ORIGINAL
IN THE SUPREME COURT OF FLORIDA
DENNIS J. DORSEY,
Petitioner'
CASE NO.: SC12- 197
vs.
L.T. No. 3D09-3141
ROBERT J. REIDER,
Respondent.
RESPONDENT'S AMENDED BRIEF ON JURISDICTION
BANKER LOPEZ GASSLER P.A.
501 1st Avenue North
Suite 900
St. Petersburg, FL 33701
Phone: (727) 825-3600
Fax: (727) 821-1968
e-mail: [email protected]
service e-mail: [email protected]
Attorneys for Reider
By:
Mark D. Tinker, Esq., B.C.S.
Florida Bar No: 0585165
Charles W. Hall, Esq., B.C.S.
Florida Bar No: 0326410
TABLEOFCONTENTS
Table of Contents .......................................................................................................i
Table of Authorities...................................................................................................ii
Statement of the Case and of the Facts ................................................................. 1-3
Summary of Argument..........................................................................................3-4
Argument:............................................................................................................3-10
I.
The Third District's decision applied McCain to the
arguments raised.......................................................................................4-7
II.
The Third District's opinion does not conflict with the cited
cases..........................................................................................................7-10
III.
The district court did not rely upon any improper
precedent......................................................................................................10
CertificateofService...............................................................................................11
CertificateofCompliance.......................................................................................12
t
TABLE OF AUTHORITIES
Demelus v. King Motor Co. of Fort Lauderdale,
24 So. 3d 759, 765 (Fla. 4th DCA 2009)........................................................... 10
Department of Legal Affairs v. District Court of Appeal, 5th Dist.,
434 So. 2d 310, 311 (Fla. 1983)...........................................................................7
Department of Revenue v. Johnston,
442 So. 2d 950, 950 (Fla. 1983)...........................................................................4
Gillis v. State,
959 So. 2d 194 (Fla. 2007)...................................................................................6
Helman v. Seaboard Coast Line Railroad Co.,
349 So. 2d 1187 (Fla. 1977).................................................................................7
Jenkins v. State,
385 So. 2d 1356, 1359 (Fla. 1980).......................................................................4
Kincaid v. World Ins. Co.,
157 So. 2d 517, 517 (Fla. 1963)...........................................................................5
McCain v. Fla. Power Corp.,
593 So. 2d 500, 504 (Fla. 1992)...........................................................................2
Schwartz v. American Home Assur. Co.,
360 So. 2d 383 (Fla. 1978)...............................................................................7, 9
United States v. Stevens,
994 So. 2d 1062 (Fla. 2008).............................................................................7, 9
Vining v. Avis Rent-A-Car Systems, Inc.,
354 So. 2d 54 (Fla. 1977).....................................................................................7
Fla. R. App. P. 9.210 ...............................................................................................12
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STATEMENT OF THE CASE AND OF THE FACTS
DORSEY is seeking this Court's jurisdiction based upon a claim of conflict,
but his statement of the facts omits the most critical portion of the Third District's
opinion - its recitation of the only legal arguments he raised on appeal, and thus
the only legal issues the opinion resolves. That recitation is decisive, because
DORSEY cannot manufacture a conflict by pointing to cases which address
theories different than those addressed by the district court in this case.
Specifically, the Third District first cited the well established principle that
"there is generally no duty to control the conduct of a third person to prevent him
or her from causing physical harm to another." (App.4). It then noted several
exceptions to that general rule, and specifically articulated that DORSEY had only
argued the applicability of two of them: control over the instrumentality of injury,
and control over the actual tortfeasor. (App.4-6).
Addressing those arguments in turn, the court first stated that REIDER's
mere ownership of the tomahawk which Noordhoek used to strike DORSEY was
inadequate to constitute "control" over the instrumentality of injury, because
Noordhoek had taken it without permission. (App.5).
From a purely factual
standpoint, the court explained: "Although Reider had control over the tomahawk
while it was in his truck, that control ended once Noordhoek reached into the truck
and removed the tomahawk without permission. Therefore, at the time of the
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injury, Reider did not have actual or constructive control over the instrumentality. .
. . rather, Noordhoek gained control of the tomahawk through his independent
action of taking it from Reider's truck without permission." (App.5).
Turning to REIDER's alleged control over the tortfeasor, the court correctly
stated that it had to "judge the applicability of this exception through a 'foreseeable
zone of risk' analysis." (App.5-6)(citing McCain v. Fla. Power Corp., 593 So. 2d
500, 504 (Fla. 1992)).
It then specifically delineated DORSEY's contentions,
stating: "Dorsey argues the qualifying acts in this case are: (1) Reider's failure to
lock the doors of his truck . . .; and (2) Reider's thwarting Dorsey's efforts to
escape after Noordhoek retrieved the tomahawk from Reider's vehicle." (App.6).
The court then once again addressed those assertions in turn.
As to REIDER's mere failure to lock his truck, the court reasoned:
"Undoubtedly, many citizens of this state keep tools of their trade in vehicles.
Those tools might be an axe, a hammer, or heavy briefcase. A recreational golfer
may keep his golf clubs in his car, and any Florida resident may carry an umbrella.
While it may be prudent for the vehicle owner to lock his car, the field of human
experience does not lead us to expect that an acquaintance of ours might take such
an item from a vehicle in a parking lot and use it to strike another acquaintance . . .
." (App.7-8). It thus concluded: "In our view, the facts in the instant case do not
satisfy [the McCain] test. (App.7).
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As to the second argument - the claim that "Reider created a foreseeable
zone of risk by deliberately blocking Dorsey's escape effort" - the court found
DORSEY's assertions to be factually unsupportable. (App.9).
Looking to the
evidence presented at trial, it stated: "[T]here is no record evidence Reider
colluded with Noordhoek to harm Dorsey, or that Reider knew Noordhoek had the
tomahawk in his hand before the strike. . . . The jury received no competent
evidence from which it could have inferred Reider knew Noordhoek was about to
insert himself into the fray." (App.9).
On that point, DORSEY's amended brief contains a misstatement of fact. In
a statement that was not in his original brief - but which found its way into the
amended one - he claims: "The Third District recognized that Reider pursued
Dorsey after he left the bar, that he and Noordhoek jointly boxed Dorsey in
between two cars, and thwarted Dorsey's efforts to escape." Amend. Brief at 7.
But the Third District acknowledged no such thing. It stated that "Dorsey
finally asserts" those matters, but that "there is no record evidence" of them.
(App.9). The Court should accordingly ignore that attempt to turn a rejected claim
about nonexistent "facts" into precedent which somehow creates conflict.
SUMMARY OF ARGUMENT
DORSEY seeks to manufacture conflict by arguing questions of law that the
Third District did not even address in its opinion.
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That opinion notes that
DORSEY only raised certain arguments on appeal, and then addresses them. More
important, however, the opinion directly states that there is no factual support for
the theories DORSEY did raise given this truly unique, and even bizarre, situation.
Such a fact-based determination cannot create conflict, because the principles of
law remain the same. The Court should accordingly decline jurisdiction.
ARGUMENT
This Court has stated that there are two prerequisites to its conflict
jurisdiction: (1) The opinions must express decisions on the same question of law,
and (2) That question of law must be addressed under indistinguishable factual
circumstances. E3 Jenkins v. State, 385 So. 2d 1356, 1359 (Fla. 1980);
Department of Revenue v. Johnston, 442 So. 2d 950, 950 (Fla. 1983).
DORSEY cannot satisfy either of those prerequisites in this case, much less
both of them. This Court should accordingly decline jurisdiction.
I.
The Third District's decision applied McCain to the arguments raised.
DORSEY first claims that, pursuant to McCain v. Florida Power - a
precedent which the opinion actually cites, quotes, and applies - the Third
District was somehow obligated to find a duty of care under this truly unique, and
perhaps even bizarre, set of facts. But the measure of conflict jurisdiction is not
whether DORSEY believes that this Court, or any other court, would necessarily
have arrived at a conclusion differing from that reached by the Third District.
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Kincaid v. World Ins. Co., 157 So. 2d 517, 517 (Fla. 1963).
Instead, the
constitutional standard is whether the Third District's decision, on its face, collides
with a prior decision of this Court on the same point of law so as to create a
conflict among the precedents. Id. It does not.
The underlying decision is uniquely and inherently fact-based, as it states:
"In our view, the facts in the instant case do not satisfy [the McCain] test."
(App.7). That alone prevents a finding of conflict, since the facts of this case are
what controlled the decision.
DORSEY primarily claimed that "Reider created a foreseeable zone of risk
by deliberately blocking Dorsey's escape effort," but the Third District found that
assertion to befactually unsupported. Looking to the evidence presented at trial, it
stated that there was absolutely no evidence that REIDER even knew that
Noordhoek had taken the tomahawk, much less any evidence that he then
"deliberately blocked" DORSEY's efforts to escape an oncoming attack.
What was left, then, was the mere fact that REIDER had not locked his
truck. Applying McCain, the Third District reasonably concluded that such an act,
standing alone, does not create a forseeable zone of risk that one acquaintance will
intentionally harm another. Indeed, any holding to the contrary would make every
vehicle owner in the State of Florida an insurer of third-party criminal assaults.
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The opinion recognizes that fact by pointing out that people very reasonably
keep all manner of items in their vehicles - whether a tool of their trade,' an
umbrella, golf clubs, or even a standard tire iron that exists in virtually every car.
Doing so does not, in McCain terms, "create a risk" of third-party criminal attacks.
Indeed, under the facts of this case, REIDER's tomahawk bears no relation
to that risk. Noordhoek decided to attack DORSEY in a bar parking lot, and he
could have just as easily done so by picking up a rock, or even by using his own
bare hands. The existence of REIDER's tool did not create that zone of risk, and it
thus did not give rise to a duty of care - or, as DORSEY argued the case, a duty
to exercise control over an independent adult like Noordhoek.
Critically, and as the opinion expressly states, that is the only argument that
DORSEY advanced, and it accordingly is the only argument addressed in the
opinion.
It is uniquely and unavoidably fact based, does not conflict with
anything, and accordingly does not give rise to this Court's jurisdiction., Gillis
v. State, 959 So. 2d 194 (Fla. 2007)("Upon further consideration we conclude that
jurisdiction was improvidently granted, because these cases are factually
distinguishable.").
The opinion notes that this "tomahawk" was nothing more than a tool that
REIDER used in his land-clearing business, although DORSEY attempts to make
it sound nefarious by calling it a tomahawk, as opposed to a hatchet or an axe.
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DORSEY finally contends that the opinion conflicts with Helman v.
Seaboard Coast Line Railroad Co., 349 So. 2d 1187 (Fla. 1977) because the court
re-weighed proximate cause. It did no such thing. The Third District expressly
resolved the case on duty, stating: "Reider did not owe a relevant duty of care to
Dorsey." (App.10). There is no conflict.
H.
The Third District's opinion does not conflict with the cited cases.
DORSEY next claims that the underlying opinion conflicts with United
States v. Stevens, 994 So. 2d 1062 (Fla. 2008), Schwartz v. American Home
Assur. Co., 360 So. 2d 383 (Fla. 1978), and Vining v. Avis Rent-A-Car Systems,
Inc., 354 So. 2d 54 (Fla. 1977). He labels them as "opportunity for third party
criminal conduct" cases. Amend. Brief at 8.
But as noted above, that was not an argument DORSEY advanced before the
Third District, and it accordingly is not a theory discussed in the opinion. What
DORSEY did not argue, and what the opinion accordingly does not say, cannot
form the basis for a claim of "conflict." See Department of Legal Affairs v. District
Court of Appeal, 5th Dist., 434 So. 2d 310, 311 (Fla. 1983).
Moreover, two of the three cases do not even deal with the question of legal
duty - they analyze and resolve proximate causation issues. In Vining, Avis left a
vehicle unattended, with the door open and the keys in the ignition, in the parking
lot at the Miami International Airport. Vining, 354 So. 2d at 55. A thief stole it
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and then collided with Vining's car. Id. On review of a subsequent judgment, the
district court "reasoned that even if Avis were negligent in allowing the rental car
to be stolen, it was not liable for the damages caused by the thief because the
criminal act of stealing the car breaks the chain of causation; and therefore, as a
matter of law, Avis' negligence was not the proximate cause of plaintiff's
injuries." Id.(emphasis added). Quashing that decision, this Court simply stated
that "if an intervening criminal act is foreseeable, the chain of causation is not
broken." Id. at 55-56.
That is a proximate cause case, but Third District's opinion in this case does
not address proximate cause issues in any respect -- it resolved the question of
duty as a matter of law. It thus does not, and cannot, conflict with Vining.
Moreover, Vining contains another critically-distinguishing characteristic.
The court noted that Florida Statute Section 316.097 prohibits vehicle owners from
leaving vehicles unattended with their keys inside. Id. One purpose of that statute
is to prevent the dangers associated with the unauthorized use of automobiles, and
Vining was a member of the class of persons that the statute was designed to
protect. Id. Avis's violation of the statute thus gave rise to negligence per se,
which of course does not exist in this case.
The second case DORSEY cites, Schwartz, is the same. Schwartz left his
car unlocked and unattended with the keys inside, it was stolen, and the thief
8
caused an accident. Schwartz, 360 So. 2d at 385. Given that same fact pattern, the
Court simply relied upon its prior "holding in Vining," and stated that "there exists
a genuine issue of material fact" requiring jury resolution. Id.
Once again, the Court addressed proximate causation - since duty is a
question of law, not an issue of fact for the jury - and once again it involved a
situation where there could be negligence per se given Schwartz's violation of the
unattended vehicle statute. Those cases accordingly do not conflict with the Third
District's decision in this case.
The final case DORSEY cites, U.S. v. Stevens, did address the question of
duty, but did so under incredibly-unique circumstances. Stevens was killed when
an unknown individual mailed him a letter laced with government-manufactured
Anthrax. Stevens, 994 So. 2d at 1064. Addressing the question of whether the
government owed a duty of care to the public in general under those
circumstances, the Court first noted that the "complex factual pattern at hand
presents a unique challenge." Id. It stated that the government had "affirmatively
chosen to work with an ultrahazardous substance that poses virtually unparalleled
risk of injury to the general public if its security is not assured." E It then
reasoned that, given that fact, as well as "the virtual impossibility of potential
victims to protect themselves once this substance is at large, this is obviously one
9
of those cases we contemplated in McCain, where the risk of injury is great and the
corresponding duty of the lab is heightened." Id. at 1070.
The government's affirmative decision to manufacture Anthrax is what gave
rise to its "heightened" duty of care, and this case obviously does not involve
anything even remotely similar.
More important, however, is another unique
feature that courts have already identified about Stevens - the government's act
was an affirmative act of misfeasance, not one of simple nonfeasance. Demelus v.
King Motor Co. of Fort Lauderdale, 24 So. 3d 759, 765 (Fla. 4th DCA 2009).
This case does not involve a heightened Stevens duty for that reason, as
well. REIDER did not manufacture some new or previously nonexistent risk of
harm to DORSEY, and given that distinguishing characteristic there is no conflict.
III.
The district court did not rely upon any improper precedent.
DORSEY's final contention is that the Third District "relied" upon a per
curiam affirmance with no written opinion. Amend. Brief at 9. No such thing
occurred, and that is evident on the face of the decision itself.
The Third District did cite, among several other cases, one dissenting
opinion from a pur curiam affirmance, but it did not rely on it as precedent. To the
contrary, it expressly stated that its holding was governed by the McCain
foreseeable zone of risk test. That was the proper citation to precedential authority,
and the Court should reject DORSEY's claims and decline jurisdiction.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing Amended Brief on Jurisdiction has
been e-mailed to [email protected]; the original has been furnished by U.S. Mail
to: Florida Supreme Court, Attention: Clerk's Office, 500 South Duval Street,
Tallahassee, FL 32399-1927; and one copy each by e-mail to Laurie Waldman
Ross, Esq., Counsel for Dorsey, at [email protected]; Stewart D.
Williams, Esq., Co-Counsel for Dorsey, at [email protected] and
[email protected]; and Joseph R. Giaramita, Esq., Co-Counsel for
Reider, at jgiaramita@joe joelaw.com; on this December 21, 2012.
BANKER LOPEZ GASSLER P.A.
501 1st Avenue North
Suite 900
St. Petersburg, FL 33701
Phone: (727) 825-3600
Fax: (727) 821-1968
e-mail: [email protected]
service e-mail: [email protected]
Attorneys for Reider
By:
Mark D. Tinker, Esq., B.C.S.
Florida Bar No: 0585165
Charles W. Hall, Esq., B.C.S.
Florida Bar No: 0326410
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CERTIFICATE OF TYPEFACE COMPLIANCE
Pursuant to Florida Rule of Appellate Procedure 9.210, undersigned counsel
certifies that this Brief is printed in Times New Roman 14-point font.
BANKER LOPEZ GASSLER P.A.
501 1st Avenue North
Suite 900
St. Petersburg, FL 33701
Phone: (727) 825-3600
Fax: (727) 821-1968
e-mail: [email protected]
service e-mail: [email protected]
Attorneys for Reider
By:
Mark D. Tinker, Esq., B.C.S.
Florida Bar No: 0585165
Charles W. Hall, Esq., B.C.S.
Florida Bar No: 0326410
12