Stolinas v. Palmer

512 F.Supp.3d 1264

Nicholas STOLINAS, Plaintiff,

v.Walter PALMER, Defendant.

Case No.: 2:18-cv-702-FtM-38MRM

United States District Court, M.D. Florida, Fort Myers Division.

Signed January 11, 2021

Kavan Vartak, Michael T. Moore, Clay M. Naughton, Moore & Company, Coral Gables, FL, for Plaintiff.

Daniel Ari Shapiro, Elisabeth Anne Fontugne, Mark D. Tinker, Cole, Scott & Kissane, PA, Tampa, FL, for Defendant.

OPINION AND ORDER ¹

SHERI POLSTER CHAPPELL, UNITED STATES DISTRICT JUDGE

Before the Court are Defendant Walter Palmer's motion for summary judgment (Doc. 64), Plaintiff Nicholas Stolinas’ response in opposition (Doc. 73), and Palmer's reply (Doc. 78). The Court grants the Motion.

BACKGROUND

This negligent entrustment case arises from an accident on Palmer's boat near Marco Island, Florida. (Doc. 1 at 2). Stolinas claims Palmer negligently entrusted his boat to Andrew Derwin, who was driving the boat when the accident occurred.

On a summer Sunday afternoon, Stolinas, Derwin, and their friend Virginia Hackman went for a pleasure ride on Palmer's boat. (Doc. 64-2 at 7, 9, 23:4-17: 31: 23-25; 32: 1-8). While in the water, Derwin made a sudden and unexpected turn that caused Stolinas to fall off the boat. (Doc. 64-2 at 10, 33:18-20; 34: 19-22). Grievous injuries ensued: Stolinas's right hand was cut nearly all the way off and his right leg was severely damaged. (Doc. 64-2, 34:23-25, 35:1-25). Following the accident, the State arrested Derwin and charged him with grand theft of Palmer's boat. He committed suicide before standing trial. (Doc. 64-2 at 8, 27:17-19, 23-25: 28: 9-23).

At issue is Palmer and Derwin's relationship. There is no dispute Palmer and Derwin knew each other. In fact, they were neighbors: Palmer owns a vacation home in Marco Island and Derwin lived with his parents next door. (Doc. 64-3 at 2).

The parties dispute whether Palmer granted Derwin permission to use the boat. In support of Palmer's contention Derwin did not have permission to use the boat, he submits an affidavit stating he never entrusted Derwin with the boat. (Doc. 64-3 at 6). Palmer let no one besides himself operate the boat. ( Doc. 64-3 at 3). Palmer never invited Derwin to take a trip aboard his boat, nor did he ever allow Derwin to operate it. (Doc. 64-3 at 4). And someone witnessed Palmer tell Derwin he could not use the boat. On the evening of June 23, 2016, Derwin asked Palmer if he could use Palmer's boat. (Doc. 64-3 at 4). In front of Palmer's friend Ross Larson, Palmer responded "No, absolutely not! You cannot use the boat." (Doc. 64-3 at 4).² During the investigation of the accident, Palmer told police Derwin did not have permission to use the boat and conveyed he wanted criminal charges brought against Derwin. (Doc. 64-3 at 4-5).

To demonstrate entrustment, Stolinas submits statements from himself, Virgina Hackman, Beatrice Alonzo, and Ann Derwin (Andrew's mother). Stolinas testified Derwin told everyone who went on the boat that Derwin had permission to use it. (Doc. 64-2 at 8, 26: 18-24). In a statement provided to the police, Hackman states "she was under the impression [they] had full permission to use the boat." (Doc. 73-1 at 2). In a statement provided to a private investigator, Beatrice Alonzo, who had previously gone out with Derwin on Palmer's boat, said Derwin told her he had permission to use it. (Doc. 73-13 at 2). In an unsworn statement, Ann Derwin ("Ms. Derwin") stated "it was [her] understanding that Palmer gave [her] son permission to use the boat." (Doc. 73-2).

SUMMARY JUDGMENT STANDARD

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is in genuine dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. If "the movant adequately supports its motion," the nonmoving party must show "specific facts exist that raise a genuine issue for trial." Stephens v. Mid-Continent Cas. Co. , 749 F.3d 1318, 1321 (11th Cir. 2014) (citation omitted).

At this stage, courts view evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. See Battle v. Bd. of Regents , 468 F.3d 755, 759 (11th Cir. 2006). But "[a] court need not permit a case to go to a jury ... when the inferences that are drawn from the evidence, and upon which the non-movant relies, are ‘implausible.’ " Mize v. Jefferson City Bd. of Educ. , 93 F.3d 739, 743 (11th Cir. 1996) (citations omitted).

DISCUSSION

A. Admissibility of Evidence

Palmer argues Stolinas’, Hackman's, Alonzo's, and Ms. Derwin's statements are inadmissible hearsay. He asserts that the statements are barred by Federal Rule of Evidence 803 and Federal Rule of Evidence 804, and that they do not comply with Federal Rule of Evidence 807 as a residual exception to the hearsay rule.

Under Federal Rule of Civil Procedure 56(c)(2), "[a] party may object that the material cited to support or dispute a fact cannot be presented in a form that would be admissible in evidence." Ekokotu v. Federal Exp. Corp. , 408 F. Appx. 331, 335 (11th Cir. 2011) (citations omitted). Inadmissible hearsay cannot be presented on a motion for summary judgment, except that "otherwise admissible evidence may be ‘submitted in inadmissible form at the summary judgment stage, though at trial it must be submitted in admissible form.’ " McCaskill v. Ray , 279 F. App'x 913, 914 (11th Cir. 2008) (quoting McMillian v. Johnson , 88 F.3d 1573, 1584 (11th Cir. 1996) ). Here, the unsworn and unsigned statements submitted by Ms. Derwin and Beatrice Alonzo could be submitted in an admissible form—Stolinas could call these witnesses. Thus, Palmer's objections about the form are non-starters.

But the statements about whether Derwin had permission to use the boat come from Derwin himself. To quell concerns about his use of another person's boat, Derwin told his friends and family he had permission to use the boat. (See Doc. 64-2 at 8, 26:23-24) ("Andy told everybody that went on the boat that Palmer gave him permission to use the boat"). The individuals who Stolinas presents to contradict Palmer's testimony all believed Derwin had permission because of what Derwin himself told them. The statements are being offered to prove the truth of the matter asserted—that Derwin had permission to use the boat. Yet Derwin is unavailable to testify, so any statement made out of court to the witnesses is hearsay. Without Palmer having a chance to cross-examine Derwin, it is inappropriate to admit his statements.

The Court applies the Federal Rules of Evidence. Derwin is an unavailable declarant under Federal Rule of Evidence 804(a)(4). None of the available 804(b) exceptions permits including Derwin's statements he had permission to use the boat. He did not give testimony as a witness at a trial, hearing, or lawful deposition. See Fed. R. Evid. 804(b)(1). He did not give the statements while thinking his death was imminent. See Fed. R. Evid. 804(b)(2). The statements are not so contrary to his proprietary or pecuniary interests to qualify as statements against interest. To the contrary, the self-serving statement(s) absolve Derwin of theft. See Fed. R. Evid. 804(b)(3).

Nor does the residual exception in Federal Rule of Evidence 807 justify admitting these statements. The statements are not supported by sufficient guarantees of trustworthiness. See Fed. R. Evid. 807(a)(1). They are statements made by Derwin to explain to his friends and family why he uses Palmer's boat. No witnesses can corroborate that Palmer gave Derwin permission to use the boat. Thus, Stolinas has failed to establish that the statements are reliable and trustworthy enough to permit them to come in under the residual exception. Admitting them under these circumstances would not best serve the purposes of the Federal Rules of Evidence or the interests of justice. See Fed. R. Evid. 807(a)(4). The statements are inadmissible hearsay.

B. Negligent entrustment claim

The Court turns to the negligent entrustment claim. Florida recognizes Section 390 of the Restatement (Second) of Torts as setting forth the law of negligent entrustment. Section 390 states:

One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.

Kitchen v. K-Mart Corp. , 697 So.2d 1200, 1202 (Fla. 1997) (cleaned up). "[T]he essential thrust of the tort of negligent entrustment is that a shipowner can be held liable for negligent entrustment only if he knows or has reason to know that the person being entrusted is incapable of operating the vessel safely." In re Bowman , Case No: 2:18-cv-71-FtM-29MRM, 2018 WL 3578578, at *2 (M.D. Fla. Jul. 25, 2018) (citing Joyce v. Joyce , 975 F.2d 379, 385 (7th Cir. 1992) ).

What does it mean to entrust? Black's Law Dictionary defines entrust as "to give (a person) the responsibility for something, usu[ally] after establishing a confidential relationship." See Black's Law Dictionary (11^th ed. 2019), entrust. A Florida court has opined ‘entrust’ means "[t]o give over to another something after a relation of confidence has been established. To deliver to another something in trust or to commit something to another with a certain confidence regarding his care, use or disposal of it." Mathis v. Am. Fire & Cas. Co. , 505 So.2d 652, 653 (Fla. Dist. Ct. App. 1987).

To defeat Palmer's motion, Stolinas must adduce some record...