The question of what degree of care property owners owe patrons in Florida depends on numerous factors, including the visitors’ purpose on site, how the dangerous condition arose and whether the risk was foreseeable to the owner/ occupier.
Although we generally think of Florida premises liability cases to involve things like slippery floors, broken stairs, elevator/ escalator accidents or even dog bites.
But another common dangerous condition on property involves failure to protect against third-party assault or violent criminal conduct. Businesses in some cases do have a responsibility to protect customers or visitors from these types of incidents, typically by providing adequate security. However, a good Tampa personal injury lawyer knows claimants in these instances must usually establish a historical pattern of the same or similar crimes at that particular location, nearby or at the same type of businesses.
In a recent case out of Washington, D.C., a federal court reversed in part and affirmed in part a decision by a lower trial court to dismiss premises liability claims against two local bars and grant summary judgment to a fast-food restaurant. In the case of a drunken brawl that turned fatal, the U.S. Court of Appeals for the District of Columbia Circuit ruled that while the summary judgment against the fast-food restaurant where the fight started should stand, the favorable ruling toward the bars where the men consumed the alcohol should be reversed because the estate of decedent did have grounds for a valid wrongful death claim.
According to court records, the fast-food restaurant in question is located on a busy downtown street of D.C. and is open 24-hours-a-day. As such, it is sometimes the site of an influx of patrons – often drunk – on Friday and Saturday nights.
The night in question was one in September 2011, when two groups of men began trading barbs while at this fast-food joint. One of those would ultimately be a defendant and one, a 33-year-old U.S. Army veteran and graduate student, the decedent. The argument spilled outside the restaurant and onto the sidewalk. While just outside the restaurant, the defendant patron punched decedent, who fell to the ground and struck his head on the sidewalk. Four days later, the man who’d been punched died while still in a hospital. The U.S. Attorney’s Office did not charge the man who punched him, classifying the death as “justifiable homicide” and finding the punch was an act of self-defense. (The man’s parents are fighting this after an in-depth review of surveillance footage that seems to contradict the witness interviews on which prosecutors based their decision.)
Decedent’s parents filed wrongful death lawsuits against the man who struck their son, two of his friends who were part of the fight, several bars that served alcohol to defendant and his friends on the night of the fight and against the fast-food franchise owner and corporation where the fight happened.
Against the restaurant, the estate alleged premises liability on grounds the owners should have foreseen that such a fight could occur and in response had more adequate security. The claim against the bars was a bit different, rooted in a theory of dram shop liability. D.C. Code 25-781 prohibits the sale or delivery of alcoholic beverages to individuals who are either under 21 or who are intoxicated or appear to be intoxicated. (Florida’s dram shop law is a bit different, prohibiting sales of alcohol to individuals under 21 or who “are known to be habitually addicted to alcohol.”) Dram shop laws are typically relied on in drunk driving cases, but as this event shows, they can also be used in cases where a drunk person negligently causes harm to another as a result of their intoxication. The estate alleged the bars continued serving defendant and his friends even though he was already intoxicated and visibly so.
Although the trial court found plaintiffs failed to plead sufficient facts to establish proximate cause against the bars and that the evidence was insufficient to show the fast-food restaurant acted negligently.
As to the bars, the appellate court ruled that for the basis of summary judgment, it must be assumed that facts raised by plaintiffs are true (as questions of fact will have to be resolved by a jury, not a judge). In so doing, they must assume the bars served defendant and his friends when they were already visibly intoxicated. The plaintiffs should have a right to bring their claim to court, though they will have to prove this fact, as well as that the bars’ actions caused decedent’s death with a but-for causation and proximate cause.
As far as the claim against the fast-food restaurant, plaintiffs claim the restaurant owed a duty to protect patrons from foreseeable harm caused by other patrons, and that the restaurant was negligent in failing to have a guard on-duty, not having any employee call 911 during the fight and not training employees how to prevent or intervene in a physical altercation. The appellate court in D.C. noted that as far as the security guard, plaintiffs would have needed to show the restaurant violated a national standard of care, which would be a widespread or normal practice within a given industry. (Note: Premises liability standards may be different from state-to-state, which is why they should be discussed with an experienced injury lawyer.) Although nightclubs and bars typically hire security guards, only a smattering of fast-food restaurants do, and the court found this was not sufficient to establish a national standard. The court found the same with regard to the other claims of negligence, and further noted that requiring fast-food employees to intervene in altercations between drunk patrons could endanger employees.
Finally, the court also reversed the trial court’s order dismissing the wrongful death claim (while allowing the survival action), arguing the former was filed outside the statute of limitations. The appeals court disagreed, and ruled the family should be allowed to proceed with both (one being filed by the next-of-kin to recover pecuniary losses resulting from a loved one’s death and the other being filed by the representative of the estate for a tort action decedent could have pursued had he or she survived).
Contact the South Florida personal injury attorneys at Halberg & Fogg PLLC., Attorneys at Law, by calling toll-free at 1-877-425-2374. Serving West Palm Beach, Miami, Tampa, Orlando and Fort Myers/ Naples. There is no fee unless you win.
Casey v. McDonald’s Corp., Jan. 26, 2018, U.S. Court of Appeals for the District of Columbia Circuit
More Blog Entries:
$1.8M Miami-Dade Wrongful Death Settlement Reached in Coral Gables High School Student’s Fatal Stabbing, Sept. 19, 2011, Tampa Personal Injury Attorney Blog