Opinion
3D23-998
04-10-2024
Adeon Brownlee, Appellant, v. 22nd Avenue Apartments, LLC, et al., Appellees.
Law Office of Lance A. Garrett, P.A., and Lance A. Garrett (Plantation), for appellant. Vernis &Bowling of Northwest Florida, P.A., Michelle L. Hendrix and Pamela Dimo (Pensacola), for appellees 22nd Avenue Apartments, LLC and Millennia Housing Management, Ltd., LLC.
Not final until disposition of timely filed motion for rehearing.
An Appeal from the Circuit Court for Miami-Dade County, Vivianne Del Rio, Judge. Lower Tribunal No. 20-27167
Law Office of Lance A. Garrett, P.A., and Lance A. Garrett (Plantation), for appellant.
Vernis &Bowling of Northwest Florida, P.A., Michelle L. Hendrix and Pamela Dimo (Pensacola), for appellees 22nd Avenue Apartments, LLC and Millennia Housing Management, Ltd., LLC.
Before SCALES, MILLER and GORDO, JJ.
GORDO, J.
Adeon Brownlee ("Brownlee") appeals an order granting 22nd Avenue Apartments, LLC ("22nd Avenue") and Millennia Housing Management, Ltd., LLC's ("Millennia") motion for final summary judgment. We have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). Because Brownlee fails to demonstrate any genuine dispute of material fact, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This negligent security case arises from a shooting incident at an Opa-Locka apartment complex. While he was in a secluded area along the property's north perimeter, Brownlee, a non-resident, was shot by an unknown assailant. Brownlee filed a premises liability action against the owner of the property, 22nd Avenue, and the property manager, Millennia, alleging the parties had a duty to keep their tenants, invitees and the public safe and that they breached this duty by failing to provide adequate security measures and personnel. 22nd Avenue and Millennia filed a motion for summary judgment arguing they could not be held liable because Brownlee was injured as a result of an unforeseeable, targeted attack that occurred off the premises. Brownlee filed a response in opposition. After a hearing, the trial court entered an order granting the motion for summary judgment finding Brownlee failed to proffer evidence establishing the duty, foreseeability and causation elements of his causes of action. This appeal followed.
Brownlee later amended his complaint to add a negligence claim against Aron Security, Inc. ("Aron Security"), the company contracted to provide security services for the apartment complex at the time of the alleged incident. Aron Security filed its own motion for summary judgment, which the trial court subsequently granted. In this appeal, Brownlee does not challenge that portion of the trial court's order granting summary judgment in favor of Aron Security.
STANDARD OF REVIEW
"The standard of review on orders granting final summary judgment is de novo." Ibarra v. Ross Dress for Less, Inc., 350 So.3d 465, 467 (Fla. 3d DCA 2022) (quoting Orozco v. McCormick 105, LLC, 276 So.3d 932, 935 (Fla. 3d DCA 2019)).
LEGAL ANALYSIS
On appeal, Brownlee argues the trial court erred in granting summary judgment because there are genuine issues of material fact relating to whether the subject shooting occurred off the premises, whether 22nd Avenue and Millennia were negligent in their security practices and whether the incident was foreseeable.
"Summary judgment is appropriate where the 'movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Ibarra, 350 So.3d at 467 (quoting Fla. R. Civ. P. 1.510(a)). Where "the nonmoving party bears the burden of proof on a dispositive issue at trial, the moving party need only demonstrate 'that there is an absence of evidence to support the nonmoving party's case.'" Rich v. Narog, 366 So.3d 1111, 1118 (Fla. 3d DCA 2022) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)) (footnote omitted). "[O]nce the moving party satisfies this initial burden, the burden then shifts to the nonmoving party to 'make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Id. (quoting Celotex, 477 U.S. at 322). "Specifically, it is incumbent upon the nonmoving party to come forward with evidentiary material demonstrating that a genuine issue of fact exists as to an element necessary for the non-movant to prevail at trial." Id.
"As negligent security actions concern the landowner's failure to keep the premises safe and secure from foreseeable criminal activity, it follows that they fall under the umbrella of premises liability as opposed to ordinary negligence." Nicholson v. Stonybrook Apartments, LLC, 154 So.3d 490, 494 (Fla. 4th DCA 2015). "The legal duty to protect invitees from injuries caused by third parties is tied to the defendant's control over the premises where the injury occurred." Competitive Softball Promotions, Inc. v. Ayub, 245 So.3d 893, 895 (Fla. 3d DCA 2018). Generally, "a landowner owes no duty of care to invitees for events occurring solely off the landowner's premises." Concepcion v. Archdiocese of Miami, 693 So.2d 1103, 1106 (Fla. 3d DCA 1997). "Although a landowner is most commonly liable for injuries that occur on the property, there are occasions when a landowner may be liable for a dangerous condition that results in injury off the premises." Johnson v. Howard Mark Prods., Inc., 608 So.2d 937, 938 (Fla. 2d DCA 1992). "[T]he general standard of care which the common law places on all landowners to protect invitees under a wide spectrum of circumstances can authorize a case-specific standard of care requiring protection of invitees on nearby property if the landowner's foreseeable zone of risk extends beyond the boundaries of its property." Id.
Here, the record evidence demonstrates that the unknown, third-party assailant was positioned outside of the property at the time of the incident on a public street that was not controlled by 22nd Avenue and Millennia. Because Brownlee fails to demonstrate that a genuine issue of material fact exists as to whether the assailant was in fact off the premises, and likewise fails to present any evidence to suggest that 22nd Avenue and Millennia created a dangerous condition that would expand their zone of foreseeable risk outside of the property limits, we find the trial court properly granted summary judgment. See Daly v. Denny's, Inc., 694 So.2d 775, 777 (Fla. 4th DCA 1997) (finding that the landowner did not have a legal duty to protect the plaintiff from third-party criminal conduct taking place off the landowner's property); Johnson, 608 So.2d at 938 (stating that only "[w]here a defendant's conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses" (quoting Kaisner v. Kolb, 543 So.2d 732, 735 (Fla. 1989))).
Further, the record reflects that armed security guards were actively patrolling the property at the time of the incident and that operable security cameras were positioned throughout the complex. Other than merely asserting that questions regarding "access control, perimeter fencing, a vigorous manned security presence, and lighting" should have been answered by a jury, Brownlee has presented no evidence to illustrate that 22nd Avenue and Millennia failed to have adequate security measures in place to safeguard against or prevent the subject shooting. Thus, because Brownlee presents no evidence demonstrating that 22nd Avenue and Millennia were negligent in their security practices, we find the trial court properly granted summary judgment. See Rich, 366 So.3d at 1118 ("[I]f the evidence presented by the nonmovant is merely colorable, or is not significantly probative, summary judgment may be granted." (quoting In re Amends. to Fla. Rule of Civ. Proc. 1.510 , 309 So.3d 192, 193 (Fla. 2020))); Cassel v. Price, 396 So.2d 258, 264 (Fla. 1st DCA 1981) (stating a fundamental tenet of Florida premises liability law that "the mere occurrence of an accident does not give rise to an inference of negligence").
The trial court also found the uncontroverted facts and record evidence in this case established that Brownlee was the victim of a personal, targeted attack by an unknown third-party assailant. Brownlee testified that at the time of the shooting, he was alone and in a secluded area. Brownlee's cousin, a resident of the apartment complex for over twenty years, additionally testified that because the area where Brownlee was shot was not a common area, no one would have known where he was located unless he was being watched or followed. She further testified to her belief that the attack was targeted. Because Brownlee fails to demonstrate that a genuine issue of material fact exists as to whether the subject shooting was foreseeable-and because the law is well-established that a landowner owes no duty to protect against unforeseeable criminal misconduct-we find the trial court properly granted summary judgment. See Stone v. United States, 373 F.3d 1129, 1132 (11th Cir. 2004) ("Under Florida law, an owner of a premises has no duty to protect an invitee from the willful criminal act of another unless that conduct could have been foreseen or anticipated."); Satchwell v. LaQuinta Motor Inns, Inc., 532 So.2d 1348, 1349 (Fla. 1st DCA 1988) ("Whether appellee was under a duty to provide security guards and other precautions to prevent the criminal attack upon appellant by third parties on a particular occasion turns on whether it was reasonably foreseeable that such attacks would occur in the absence of such precautions; 'If the criminal attack is not foreseeable, no duty arises.'" (quoting Orlando Exec. Park, Inc. v. P.D.R., 402 So.2d 442, 446 (Fla. 5th DCA 1981))); Paterson v. Deeb, 472 So.2d 1210, 1214 (Fla. 1st DCA 1985) ("[A] landowner should not be required to take precautions against a sudden attack which the landowner has no reason to anticipate.").
Affirmed.