IN THE SUPREME COURT OF FLORIDA CASE NO. SC07-764 EAST COAST ENTERTAINMENT, INC., d/b/a THE VOODOO LOUNGE., Petitioner, vs. JENNIFER BORDA, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL, FOURTH DISTRICT OF FLORIDA RESPONDENT S AMENDED BRIEF ON JURISDICTION
ROBERTA M.DEUTSCH, ESQ., CAREY M. FISCHER, ESQ., ROBERTA M. DEUTSCH, P.A. CAREY M. FISCHER, P.A. 7000 West Palmetto Park Road 800 Southeast Third Avenue Suite 220 Fourth Floor Boca Raton, Florida 33433 Ft. Lauderdale, FL 33316 (561) 368-1008 (954) 524-3553 ATTORNEYS FOR RESPONDENT
TABLE OF CONTENTS TABLE OF CONTENTS... TABLE OF AUTHORITIES... (i) (ii) STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 A. The decision below does not conflict with Federated Department Stores, Inc., v. Doe, 454 So. 2d 10 (Fla. 3d DCA 1984 or cases cited therein... 3 B. The decision sought to be reviewed is based upon the state of Florida law on premises operator liability on the facts presented at trial... 6 C. There is no need for this Court to clarify standards or the scope of the opinion... 7 CONCLUSION... 8 CERTIFICATE OF SERVICE... 9 CERTIFICATE OF COMPLIANCE... 10 (i)
TABLE OF AUTHORITIES CASES: PAGE Almarante v. The Art Institute of Ft. Lauderdale, Inc., 921 So. 2d 703 (Fla. 4 th DCA 2006)... 7, 8 Fabre v. Marin 623 So. 2d 1182 (Fla. 1993)... 4 Farinas v. State, 569 So. 2d 425, 429 (Fla. 1990)... 4 Federated Department Stores, Inc. v. Doe v. Equity Properties and Development Company, Inc., 454 So. 2d 10 (Fla. 3d DCA 1984)... 3, 4, 5 Hall v. Billy Jack s, Inc. 458 So. 2d 760, 761 (Fla. 1984)... 7 Holiday Inns v. Shelburne 576 So. 2d 322 (Fla. 4 th DCA 1991) review dismissed, 589 So. 2d 291 (Fla. 1991)... 6, 7 Holley v. Mount Zion Terrace Apartments 382 So. 2d 98 (Fla. 3 rd DCA 1980)... 6 Keech v. Yousef 815 So. 2d 718 (Fla. 5 th DCA 2002)... 4 Morgan v. Bucks Associates 428 F. Supp. 546 (E.D. Penn. 1977)... 5 Robbins v. Graham 404 So. 2d 769, 771 (Fla. 4 th DCA 1981)... 8 State v. Jefferson 758 So.. 2d 661, 665 (Fla. 2000)... 5 (ii)
State of Florida Dept. of Transportation v. Denmark 366 So. 2d 476, 478 (Fla. 4 th DCA 1979)... 8 Stevens v. Jefferson 436 So. 2d 33 (Fla. 1983)... 7 Yakovonis v. Dolphin Petroleum, Inc. 934 So. 2d 615 (4 th DCA July 26, 2006)... 4 SECONDARY SOURCES: Rule 9.030(a)(2)(A)(iv), Fla. R. App. Pro.... 3, 9 Fla. Stat. 768.81(d)... 4 Fla. R. Civ. P. 1.180... 4 (iii)
STATEMENT OF THE CASE AND FACTS This case is about a series of assaults against the Respondent, JENNIFER BORDA, while she was an invitee on the premises of THE VOODOO LOUNGE, a local nightclub and bar operated in Fort Lauderdale, Florida by the Petitioner, EAST COAST ENTERTAINMENT, INC., during Spring Break of 2004. The facts of this case testified to at trial and contained in the Decision are not as stated by the Petitioner in its brief. As reflected in the Decision, the series of assaults on Borda began inside the Lounge. As a result of the assaults inside and outside of the Lounge, Borda testified that she was injured, sustained a scar to her eye, and required arthroscopic surgery on her knee. She testified that she suffered extreme humiliation and embarrassment while being carried bleeding, crying and exposed, through the crowd of Spring Breakers out of the Lounge and was afraid to go out in public again. The Defendant s Answer contained a general denial but no affirmative defenses. The Defendant did not disclose any individual or entity who might be liable to Borda for her injuries in discovery responses, and did not file an interpleader. At trial, standard form jury instructions were agreed upon by the parties and the case went to the jury on an agreed upon general interrogatory form verdict. The jury returned a verdict in favor of the Plaintiff and against the Defendant for $150,000.00. 1
Despite the absence of any request to the jury to distinguish between damages sustained inside and those sustained outside, the Court granted Defendant s Motion for Directed Verdict as to Borda s damages allegedly sustained outside the Lounge. The Fourth District Court of Appeal reversed the trial court s rulings, and remanded the matter for entry of the Verdict of the Jury. SUMMARY OF ARGUMENT There is no conflict with any other decision of a district court of appeal or the Supreme Court on the same issue and therefore, no basis for the exercise of discretionary jurisdiction by this Court. The Decision is consistent with well settled law in Florida regarding the issue of a premises possessor s liability for criminal acts initiated on the possessor s premises, but concluding off the premises. After a de novo review of the evidence and testimony at trial, the Court concluded that the Lounge s duty of care to invitees extended to the nearby parking lot which was used by the up to 2000 invitees patronizing the Lounge. Further, the Court concluded that it was a forseeable zone of risk, especially when both patrons were ejected at the same time and placed in the same area. Petitioner relies upon an allegation raised, for the first time on appeal, that it was a commercial lessee, and urges the Court to find a conflict with a decision of 2
another district court in order to awaken discretionary review. Petitioner s failure to raise this issue at the trial level precludes this Court s consideration of the issue. Petitioner finally attempts to rewrite the facts in a light designed to highlight the concerns contained in the concurring opinion of Justice May, who desired to confine this case to its facts. It is the facts of this case, as adduced at trial, and as set forth in the Decision below, that compelled the Decision below. While the Petitioner intentionally misrepresents fantasy as fact, Respondent submits that there is no conflict with any other statement of the law on the issues, and requests that this Court deny Petitioner s request to invoke discretionary jurisdiction. ARGUMENT A. The decision below does not conflict with Federated Department Stores, Inc., v. Doe, 454 So. 2d 10 (Fla. 3d DCA 1984) or cases cited therein There is no basis for this Court to exercise jurisdiction because the decision appealed does not expressly and directly conflict with a decision of another district court of appeal or of the Supreme Court on the same question of law. Rule 9.030(a)(2)(A)(iv), Fla. R. App. Pro. Petitioner asserted for the first time on appeal that the Defendant Lounge was a commercial lessee, and therefore, had no duty to warn invitees of the possibility of criminal acts by third parties or provide security to adjacent areas. Petitioner cites, Federated Department Stores, Inc. v. 3
Doe v. Equity Properties and Development Company, Inc., 454 So. 2d 10 (Fla. 3d DCA 1984) and cases cited therein. Petitioner s argument fails for several reasons. First, Petitioner has waived the right to raise this allegation at this stage of the proceedings. The Defendant did not implead a third party, Fla. R. Civ. P. 1.180(a), did not identify any another individual or entity who might be liable in part or in whole to the Plaintiff for her injuries in response to discovery requests, and did not list or call any such individual or entity to testify at trial. The defendant bore the burden to name as a co-defendant another entity or individual proportionately liable for the Plaintiff s damages, see, Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993), and to prove its claim before the Fabre defendant could be included on the jury verdict form. Fla. Stat. 768.81(d); Yakovonis v. Dolphin Petroleum, Inc., 934 So. 2d 615 (4 th DCA July 26, 2006). The Verdict Form that went to the jury was agreed upon and contained only the Plaintiff and Defendant. Accordingly, Petitioner has waived any right to divest itself of responsibility due to an alleged but undisclosed and untried third party relationship. Second, Petitioner s failure to raise this issue at the trial level precludes this Court s consideration of the issue. In the absence of fundamental error, an appellate court will not consider an issue that has been raised for the first time on appeal. Farinas v. State, 569 So. 2d 425, 429 (Fla. 1990); Keech v. Yousef, 815 So. 2d 718 (Fla. 5 th DCA 2002). The failure to preserve an issue for appellate review 4
constitutes a waiver of the right to seek reversal based on that error. State v. Jefferson, 758 So. 2d 661 (Fla. 2000). Third, Petitioner s argument is without merit. The Plaintiff did not sue the Defendant Lounge as a landowner, but as a nightclub and liquor establishment held open to the public. The Plaintiff was an invitee to the premises, and was assaulted inside (twice) and outside due to negligent security provided by the Lounge. Defendant was sued due to negligence in the operation of its business, in the security provided, and due to the actions of its employees while in the course and scope of their employment. No distinction was made as to ownership of land, and no distinction was necessary in this case. This was not a case about a defect in construction, but rather, about allowing a dangerous situation to exist and failing to provide reasonable care, including adequate security, for the Plaintiff. Finally, there is absolutely no similarity between the fact patterns in the cases cited by the Petitioner and those of the instant case, and no conflict with the resulting application of law or written decisions. In both Federated Department Stores, Inc., supra, and Morgan v. Bucks Associates, 428 F. Supp. 546 (E.D. Penn. 1977), a disclosed tenant and landlord were joined as party defendants, and the case went to the jury as to both defendants. Here, Defendant elected not to implead or disclose any other party as a possible Fabre defendant, and the Lounge was the only named defendant on the agreed upon Jury Verdict form. In neither case was the 5
Plaintiff an invitee to the premises, or a patron to a tavern, to whom a duty of reasonable care such as in the instant case, would have been owed. B. The decision sought to be reviewed contains the state of Florida law on premises operator liability on the facts presented at trial Jurisdiction is not possible in this case where there is no conflict between district courts of appeal or as stated in an opinion of the Supreme Court on the same issue of law. Florida law regarding the issue of a premises possessor s liability for criminal acts initiated on the possessor s premises, but concluding off the premises, is clearly stated in the leading case of Holley v. Mount Zion Terrace Apartments, 382 So. 2d 98 (Fla. 3 rd DCA 1980). Cases since Holley have affirmed that, where a criminal attack begins on a defendant s premises, in an area the defendant controls, due to negligent or inadequate security measures on the defendant s premises, it is no defense that the attack continues or ultimately concludes in an area off the defendant s premises. See, Holiday Inns v. Shelburne, 576 So. 2d 322 (Fla. 4 th DCA 1991); review dismissed, 589 So. 2d 291 (Fla. 1991) and its progeny. On the facts presented, the Court concluded: the evidence presented proved that the Lounge s duty of care to its invitees extended to the nearby parking lot which was one used by the up to 2000 invitees patronizing the Lounge. It was a forseeable zone of risk, especially when both patrons were ejected at the same time and placed in the same area. 6
The Court followed the reasoning advanced in both Hall v. Billy Jack s Inc., 458 So. 22d 760 (Fla. 1984) and Stevens v. Jefferson, 436 So. 2d 33 (Fla. 1983). There is thus no conflict with any announced decision of a district court of appeal or of the Supreme Court on the issue of a premises possessor/operator s liability for criminal acts initiated on the premises, but concluding nearby off the premises. C. There is no need for this Court to clarify standards or the scope of the opinion Petitioner s brief contains a recitation of alleged facts which were not testified to at trial nor determined by the Appellate Court in its de novo review, born in fantasy and designed solely to mislead this Court. Petitioner advances an unsupported and duplicitous argument that the Fourth District Court of Appeal has extended existing Florida law regarding the liability of a premises possessor for criminal acts initiated on the premises, but concluding off premises. Petitioner asks this Court to define the evolving scope of the near-extinct cause of action for premises liability and determine the proper reach of Holiday Inns [supra]. Petitioner attempts to capitalize on Justice May s concurrence, written to agree with the panel but confine this case to its facts so that liability for acts remote in both time and location would not be unintentionally included in the scope of the opinion. Petitioner s argument is logically inconsistent and intellectually dishonest. The cause of action for premises liability is in no way near-extinct, see, Almarante v. 7
The Art Institute of Ft. Lauderdale, Inc., 921 So. 2d 703 (Fla. 4 th DCA 2006) nor has the Court sought to limit the holdings of Holiday Inns or Almarante in its opinion. The Court also has not extended the scope of liability previously approved to areas either remote in time or distance in any fashion by this opinion. Petitioner cannot comprehend that there is no further forum within which to complain of the product of its inaction or silence in not asking the Trial Court to separate those damages sustained inside from those sustained outside. In the absence of specific requested instructions to the jury and a requested jury form verdict containing such a distinction, Petitioner cannot now ask the this Court to create one. One of the purposes of interrogatory verdicts is to provide a means of checking the work of the jury. State of Florida Dept. of Transportation v. Denmark, 366 So. 2d 476, 478 (Fla. 4 th DCA 1979). The failure to object contemporaneously to a verdict form regarding alleged defects, constitutes a waiver of such defects. Robbins v. Graham, 404 So. 2d 769, 771 (Fla. 4 th DCA 1981). In this case, the jury returned a verdict consistent with the evidence, in full conformity with the instructions and verdict form given to them and the Fourth District Court of Appeal gave voice to that Verdict. CONCLUSION The Decision below does not expressly and directly conflict with any decision of a district court of appeal or the Supreme Court on the same issue 8
and therefore, pursuant to Rule 9.030(2)(A)(iv), Fla. R. App. Pro., discretionary jurisdiction of the Supreme Court may not be invoked. Respectfully submitted, ROBERTA M. DEUTSCH, P.A. CAREY M. FISCHER, P.A. Co-Counsel for Appellant 7000 West Palmetto Park Road Suite 220 Boca Raton, Florida 33433 Telephone: (561) 368-1008 Facsimile: (561) 368-1009 By: ROBERTA M. DEUTSCH, ESQ. Florida Bar Number: 743828 CAREY M. FISCHER, ESQ. Florida Bar Number: 198961 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been mailed to: James V. Facciolo, III, Esq., Attorney for Petitioner, 1975 East Sunrise Blvd., Suite 701, Fort Lauderdale, Florida 33304, this 14 th day of May, 2007. ROBERTA M. DEUTSCH, P.A. CAREY M. FISCHER, P.A. Co-counsel for Plaintiff 7000 West Palmetto Park Road Suite 220 Boca Raton, FL 33433 Telephone (561) 368-1008 Facsimile (561) 368-1009 By: ROBERTA M. DEUTSCH, ESQ. Florida Bar Number: 743828 CAREY M. FISCHER, ESQ. Florida Bar Number: 198961 9
CERTIFICATE OF COMPLIANCE The typeface font used in the body of this document is Times New Roman 14 which complies with the Rules of this Court. ROBERTA M. DEUTSCH, P.A. CAREY M. FISCHER, P.A. Co-counsel for Plaintiff 7000 West Palmetto Park Road Suite 220 Boca Raton, FL 33433 Telephone: (561) 368-1008 Facsimile: (561) 368-1009 By: ROBERTA M. DEUTSCH, ESQ. Florida Bar Number: 743828 CAREY M. FISCHER, ESQ. Florida Bar Number: 198961 10