Johnson v. Garrett

386 So.3d 1023

Keith R.E. JOHNSON and KREJ Leasing, Inc., Appellants,

v.Akeefe GARRETT, Appellee.

Case No. 6D23-1205

District Court of Appeal of Florida, Sixth District.

April 4, 2024

Appeal from the Circuit Court for Orange County. Chad K. Alvaro and Vincent Falcone, III, Judges. Lower Tribunal No. 2015-001414-CA

Michael M. Brownlee, of The Brownlee Law Firm, P.A., Orlando, for Appellants.

Jeremy K. Markman, of King & Markman, P.A., Orlando, for Appellee.

STARGEL, J.

Appellants Keith R.E. Johnson and KREJ Leasing, Inc. "KREJ", challenge the final judgment entered after a jury verdict in favor of Appellee Akeffe on his complaint for negligent security arising from a shooting at a strip club in Orlando.¹ Appellants argue that the final judgment should be reversed because they lacked sufficient control over the premises to establish a duty of care toward Garrett. We agree and hold that based on the evidence presented at trial, Appellants were entitled to a directed verdict on Garrett’s allegations of a breach of duty for failure to provide a reasonably safe premises. We reverse and remand for entry of a directed verdict in favor of Appellants.

Background

On February 11, 2013, Garrett visited "Flashdancers" strip club after a night of drinking. Upon his arrival, an armed guard was posted at the entrance to the club, and all guests were patted down before being admitted. No firearms were allowed to be carried inside the club. Shortly after entering the club, Garrett, who by his own admission was intoxicated, slapped a dancer on the buttocks and then turned his attention to a female patron whose companion, Thomas McCrimmon, did not appreciate the behavior. The two men exchanged words, then exchanged punches, and McCrimmon pulled out a pistol and shot Garrett in the abdomen. Garrett suffered serious injuries.

Two years later, Garrett filed suit against the following parties²: (1) Orlando Flashdancers, LLC ("Flashdancers"), the entity that owned and ran the day-to-day operations of the club; (2) Johnson, who owned the property upon which Flashdancers was located; and (3) KREJ, a corporate entity formed by Johnson to manage the property that leased the premises to Flashdancers. The suit claimed damages based on the defendants’ general breach of their duty to provide a reasonably safe premises for Garrett as a patron of the strip club. Garrett’s suit did not include Elite Security Company, the entity hired by Flashdancers for security of the business, and he later filed a second amended complaint dropping Flashdancers as a defendant. Ultimately, this left only Johnson and KREJ as defendants in the suit at the time the case was tried.

After discovery, Garrett moved for partial summary judgment against Johnson and KREJ on the issue of whether there was non-delegable duty to invitees of Flashdancers to provide a reasonably safe business premises, including protection against third-party criminal attacks. The trial court granted the motion in part, finding that a landowner has a non-delegable duty to provide reasonable protection against third-party attacks on the premises, especially where the landowner retains at least some degree of control over the premises, and thus "any duty, if found by the jury to exist, was not delegated to [Flashdancers] by virtue of the lease of the premises." However, the court found disputed issues of fact regarding the existence of a duty based on the foreseeability of the shooting and denied summary judgment to that extent.³ Appellants moved for reconsideration of the partial summary judgment order and for summary judgment in their favor, which the trial court denied. Based on much of the same evidence that would later be presented at trial, the trial court rejected the notion that Johnson’s right to terminate the lease was the sole evidence of his control over the premises and concluded that he did not turn over complete possession and control of the premises.

At trial, multiple witnesses testified about security measures at the club and the relationship between Johnson, KREJ, and Flashdancers. William Sierer was hired by Flashdancers as a consultant and manager to handle the club’s day-to-day operations. Sierer testified that Flashdancers contracted with Elite Security Company to provide security services at the club and there was a written policy governing safety, which included a prohibition against firearms inside the club. Sierer was responsible for ensuring that security personnel did their job, but final decisions regarding security were made by the club’s owner, Carl Shedrick. Any problems with the operations of the club, including security, were handled in-house. According to Sierer, although Johnson came by to check on the property occasionally, he "hardly ever" saw Johnson. Sierer’s only relationship with Johnson and KREJ was sending a rent check to their office every month.

Johnson testified that he purchased the subject property in 1989 from a Mr. Prigden. The warranty deed Johnson received contained various covenants that would terminate upon satisfaction or foreclosure of Johnson’s mortgage on the property. The effect of these restrictions was to protect the grandfathered right to conduct adult entertainment on the property. In 1994, Johnson formed KREJ to manage the various leases associated with the property, which also housed other businesses including an adult bookstore. In 2011, Johnson was introduced to Shedrick, who was interested in running an adult entertainment business on the property. After Shedrick obtained an adult entertainment license and a license to sell alcohol and tobacco, KREJ entered into a lease agreement with Flashdancers.⁴

The terms of the lease required the property to "be used solely for the purpose of continually operating an adult entertainment" venue and provided that the tenant’s failure to do so would constitute a default and give KREJ "the absolute and immediate right to enter the premises and operate adult entertainment therein and/or provide independent contractors to perform adult entertainment." More specifically, it would be a violation for the lessee to fail to operate adult entertainment on the premises for twenty-four consecutive hours excluding legal holidays. The lease also granted KREJ or its agents the right to enter the premises at all reasonable times to inspect the property or make repairs and required the lessee to "comply with all governmental and quasi-governmental laws, ordinances, rules and regulations." The Lease Modification Agreement under which Flashdancers was named the lessee further provided that the tenant "shall be responsible for all items of the premises, excluding roof repairs and exterior walls, but including plumbing, electrical and HVAC systems."⁵

During his testimony, Johnson explained that KREJ charged lower rent for the property because the tenant was responsible for maintaining the building and parking lot and paying the property taxes. He denied that he or KREJ shared in any of Flashdancers’ profits. Johnson stated that he visited the property two to three times per year. When asked if there was security at the club on the night of the shooting, Johnson responded that he assumed so because most clubs would have someone working the door, but he did not know for sure. Throughout his testimony, Johnson repeatedly indicated that he had no personal knowledge of how Flashdancers ran the club because it was not his business.

At the close of Garrett’s case-in-chief, Appellants moved for a directed verdict and for reconsideration of the prior sum- mary judgment rulings, arguing that the evidence showed that neither Johnson nor KREJ had sufficient control over the premises to establish a duty of care. Appellants also challenged the prior ruling that KREJ and Johnson were one and the same, and that KREJ was liable to the same extent as Johnson. Counsel argued the ruling was a violation of due process since the issue was never pled, nor were they able to respond. In response, Garrett maintained that the negligence of Flashdancers was attributable to Appellants because they had a non-delegable duty to the club’s business invitees. The trial court denied both motions and sent the case to the jury, which ultimately returned a verdict in favor of Garrett.

Standard of Review

[1, 2] Appellants contested Garrett’s duty of care allegations at several stages of the proceedings below. While the trial court’s initial ruling on the issue came at the summary judgment stage, Appellants later raised the same issue as grounds for a directed verdict. "[W]e review de novo the trial court’s decision to grant partial summary judgment." Restal v. Nocera, 268 So. 3d 270, 272 (Fla. 5th DCA 2019) (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000)); see also R.J. Reynolds Tobacco Co. v. Grossman, 96 So. 3d 917, 920 (Fla. 4th DCA 2012) ("The existence of a legal duty is purely a question of law and is subject to de novo review."). Additionally, "[t]he standard of review on appeal of the trial court’s ruling on a defendant’s motion for directed verdict is the same test used by the trial court in ruling on the motion." Sims v. Cristinzio, 898 So. 2d 1004, 1005-06 (Fla. 2d DCA 2005) ("In considering a motion for directed verdict, the court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor of the nonmoving party." (citations omitted)).

Analysis

[3–5] Under Florida law, "the duty to protect third persons from injuries on the premises rests not on legal ownership of the premises, but on the rights of possession, custody, and control of the premises." Wal-Mart Stores, Inc. v. McDonald, 676 So. 2d 12, 15 (Fla. 1st DCA 1996) (first citing Kline v. 1500 Mass. Ave. Apt. Corp., 439 F.2d 477, 481 (D.C. Cir. 1970); and then citing Bovis v. 7-Eleven, Inc., 505 So. 2d 661, 663-64 (Fla. 5th DCA 1987)); see...