Opinion
4D2023-0606
09-13-2023
PINNACLE PROPERTY MANAGEMENT SERVICES, LLC, a foreign limited liability company, Appellant, v. CLAIRE FORDE, as the Personal Representative of the ESTATE OF DALTON DOBKINS, deceased, et al., Appellee.
Mihaela Cabulea of Butler Weihmuller Katz Craig LLP, Tampa, for appellant. Timothy D. Kenison and Rafael J. Roca of Law Offices of Craig Goldenfarb, P.A., West Palm Beach, for appellee.
Not final until disposition of timely filed motion for rehearing.
Appeal of a nonfinal order from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Richard Oftedal, Senior Judge; L.T. Case No. 502018CA011509.
Mihaela Cabulea of Butler Weihmuller Katz Craig LLP, Tampa, for appellant.
Timothy D. Kenison and Rafael J. Roca of Law Offices of Craig Goldenfarb, P.A., West Palm Beach, for appellee.
CIKLIN, J.
Pinnacle Property Management Services, LLC (Pinnacle) appeals a nonfinal order granting Appellee Claire Forde's motion for leave to plead a claim for punitive damages. We have jurisdiction. Fla. R. App. P. 9.130(a)(3)(G). We reverse because Forde did not satisfy the standard for pleading punitive damages.
Forde, as personal representative of the Estate of Dalton Dobkins (the Deceased), has sued Pinnacle for negligence under the Florida Wrongful Death Act.
Pinnacle managed an apartment complex where the Deceased was killed during a burglary in 2016. The burglar entered the open window of the Deceased's apartment and lethally shot him. Forde claims that Pinnacle failed to provide adequate security at the complex.
Forde moved for leave to amend her complaint to plead a claim for punitive damages. She alleged that Pinnacle committed an intentional act or was grossly negligent.
Forde's motion explains that, on the date of the murder, the complex's entrance gate was not working. The burglars entered through the gate, which had been broken for months. Pinnacle allegedly ignored complaints from residents about criminal activities in the complex resulting from the lack of security, including the broken gate.
Forde's motion refers to a telephone interview with one of the burglars, who is now in prison. He said that, if the entrance gate had been closed, he and the other burglar, who had shot the Deceased, would have gone elsewhere.
Forde supported her motion with three emails and the deposition transcripts of three witnesses.
The first email was sent by a tenant ("Tenant #1") to the property manager about eight months before the murder. Tenant #1 complained that the front gate was broken and that people were speeding into the complex when the gate was left open. Tenant #1 asked if cameras or speed bumps could be installed because he feared there could be an accident or a child could be struck.
The second email was sent about three months before the murder by another tenant ("Tenant #2"). This email was sent to the email address listed for an individual identified on Pinnacle's website as an executive vice-president. Tenant #2 complained about maintenance issues with his unit, as well as conditions at the complex, including the gate, which he stated had been broken for about a month. Tenant #2 also stated that his vehicle had been broken into for a second time.
The third email was sent about three months after the murder. Tenant #2 again emailed Pinnacle's executive vice president. Tenant #2 was no longer a tenant, but he complained about numerous things, including the lack of security, both before and after the murder.
Tenant #1 and Tenant #2 testified in deposition that, before the murder, they had observed non-residents drinking, smoking marijuana, and racing cars through the gate. At one point, Tenant #1 had seen a man in the complex injecting what he believed to be heroin. Although both tenants complained to Pinnacle's employees about this and the frequently broken gate, nothing was done.
Tenant #1, a retired police detective who operated a private security company, offered his company's security services to the property manager but, according to Tenant #1, his offer "fell on deaf ears."
Finally, the property manager at the time of the murder testified that the gate was for entry and exit, not for security. She was aware of car burglaries that had been reported before the murder. The only security camera was placed at the office area.
After a hearing, the trial court granted Forde's motion for leave to plead a claim for punitive damages. This appeal follows.
We review the trial court's purely legal ruling de novo. Cleveland Clinic Fla. Health Sys. Nonprofit Corp. v. Oriolo, 357 So.3d 703, 705 (Fla. 4th DCA 2023).
We reverse because Forde's allegations and evidentiary proffer are insufficient to establish the "intentional misconduct" or "gross negligence" required for punitive damages. Additionally, Forde failed to proffer sufficient evidence to recover punitive damages against Pinnacle as an employer and business entity.
Section 768.72, Florida Statutes (2016), provides (in relevant part):
(1) In any civil action, no claim for punitive damages shall be permitted unless there is a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages....
(2) A defendant may be held liable for punitive damages only if the trier of fact, based on clear and convincing evidence, finds that the defendant was personally guilty of intentional misconduct or gross negligence. As used in this section, the term:
(a) "Intentional misconduct" means that the defendant had actual knowledge of the wrongfulness of the conduct and the high probability that injury or damage to the claimant would result and, despite that knowledge, intentionally pursued that course of conduct, resulting in injury or damage.
(b) "Gross negligence" means that the defendant's conduct was so reckless or wanting in care that it constituted a
conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct.§ 768.72(1)-(2), Fla. Stat. (2016).
In addition to these statutory requirements, caselaw imposes additional restrictions on punitive damage claims, which "are reserved for truly culpable behavior and are intended to 'express society's collective outrage.'" KIS Grp., LLC v. Moquin, 263 So.3d 63, 65-66 (Fla. 4th DCA 2019) (citation omitted). The conduct must be sufficiently reprehensible, outrageous, and extreme to permit punishment.
"Punitive damages are appropriate when a defendant engages in conduct which is fraudulent, malicious, deliberately violent or oppressive, or committed with such gross negligence as to indicate a wanton disregard for the rights of others." W.R. Grace &Co.-Conn. v. Waters, 638 So.2d 502, 503 (Fla. 1994).
The character of negligence necessary to sustain an award of punitive damages must be of a "gross and flagrant character, evincing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an intentional violation of them."Owens-Corning Fiberglas Corp. v. Ballard, 749 So.2d 483, 486 (Fla. 1999) (quoting White Constr. Co. v. Dupont, 455 So.2d 1026, 1029 (Fla. 1984), receded from on other grounds by Murphy v. Int'l Robotic Sys., Inc., 766 So.2d 1010, 1016 (Fla. 2000)).
"[T]he required level of negligence for punitive damages is equivalent to the conduct involved in criminal manslaughter." Valladares v. Bank of Am. Corp., 197 So.3d 1, 11 (Fla. 2016); see also Am. Cyanamid Co. v. Roy, 498 So.2d 859, 861 (Fla. 1986) (explaining that, to permit punitive damages, the conduct must be "more than even gross negligence").
Forde failed to allege or proffer any evidence that would provide a reasonable basis for recovery of punitive damages based on "intentional misconduct" under the statute.
At best, Forde proffered evidence that Pinnacle may have been negligent in failing to expeditiously fix the entrance gate despite complaints from residents and knowledge of minor crimes in the complex.
Forde's allegations and proffer, however, did not establish any gross negligence that would permit recovery of punitive damages. Pinnacle's alleged conduct in failing to fix the gate or take other security measures is not "so reckless or wanting in care that it constitute[s] a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct." Valladares, 197 So.3d at 11 (alteration in original) (quoting Fla. Std. Jury Instr. (Civ.) 503.1). The alleged conduct is not equivalent to criminal manslaughter and is not sufficiently reprehensible to permit punitive damages.
Additionally, to recover punitive damages against Pinnacle based on the act(s) of its employee(s), Forde had to allege and proffer a reasonable evidentiary basis to satisfy section 768.72(3), Florida Statutes (2016) which provides:
(3) In the case of an employer, principal, corporation, or other legal entity, punitive damages may be imposed for the conduct of an employee or agent only if the conduct of the employee or agent meets the criteria specified in subsection (2) and:
(a) The employer, principal, corporation, or other legal entity actively and knowingly participated in such conduct;
(b) The officers, directors, or managers of the employer, principal, corporation, or other legal entity knowingly condoned, ratified, or consented to such conduct; or
(c) The employer, principal, corporation, or other legal entity engaged in conduct that constituted gross negligence and that contributed to the loss, damages, or injury suffered by the claimant.§ 768.72(3), Fla. Stat. (2016).
We recently discussed section 768.72(3)(c) in Napleton's North Palm Auto Park, Inc. v. Agosto, 364 So.3d 1103 (Fla. 4th DCA 2023). There, we noted that "to amend a complaint to add a claim for punitive damages against a corporate defendant, a plaintiff must show culpable conduct at both the employee level and the corporate level." Id. at 1106.
To show corporate culpable conduct, the plaintiff must present evidence that the corporation itself is directly liable. Partington v. Metallic Eng'g Co., 792 So.2d 498, 501 (Fla. 4th DCA 2001). "[B]ecause a corporation cannot act on its own, 'there must be a showing of willful and malicious action on the part of a managing agent of the corporation.'" Fla. Power &Light Co. v. Dominguez, 295 So.3d 1202, 1205-06 (Fla. 2d DCA 2019) (quoting Partington, 792 So.2d at 501).
A managing agent "must be 'more than a mid-level employee who has some, but limited, managerial authority.'" See Halum v. ZF Passive Safety Sys. US, Inc., 360 So.3d 391 (Fla. 4th DCA 023) (quoting Wells Fargo Bank, N.A. v. Elec. Funds Transfer Corp., 326 So.3d 753, 757 (Fla. 5th DCA 2021)). A managing agent "must be an individual of such seniority and stature within the corporation or business to have ultimate decision-making authority for the company." Id. (emphasis added).Napleton's, 364 So.3d at 1106-07 (alteration in original).
Here, Forde proffered no evidence to establish that Pinnacle's "officers, directors, or managers . . . knowingly condoned, ratified, or consented to" the alleged gross negligence. § 768.72(3)(b), Fla. Stat. (2016). Forde proffered only the single email that Tenant #2 had sent to a Pinnacle vicepresident three months before the murder complaining, in part, about the broken security gate. Forde proffered no evidence establishing the recipient of the email was a Pinnacle "managing agent," possessing "ultimate decision-making authority for the company." See Napleton's, 364 So.3d at 1107 ("[A] managing agent is an individual like a 'president [or] primary owner' who holds a 'position with the corporation which might result in his acts being deemed the acts of the corporation.'" (second alteration in original) (quoting Taylor v. Gunter Trucking Co., Inc., 520 So.2d 624, 625 (Fla. 1st DCA 1988))).
Accordingly, the trial court erred in granting leave to plead punitive damages. The order is reversed and remanded with instructions that the motion for leave be denied.
Reversed and remanded.
LEVINE and FORST, JJ., concur.