IN THE SUPREME COURT OF THE STATE OF FLORIDA

IN THE SUPREME COURT OF THE STATE OF FLORIDA DEBBIE CARTER, individually and as Personal Representative of the Estate of KYLE MAK, deceased and survivors thereof, a minor, CASE NO. SC03-961 DCA CASE NO. 5D02-691 vs. Petitioner, CAPRI VENTURES, INC., etc., et al., Respondents. / ON PETITION FOR DISCRETIONARY REVIEW OF A DECISION OF THE FIFTH DISTRICT COURT OF APPEAL BRIEF OF RESPONDENTS ON JURISDICTION SHELLEY H. LEINICKE, ESQ. WICKER, SMITH, O HARA, McCOY, GRAHAM & FORD, P.A. Counsel for Respondents, Capri Ventures, Inc., etc., et al 1 East Broward Blvd. South Trust Tower, Suite 500 P.O. Box 14460 Ft. Lauderdale, FL 33302 Phone: (954) 467-6405 Fax: (954) 760-9353

TABLE OF CONTENTS PAGE TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1 ARGUMENT SUMMARY... 2 ISSUE... 2 WHETHER THIS HONORABLE COURT LACKS JURISDICTION TO REVIEW THIS PETITION BECAUSE NO CONFLICT EXISTS AMONG THE DECISIONS CARTER CITES ARGUMENT... 2 THIS HONORABLE COURT LACKS JURISDICTION TO REVIEW THIS PETITION BECAUSE NO CONFLICT EXISTS AMONG THE DECISIONS CARTER CITES CONCLUSION... 7 CERTIFICATE OF SERVICE... 8 CERTIFICATE OF COMPLIANCE i

TABLE OF CITATIONS CASES PAGE Dept. of Revenue v. Johnston, 442 So.2d 930 (Fla. 1983)... 6 Gross v. Sand and Sea Homeowners Ass n., Inc., 756 So.2d 1073 (Fla. 4 th DCA 2000)... 4,5 Gunlock v. Gill Hotels Co., Inc., 622 So.2d 163 (Fla. 4 th DCA 1993)... 4,5 Johnson v. Howard Mark Productions, Inc., 608 So.2d 937 (Fla. 2 nd DCA 1992)... 3 McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992)... 2 Mystan Marine, Inc. v. Harrington, 339 So.2d 200 (Fla. 1976)... 6 Rapp v. Tolbert Enterprises, Inc., 591 So.2d 281 (Fla. 1 st DCA 1991)... 4 Whitt v. Silverman, 788 So.2d 210 (Fla. 2001)... 3 Wilson v. Southern Bell Telephone & Telegraph Co., 327 So0.2d 220 (Fla. 1976)... 6 Other Authority ii

STATEMENT OF THE CASE AND FACTS Kyle Mak was killed by a car while crossing State Road A1A on his way to the beach. At the time of the accident Kyle was with his mother, aunt, and two cousins. The accident occurred as Kyle was standing in the middle of A1A and the driver was weaving in and out of traffic and driving carelessly. Kyle was hit when this speeding car spun out of control. Kyle s mother, Carter, filed suit alleging that either the defendant/respondent motels should have warned of the dangers of crossing a public road or created a safe means to cross. The motels in question are three separately owned properties, two on the east (beach) side of A1A, and a third on the west (land) side. 1 Though Carter initially stayed at a beach side property, she moved to the land side when the rest of her family arrived. The family had vacationed at these motels for thirteen years. Both the trial court and the appellate court determined that none of the motels had a duty to Kyle Mak while he was off their property and standing in the middle of State Road A1A. The Fifth District determined that the cases cited by Carter were factually distinguishable and affirmed the trial court s determination that the motels did not create any foreseeable zone of risk that could subject them to liability for this offpremises incident. ARGUMENT SUMMARY This Court lacks jurisdiction to review the instant case because there is no 1 Capri Ventures, Inc. owns the Capri Motel located on the east (beach) side of A1A. The adjacent Ocean Villa Motel is separately owned. The Casa Marina Motel, located on the west (land) side of A1A has a third owner. 1

express and direct conflict with any other appellate decision. Carter is unsuccessfully attempting to create a conflict by citing to wholly dissimilar cases and/or to cases that the Fifth District specifically referenced and distinguished. Because the instant case is factually unlike the decisions that Carter relies upon, there is no conflict that can serve as a basis to invoke this Court s jurisdiction. ISSUE WHETHER THIS HONORABLE COURT LACKS JURISDICTION TO REVIEW THIS PETITION BECAUSE NO CONFLICT EXISTS AMONG THE DECISIONS CARTER CITES ARGUMENT THIS HONORABLE COURT LACKS JURISDICTION TO REVIEW THIS PETITION BECAUSE NO CONFLICT EXISTS AMONG THE DECISIONS CARTER CITES The instant decision is in full accord with the settled law of this state and does not conflict with the decisions Carter cites. Carter relied on the same distinguishable case law in the district court appeal, and the Fifth District correctly recognized that Carter s reliance was misplaced. Because of factual and/or procedural distinctions between the instant case and the decisions that Carter references, the law remains in full harmony. Not only does the instant the not conflict with McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992), the district court s opinion even cites to this case as setting forth the elemental legal requirement for determining the threshold issue of whether landowners actions create a foreseeable zone of risk. Clearly, no conflict is shown. The case of Whitt v. Silverman, 788 So.2d 210 (Fla. 2001) is factually 2

distinguishable. The Whitt plaintiff alleged that an accident was caused by a dense stand of foliage on the defendant s gas station property that obstructed motorists vision. Because this situation is wholly dissimilar from the instant case, the decisions are not in conflict. Further, the discussion of the agrarian rule in Whitt ( a landowner owes no duty to persons who are not on the landowner s property ) is consistent with the instant decision. Id. at 213. The claim in Johnson v. Howard Mark Productions, Inc., 608 So.2d 937 (Fla. 2 nd DCA 1992) was based on a claim that a teenage nightclub knew it had inadequate parking and knew that this woeful insufficiency created a dangerous condition. There is no similar claim in the instant case. The Johnson case is further distinguished by the fact that the defendant s summary judgment motion was not supported by any discovery describing either the accident or the premises. In stark contrast, the summary judgment motion in the instant case was based on discovery and resolution of all material facts, including evidence that (1) Carter (Kyle s mother) and at least one other adult (an aunt) were present at the time of the incident to assist/supervise Kyle s actions, (2) Carter knew the potential dangers of a four-lane road like A1A even without warning signs, (3) Carter didn t know what she might have done differently if warning signs about the road had been posted, and (4) hundreds or thousands of people walk across this public roadway yearly without incident. Because of these multiple distinctions, Johnson and the instant case are not in conflict. The plaintiff in Rapp v. Tolbert Enterprises, Inc., 591 So.2d 281 (Fla. 1 st DCA 1991), the guest was injured after she was specifically instructed by a motel 3

employee to park in an off-premises location. The case is patently distinguishable from the instant decision, where Carter was given no directions on parking or any other matter. Both Gross v. Sand and Sea Homeowners Ass n., Inc. 756 So.2d 1073 (Fla. 4 th DCA 2000) and Gunlock v. Gill Hotels Co., Inc., 622 So.2d 163 (Fla. 4 th DCA 1993) arose in a distinctly different procedural context. The Gross and Gunlock courts were reviewing orders dismissing a complaint for failure to state a cause of action. Both decisions acknowledge that at the motion to dismiss stage, the trial court is obliged to take every allegation of the complaint as true. In contrast, the instant trial court considered the issue of a landowner s duty in a motion for summary final judgment at the conclusion of all relevant discovery and correctly concluded that the issue of duty was a matter of law for the court. In addition to the significant procedural distinctions, both Gross and Gunlock are factually distinguishable from the instant case. In Gross, the complaint alleged that the defendant was responsible for maintenance, operation, and control of a single business that was bisected by a street where a child was injured. In contrast, the instant case involves three motels that are separate business and separately owned. Additionally, the Gross defendant had a rule restricting children from using a particular recreational facility thereby forcing the children to cross a street to use the facility in question. By comparison, the instant motels had no rules restricting or otherwise relating to the use of any facilities; rather, guests were simply allowed to use the amenities of all three motels if they chose to do so. Finally, the Gross defendant was charged with failing to 4

ensure that the area in question was adequately lit, and there were no similar allegations in the instant case. In Gunlock, as in Gross, a single hotel was split so that half of its facility was on each side of the road. The instant case involves three separate, distinct motels that merely allow guests to use amenities at any of the motels. Further, a hotel employee in Gunlock knowingly permitted an intoxicated guest to leave the bar and cross the road alone in violation of an internal policy to escort inebriated hotel guests to their rooms. The instant case contains no similar issues. Additionally, while the intoxicated Gunlock plaintiff was permitted to cross the road unescorted, Kyle Mak was standing under the watchful eyes of his mother, aunt, and two cousins. Unlike the Gunlock hotel, the instant motels did not violate any internal rules requiring guests to be escorted anywhere or at any time on the separate properties. In yet a further contrast to Gunlock, where the plaintiff s ultimate destination as his hotel room across the street, Kyle Mak was headed to a public beach. Conflict certiorari is available only where there is a direct conflict between or among decisions. Review is limited to those situations because of the concern for uniformity in decisions as precedent rather than the adjudication of the rights of particular litigants. Mystan Marine, Inc. v. Harrington, 339 So.2d 200 (Fla. 1976). Because the cases claimed to be in conflict are easily distinguishable on their facts and procedural posture, certiorari review on the grounds of conflict is not available. Wilson v. Southern Bell Telephone & Telegraph Co., 327 So.2d 220 (Fla. 1976); Dept. of Revenue v. Johnston, 442 So.2d 930 (Fla. 1983). 5

CONCLUSION For the reasons set forth herein, no direct conflict exists between or among the instant case and the decisions cited by Carter, and therefore this Court does not have jurisdiction to review this cause. It is therefore respectfully requested that this Honorable Court deny Carter s request for discretionary review. Respectfully submitted, WICKER, SMITH, O HARA, McCOY, GRAHAM & FORD, P.A. Attorney for Respondents, Capri Ventures, Inc., etc., et al. 1 East Broward Blvd. South Trust Tower, Suite 500 P.O. Box 14460 Ft. Lauderdale, FL 33302 Phone: (954) 467-6405 Fax: (954) 760-9353 B y : Shelley H. Leinicke Florida Bar No. 230170 6

CERTIFICATE OF SERVICE WE HEREBY CERTIFY that a true copy of the foregoing was mailed this 25th day of June, 2003, to all parties on the attached service list. WICKER, SMITH, O HARA, McCOY, GRAHAM, & FORD, P.A. Counsel for Respondents, Capri Ventures, Inc., etc., et al. 1 East Broward Blvd. South Trust Tower, Suite 500 P.O. Box 14460 Ft. Lauderdale, FL 33302 Phone: (954) 467-6405 Fax: (954) 760-9353 By: Shelley H. Leinicke Florida Bar No. 230170 7

following: CERTIFICATE OF COMPLIANCE PURSUANT TO FLA. R. APP. PRO. 9.210(a)(2) Counsel for Respondents, Capri Ventures, Inc., etc., et al, certifies the Pursuant to Fla. R. App. P. 9.210(a)(2), the instant brief of Respondent is printed using a proportionally spaced 14 point Times New Roman typeface. Dated: _6-25-03 Shelley H. Leinicke Florida Bar. No. 230170

Lisa Paulette Kirby, Esq. Roger E. Craig, Esq. 2500 N. Tamiami Trail, Suite 214 Naples, FL 34103 Attorneys for Petitioner Service List