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[W] Sherwood v. Quietwater Entertainment7/5/2005
The trial court concluded that Appellee did not owe a duty of care to Appellant and entered summary judgment in Appellee's favor on Appellant's personal injury claim seeking damages arising from his grievous injuries. Appellant argues that the trial court reversibly erred; we agree and reverse.
Background & Facts
Appellant suffered injury from a physical altercation with an undetermined assailant at the "Bushwacker" Festival ("Festival") sponsored by Appellee. He sought damages for such injuries from Appellee and others. The Festival is a "good-time event" featuring food and libations and showpiecing an alcoholic beverage named "Bushwacker" that provides the Festival's name. While attending the Festival, Appellant became embroiled in an altercation with another person on Santa Rosa Island Authorities' (SRIA) boardwalk, which spilled over into SRIA's parking lot, where Appellant was slugged by an undetermined person. Appellant was knocked down by the blow and struck his head on the parking lot pavement, resulting in his paralysis. He seeks damages for these injuries.
Appellee is SRIA's lessee, which, other than during the Festival, retains exclusive control over the parking lot where Appellant was injured. Because the Festival requires more space and security, and draws an extraordinary number of invitees, SRIA required Appellee to sign a temporary-use agreement. Such agreement permitted Appellee to use its "public facilities" and required Appellee to be responsible for, and fully compensate, the additional security personnel prescribed by the Escambia County Sheriff's Department and furnished by off-duty deputy sheriffs to augment their incomes.
The temporary-use agreement does not define "public facilities"; however, the permanent lease between Appellee and SRIA defines it as follows:
The term "public facilities" or "public portions" or "public areas" as used in this lease agreement shall refer to those portions of the demised premises which are open to the public on a regular non-fee basis and which do not contribute income to the Lessee, its sublessors or assigns. All public rest room facilities, public picnic areas, the amphitheater, board walk, beach front and dock and parking areas shall be deemed "public facilities."
(Emphasis added.) Furthermore, Mary Bolman, SRIA's manager in charge of leasing , testified in deposition that the temporary-use agreement gave Appellee the right to place beverage and food stands on the parking lot and to use it as a staging area for bands, etc., as well as for use by Appellee's invitees attending the Festival.
Appellant maintains that Appellee owed to him a legal duty of care as Appellee's invitee to the Festival, because Appellee created a foreseeable zone of risk by hosting the Festival and breached that duty by not providing adequate provision of security for the Festival. Further, Appellant alleges that Appellee, as a temporary lessee (entitled to, and exercising, control over SRIA's parking lot during the Festival), owed Appellant a legal duty of care. After extensive discovery, Appellee renewed its previously denied motion for summary judgment, and the trial court agreed. The trial court reasoned:
Additionally, the record evidence establishes that the Santa Rosa Island Authority (SRIA) retained exclusive control over the parking lot. There is no record evidence that the SRIA surrendered control of the parking lot or that defendant assumed permanent, on-going control of the parking lot. As such, Defendant owed no duty of care to Plaintiff in the parking lot. Federated Dept. Stores v. Doe, 454 So. 2d 10 (Fla. 3rd DCA 1984). See also Publix Supermarkets v. Jeffery,
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