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Florida Fourth DCA rules in premises liability/negligent security wrongful death case that decedent’s alleged commission of felony was too remote in time from his killing to entitle defendant to immunity under Fla. Stat. § 768.075(4)

On November 4, 2020, in Pride of St. Lucie Lodge 1189, Inc. v. Reed, No. 4D19-3009, the Florida Fourth DCA affirmed a final judgment in favor of the plaintiff in a wrongful death premises liability/negligent security case brought by the estate of a patron of the defendant’s establishment who was killed in a brawl with other patrons in the business’ parking lot.  Evidence was presented at trial to support the conclusion that the decedent participated in the parking lot brawl between two groups of patrons and knowingly struck a pregnant female in the opposing group. After the brawl in the parking lot ended, the opposing party left the premises and the decedent’s party got inside their vehicle which was parked in the Lodge’s parking lot. Before the decedent’s group could leave the parking lot, the opposing group returned and opened fire on their vehicle and killed the decedent.   The defendant alleged that the trial judge erred by refusing to give an instruction pursuant to section 768.075(4), Florida Statutes, which provides: “[a] person or organization owning or controlling an interest in real property, or an agent of such person or organization, shall not be held liable for negligence that results in the death of, injury to, or damage to a person who is attempting to commit a felony or who is engaged in the commission of a felony on the property.”  The defense theory in support of the instruction was that the decedent committed a felony in striking the pregnant female.  However, the Fourth DCA pointed out that
“[a]s the unambiguous present tense language in the statute makes clear, the defense only applies to injuries the plaintiff sustains in the commission or attempted commission of a felony,” and concluded that the alleged felony was too temporally removed from the shooting. The Fourth DCA distinguished Kuria v. BMLRW, LLLP, 101 So. 3d 425 (Fla. 1st DCA 2012), a case standing for the proposition that there need not be a causal nexus between the felony and the negligent act for the section 768.075(4) defense to apply, noting that the Kuria decision does not alter the requirement that the plaintiff be actively engaged in the commission of or attempted commission of a felony at the time the injuries are sustained.