DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JACOB BRYAN,
Appellant,
v.
GALLEY MAID MARINE PRODUCTS, INC., a Florida corporation,
d/b/a Off Road Innovations, a/k/a ORI,
Appellee.
No. 4D18-3699
[January 15, 2020]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Laurie E. Buchanan, Judge; L.T. Case No.
2017CA000110.
Linda Elise Capobianco of Stone & Capobianco, P.L., Stuart, for
appellant.
Louis Reinstein and Jack T. Frost, of Kelley Kronenberg, Fort
Lauderdale, for appellee.
FORST, J.
In this negligence case, plaintiff Jacob Bryan appeals from the circuit
court’s final summary judgment in favor of defendant Galley Maid. The
case arose following an incident at Galley Maid’s shop, after hours, in
which Bryan was violently attacked twice by a third party, James Long.
We conclude that genuine issues of material fact remain in this case
regarding the reasonable foreseeability of Long’s second attack on Bryan,
and whether Galley Maid’s owner had a duty to render or call for aid after
the attacks. Therefore, we reverse the final summary judgment.
Background
The record presents the following facts. Bryan was out drinking at a
bar one night with Ernest Tumoszwicz (Galley Maid’s alleged owner/co-
owner), and three other acquaintances, including Long. When the bar
closed, the group left and went to Tumoszwicz’s shop, Galley Maid. Galley
Maid is a business which builds and manufactures equipment for yachts,
and does outside machine shop work and job shop work for other
companies. On this night, the group went to Galley Maid not for business,
but to hang out and see a tank which Tumoszwicz had restored. At the
shop, the group continued drinking, and some of the group (including
Long) used cocaine.
About fifteen to twenty minutes after the group arrived at Galley Maid,
Long attacked Bryan, suddenly and without provocation. Bryan recalled
of the first attack: “I didn’t know there was any problems. We were all
talking, socializing, more or less enjoying our evening, and I go to the
bathroom to use the restroom and I’m being hit in the back of [the] head,
pulled out of the bathroom with my shirt over my head. . . [Long] picks me
up and slams me head first on the concrete.” As a result of the first attack,
Bryan allegedly lost a tooth, was bleeding from the mouth, and was
unconscious for approximately seventeen minutes. 1
While Bryan was “out,” one of the women in the group walked over to
him to see if he could sit up. He could not. No one administered first aid
or attempted to contact the police or call an ambulance. Tumoszwicz had
a cell phone in his truck, and telephones in the shop, but claimed he did
not call 911 because he was scared of Long. At one point, Long gave him
a threatening look and told him not to touch Bryan, and to leave him alone
because he was fine. Yet, Tumoszwicz agreed that Long never verbally
threatened him. Tumoszwicz also agreed that “everyone was free to walk
through the premises.” In fact, while Bryan lay unconscious for seventeen
minutes, Tumoszwicz walked outside to get his iPod out of his truck so he
could play music.
When Bryan regained consciousness, he asked Tumoszwicz what had
happened, and the two men talked for several minutes. Tumoszwicz
claimed he did not offer to help Bryan at that time because Bryan “was
standing there talking to [him],” and “seemed to be okay.” However,
Tumoszwicz also gave sworn testimony that Bryan did not “look like he
[was] in too good a shape,” that he was “disoriented and . . . not sure what
was going on,” and that Tumoszwicz was concerned for Bryan’s safety
“[e]ver since the first assault happened,” and “throughout the entire
evening.”
1 The events in question, including both attacks, were purportedly captured by
security cameras inside and outside of the Galley Maid shop. The video
recording, which Bryan relied on in support of his response to Galley Maid’s
motion for summary judgment, is not included in the appellate record.
2
After talking with Tumoszwicz, Bryan walked outside with Long to the
parking lot, where Long attacked Bryan a second time. Long purportedly
attacked Bryan again because “[Bryan] told him he didn’t give him a fair
chance. So he took him outside and gave him a fair chance.” The second
attack rendered Bryan unconscious again, and Tumoszwicz saw Bryan
laying on the ground after the attack.
Shortly after the second attack, Long helped Bryan to get back on his
feet, and the two men reentered the building. One of the women helped
Bryan put his shirt back on, but again, no one called for medical attention.
Tumoszwicz testified that he did not call 911, because he was “still scared”
and because Bryan “was up and moving around.” Instead, he told
everyone to leave and went to bed in his RV on the property. Bryan left
the shop in a car with Long. Long was later arrested, charged, and
convicted of aggravated battery.
Bryan sued Galley Maid for negligence, alleging he was an invitee on
Galley Maid’s premises, and that Galley Maid, through its director/agent
Tumoszwicz, knew or should have known that Bryan was injured and/or
incapacitated and therefore had a duty “to exercise reasonable care and to
take reasonable action to give or secure first aid.” Bryan also alleged that
Tumoszwicz knew or should have known that Long posed a risk of harm
to Bryan and that he (Bryan) was permanently injured as a result of the
incident, and that his injuries (a broken neck, facial fractures, nerve
damage, and an avulsed tooth) “occurred as a result of and were
proximately caused by the careless, negligent, grossly careless, and
reckless conduct of” Galley Maid.
Galley Maid moved for summary judgment. Galley Maid argued that
Bryan was a licensee on its premises, not an invitee, so the only duty
Galley Maid owed to Bryan was to refrain from wanton negligence, willful
misconduct, or intentionally exposing Bryan to danger. Because Long’s
first attack was not foreseeable, Galley Maid argued, it did not breach any
duty with respect to the first attack. As to the second attack, Galley Maid
contended that (1) absent a “special relationship” between the parties,
Galley Maid had no duty to protect Bryan, and (2) it did not breach any
duty because it did not control the premises at the time of the second
attack. Galley Maid argued in the alternative that, even if Bryan was an
invitee, Galley Maid did not breach any duty because neither of Long’s
attacks was foreseeable. As to its alleged negligence in not seeking medical
assistance for Bryan, Galley Maid argued only that the allegation was “also
fatally flawed.” Lastly, Galley Maid maintained that Bryan “cannot
establish any proof of proximate causation since Galley Maid . . . did not
3
have actual or constructive knowledge that Mr. Long would assault the
Plaintiff.”
Bryan filed a response in opposition to the motion for summary
judgment, and the circuit court held a hearing. At the conclusion of the
summary judgment hearing, the court stated: “Morally, it’s extremely
bothersome that nobody did anything . . . morally, I think it is just a
horrific situation.” Nevertheless, the circuit court ruled that no legal duty
existed absent a “special relationship” between the parties:
The bottom line is [for] the Defendant[,] there was no benefit
whatsoever for the Plaintiff being on the premises other than
folks wanting to see this. It wasn’t like [Tumoszwicz] was
engaged in the course of business, he wasn’t trying to sell . . .
the Plaintiff anything. There just was no special relationship
that existed that would cause that.
The circuit court also concluded a duty did not exist because both attacks
were “unforeseeable criminal act[s].” The court stated: “The first battery
definitely was. And the second battery, quite frankly, the idea of somebody
doing that the first time, let alone the second time, is pretty shocking. So
I don’t find either attack was at all foreseeable.” The court also appeared
to conclude that the plaintiff could not establish causation without an
impermissible stacking of inferences:
[T]here’s nothing showing that the failure to call or render aid
is -- and without stacking inferences, . . . I can’t stack
inferences. If [Tumoszwicz] or anybody would have called 911,
then maybe 911 would have gotten there in time, then maybe
the two, Mr. Bryan and Mr. Long, wouldn’t have had words.
Because, obviously, they -- Mr. Bryan didn’t swing a punch or
wouldn’t have had words and then maybe the second attack
wouldn’t have occurred.
And, quite frankly, there hasn’t been any evidence, there is no
evidence which was the first attack or second attack that
occurred that caused the injuries. Although, it was pretty
obvious from the second -- from the video that the first attack
was horrible, to say the least.
The circuit court subsequently entered its order granting Galley Maid’s
motion for summary judgment and final judgment. This appeal followed.
4
Analysis
On appeal, Bryan argues the circuit court erred in granting summary
judgment in favor of Galley Maid as genuine issues of material fact existed
regarding the duty of care owed to Bryan. Specifically, Bryan argues the
court erroneously determined that because Bryan was not on Galley
Maid’s premises for a business purpose, he lacked a “special relationship”
with Galley Maid such that Galley Maid owed Bryan no duty to protect him
from Long, to summon law enforcement, or to call 911 for assistance.
Bryan further contends that genuine issues of material fact existed
regarding the foreseeability of Long’s tortious conduct.
Galley Maid responds that summary judgment in its favor was proper
because—regardless of Bryan’s legal status on the property—no genuine
issue of material fact remained on the element of duty, where Galley Maid’s
agent, Tumoszwicz, could not have reasonably foreseen either of Long’s
violent attacks. Galley Maid further argues that Tumoszwicz did not have
a duty to procure first aid for Bryan under the circumstances.
We have de novo review. See Volusia Cty. v. Aberdeen at Ormond Beach,
L.P.,
760 So. 2d 126, 130 (Fla. 2000) (standard of appellate review
applicable to grant of summary judgment is de novo); 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.”); Demelus v. King Motor Co. of Fort Lauderdale,
24 So. 3d
759, 761 (Fla. 4th DCA 2009) (“Foreseeability as it relates to duty in
negligence cases is a question of law.”).
“Summary judgment is appropriate only where there are no genuine
issues of material fact and the movant is entitled to judgment as a matter
of law. Additionally, all inferences must be made in favor of the non-
moving party.” Cohen v. Arvin,
878 So. 2d 403, 405 (Fla. 4th DCA 2004)
(citation omitted). “If the evidence raises any issue of material fact, if it is
conflicting, if it will permit different reasonable inferences, or if it tends to
prove the issues, it should be submitted to the jury as a question of fact
to be determined by it.” Moore v. Morris,
475 So. 2d 666, 668 (Fla. 1985).
“The elements of a negligence cause of action are duty, breach,
causation, and damages.” Miller By & Through Miller v. Foster,
686 So. 2d
783, 783 (Fla. 4th DCA 1997). As to the duty element, “[i]n ordinary
negligence cases, the defendant owes the plaintiff a duty of reasonable
care, regardless of the relationship between the defendant and plaintiff.
However, in premises liability cases, the defendant’s duty to the plaintiff
is dependent on the plaintiff’s status to the land.” Nicholson v. Stonybrook
5
Apartments, LLC,
154 So. 3d 490, 492 (Fla. 4th DCA 2015) (citation
omitted).
Below, Bryan claimed that his status to the land was that of “invitee,”
while Galley Maid maintained that Bryan was a “licensee.” As this court
recently reiterated: “Invitees . . . include anyone present on a premises via
express or reasonably implied invitation of the property owners.”
Charterhouse Assocs., Ltd., Inc. v. Valencia Reserve Homeowners Ass’n,
Inc.,
262 So. 3d 761, 765 (Fla. 4th DCA 2018) (citing Wood v. Camp,
284
So. 2d 691, 695 (Fla. 1973)). Indeed, in Wood, our supreme court
“eliminate[d] the distinction between commercial (business or public)
visitors and social guests upon the premises,” and declared it would
“apply[] to both the single standard of reasonable care under the
circumstances. See
Wood, 284 So. 2d at 695 (“In doing so, we continue
the category of licensees who are Uninvited, that is, persons who choose
to come upon the premises solely for their own convenience without
invitation either expressed or reasonably implied under the
circumstances.”).
Here, the record evidence reflects that Bryan was expressly invited onto
Galley Maid’s premises by the premises’ owner, and his status was
therefore that of an invitee. See Charterhouse
Assocs., 262 So. 3d at 765
(citing Wood).
As for the duty of a property owner to protect an invitee from a criminal
attack, this court has held:
As a basic principle of law, a property owner has no duty to
protect one on his premises from criminal attack by a third
person. Even though one’s negligence may be a cause in fact
of another’s loss, he will not be liable if an independent,
intervening and unforeseeable criminal act also causes the
loss. If, however, the criminal attack is reasonably
foreseeable, a duty may arise between a landowner and his
invitee. But it must be borne in mind that a landowner is not
an insurer of the safety of his invitees and is not required to
take precautions against a sudden attack from a third person
which he has no reason to anticipate.
In order to impose a duty upon a landowner to protect an
invitee from criminal acts of a third person[,] a plaintiff[]
invitee, must allege and prove that the landowner had actual
or constructive knowledge of prior, similar criminal acts
committed upon invitees. . . .
6
Relyea v. State,
385 So. 2d 1378, 1382-83 (Fla. 4th DCA 1980) (emphasis
added) (internal citations omitted), disapproved of on other grounds by
Avallone v. Bd. of Cty. Comm’rs of Citrus Cty.,
493 So. 2d 1002 (Fla. 1986),
and Bruce By & Through Wallace v. Vill. of Miami Shores,
496 So. 2d 984
(Fla. 3d DCA 1986); see also Las Olas Holding Co. v. Demella,
228 So. 3d
97, 103 (Fla. 4th DCA 2017) (quoting Leitch v. City of Delray Beach,
41 So.
3d 411, 412 (Fla. 4th DCA 2010)) (“[A] property owner ‘is ordinarily under
no duty to exercise any care to warn or guard against the harmful acts of
a third party unless that third party’s harmful behavior is reasonably
foreseeable.’”).
Here, the record evidence reflects that Long’s first attack on Bryan was
not reasonably foreseeable. The first attack happened shortly after the
group arrived at Galley Maid and caught everyone in the group, including
Bryan himself, by surprise. While Bryan’s counsel argued below that “[t]he
evidence is going to bear out that James Long has a long criminal history,”
the record evidence does not reflect that Tumoszwicz knew of Long’s
criminal history or of any “dangerous propensities” before the first attack.
As for the second attack, however, the evidence was conflicting as to
whether it was reasonably foreseeable. The circuit court concluded, “the
second battery, quite frankly, the idea of somebody doing that the first
time, let alone the second time, is pretty shocking.” However, Bryan
attested in his affidavit filed in opposition to the motion for summary
judgment that, in between the two attacks Long “continued to taunt, bully,
harass, and threaten [him] with violence.” Tumoszwicz had also testified
under oath that he was concerned for Bryan’s safety “[e]ver since the first
assault happened,” and “[t]hroughout the entire evening.” Thus, while we
agree with the circuit court’s conclusion that the defendant did not owe a
duty to protect the plaintiff from the first attack, as it was unforeseeable,
we conclude that genuine issues of material fact exist as to whether the
second attack was reasonably foreseeable.
We further conclude that genuine issues of material fact exist as to
whether Tumoszwicz/Galley Maid had a duty to render or call for aid after
the attacks. This court has agreed with the principle “that a proprietor is
under an ordinary duty of care to render aid to an invitee after he knows
or has reason to know the invitee is ill or injured.” Estate of Starling v.
Fisherman’s Pier, Inc.,
401 So. 2d 1136, 1138 (Fla. 4th DCA 1981) (citing
Hovermale v. Berkeley Springs Moose Lodge No. 1483,
165 W. Va. 689
(1980), and the Restatement of Torts (Second) § 314A). This court also has
referenced comment (f) to the Restatement (Second) of Torts § 314A, which
states:
7
f. The defendant is not required to take any action until he
knows or has reason to know that the plaintiff is endangered,
or is ill or injured. [The defendant] is not required to take any
action beyond that which is reasonable under the
circumstances. In the case of an ill or injured person, [the
defendant] will seldom be required to do more than give such
first aid as [the defendant] reasonably can, and take
reasonable steps to turn the [plaintiff] over to a physician, or
to those who will look after him and see that medical
assistance is obtained. [The defendant] is not required to give
any aid to one who is in the hands of apparently competent
persons who have taken charge of [that person], or whose
friends are present and apparently in a position to give [that
person] all necessary assistance.
Id. at 1137 n.2 (emphasis added); see also L.A. Fitness Int’l, LLC v. Mayer,
980 So. 2d 550, 557 (Fla. 4th DCA 2008) (citing Starling and Restatement
(Second) of Torts § 314A, for the proposition that a proprietor is under an
ordinary duty of care to render aid to an invitee after he knows or has
reason to know the invitee is ill or injured).
Here, record evidence existed that Tumoszwicz knew or had reason to
know that Bryan was endangered or injured after the first attack—which
rendered him unconscious for seventeen minutes—and after the second
attack, which again rendered him unconscious—yet Tumoszwicz took no
action. He failed to give Bryan any first aid or call for medical assistance.
Instead, while Bryan lay unconscious after the first attack, Tumoszwicz
went out to his truck (where he had a cell phone) to retrieve his iPod.
Furthermore, the record evidence reflects that no one else in the group at
Galley Maid had “taken charge of” Bryan or was “in a position to give him
all necessary assistance.” See
Starling, 401 So. 2d at 1137 n.2 (citing
comment (f) to the Restatement (Second) of Torts § 314A). Other than an
unsuccessful attempt to sit Bryan up after the first attack and helping him
put his shirt back on after the second attack, no assistance was provided
to Bryan.
While Bryan was apparently able to walk and talk after regaining
consciousness from both attacks, he was “disoriented” after the first attack
and “not sure what was going on.” Finally, as for Tumoszwicz’s purported
fear of Long for his own safety, Long never verbally threatened him, and
Tumoszwicz agreed that “everyone was free to walk through the premises.”
8
In short, genuine issues of material fact remain concerning Galley
Maid’s duties to Bryan and its possible breach of those duties.
Bryan also argues the circuit court erred in entering summary
judgment on the ground that Bryan did not establish proximate causation.
Proximate cause, as well as breach and damages, are typically factual
questions for a jury. Fla. Dep’t of Corr. v. Abril,
969 So. 2d 201, 205 (Fla.
2007) (citing McCain v. Fla. Power Corp.,
593 So. 2d 500, 503–04 (Fla.
1992)); see also Limones v. Sch. Dist. of Lee Cty.,
161 So. 3d 384, 389 (Fla.
2015) (noting that the Court has “clearly stated that” breach, proximate
causation, and damages “are to be resolved by the fact-finder”). Bryan
made a sufficient showing in opposing summary judgment to create
genuine issues of material facts on these elements. Accordingly, we also
reverse the circuit court to the extent it granted summary judgment to
Galley Maid on the element of proximate cause.
Conclusion
Because it was error to grant summary judgment in favor of Galley Maid
where genuine issues of material fact remain, we reverse the final
summary judgment and remand for further proceedings consistent with
this opinion.
Reversed and remanded.
CIKLIN and GERBER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
9
