DOES FLORIDA’S COMPARATIVE FAULT STATUTE ALLOW THE JURY TO ALLOCATE FAULT AGAINST A NON-PARTY WHO ACTIVELY PARTICIPATES IN THE CRIME, BUT DOES NOT SPECI FICALLY CAUSE THE INJURY? – HENNIS v. CITY TROPICS BISTRO, INC.
Andrew D. Stone, Esq. • Volume 3, Issue 3 March 2009

FACTS
In Hennis v. City Tropics Bistro, Inc.,1 So.2d 1152 (Fla. 5th DCA 2009), the plaintiff filed a lawsuit against City Tropics Bistro, Inc. (“City Tropics”)in which he alleged that City Tropics failed to implement reasonable security measures and that their failure to do so caused him to be attacked by a criminal third party.

The plaintiff, his wife and their friends, Brad and Kate Betten, were walking in the parking lot toward their cars when a fight broke out between the plaintiff, Brad Betten and the third party attacker, Michael Schmidt. During the brawl, the plaintiff sustained injuries when Mr. Schmidt hit him in the head with a handgun.

Counsel for defendant asserted an affirmative defense which specifically identified Brad Betten, the plaintiff’s friend, as a person whose negligence caused or contributed to causing the subject incident. The affirmative defense further alleged that Tropic Bistro was not responsible for Mr. Betten’s actions and that its fault should be reduced by any negligence chargeable to Mr. Betten. The defendant also asserted an affirmative defense which contended that the plaintiff himself was comparatively at fault for the subject incident and resulting injuries.

The case proceeded to trial and the jury returned a verdict which awarded damages to the plaintiff. However, with regard to the liability aspect of the case, the jury allocated fault against the parties as follows: 1) City of Tropics Bistro: 25%; 2) Plaintiff: 15%; 3) Brad Betten: 60%
(Note: Under Merrill Crossings v. McDonald, 705 So.2d 560 (Fla. 1997), juries are not allowed to allocate fault against the third party criminal attacker, in this case, Mr. Schmidt).

On appeal, the plaintiff argued that the trial court erred in allowing the defense to place Mr. Betten on the verdict form as a Fabre defendant.

The 5th DCA held that the plain language of Florida’s Comparative Fault Statute §768.81 states that the apportionment provisions apply to “negligence cases”. The court noted that the lawsuit filed against City Tropics was for negligent security and that City Tropics’ affirmative defenses alleged comparative negligence and the negligence of Mr. Betten. Therefore, they held that since the defenses were not “based upon an intentional tort”, the trial court did not err in its application to the facts of the case.

IMPLICATIONS
In Merrill Crossings, the Court cited the following language of Fla.Stat. §768.81(4): “In determining whether a case falls within the term ‘negligence cases’, the court shall look to the substance of the action and not the conclusory terms used by the parties.”

The Court then concluded that juries cannot be permitted to allocate fault to intentional tortfeasors (ie. the shooter, attacker, etc.) in negligent security cases since the “substance” of the actions were not the negligence of the property owners, but rather was the fact that the plaintiffs were victims of intentional torts.

In Hennis, the 5th DCA specifically held that the lawsuit against City Tropics was based on the theory of negligence, and City Tropics’ claim for apportionment against Hennis and Betten was based on their alleged comparative negligence. The court further held that there was no claim submitted by either party “based upon an intentional tort”; therefore, the court concluded that section 768.81 permitted the jury to apportion damages amongst the joint negligent tortfeasors.

Accordingly, contrary to the Florida Supreme Court’s reasoning in Merrill Crossings, it appears that the 5th DCA has reasoned that the “substance” of negligent security actions are, in fact, negligence, and are not based upon intentional torts.

CONCLUSION
While Hennis does not stand for the proposition that juries can allocate fault to intentional tortfeasors in negligent security cases, it certainly seems to allow for juries to apportion fault against negligent tortfeasors who are involved in the criminal attack as long as those persons did not specifically cause the intentional physical injury to the plaintiff.

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