IN THE SUPREME COURT OF FLORIDA CASE NO. SC DISTRICT CASE NO. 4D L. T. CASE NO. CL AF HEATHER MCVICKER, Petitioner,

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC DISTRICT CASE NO. 4D L. T. CASE NO. CL AF HEATHER MCVICKER, Petitioner, v. FRED & JEAN ALLEGRETTI FOUNDATION, INC. d/b/a BLOWING ROCKS MARINA, Respondent. ON DISCRETIONARY REVIEW OF A DECISION OF THE FOURTH DISTRICT COURT OF APPEAL RESPONDENT S BRIEF ON JURISDICTION

2 FOWLER WHITE BURNETT P.A. Attorneys for Respondent Bank of America Tower, 17th Floor 100 Southeast Second Street Miami, Florida (305) By: JUNE GALKOSKI HOFFMAN Florida Bar No JAMES N. HURLEY Fla. Bar No

3 TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES... ii RESPONSE STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4 THE OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE FIRST DISTRICT S DECISION IN WAL-MART STORES, INC. v. MCDONALD OR THIS COURT S DECISION IN SIMMS V. KENNEDY... 4 CONCLUSION... 9 CERTIFICATE OF SERVICE CERTIFICATE OF COMPLIANCE [i]

4 TABLE OF AUTHORITIES Cases Page(s) Bovis v. 7-Eleven, Inc., 505 So.2d 661, 662 (5th DCA 1987)... 2, 3, 5, 9 Brown v Suncharm Ranch, Inc., 748 So.2d 1077 (5th DCA 1999)... 7 Eastern Airlines, Inc. v Dixon, 310 So.2d 336 (3rd DCA 1975)... 6 Relyea v. State, 385 So. 2d 1378 (Fla. 4th DCA 1980)... 2 Simms v. Kennedy, 76 So. 739 (1917)... 5, 8 Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12 (Fla. 1st DCA 1996), approved on different grounds, 705 So.2d 560 (Fla. 1997)... 4 Wimbush v. Gaddis, 713 So. 2d 1107 (Fla. 4th DCA 1998)... 2, 3, 6, 9 [ii]

5 Other Authorities Art. I, 3(b)(3), Fla. Const Fla.R.App.P [iii]

6 RESPONSE STATEMENT OF THE CASE AND FACTS Petitioner seeks discretionary review of a Fourth District Opinion that dismissed a complaint with prejudice against a lessor landlord, Blowing Rocks Marina (the Marina ), for failure to state a cause of action. Petitioner s injuries arose solely due to tenant Kolb s business activities not under the Marina s control, thus the Marina did not breach any recognized legal duty to the Petitioner and the District Court correctly affirmed the dismissal of the Amended Complaint. Karl Kolb owned a business that rented JetSkis from a dock that the Marina owned. Kolb, who leased a shack and dock space from the Marina, negligently rented a JetSki to the underage plaintiff and an adult companion and the plaintiff injured herself. The trial court dismissed her complaint against the Marina lessor for failure to state a cause of action. The Fourth District Court of Appeal affirmed. Plaintiff was injured when her JetSki collided with a vessel anchored several hundred feet from the shore. She alleged that Kolb violated section (6)(a), Florida Statutes (2001), which makes it unlawful to authorize a person under the age of fourteen (14) to operate a personal water craft. She also alleged violations of section in that Kolb failed to provide instruction on the operation of the vessel and failed to have the required insurance. The theory alleged against the Marina owner is that it was liable because it knew or should have known that Kolb was committing [1]

7 crimes by violating these statutes. The foregoing cited statutes apply only to Kolb as a boat livery and not to the Marina. The Complaint did not make a single specific allegation that the Marina itself violated any statutory obligation. While the Complaint alleged joint control between the Marina and the tenant, Kolb, over some of the dock space, the Complaint did not include any allegations whatsoever that the condition of the premises under joint control in any way caused or contributed to Petitioner s injuries. There were also no allegations that the Marina controlled or had the ability to control Kolb s business practices. The only possible inference regarding control that could be drawn from the Complaint was that the Marina could have terminated Kolb s lease. Plaintiff below relied on the theory of Relyea v. State, 385 So. 2d 1378 (Fla. 4th DCA 1980), in which the Fourth District held that a landowner has a duty to protect invitees from violent criminal acts of third persons, if the landowner has actual or constructive knowledge of such a danger. The Marina, on the other hand, cited cases in which it had been held that a lessor is not liable for the negligent operation of a lessee's business. See Wimbush v. Gaddis, 713 So. 2d 1107 (Fla. 4th DCA 1998); Bovis v. 7-Eleven, Inc., 505 So. 2d 661 (Fla. 5th DCA 1987). The Fourth District concluded that the Relyea line of cases relied on by plaintiff are distinguishable because in those cases the defendants were in direct control of the premises, while in the present case the defendant lessor does not control the day to day operation of the lessee's business. As the Fourth District noted in its Opinion: [2]

8 See Opinion, p. 1. Although we are sympathetic to the plight of the plaintiff, because the negligent lessee is apparently judgment proof, she has provided us with no authority which would support holding the lessor liable. SUMMARY OF ARGUMENT This Court should deny review. Petitioner erroneously sought to impose liability on the Marina, a lessor landlord, in the absence of any allegation of control with respect to its tenant s alleged illegal business activity, i.e., the tenant s failure to comply with statutory obligations regulating the operation of a JetSki rental. Contrary to the Petitioner s position, the Opinion properly declined to impose a legal duty on landlords to police the business activities of tenants for any statutory or regulatory noncompliance, and thus correctly adhered to Florida law that a lessor is not liable for the negligent operation of a lessee's business. See Wimbush v. Gaddis, 713 So. 2d 1107 (Fla. 4th DCA 1998); Bovis v. 7-Eleven, Inc., 505 So. 2d 661 (Fla. 5th DCA 1987). The Opinion simply does not conflict, expressly or directly, with McDonald and Simms. These cases merely state well-established Florida law that lessors are not liable to third parties for injuries caused by defects in leased premises absent control. Given the foregoing, express and direct conflict with another district decision (McDonald) or a decision of this Court (Simms) does not exist to justify this Court s extraordinary exercise of conflict jurisdiction under Art. I, 3(b)(3) [3]

9 of the Florida Constitution. The Opinion does not announce a rule of law that is contrary to McDonald or Simms, or otherwise make a different determination of law, on the same or similar facts. Rather, the Opinion is entirely consistent with McDonald and Simms, i.e., no lessor liability exists without control of the leased premises. Although this case and the Opinion present a slight twist to this classic rule, i.e., a lessor landlord s liability to an injured third party due to a tenant s noncompliance with statutory obligations regulating a tenant s business activity, as opposed to a defective or dangerous condition of the physical premises, the result is the same in the absence of control; a lessor landlord is not liable for the negligent operation of a lessee's business it does not control. Under these circumstances, the Petition should be denied because conflict does not exist to warrant this Court s discretionary review. ARGUMENT THE OPINION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH THE FIRST DISTRICT S DECISION IN WAL-MART STORES, INC. v. MCDONALD OR THIS COURT S DECISION IN SIMMS V. KENNEDY The Fourth District s Opinion does not cite, let alone squarely conflict, with Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12 (Fla. 1st DCA 1996), approved on different grounds, 705 So.2d 560 (Fla. 1997) or Simms v. Kennedy, 76 So. 739 (1917) under the circumstances presented here. The Opinion simply does not announce a rule of law [4]

10 contrary to McDonald or Simms, or otherwise make a different determination of law on the same or similar facts. In fact, McDonald and Simms actually support the Marina s position and are consistent with the Opinion. As explained below, Florida law has long refused to impose a legal duty on lessor landlords for injuries to third parties, in the absence of any lessor control, whether arising in the classic premises liability context involving a defect or dangerous condition in the premises, or involving a tenant s negligence in the operation of its business. Under either scenario, control is the critical factor. In this case, the absence of any allegation that the Marina possessed the ability to control the tenant s operation of its JetSki rental business was fatal to a cause of action against the Marina and properly mandated dismissal of the Complaint. Under these circumstances, harmony -- not conflict -- exists with respect to the Opinion and the McDonald and Simms decisions. The Petition should be denied. In Florida, it is the ability to control that ultimately determines whether a property owner will be liable for the acts or omissions of its tenant. See Bovis v. 7-Eleven, Inc. 505 So.2d 661, 662 (Fla. 5th DCA 1987). A landlord is not liable to third parties for injuries incurred on leased property where a lessee is in possession, occupancy, and control of the premises that were in good condition when leased. See Eastern Airlines, Inc. v Dixon, 310 So.2d 336 (Fla. 3d DCA 1975). Further, a landlord is not liable for injuries caused solely by its tenant s operations and activities on the leased premises. See Wimbush v. Gaddis, 713 So.2d 1107 (Fla. 4th DCA 1998). [5]

11 An exception to this rule exists in negligent security cases, such as the McDonald case, where the property owner retains some control over common areas such as a parking lot and an invitee is injured on the premises. In such cases, the condition of the premises, e.g., improper lighting or inadequate guard services, caused or contributed to the accident. In McDonald, the First District reviewed the denial of the lessor s motion for directed verdict and concluded that substantial competent evidence existed in the record to show that the lessor exercised some control over the shopping center parking lot and public access thereto. Id. at 15. In this negligent security context, the First District noted that a landlord and a tenant can have concurrent duties to provide reasonably safe premises and that the duty to protect third parties from injuries on the premises rests not on legal ownership, but rather on the rights of possession, custody and control of the premises. Id. at Unlike McDonald, this case is not a negligent security case and the facts are quite different. Unlike the evidence that existed in McDonald to support a finding that the lessor exercised some control over the leased premises, the Petitioner s Complaint stood bare of any allegations that the Marina exercised any control over the leased premises or the tenant s business activities. In addition, the Petitioner s injuries did not occur on the subject premises. While the Petitioner purportedly leased the JetSki from Kolb s business located on the Marina s property, the Petitioner was actually injured as result of an allision with a moored vessel away from the property itself. There were no allegations [6]

12 whatsoever regarding the condition of the premises that either caused or contributed to the accident and Petitioner s injuries. Therefore, it was not the property or its condition that caused the accident but instead, allegedly, the manner in which Kolb, the tenant, conducted his JetSki rental business. A cause of action could be stated against the Marina only if the Petitioner alleged that the Marina had the duty and ability to control the business practices of its tenant, which Petitioner did not (and could not) allege. The only possible inference regarding control that could be drawn from the Complaint was that the Marina could have terminated Kolb s lease. However, such a right to terminate a lease does not constitute control so as to impose tort liability on a property owner. See Brown v Suncharm Ranch, Inc., 748 So.2d 1077 (Fla. 5th DCA 1999)(holding that the authority to terminate the lease did not constitute a lessor s control for purposes of premises liability and noting that the imposition of liability in such circumstances was tantamount to treading on a slippery slope because the result of such an approach would be that, in some cases, a landlord could be held responsible for the negligence of the tenant as a matter of law. Such an approach would place landlords in the untenable position of having to retain and manage the leased premises."). Indeed, Petitioner s theory of premises liability would revolutionize landlord tenant law in Florida in unprecedented fashion by rendering all landowners insurers of tenants business activity without due regard for lessor control. Under these circumstances, the Opinion simply does not announce a rule of law contrary to McDonald, or [7]

13 otherwise make a different determination of law on the same or similar facts. Accordingly, no conflict exists between the Opinion and McDonald and the Petition for discretionary review should be denied. This Court should also deny the Petition because the Opinion does not contradict this Court s decision in Simms v. Kennedy, 76 So. 739 (1917). In Simms, this Court considered an appeal in a personal injury action where a pedestrian sustained injuries on a public sidewalk when part of a defective awning over the sidewalk, but attached to a leased building, fell. In that premises liability context, this Court held that where the tenant is in entire possession, occupancy and control of the premises and the premises were in good condition at the commencement of the landlord-tenant relationship, the landlord is not liable in damages for injuries to third persons caused by defects in the premises. Id. at 740. Here, Petitioner confuses premises liability concepts regarding defects or dangerous conditions in the physical leased premises with the precise issue presented, i.e., the liability of a lessor landlord for a tenant s alleged operation of a business, in violation of Florida Statutes, that the lessor did not control. The fatal distinction between Simms and the instant case, which Petitioner must concede, is that there is absolutely no contention in this case that the leased premises were, in any way, defective, dangerous or unsafe to even implicate the Simms rule. This factual distinction alone renders Simms inapposite and eliminates the question of any conflict. Furthermore, the gravamen of the analysis [8]

14 is the lessor s alleged control of the premises or business operations, which unlike Simms the Petitioner here failed to allege. Florida law is well-established that a lessor is not liable for the negligent operation of a lessee's business. See Wimbush v. Gaddis, 713 So. 2d 1107 (Fla. 4th DCA 1998); Bovis v. 7-Eleven, Inc., 505 So. 2d 661 (Fla. 5th DCA 1987). As with McDonald, the Opinion simply does not announce a rule of law contrary to Simms, or otherwise make a different determination of law on the same or similar facts. Accordingly, the Opinion does not present any conflict and the Petition for discretionary review should be denied. CONCLUSION The foregoing analysis of McDonald and Simms invalidates the Petitioners contention that the Fourth District ruled incorrectly and disregarded longstanding principles of Florida premises liability law. Rather, it is the Petitioner who seeks an unprincipled extension of that precedent which would result in an extraordinary shift toward strict liability of landlords for tenants negligent or illegal business activities in the absence of lessor control. Given the demonstrated absence of any express and direct conflict to justify this Court s extraordinary exercise of discretionary conflict jurisdiction, this Court should decline to accept jurisdiction and deny the Petition. Respectfully submitted, [9]

15 June Galkoski Hoffman Fla. Bar No James N. Hurley Fla. Bar No FOWLER WHITE BURNETT P.A. Bank of America Tower, 17th Floor 100 Southeast Second Street Miami, Florida Telephone: (305) Facsimile: (305) CERTIFICATE OF SERVICE I HEREBY CERTIFY that the foregoing was served via U.S. Mail this 10th day of June, 2003, to: JOHN G. CRABTREE, ESQ., Crabtree & Hope, P.A., 240 Crandon Boulevard, Suite 279, Key Biscayne, FL and ALEXANDER L. KAPLAN, ESQ., Alexander L. Kaplan, P.A., 9853 North Tamiami Trail, Naples, Fl June G. Hoffman [10]

16 CERTIFICATE OF COMPLIANCE The undersigned hereby certifies that this brief complies with the font requirements of Fla.R.App.P June G. Hoffman [sb] T:\BRIEFS\Briefs pdf'd\03-756_jurisans.wpd [11]