Sixth DCA (FL)
Johnson & Krej Leasing, Inc.
6th DCA, 4/4/24
No. 6D23-1205, 2024 WL 1460183
Judge Stargel
Topics: Negligent Security; Premises Liability
Full Take: This is a negligent security case. Plaintiff Garrett went to “Flashdancers,” an Orlando strip club. Everyone is patted down for weapons upon entry. While in the club, he slapped a dancer on the butt, her male friend began arguing with Garrett, they got into a fight, and then the dancer’s friend shot Garrett in the abdomen.
Plaintiff Garrett sued (1) the corporation that owned and ran the club, (2) Defendant Johnson, who owned the property; and (3) Defendant KREJ, a corporation formed by Defendant Johnson to manage the property that leased the premises to Flashdancers. Notably, Plaintiff Garrett did not sue the company that handled security for the club. He also later dropped the club as a Defendant, which left only Johnson and KREJ as Defendants.
Prior to trial, the judge granted partial summary judgment against Johnson and KREJ, holding that they had a non-delegable duty to invitees that could not be delegated to Flashdancers in regard to protection from third-party criminal attacks. This was because the trial court held that Johnson and KREJ retained some degree of control over the premises.
Trial showed that Flashdancers and the security company handled everything related to security, and Johnson was basically the person to whom Flashdancers sent rent money. Oddly, when Johnson bought the property in 1989, it was subject to the condition that adult entertainment business always be conducted on the property. At first, there was an adult bookstore, and then in 2011, Flashdancers leased the property. The lease required the property to “be used solely for the purpose of continually operating an adult entertainment” venue, and if that stopped, that would result in the lease being terminated and turned back over to KREJ. The lease gave KREJ the right to enter to inspect and make repair and ensure compliance with all laws and government rules or ordinances. Flashdancers, however, was responsible for maintaining the building and parking lot and paying the property taxes. KREJ and Johnson did not get any percent of the profits. He visited the property two to three times a year.
At the close of Garrett's case-in-chief, Appellants moved for a directed verdict and for reconsideration of the prior summary 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.
The 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. 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.
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. In cases involving a leased property, “the extent of responsibility for injuries occurring on the leased premises during the term of the lease depends upon the extent the owner of the property maintains control over the premises.” Where a property owner surrenders complete possession and control of the premises to a tenant, the owner is not liable for injuries to third parties occurring on the premises.
A premises owner with control over the premises cannot escape liability by hiring a security company. Here, for instance, if Plaintiff sued Flashdancers, Flashdancers could not escape liability just because it hired Elite Security Company for security services. But the facts here are that Flashdancers, not Johnson and his property management company, controlled the premises. They were not involved with security. The existence of a right to take control of the premises under default is not the same as actually exercising that control. The right to inspect the property or make repairs does not constitute sufficient control for purposes of establishing liability. While the lease requirement that Flashdancers had to comply the laws and ordinances may have necessitated certain security measures at the club, Flashdancers was required to comply with all governing laws and ordinances regardless of whether the lease said so. The DCA refused to equate that to “control” because such a holding “would risk eroding the established legal protections afforded to landowners who turn over complete possession and control of their properties to lessees.” Appellants were entitled to a directed verdict. REVERSED and REMANDED for entry of directed verdict in Defendants’ favor.
