ADOPT SECTION 390 OF THE RESTATEMENT (SECOND) OF THE LAW OF TORTS, AND, IF SO, SHOULD THE SECTION BE CONSTRUED SO AS TO EXTEND LIABILITY TO A SELLER OF A CHATTEL AS WELL?" Id. at (emphasis in original). This Court answered the question in the affirmative and, in so ruling, reversed the decision of the Fourth DCA. Id. at In reversing the decision of the Fourth DCA, this Court reasoned that the appellate court inappropriately reviewed a criminal statute proscribing certain gun sales. Id. at However, because the statute did not preempt or otherwise preclude civil liability the sale of guns to intoxicated persons, this Court heldthat the common law rules of negligence apply. Id. at The Kitchen Court focused on the fact that the firearm was a "dangerous instrumentality" and any person "who handles or deals in firearms is expected to exercise the 'highest degree of care'." I d. at 1206 (quoting Skinner v. Ochiltree, 148 Fla. 705, 5 So. 2d 605 (1941)). This Court also relied upon comment c to section 390 of the Restatement (Second): "So too, if the supplier knows that the condition of the person to whom the chattel is supplied is such as to make him incapable of exercising the care which it is reasonable to expect of a norrrial sober adult, the supplier may be liable for harm sustained by the incompetent although 6

11 such person deals with it in a way which may render him liable to third persons who are also injured." Id. at (emphasis supplied by court). In defining "supplier", the court applied the section 390 definition: '"The rule stated applies to anyone who supplies a chattel for the use of another. It applies to sellers, lessors, donors, or lenders, and to all kinds ofbailors, irrespective of whether the bailment is gratuitous or for a consideration."' Id. at 1208 (quoting Restatement (Second) oftorts 390 cmt. a (1965)) (emphasis supplied by court). In Weber, the. Second DCA interpreted the second sentence as limiting the first sentence of the section 390 definition. However, no such limitation was imposed. The first sentence is very clear that it applies to "anyone" who supplies a chattel for the use of another. The second sentence provides examples, but does not purport to limit the "anyone" definition of the first sentence. In this case, the aliegations are that the Marino Parking valet service supplied to Mr. Price the keys to his automobile. Under Florida law, like a gun, an automobile is a "dangerous instrumentality": "Florida courts have recognized that an automobile on the highway is a dangerous instrumentality. Its dangerous propensities are heightened when operated by a person who is, by definition, incapable of exercising vigilance and caution." Ingram v. Pettit, 340 So. 2d 922, (Fla. 1976). The 7

12 Second DCA agreed on that point: "We agree with Weber's argument that cars, like guns, are dangerous instrumentalities. And no citation is necessary to acknowledge the dangers posed by drunk driving." Weber, 100 So.3d at 730 (cit. omit.) Accordingly, a similar analysis as engaged by the Kitchen court applies in this case. See Kitchen, 697 So. 2d at As the Kitchen Court reasoned, the foreseeability of the harm creates the duty to refuse to supply a chattel to an incompetent person. Id. at The SecondDCA's reliance upon the Blocker case is inapposite because the case pre-dates Kitchen's adoption of Restatement (Second) 390 and, accordingly, did not consider those principles in the legal analysis. Furthermore, in a Fifth DCA case which post-dated Blocker and Thomas and which was cited with approval in Kitchen, 697 So. 2d 1200, the ownership status ofthe supplier of the dangerous instrumentality is not dispositive of whether the supplier can be held liable for negligently entrusting the instrumentality to the person who ultimately effects the complained-of harm: Recently, in Williams v. Bumpass, 568 So. 2d 979 (Fla. DCA 1990) the district court approved the imposition of liability on a bystander who handed a gun owner his gun while the owner was engaged in a fistfight with the plaintiff. In affirming, the Fifth District found that foreseeability of harm, rather than ownership, determined whether an action existed for negligent entrustment, and affirmed the imposition of liability because the bystander should have foreseen the risk of a shooting under the circumstances. Williams, 568 So. 2d at The district court recognized that the holdings in this case and other Florida 8

13 Id. at cases "are consistent with comment (b) to section 390, Second Restatement oftorts (1965)." Id. at 982 n.2 Importantly, and in contrast to the Blocker decision, the Williams court utilized the 390 analysis. Accordingly, and as approved by this Court, if harm is foreseeable to a person in possession of a chattel, regardless of whether that person has an ownership interest or other right to the chattel, he has a duty to refrain from supplying the chattel if there was foreseeable harm in so doing. Id. at 1205; see also McCain v. Florida Power Corp., 593 So. 2d 500, 503 (Fla. 1992) (fn. omit.) ("Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others"). In the case sub judice, the Second DCA' s incorrectly reasoned that Respondent was a bailee and thus had no ability or duty to refuse to tender automobile keys to a noticeably intoxicated driver. Weber, 100 So.3d at The District Court of Appeal reasoned that Williams and Kitchen did not apply because those cases did not involve a bailment; thus, the Second DCA found that the valet parking company had no ability to refuse to deliver the vehicle to the drunk driver. Id. at 731. This Court previously has held that a bailee may, in fact, be held liable for negligent entrustment of a dangerous instrumentality: 9

14 Only one of the questions posed by appellant seems to deserve an answer: 'Is the doctrine of dangerous instrumentality limited in scope to the owner thereof rather than to include a bailee [Frankel] for hire who in turn delivers possession to another person [Wellener]?' We think the answer to the question may be found in Wilson v. Burke, Fla., 53 So.2d 319, where we held that an ostensible lessee, a corporation, was responsible for damage caused by the truck it was operating. Proof of actual ownership of the vehicle causing injury is not indispensable to recovery, for the misfortune of the injured person should not depend entirely on the repository of the legal title; nor is recovery dependent upon. perfection of title in a given person, Rutherford v. Allen Parker Co., Fla., 67 So.2d 763, construing Section (2), Florida Statutes 1951, and F.S.A. Frankel v. Fleming, 69 So. 2d 887, 888 (Fla. 1954) Further, Florida law long has held that a bailee is exonerated from liability from failing to return a bailment to a bailor if the bailee exercised reasonable care under the circumstances. Reserve Ins. Co. v. Gulf Florida Terminal Co., 386 So.2d 550, (Fla. 1980) (applying UCC burden-shifting provision Fla. Stat (1)(b)); see also Insurance Co. of State of Pennsylvania v. Guzman, 421 So.2d 597, (Fla. 4th DCA 1982) (applying Reserve in a non-ucc situation to find that presumption of negligence against bailee who fails to return bailed goods to a bailor is a rebuttable presumption which vanishes upon the introduction of evidence contradicting the presumption). Thus, under Florida law, a bailee is presumed liable if bailed property is not 10

15 returned by the bailee to the bailor; that presumption, however, vanishes if the bailee "satisfactorily explains such failure or the loss, damage or disappearance of the chattel. The law imposes on the bailee the showing that he exercised the degree of care required by the nature of the bailment." Clermont Marine Sales, Inc. v. Harman, 347 So.2d 839, 841 (fn. omit) (Fla. 2nd DCA 1977); see also Aetna Cas. & Surety Co. v. Pappagallo Restaurant, Inc., 547 So.2d 243, (Fla. 3rct DCA 1989) (holding that valet parking company had rebutted presumption of negligence for failing to return bailor's car because lockbox of keys had been stolen). Accordingly, even in a bailment situation, the law requires the bailee to act reasonably under the circumstances and does not require the valet parking company to return a car to a noticeably intoxicated driver. Thus, even in light of the bailment situation, the lower courts erred by ruling that the valet parking company had no duty to refrain from tendering the keys to a dangerous instrumentality to a noticeably intoxicated person. Under Florida law, a bailee, in the exercise of care required by the nature of the bailment, may refuse to tender possession of a bailor's chattel to the bailor. As this Court has previously held, the ownership relationship of the supplier of the dangerous instrumentality is not dispositive of whether the supplier can be held liable for negligently entrusting the instrumentality to the person who ultimately effects the complained-of harm. 11

16 Kitchen, 697 So. 2d at 1205; see also Frankel, 69 So.2d at 888. B. THIS COURT SHOULD FIND THAT PUBLIC POLICY COMPELS THE CONCLUSION THAT VALET PARKING COMPANIES SHOULD EXERCISE REASONABLE CARE AND REFRAIN FROM RETURNING KEYS TO NOTICEABLY INTOXICATED DRIVERS. As either a matter of first impression or for purposes of clarifying its holding in Kitchen, this Court should take into account Florida public policy considerations ofkeeping drunk drivers offlorida's roadways. See, e.g., Kitchen, 697 So.2d at 1207 (holding that Florida public policy compelled the recognition of a cause of action for negligent entrustment of a firearm to an intoxicated customer); Ingram, 340 So.2d at (recognizing that automobiles are dangerous instrumentalities for which the degree of danger escalates when operated by intoxicated drivers). Further, in the absence of a legislative pronouncement immunizing valet parking companies for returning a vehicle to a noticeably intoxicated driver, this Court should consider the public policy consideration of keeping drunk drivers off Florida's roadways. In the Kitchen decision, the public policy considerations of the dangerous instrumentality in the hands of an intoxicated user weighed heavily in the case outcome. As this Court reasoned: We conclude that recognition of a cause of action here, involving the especially dangerous combination of alcohol and firearms, is consistent with Florida public policy as developed in the courts and by the 12

17 legislature. If ever Florida public policy was clear, it is so in its recognition and disapproval of the deadly combination of alcohol and firearms and the danger such combination poses to our citizens. Kitchen, 697 So.2d at Further, the Kitchen Court reasoned that the use of alcohol escalates the already high degree of risks with dangerous instrumentalities: "Not surprisingly, this Court also has recognized that the high degree of risk inherent in the use of dangerous instrumentalities escalates when such an instrument is used by a person who is intoxicated and unable to exercise caution." Id. (citing Ingram v. Pettit, 340 So.2d 922 (Fla. 1976) (describing how intoxication can affect the operation of an automobile) and Horne v. Vic Potamikin Chevrolet. Inc., 533 So.2d 261, 265 (Fla. 1988) (Kogan, J., dissenting). There is no Florida statute prohibiting a valet parking company from refusing to return keys to a noticeably intoxicated driver. Further, in Kitchen, this Court has cited with approval the Williams decision expressly reasoning that it is the "foreseeability of the harm rather than ownership" which determines whether an action exists for negligent entrustment. Kitchen, 697 So.2d at 1205 (citing Williams, 568 So.2d at ). Where, as here, there is a dangerous instrumentality (car) the high degree of risk for which escalates which a drunk driver, and a valet parking company which, in the exercise of due care under the circumstances, can refuse to return the vehicle to the vehicle owner, in the absence of a legislative enactment to 13

18 the contrary, this Court should find that valet parking companies are not carved out from liability for negligent entrustment of dangerous instrumentalities. In this case, the lower courts erred in holding that the Defendant below, Respondent Marino Parking, owed no duty and is thereby immune from any liability for handing over a dangerous instrumentality to a visibly highly intoxicated customer. Therefore, under Kitchen, and the Restatement (Second) 390, this Court should reverse the holding below and remand with instructions to reinstate the Amended Complaint filed against Respondent Marino Parking. V. CONCLUSION. For the foregoing reasons, this Court should reverse the holding below and remand with instructions to reinstate the Amended Complaint filed against Respondent Marino Parking. TIMOTHY M. O'BRIEN, Esquire Florida Bar Number: South Baylen Street, Suite 600 (32502) Post Office Box Pensacola, Florida Attorney for Petitioner 14

19 DEBBIE WEBER, as Personal ) Representative of the Estate of ) Nicole Michele Weber, Deceased, ) ) Plaintiff/Petitioner, ) ) VS. ) ) MARINO PARKING SYSTEMS, ) INC., ) ) Defendant/Respondent. ) ) INTHE SUPREME COURT STATE OF FLORIDA Appeal Case No. 2D Second District Court of Appeal Lower Tribunal No CA Collier County Circuit Court CERTIFICATE OF SERVICE I HEREBY CERTIFY that a copy of the Petitioner's Initial Brief on the Merits has been sent by sent by electronic mail and U.S. Mail to Brett Yonon, Esquire, 1201 Brickell Avenue, 5th Floor, Miami, Florida33131, Attorney for 23/8 LLC d/b/a Sway 15

20 Lounge and to Christopher E. Mast, Esquire, th Avenue North, Naples, Florida 34102, Attorney for Marino Parking, this / b ~day ofma, O'BRIEN, Esquire Levin, Papantonio, Thomas, Mitchell, Echsner & Proctor, P.A. Florida Bar Number: South Baylen St., Ste. 600 (32502) P.O. Box Pensacola, FL (850) Attorneys for Petitioner 16

21 Certificate of Compliance with Font Size By my signature below, I certify that I have complied with the Fla. R. App. P O(g)(2) by using Times New Roman 14-point font throughout the entirety of the foregoing brief. 17