PETITION E R'S INITIAL BRIEF ON TilE M E RITS · 2018. 7. 22. · PETITION E R'S INITIAL BRIEF ON TilE M E RITS Trial Counsel Appellate Counsel Stewart D. Williams, Esq. Lauri Waldman

I leciromcally Filed 05/20/20l3 10:01:09 Mi E.T

RECE]VED. 5/20/J01.1 10 01 C. I homas D. Ela]L Clerk. Supremc Court

1N THE SUPREME COURT OF Fl.ORlDA

CASE N(): SC12-2197Lower Case No: 3 D09-3141

DENNIS J. DORSEY,

Plaintiff/Petitioner.

ROBHRT J. RElDER,

Defendant/Respondent.

PETITION E R'S INITIAL BRIEF ON TilE M E RITS

Trial Counsel Appellate Counsel

Stewart D. Williams, Esq. Lauri Waldman Ross, lisq.

I luNnut. WI1.1.iA MS & 1 YNCH, P.A. Theresa I . Girten, lisq.The Monarch Grove Building Ross & GIRIFN2977 McFarlane Road, Suite 30I Two Dutran Center, Suite 1612

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Phillip A. Ilubbark Esq.Wril HLR]NWoN K l F IN & l Il JBBART

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TABLEOFCONTENTS

TABLEOF CONTENTS ............................................ i

TABLE OF AUTHORITIES ......................................... iii

PREFACE ........................................................ 1

STATEMENTOF THE CASE ANDFACTS ............................ 1

A. Evidence on Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

B. Evidence on Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

C. The Course ofProceedings Below . . . . . . . . . . . . . . . . . . . . . 14

D. The Third District's Decision . . . . . . . . . . . . . . . . . . . . . . . . . 18

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

I. REIDER'S CONDUCT CREATED A GENERALIZED ANDFORESEEABLE RISK OF HARM TO DORSEY WHICHCREATED A DUTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

A. The District Court Misapplied the Law on Duty . . . . . . . . . . 22

B. The Third District Improperly ReweighedEvidence of Proximate Cause . . . . . . . . . . . . . . . . . . . . . . . . . 27

II. REIDER WAS REQUIRED TO GUARD AGAINST THEINTENTIONAL ACT OF A THIRD PARTY, WHERE HISCONDUCT CREATED OR EXPOSED DORSEY TO THISINTENTIONAL ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

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III. NONE OF REIDER'S REMAINING APPELLATE ISSUESHADMERIT ........................................... 38

A. Comparative Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

B. No Abuse of Discretion Demonstrated Warrantinga New Trial Based on Evidentiary Rulings . . . . . . . . . . . . . . 39

C. No Abuse ofDiscretion in Refusing to Remit theVerdict .......................................... 41

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

CERTIFICATE OF TYPE SIZE AND FONT . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

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TABLE OF AUTHORITIES

Adams v. Saavedra,65 So.3d 1185 (Fla. 4th DCA 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Allred v. Chittenden Pool Supply, Inc.,298 So.2d 361 (Fla. 1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41, 42

Ansin v. Thurston,101 So.2d 808 (Fla. 1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Ashcroft v. Calder Race Course, Inc.,492 So.2d 1309 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Bould v. Touchette,349 So.2d 1181 (Fla. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Braddock v. Seaboard Air Line R. Co.,80 So.2d 662 (Fla. 1955) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

Broward County School Board v. Ruiz,493 So.2d 474 (Fla. 4th DCA 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Busbee v. Quarrier,172 So.2d 17 (Fla. l®t DCA 1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Cantor v. Davis,489 So.2d 18 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Carney v. Gambel,751 So.2d 653 (Fla. 4th DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Catlett v. Chestnut,107 Fla. 498, 146 So. 241 (Fla. 1933) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Dep't of Legal Affairs v. District Couit ofAppeal,434 So.2d 310 (Fla. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

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Florida Power Coip. v. McCain,555 So.2d 1269 (Fla. 2"d DCA 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Ford Motor Co. v. Kikis,401 So.2d 1341 (Fla. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Gibson v. Avis Rent-A-Car System, Inc.,386 So.2d 520 (Fla. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

GulfHeating Refrigeration Co. v. Iowa Mutual Ins.,193 So.2d 4 (Fla. 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Helman v. Seaboard Coast Line RR Co.,349 So.2d 1187 (Fla. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 21, 28, 29, 31, 32

Hendry v. Zelaya,841 So.2d 572 (Fla. 3d DCA 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Herzog v. Herzog,346 So.2d 56 (Fla. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Jacobs v. Westgate,766 So.2d 1175 (Fla. 3d DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Jenkins v. State,385 So.2d 1356 (Fla. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

J.G. Christopher Co. v. Russell,63Fla. 191,58So.45(1912)........................................ 24

Kaine v. Gov't Employees Ins. Co.,735 So.2d 599 (Fla. 3d DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43

Kaisner v. Kolb,543 So.2d 732 (Fla. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 23, 24

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Keenan v. Oshman Sporting Goods, Inc.,629 So.2d 210 (Fla. 5th DCA 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Lassitter v. Int'l Union of Operating Engineers,349 So.2d 622 (Fla. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Loftin v. McCrainie,47 So.2d 298 (Fla. 1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

McCain v. Florida Power Corp.,593 So.2d 500 (Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 18, 20, 22-27, 34

Michael & Phillip, Inc. v. Sierra,776 So.2d 294 (Fla. 4th DCA 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 25, 36, 37

Palm Beach-Broward Medical Imaging Center, Inc. v. Continental Grain Co.,715 So.2d 343 (Fla. 4th DCA 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26

Parsons v. Reyes,238 So.2d 561 (Fla. 1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Pierard v. Aerospatiale Helicopter Corp.,689 So.2d 1099 (Fla. 3d DCA 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Pinkerton-Hays Lumber Co. v. Pope,127 So.2d 441 (Fla. 1961) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

PK Ventures, Inc. v. Raymond James & Assoc., Inc.,690 So.2d 1296 (Fla. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

Reider v. Dorsey,98 So.3d 1223 (Fla. 3d DCA 2012) . . . . . . . . . . . . . 1, 18, 19, 22, 25, 26, 37, 40

R.J. Reynolds Tobacco Co. v. Townsend,90 So.3d 307 (Fla. 1" DCA 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

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Rudy's Glass Construction Co. v. Robins,427 So.2d 1051 (Fla. 3d DCA 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Rutherford v. Moore,774So.2d637(Fla.2000).......................................... 40

Sardell v. Malanio,202 So.2d 746 (Fla. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

Schwartz v. American Home Assurance Co.,360 So.2d 383 (Fla. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 35, 37

Seaboard Coast Line R. Co. v. McKelvey,270 So.2d 705 (Fla. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Shaw v. Shaw,334 So.2d 13 (Fla. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Stevens v. Jefferson,436 So.2d 33 (Fla. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 33, 34, 35

Tallahassee Memorial Regional Medical Center v. Meeks,560 So.2d 778 (Fla. 1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 41

Teare v. Local Union No. 295,98 So.2d 79 (Fla. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Trees by and through Trees v. K-Mart Corp.,467 So.2d 401 (Fla. 4* DCA 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Trushin v. State,425 So.2d 1126 (Fla. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

United States v. Stevens,994 So.2d 1062 (Fla. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Vining v. Avis Rent-A-Car Systems, Inc.,354 So.2d 54 (Fla. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 35, 37

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Wall v. Alvarez,742 So.2d 440 (Fla. 4th DCA 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Westerman v. Shell's City, Inc.,265 So.2d 43 (Fla. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Other Authorities

Fla. Const. art. v, §3(b)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 20

Fla. Stand. J. Instr. 601.2(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

§59.041, Fla. Stat. (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41§90.604,Fla. Stat.(2011) ........................................... 40§90.701,Fla.Stat.(2011) ........................................... 40

Restatement (Second) of Torts (1965) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 35§§302, 302A, and 302B

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PREFACE

Dennis J. Dorsey ("Dorsey") seeks review of the Third District's decision in

Reider v. Dorsey, 98 So.3d 1223 (Fla. 3d DCA 2012), which expressly and directly

conflicts with McCainv. FloridaPower Corp., 593 So.2d 500 (Fla. 1992)andHelman

v. Seaboard Coast Line RR Co., 349 So.2d 1187 (Fla. 1977), as well as a line of

decisions from this Court recognizing the imposition of negligence liability on an

actor for affirmative acts which create an unreasonable risk for third party criminal

conduct. This Court has jurisdiction. Fla. Const. art. v, §3(b)(3). For the reasons

submitted, the Third District's decision should be quashed.

STATEMENT OF THE CASE AND FACTS1

Since the Third District ordered a directed verdict, all of the facts are stated in

the light most favorable to Dorsey. See Teare v. Local Union No. 295, 98 So.2d 79

(Fla. 1957)(reviewing court considering the correctness ofan order directing a verdict

"necessarily must indulge every reasonable inference from the evidence which is

favorable to the Plaintiff"). Contrary facts are identified and set forth in context.

IAll references are to the record (R. ), as supplemented by documents inthe Third District's file. These include the briefs filed below ("I.B." for InitialBrief; "A.B." for Answer Brief; "R.B." for Reply Brief). References to the trialtranscript are denoted (T. ). Some trial exhibits are included in an appendix,bearing their exhibit numbers. (PX.__). All emphasis is supplied unless otherwisestated.

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A. Evidence on Liability

Dorsey is a licensed building contractor and insurance adjuster, who has owned

and operated an established construction business in Miami since 1989. (T. 153-56).

Dorsey and Robert Reider's father were members of Coral Reef Yacht Club, who

frequently fished together. (T. 156-57).

Dorsey had a casual acquaintance with Robert Reider ("Reider" or "Bobby")

from the yacht club. They were not close but shared an interest in fishing. Dorsey

was a happily married 45 year old man with young twins. (T. 153-54; 156-57; 160;

211). Reider and his close friend Russell Noordhoek ("Noordhoek")were single men

in their twenties, both of whom worked for Reider's father. (T. 93-94; 107-08; 160;

211).2 Dorsey did not know Noordhoek. (T. 157).

On August 31, 2007, following work, Dorsey went to meet a large group of

friends at Flanigan's (a local sports bar) to watch the Miami Dolphins kickoff classic,

which ended at 11:30 p.m. (T. 158-61). The friends ate and drank; Dorsey drank

"Bud light" beer. (T. 161). Dorsey had promised his wife to be home by 12:30 a.m.,

since the next day was their wedding anniversary, and they had planned a long family

weekend in the Florida Keys. (T. 158). As Dorsey was leaving Flanigan's, he spied

2Reider is a licensed real estate salesperson employed by Reider Realty. (T.93-94). Noordhoek did lots of free work for the Reiders, "helping [Bobby] out,"but was not a paid employee. (T. 107).

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Reider (with Noordhoek) in a corner of the bar, and stopped for a brief, friendly

conversation. (T. 161-63). Reider told Dorsey that Flanigan's had "cut him off," and

invited Dorsey to join them for a drink at another establishment. Dorsey refused. His

night was over and he was headed home. Reider continued to press Dorsey to join

him and Noordhoek elsewhere, until Dorsey agreed to stop for a beer at Corbett's, a

neighborhood bar on his way home. (T. 162-65).

Dorsey drove his truck to Corbett's, and seated himselfat the bar. (T. 166-67).

Reider and Noordhoek arrived shortly thereafter. Reider cracked a joke, and

immediately ordered straight shots ofJack Daniels, which he and Noordhoek quickly

downed. (T. 167-68). The atmosphere began light, but "Bobby was escalating...

ramping up," becoming louder and more boisterous, insulting other patrons as he

drank, and the "liquor took over." (T. 168-71). Bobby was talking to a man directly

across from him, who "did absolutely nothing." The man didn't even look at him

cross-wise, but Bobby threatened to "kick his ass." (T. 172). Soon "[Bobby] wanted

to fight everybody in the bar..." (T. 172).

Dorsey tried multiple times, unsuccessfully, to calm Reider down. He told

Reider to "chill out... you are acting like an asshole." (T. 172-73). When the bar's

huge bouncer walked up behind them, Dorsey warned Bobby that "The bouncer is

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right behind us... Chill out."(T. 172, 174-75).3 Bobby flipped open a buck knife, and

responded "Fuck him. I'll cut him up." (T. 175). Dorsey replied "That's exactly what

I'm talking about. You need to relax. You're acting like an asshole." (T. 175-76).

Believing Bobby was "out of control," Dorsey left the bar without saying

goodbye, and headed for his truck and home. (T. 174-78). Reider and Noordhoek

swiftly pursued, with Reider demanding to know "Why are you calling me an

asshole?" (T. 177-78; 180).

As Dorsey walked between Reider's parked truck and an adjacent car towards

his own vehicle, Reider came around the other side, and cut him off. Reider stood at

the tailgate of his truck and blocked Dorsey's departure, while Noordhoek stood

directly behind Dorsey at the driver's door of Reider's truck. (T. 179-81; 220-21).

Only 5 to 6 feet separated Reider and Noordhoek, with Dorsey between them, trapped

between two vehicles. (T. 183). The parking lot was well lit. (T. 182).

Dorsey heard a car door open from behind, turned, saw Noordhoek reach into

the driver's side of Reider's unlocked truck, and pull out a tomahawk. (T. 181-84).

Noordhoek stood there with the tomahawk for a few seconds, while Dorsey turned

back to Reider and said "Bobby, what is this7" Reider said nothing, but started

3Undersigned apologizes in advance for the language, but precision isnecessary to place events in context.

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walking towards Dorsey. (T. 184). It was clear to Dorsey that Bobby "saw what was

going on" but wanted to fight. (T. 182-83).4 Reider was approximately 5'10 inches

tall, weighed 180 pounds, was strong and a pretty good athlete. He had played

football and was an All American LaCrosse player in high school. (T. 94-95). The

substantiallyolder Dorsey was 6'2 inches tall and weighed 220 pounds. (T. 211, 220).

Dorsey tried to escape by oveipowering Reider, but Reider held him in place, while

Noordhoek struck him in the back of the head with the tomahawk. (T. 184-86).

Dorsey went down. He lay on the ground, bleeding profusely, trying to apply

pressure to his wound. Reider and Noordhoek "were right there," but offered no

assistance. (T. 187). Both fled the scene. (T. 90-91; 187).

Dorsey thought he had only minutes to live based on his blood loss and CPR

training, and no time to wait for fire rescue. He kicked into "survival mode" and,

trying to remain conscious, drove himselfto South Miami Hospital. (T. 187-89). He

left his truck parked and running at the emergency room entrance and walked in. A

man at the entrance started screaming, and Dorsey was immediately placed on a

gurney. (T. 190). He was taken to the first available hospital room. (T. 141). Dorsey

was diagnosed with "closed head injury and deep laceration to the skull," a closed

4The Third District's resolution of this evidence will be addressed in theargument section of this brief.

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fracture to his nasal bones, and displacement of the cervical interveitebral disc. (T.

144-45).

A hospital nurse phoned Mrs. Dorsey, telling her there had been a horrible

accident, and she needed to come right away. Mrs. Dorsey found her husband's truck

right where he left it, near the emergency room, the driver's seat drenched in blood,

and the door still open. (T. 235).

Detective (now Sergeant) Gadillo with the Pinecrest Police Department was

informed that same night of a fight at Corbett's, and a victim with severe injuries at

South Miami Hospital. (T. 82-84). When Detective Gadillo arrived at Corbett's,

crime scene investigators had already established a perimeter, and collected evidence,

including a handheld knife with a fold-in blade. (T.84; 88; PX. 4).5 Detective Gadillo

and another investigating officer went to Reider's home the next morning. (T. 84-85).

They found a vehicle matching the description given at the scene, with blood on its

side. (T. 85; 87-88; PX.1-2). This vehicle belonged to Reider. (T. 86).

On search of Reider's truck, the officers found a weapon matching the

description given i.e. the tomahawk. It was located inside the cabin of the truck, on

the driver's side between the center console and front seat. They also found blood

and hair residue. (T. 85-86). They found no "tools" anywhere in the truck. (T. 89; 92-

5Dorsey subsequently identified this knife as the one Reider pulled out atCorbett's. (T. 214; PX. 4).

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93; 96-97).

Reider's father woke him up when the police arrived. (T. 127). Reider initially

denied that he had been at Corbetts. (T. 90-91). After speaking to the officers for a

while, Reider eventually admitted he had been present with a friend, and led the

police to Noordhoek's residence (just one block away). (T. 90-91). Noordhoek was

arrested, charged, and convicted of aggravated battery. (T. 91).

During opening statement, defense counsel told the jury that:

[P]laintiff is going to make a big deal about this tomahawk[which is] nothing more than a small ax...'[W]e are goingto prove it was only in the vehicle because it's one of thetools Mr. Reider uses on a regular basis in the truck to clear

land. That's the only reason it was there.There's no doubt that Mr. Noordhoek opened that

truck, and we will prove that it was clearly without Mr.Reider's permission or consent, grabbed ahold of thatparticular tool, specifically without Mr. Reider'sknowledge or consent, and within seconds, no more than10 to 15 seconds, struck Mr. Dorsey in the back of the

head. (T. 77-78).

Reider's actions and convenient memory were on full display at trial. Reider

testified that, after work on August 31, 2007, Noordhoek came to his home. They had

dinner, "might have had a couple ofdrinks," and decided to go out. (T. 100). Reider

6The tomahawk was a physical trial exhibit (PX. 8), and was shown at oralargument with the Third District's permission. It has the following measurements:an 18 1/2 inch long wooden handle, a metal blade 5 1/2 inches long from thehandle and 3 1/2 inches wide.

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remembered going to Flanigan's, but didn't remember being "cut off" from further

drinks, and denied this occurred. He claimed that he and Noordhoek just decided to

go to another bar. (T. 101-02).

Reider thought he had four to five drinks at Flanigan's, but his bar tab totaled

$100. (T. 102). He denied inviting Dorsey to another bar, claiming this was a

fabrication. However, he acknowledged buying Dorsey drinks at Corbett's. (T.103).

The last thing Reider claimed to remember was ordering "a beer" when he got

to Corbett's. (T. 109). He didn't know how many drinks he ordered or what kind. (T.

109-10). He admitted owning "quite a few knives," including knives with fold-in

blades (T. 113-14), but denied reaching into his pocket, pulling out a knife, and

threatening to cut someone up at Corbett's, stating he was "not the kind ofperson that

would do something like that." (T. 115-16). He also denied that the fold-in knife

found at the scene of the incident was his. (T. 114; PX. 4).

Reider hedged on whether he ever let Noordhoek drive his truck, and didn't

recall if Noordhoek actually drove that night. (T. 104). He "did not remember"

leaving Corbett's, or whether it was before or after Dorsey's departure. (T. 111).

Reider claimed he used all kinds of"tools" in his job, which he kept in the back

of his truck, including hammers, knives or hatchets. (T. 97-98). He testified the

tomahawk was one such "tool," which he used to cut wood when camping. (T. 98).

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Reider had zero explanation for the fact that the police found no axes, hammers,

chainsaws, hatchets, knives or other "tools" anywhere in his truck, including the

toolbox. The tomahawk was found in the interior cab, where he kept it. (T. 97-98;

106-07; 129-30).

Reider had been close friends with Noordhoek since 1993, they had been

camping together, and Reider ostensibly used the tomahawk to cut wood while

camping. (T. 105; 130). However, he had "no idea" if Noordhoek knew he kept a

tomahawk in his truck. (T. 112).

Reider didn't remember what occurred that night, (T. 110; 127; 129) didn't

remember "arguing" with Dorsey, blocking Dorsey in between two cars, or Dorsey's

attempts to escape. (T. 111; 120-21).7 This prompted the following colloquy between

Plaintiff's counsel and Reider:

Q. [W]ould you agree that if someone'strying to get away from danger it would beunreasonable for you to block his path?(objection overruled and omitted)The witness: Yeah, I mean, life (sic) if therewas a fire or something.Q. Let's not change to fires. If

7Reider's sole memory was that he was just standing and talking withDorsey, when Dorsey started fighting with him "out of the blue," and hit him "forno reason." (T. 119-20). In contrast, Dorsey has a clear memoiy of events. Heexplained that it's "hard to forget a night like that." (T. 225).

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somebody's in danger, trying to get awayfrom danger and you were standing infront of him, you would agree that'sunreasonable?(objection overruled and omitted)Q. Right.A. I guess so. If somebody is trying toget away, I guess so.Q. And you surely didn't anticipate thatthis incident would escalate to this right?A. Yeah, whatever happened, yeah, ofcourse not. (T. 121-22).

On the night in question, Reider had an electronic key to his truck which

contained an automatic lock and unlock feature. Reider needed only to click the lock

feature ofhis key to lock his truck, but failed to do so. (T. 137).

Reider disclaimed knowledge of Noordhoek's conduct, denied responsibility

for Dorsey's injury, and even denied exercising poor judgment on the night in

question because "things can happen" when you're out drinking. (T. 125-26). Apart

from Dorsey fighting him "for no reason," Reider's sole memory was that his best

friend from 2003 didn't have permission to take the tomahawk from his truck and use

it. (T. 131-34).

B. Evidence on Damages

Dorsey was discharged from the hospital the day after the incident. The next

weeks were filled with excruciating pain, as Dorsey needed to lie flat, but this placed

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him face up, directly on his head. (T. 236; PX. 7). He described "pins and needles"

that wouldn't stop in his scalp. He complained of severe headaches, numbness and

stiffness in his neck. (T. 236-37).

Dorsey's primary physician, Dr. Michael Feldman, referred him to neurologist,

Steven Kobetz. (R. 436). Dr. Kobetz first saw and examined Dorsey about three

weeks after the incident in question, and treated him for the next twelve months. (R..

436-437,440,443,446,452,457).

Dr. Kobetz testified as Dorsey's treating physician (R. 434-436), and the

defense stipulated it was not contesting the doctor's findings. (T.202-03).

Dorsey first saw Dr. Kobetz on September 21, 2007. (R. 435-436). Dorsey

gave a history of being struck with an axe. His chief complaint was headaches that

were "pounding" and "constant." (R. 437). Dorsey also complained of pain in his

neck and the back of the head, as well as numbness in the back of his head. He

suffered from blurry vision, and was dizzy and disoriented. (R. 437-438). Dorsey was

diagnosed with "closed head injury with posttraumatic syndrome with posttraumatic

headaches," and occipital neuralgia with sensory loss. (R. 439). Dr. Kobetz

prescribed a muscle relaxant and a nonsteroidal anti-inflammatory. (R. 439).

Dr. Kobetz next saw Dorsey on November 14, 2007, approximately 9 weeks

after the injury. Dorsey continued having pain and numbness in his head going into

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the neck. He also had trouble focusing, concentrating, and reading. He felt tired and

fatigued all the time, and was not capable of gainful employment. (R. 441). Dr.

Kobetz recommended that he pursue neuropsychological testing and placed him on

anti-convulsant medication due to his headaches. (R. 443).

By January 16, 2008, Dorsey was still having headaches, problems with

memory, and concentration. His neck pain had not responded to therapy and he was

still feeling tired and fatigued. Because his behavior was consistent with someone

with a "traumatic brain injury," Dr. Kobetz increased the dosage of the anti-

convulsant. (R. 444-445).

Nine months after the incident, Dorsey was still having memory and cognitive

issues, neck pain radiating to his shoulders and sometimes down his arm, and

difficulty sleeping. Dr. Kobetz ordered a CAT scan of the neck and opined that

degenerative changes visible in the CAT scan were most likely exacerbated by the

assault. (R. 451).

By September of 2008, Mr. Dorsey was still experiencing numbness and pain

in his head and neck area. He was taking over 1,000 mg of Advil per day and was

having a difficult time reading. (R. 453). He saw Dr. Vazquez for neuropsychological

testing, the results of which were abnormal. (R. 449).

Over one year after the assault, Dorsey still suffered from headaches, numbness

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and pain in the back ofhis head and neck, extending down his arm, and reduced range

ofmotion in his neck. Dr. Kobetzrecommended that he see a neuromuscular massage

therapist, and a specialized anesthesiologist for pain management with "injections

into the spine or neck" such as a nerve block. (R. 454). Dr. Kobetz opined that since

Dorsey's injury had not resolved, it most likely would not resolve in the future. (R.

455-456).

Jessica Dorsey described her husband as her right hand, who helped her do

"everything" with the children. He played with his children non-stop. (T. 232).

Dorsey was an avid University of Miami sports fan, a big fisherman, who loved to

take their children out on the boat. The injury left him unable to work on any projects

around the house, fish, or participate in activities with his 2 ½ year old twin sons. (T.

233). Dorsey was also very active in his church, and as a result ofhis injuries, he was

unable to continue his involvement. He remained unemployed throughout the rest of

2007 and part of 2008. (T. 240-241).

The parties stipulated that Dorsey's outstanding medical bills were $10,342.88,

for which amount the insurance company sought subrogation.8 (R. 248). Dorsey lost

wages totaling $40,855. (T. 203-04).' Mortality tables introduced in evidence

8Dorsey's total medical bills were $23,289.27.

9TaX returns and other financial information reflected Dorsey's lost income.(T.203-04).

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indicated that a 47 year-old white male (Dorsey's age at the time of trial) had a

remaining life expectancy of 26.11 years. (T. 248).

C. The Course of Proceedings Below

Dorsey sued Reider for negligence. (R. 1-11). He alleged inter alia that Reider

became extremely intoxicated and abusive to Plaintiffand other patrons ofCorbett's,

followed Dorsey after he left the bar, positioned himself on one side of Dorsey with

Noordhoek on the other, trapping him between parked cars. (R. 7-8, ¶l0). Dorsey

alleged that Reider was negligent inter alia in (a) creating a dangerous condition that

led to the physical confrontation; (b) in permitting or failing to prevent Noordhoek

from striking him with a tomahawk; and (c)in failing to warn him about Noordhoek's

strike. (R. 9-10). Reider answered, raising comparative negligence and the

"intentional and/or criminal acts" of Noordhoek as affirmative defenses. (R. 21-22,

¶2-4).

The defense rested at the conclusion ofDorsey's case without calling a single

witness. (T. 244; 247). There is no transcript of the hearing on cross-motions for

directed verdict.1° However, Dorsey agrees that Reider moved for directed verdict on

1°A court reporter with Veritext Florida Reporting Company was present,left the court reporting firm post-trial, and no transcript of these motions wasprovided. (See Reider's Motion to Compel court reporter to complete thetranscript, July 29, 2010).

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the issue ofduty during trial, which motion was denied, and that his cross-motion on

the comparative negligence defense was granted. (R. 308; 314).

By special interrogatory verdict, a jury found negligence on the part ofReider

which was a legal cause of damage to Dorsey. (R. 283). It awarded $10,342 for past

medical expenses, and $40,855 for past lost wages. No future tangible damages were

sought. (R. 283-84).

The jury awarded $669,600 for past, and $850,000 for future, pain and

suffering, disability, disfigurement, mental anguish, aggravation and loss ofcapacity

to enjoy life. (R. 283-84). This amounted to $923 per day for past, and $93 per day

for future, pain and suffering. (R. 396-97).

Reider served post-trial motions for renewed directed verdict, new trial and

remittitur. (R. 308-22; 371-398). Defense counsel urged that Reider owed no duty

to Dorsey because the specific chain of events was unforeseeable. (R. 362-63).

Dorsey countered that counsel was confusing the issues ofduty and proximate cause,

and the only issue was whether Reider "through his actions broadened the zone of

risk to Mr. Dorsey..." (R. 369).

Defense counsel also urged that Noordhoek acted without Reider's knowledge,

consent or permission. (R. 360). The trial court disagreed, stating:

[T]hat's not what the evidence showed. It showed that

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your client had no recollection whatsoever about the event,so the jury was free to infer [otherwise]. . . I mean yourclient, correct me if I'm wrong, said, "I don't have anyrecollection. The only thing he happened to recallremarkably was this physical fight that occurred betweenthe cars. . . (R. 360).

Defense counsel remonstrated that Reider also testified "that he never gave

permission to Mr. Noordhoek... to obtain [the tomahawk] that evening" and there was

"no conclusive proof" permission was granted." (R. 361). The trial court rejected

these arguments, based on "fair inferences" from the record. (R. 361; 364).

The defense also urged that it was improperly denied the opportunity to prove

comparative negligence. When the trial court questioned the existence of any

evidence supporting this defense, defense counsel argued that Dorsey chose to go

drinking with Reider after Flanigan's cut him off, resulting in a dispute in the parking

lot. (R. 376-77)." Plaintiff's counsel responded with undisputed evidence reflecting

that Dorsey left the bar in order to avoid a confrontation, and thereafter was pursued

by Reider and Noordhoek. (R. 379). The trial court agreed. (R. 380). It denied

Reider's motion for renewed directed verdict, new trial and remittitur, and entered

"The Court: So your theory of negligence is just by being with thesepeople, he is comparatively negligent in drinking withthem.

Defense counsel: It's a combination.The Court: Being with these younger people and drinking with

them. (R. 376).

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judgment on the jury's verdict, net of setoffs. (R. 328; 336). Reider appealed the

judgment to the District Court of Appeal, Third District. (R. 331-33).

The trial court's refusal to direct a verdict on duty was raised as Reider's first

point on appeal. (I.B. pp.8, 10-18). Reider urged that "Russell Noordhoek - an

autonomous adult... struck Dorsey in the back ofthe head with a tomahawk," that he

had "no duty to control" Noordhoek's conduct and "no reason to foresee the criminal

acts of another." (LB. pp.10-11). Reider rejected the imposition of liability on the

basis "he created the general condition which triggered Noordhoek's criminal act,"

asserting this was "not true." (I.B. p.11).4 His counsel urged that the pertinent and

applicable test was:

[t]he likelihood that Reider's conduct would result inthe precise type of injury suffered by Dorsey. A duty ofcare could exist if, and only if, keeping a tool in a truck'has so frequently previously resulted in the same type ofinjury or harm that in the field of human experience thesame type ofresult may be expected again.' These facts donot satisfy that test. (I.B. pp.13-14).

Opposing counsel added, in a memorable passage, that:

Undoubtedly, the vast majority of the population keeps thetools of their trade in their vehicles. That tool may be anaxe, or it may be a hammer or heavy briefcase. Arecreational golfer may keep his clubs in his car, and any

Reider also challenged rulings on evidence, the comparative negligencedefense, and remittitur. (I.B. pp.23-24).

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Florida resident may carry an umbrella. While those itemsare commonplace, the field ofhuman experience does notlead any of us to expect that an acquaintance of ours maytake such an item from a vehicle while it is sitting in aparking lot and use it to strike another acquaintance in theback of the head. (I.B. p.14).

Plaintiff's counsel responded that this case was "not about controlling

Noordhoek," but Reider's own conduct, which created a greater zone of risk. This

included acting with Noordhoek to trap Dorsey in the narrow space between two cars,

and physically preventing his escape, thereby enabling Noordhoek to bury the

tomahawk in the back ofhis head. (A.B. p.17). Reider also had the means to lessen

the risk by automatically locking his truck (A.B. p.15). This conduct posed "a

generalized and foreseeable risk of harm," which created a duty. McCain v. Florida

Power Corp., 593 So.2d 500, 503 (Fla. 1992); Kaisner v. Kolb, 543 So.2d 732 (Fla.

1989). (A.B. pp.18, 21).

D. The Third District's Decision

The Third District reversed and remanded for entry of judgment in favor of

Reider. Reider v. Dorsey, 98 So.3d at 1225. It acknowledged that Reider and

Noordhoek followed Dorsey out of the bar and confronted him in the parking lot,

trapped Dorsey between Reider's truck and the adjacent car, that Reider had the

electronic key to his truck in his pocket, that Noordhoek grabbed the tomahawk from

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Reider's unlocked truck, that Reider thwarted Dorsey's efforts to escape, and that it

was even "probable" that "Reider's resistance to Dorsey's effort to escape

Noordhoek's blow enabled the strike.".I_d. at 1226-28, n.3.

The Third District, nevertheless, held, as a matter of law, that Reider owed no

"relevant duty ofcare." Id. at 1228. It concluded that " a duty ofcare could exist only

if keeping a tool in a truck 'has so frequently previously resulted in the same type of

injury or harm that in the field of human experience the same type of result may be

expected again.'" Id. at 1227, quoting Michael & Phillip, Inc. v. Sierra, 776 So.2d

294, 296-97 (Fla. 4th DCA 2000). Adopting Reider's legal analysis verbatim, the

Third District wrote:

Undoubtedly, many citizens ofthis state keep tools oftheirtrade in vehicles. Those tools might be an axe, a hammer,or heavy briefcase. A recreational golfer may keep his golfclubs in his car, and any Florida resident may carry anumbrella. While it may be prudent for the vehicle owner tolock his car, the field ofhuman experience does not lead usto expect that an acquaintance of ours might take such anitem from a vehicle in a parking lot and use it to strikeanother acquaintance in the back of the head.

Reider v. Dorsey, 98 So.3d at 1227.

The Third District also found that Reider's active or constructive control ofhis

tomahawk "ended once Noordhoek reached into [his] truck and removed the

tomahawk without permission," Id. at 1226, that "Dorsey was struck from behind by

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an independent third party," Id. at 1225, that "there was no record evidence Reider

colluded with Noordhoek to harm Dorsey, or that Reider knew Noordhoek had the

tomahawk in his hand before the strike," Id. at 1228, that Reider's "main purpose" for

following Dorsey out of the bar "was to inquire and confront Dorsey about calling

[him] an asshole," and that Reider merely provided "access" to the tomahawk with

"neither the duty nor the ability to control Noordhoek's conduct." Id.

Dorsey seeks further review. Fla. Const. art v, §3(b)(3).

SUMMARY OF THE ARGUMENT

Reider created a "generalized and foreseeable risk ofharm" to Dorseywhen he

pursued Dorsey, trapped him between two cars, and prevented his escape. The Third

District misapplied McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992) when

it ordered a directed verdict on the basis that a duty ofcare could only exist ifkeeping

a "tool" in a truck had frequently resulted in the same type of injury previously, and

it was unforeseeable that Noordhoek would take a "tool" from Reider's car, and use

it to strike Dorsey in the head. This focused on the "specific narrow facts of the

case," which relate to "proximate cause," not the legal issue of duty on which the

Third District's decision was ostensibly based. The Third District's decision

erroneously conflated duty and proximate cause in virtually the same manner this

Court disapproved in McCain, 593 So.2d at 504.

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The Third District then reweighed the evidence and substituted its decision for

the jury on the fact-specific issue of proximate cause, in conflict with Helman v.

Seaboard Coast Line RR Co., 349 So.2d 1187 (Fla. 1977).

Dorsey left Corbett's to head home because he thought Reider was "out of

control." He was pursued by Reider and Noordhoek, who trapped him between

Reider's truck and another car, and prevented his departure. Fair evidentiary

inferences reflect that Noordhoek not only had "access" to Reider's tomahawk, but

permission to use it. The jury was also entitled to conclude, from the totality of the

circumstances, that Reider proximately caused Dorsey's injury by his own acts. The

jury was entitled to reject Reider's testimony based on inconsistencies, omissions,

downright lies, and the inherent improbability of his story. Reider's knowledge,

motive, "main purpose in following Dorsey" and Noordhoek's "independence" were

factual issues for jury determination, not an appellate court. The Third District's

decision rendered the jury superfluous.

The Third District fuither misapplied Florida law when it focused on what it

perceived to be the unforeseeable "independent" act ofNoordhoek. Reider's acts (1)

created an unreasonable risk of harm by creating a foreseeable opportunity for

Noordhoek's conduct; and (2) set in motion a chain of events causing Dorsey's

mjury.

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This Court has the discretion to resolve the remaining legal issues Reider raised

below, none of which have merit. Dorsey's efforts to escape from a dangerous

situation did not make him comparatively negligent, and Reider did not demonstrate

an abuse of discretion in the trial court's rulings on evidence or remittitur.

The Third District decided that Dorsey's testimony that Reider had seen

Noordhoek with the tomahawk "was error." Reider v. Dorsey, 98 So.3d at 1228 n.5.

This applied an erroneous de novo standard of review, rather than the applicable

"abuse ofdiscretion" standard, ignored applicable provisions ofFlorida's Evidence

Code, other competent evidence, and the harmless error doctrine.

In sum, the Third District's decision is flawed in every respect, factually and

legally unsustainable, and should be quashed with directions to reinstate the jury's

verdict.

ARGUMENT

I. REIDER'S CONDUCT CREATED AGENERALIZED AND FORESEEABLE RISKOF HARM TO DORSEY WHICH CREATED ADUTY

A. The District Court Misapplied the Law on Duty

In McCain v. Florida Power Corp., 593 So.2d 500 (Fla. 1992), the seminal,

controlling case, McCain was injured when the blade ofa mechanical trencher he was

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operating in an area that the power company had marked "safe," struck an

underground power cable. A jury returned a Plaintiff's verdict on a negligence claim

against Florida Power.

The Second District reversed and remanded for entry of a directed verdict,

concluding that Plaintiff's injury was not foreseeable. Id. at 501." This Court granted

further review, citing express, direct conflict between the Second District's decision

and two supreme couit decisions: Kaisner v. Kolb, 543 So.2d 732 (Fla. 1989), and

GulfHeating Refrigeration Co. v. Iowa Mutual Ins. Co., 193 So.2d 4 (Fla. 1966).

This Court found that the Second District erred in ordering a directed verdict.

McCain, 593 So.2d at 502. According to this Court, the Second District "first cited

a number of cases suggesting that foreseeability itself [gave] rise to the duty of care

in a negligence action," which enabled it to rule as a matter of law since duty was a

legal question. Id. It then went on to suggest that "no duty existed... as a matter of

law because the specific injury suffered by McCain was not foreseeable." Id. This

confused foreseeability as it related to the separate issues of duty and proximate

cause. Id. at 502-03.

"It reasoned that "Although Florida Power and its employee had a duty toexercise reasonable care in the locating of the cable, a failure in that duty does notsomehow establish that Florida Power could foresee an electric shock injuryresulting from the cable being struck and severed." Florida Power Corp. v.McCain, 555 So.2d 1269, 1271 (Fla. 2"d DCA 1989), quashed, 593 So.2d at 504.

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The duty element of negligence focuses on whether the defendant's conduct

foreseeably creates a broader 'zone of risk' that poses a general threat of harm to

others. It is a minimal threshold legal requirement for opening courthouse doors. Id.

Florida, like other jurisdictions, recognizes a legal duty arises whenever a human

endeavor creates a generalized and foreseeable risk ofharm to others. While this is

a legal issue, "trial and appellate courts cannot find a lack of duty if a foreseeable

zone of risk more likely than not was created by the defendant." Id. at 503."

In contrast, foreseeability as it relates to proximate cause focuses on the

specific narrow factual details of the case, not the broader zone ofrisk the defendant

created. McCain v. Florida Power Corp., 593 So.2d at 503. Proximate cause "must

be left to the fact f'mder to resolve" save for "freak injuries that were utterly

unpredictable," where unequivocal facts support only a single reasonable inference.

Id. at 503-04. It is thus "immaterial that the defendant could not foresee the precise

manner in which the injury occurred or its exact extent." Id. at 503 (emphasis in

original).

"This Court cited law on duty dating back a century. See J.G. ChristopherCo. v. Russell, 63 Fla. 191, 58 So.45, 47 (1912)("The reasonable care whichpersons are bound to take in order to avoid injury to others is proportionate to theprobability of injury that may arise to others."); Stevens v. Jefferson, 436 So.2d33, 35 (Fla. 1983)(scope of defendant's duty circumscribed by the scope ofanticipated risks to which he exposes others); Kaisner v. Kolb, 543 So.2d 732 (Fla.1989)(same).

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This Court held that the Second District's decision:

[C]onfused the duty and proximate causation elements,resulting in a mistaken assumption that Florida Power'sduty was to foresee the specific sequence ofevents that led

to McCain's injury. . . [which] in effect allowed the dutyelement to subsume the question of proximate causation,with the result that the district court improperly attemptedto resolve on appeal the factual question that should havebeen left for the jury. As to duty the proper inquiry for thereviewing appellate court is whether the defendant'sconduct created a foreseeable zone ofrisk not whether thedefendant could foresee the specific injury that actuallyoccurred. Id. at 504 (emphasis in original).

It concluded thatFloridaPower's conduct in usingpower generating equipment

created a foreseeable zone of risk for those who came into contact with the

equipment. Id. Evidence that "no similar injury has occurred in the past" was for the

jury's consideration on the "fact-based" separate issue ofproximate cause. Id. at 504.

Since reasonable persons could differ, the jury's verdict was ordered reinstated.

In the instant case, the Third District began by quoting the "foreseeable zone

of risk" language of McCain. Reider v. Dorsey, 98 So.3d at 1223. It then, segued,

to the erroneous conclusion that application ofthe "foreseeable zone ofrisk"required

evaluation of "whether the type of negligent act involved in a particular case has so

frequently previously resulted in the same type of injury or harm that 'in the field of

human experience' the same type of result may be expected again." Id.15 It

"Citing Michael & Philip, Inc. v. Sierra, 776 So.2d at 296-97, quoting PalmBeach-Broward Medical Imaging Center, Inc. v. Continental Grain Co., 715 So.2d

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erroneously held that "a duty of care could exist only ifkeeping a tool in a truck 'has

so frequently previously resulted in the same type of injury that in the field ofhuman

experience the same type of result may be expected again.'" Reider v. Dorsey, 98

So.3d 1227. M The Third District then concluded, as a matter of law, that the specific

facts relating to Dorsey's injury were unforeseeable because "the field of human

experience does not lead us to expect that an acquaintance of ours might take [a

tomahawk] from a vehicle in a parking lot and use it to strike another acquaintance

in the back of the head." Id.

This clearly focused on proximate cause, i.e. the specific facts of the case,

erroneously assuming that Reider's duty was to foresee the specific sequence of

events leading to Dorsey's injury. Reider v. Dorsey, 98 So.3d at 1227. This was

virtually identical to the Second District analysis that McCain quashed. McCain, 593

So.2d at 503. As in McCain, "this approach in effect allowed the duty element to

subsume the question of proximate cause, with the result that the district court

343 (Fla. 4* DCA 1998).

16The Third District accepted McCain as controlling precedent, but

attributed "a patently erroneous and unfounded principle of law" to the decision,creating the type of "real and embarrassing conflict" contemplating further review.Pinkerton-Hays Lumber Co. v. Pope, 127 So.2d 441, 443 (Fla. 1961); Ansin v.Thurston, 101 So.2d 808, 811 (Fla. 1958).

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improperly attempted to resolve on appeal the factual question that should have been

left for the jury." Id. at 504.

Proper application of McCain to the evidence reflects that Reider created a

"generalized and foreseeable risk ofharm" to Dorsey by his conduct. He was drunk

and belligerent, carried a buck-knife, and was itching for a fight. Dorsey left

Corbett's bar to get away from him precisely for these reasons. It was readily

foreseeable that Dorsey would be harmed when he was trapped between two cars by

Reider and Noordhoek, when Reider prevented his escape. Indeed, Reider readily

admitted this at trial when he agreed it was unreasonable for him to stand in the way

and prevent Dorsey's escape, if he was fleeing danger. (T. 121-22).

In sum, Reider's conduct created a foreseeable zone ofrisk which required the

law to recognize a duty.

B. The Third District Improperly Reweighed Evidence ofProximate Cause

It is a quintessential jury function to evaluate the believability ofwitnesses and

the weight their testimony is to be given. Parsons v. Reyes, 238 So.2d 561, 562 (Fla.

1970). Juries are entitled to take into account "the demeanor of the witness while

testifying; the frankness or lack of frankness of the witness; any interest the witness

may have in the outcome ofthe case; the means and opportunity the witness may have

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in the .know the facts... the ability of the witness to remember..." and the

reasonableness of the testimony, considered in light of all the evidence and their

collective experience and common sense. Fla. Stand. J. Instr. 601.2(a).

A jury is entitled to reject testimony which is discredited, inherently

improbable or unreasonable, opposed to common knowledge, inconsistent with other

circumstances established in evidence, or self-contradictory. Catlett v. Chestnut, 107

Fla. 498, 146 So. 241, 246 (Fla. 1933). As this Court noted long ago "a witness may

be contradicted by the facts he states as completely as by direct adverse testimony.

There may likewise be so many omissions in his account ofparticular transactions,

or his own conduct, as to discredit his whole story." Id. A directed verdict does not

lie in this instance. Id.

In Helman v. Seaboard Coast Line RR Co., 349 So.2d 1187 (Fla. 1977),

Plaintiff was injured when the vehicle in which she was riding collided with

Seaboard's train. She recovered a favorable verdict based on pleadings and proofthat

the train (1) had an inadequate, inaudible warning whistle; (2) was traveling at

excessive speed; and (3) failed to maintain a proper lookout.

The Fourth District reversed, finding inter alia that neither the speed of the

train nor its failure to maintain a proper lookout constituted the proximate cause of

injury. This Court quashed the District Court's decision, citing "three

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incontrovertible premises of law" relevant to the case's disposition.

First, an appellate court is not entitled to reweigh the evidence and substitute

its judgment for the jury. Second, if there is any competent evidence to support the

jury's verdict, the verdict must be sustained, regardless ofthe DistrictCourt's opinion

as to its propriety. Third, the question of whether defendant's negligence was the

proximate cause ofan injury is for the jury unless reasonable persons could not differ

in their determination. Id. at 1189.

The Third District's decisionalso expressly and directly conflicts withHelman.

On its face, the Third District reweighed the evidence and substituted its decision for

the jury, when it declared Noordhoek an "independent third party," who did not

"collude" with Reider, and who removed the tomahawkwithout Reider's knowledge

or permission. The record reflects there was competent substantial evidence to

support the jury's verdict, negating these claims.

Dorsey was a 47 year old happily married man, with young twins, and an

established business. The jury was entitled to find that he joined Reider and

Noordhoek for a drink on his way home as a courtesy, left Corbett's after he saw

Reider drink to excess, and become boisterous, violent, and belligerent, and was the

victim of Reider's negligence and Noordhoek's intentional acts.

Noordhoek did not testify at trial, and the jury was entitled to reject Reider's

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testimony, based on the inconsistencies, omissions, and the inherent improbability of

the story he told. Reider and Noordhoek were close friends who grew up together,

lived near one another, worked together, camped together and partied together. They

dined and drank together, before heading out for more drinks the evening ofAugust

3 l®t. Reider did not need to invite Dorsey for a drink at a different bar, if he was still

welcome to drink at Flanigan's. As he told Dorsey, Flanigan's "cut him off." The

jury was entitled to determine that Reider lied when he denied this took place, and

that he pressed Dorsey to join him elsewhere. Reider couldn't definitively state

whether he or Noordhoek drove that night, let alone whether Noordhoek had

previously driven his truck and was familiar with its contents. Reider admitted

owning an array ofknives, including knives that folded in, but denied pulling a fold-

in knife because he was "not that kind of person." The police found a fold-in knife

at the scene, which Dorsey identified, but Reider denied was his. The jury was

entitled to find that Reider's memory was highly selective and convenient. He

remembered absolutely nothing that reflected poorly on him, attributing this to drink,

a situation the trial court termed "remarkabl[e)." (R. 360).

After Dorsey left Corbett's, Reider and Noordhoek followed him, trapped him

between two vehicles, with one man on either side to prevent his escape. Only 5 to

6 feet separated Reider and Noordhoek when Noordhoek grabbed the tomahawk from

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Reider's truck, in a well lit parking lot. Some 10 to 15 seconds elapsed before

Noordhoek struck Dorsey, and Dorsey questioned Bobby about the tomahawk

("Bobby, what is this?) in that intervening time period, to no avail. Instead, Reider

kept walking towards Dorsey, preventing his escape, while Noordhoek struck the

blow. A fair inference is that Noordhoek not only had "access" to Reider's

tomahawk, but Reider's permission (and encouragement) to use it? Reider's

knowledge, motive, "main purpose in following Dorsey" and Noordhoek's

"independence" were all factual issues for jury determination, not an appellate court.

Helman, 349 So.2d at 1189; Herzog v. Herzog, 346 So.2d 56, 57 (Fla. 1977); Shaw

v. Shaw, 334 So.2d 13, 16 (Fla. 1976)("It is not the function ofthe appellate court to

substitute its judgment for that of the [fact-finder] through re-evaluation of the

testimony and evidence from the record on appeal before it."); Westerman v. Shell's

City, Inc., 265 So.2d 43, 46 (Fla. 1972).

Since Dorsey was 6'2" tall, another reasonable inference was that Noordhoek

had to lift the tomahawk high to strike him in the back of the head, that Reider was

facing Noordhoek in a well lit space, in close proximity, saw him do so, and acted

"The Third District's statement that Reider's active or constructive controlof his tomahawk "ended once Noordhoek reached into [his] truck and removed thetomahawk without permission" was derived from Reider's brief (I.B. p.15). It has

no factual or legal support.

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unreasonably by either not warning Dorsey or telling Noordhoek to stop.

The jury was also entitled to reject Reider's claim that the tomahawk was just

one of the many "tools" he used for work, where no other tools of any kind were

found by a police search conducted ofthe truck the very next morning. It was entitled

to conclude that the tomahawk was a far cry from a briefcase, a set of golf clubs, or

an umbrella. It was a weapon, kept handy for use as such.

The jury was further entitled to consider Reider's consciousness ofguilt, when

he fled the scene, and thereafter lied to the police about his involvement. See Busbee

v. Quarrier, 172 So.2d 17, 22 (Fla. 1" DCA 1965).

In sum, the Third District's decision violated all three "incontrovertible

premises of law" set forth in Helman. It reweighed evidence of proximate cause in

Reider's favor, ignored competent substantial evidence which supported the jury's

verdict, and, faced with conflicting evidence, removed the factual determination of

proximate cause from the jury. It is legally unsustainable and should be quashed.

II. REIDER WAS REQUIRED TO GUARDAGAINST THE INTENTIONAL ACT OF ATHIRD PARTY, WHERE HIS CONDUCTCREATED OR EXPOSED DORSEY TO THISINTENTIONAL ACT

The Third District's discussion of the legal principles on which it based its

decision further conflicts with United States v. Stevens, 994 So.2d 1062 (Fla. 2008);

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Schwartz v. American Home Assurance Co., 360 So.2d 383 (Fla. 1978); and Vining

v. Avis Rent-A-Car Systems, Inc., 354 So.2d 54 (Fla. 1977). This discussion supplies

another basis for conflict review. See Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342

(Fla. 1981)("It is not necessary that a district court explicitly identify conflicting

district court or supreme court decisions in its opinion in order to create an 'express'

conflict under section 3(b)(3).").

Stevens was a wrongful death suit brought against the federal government

under the federal tort claims act for inadequate security in shipping anthrax. The

anthrax was intercepted and mailed by an unknown third party to Robert Stevens'

workplace, and Mr. Stevens died after its inhalation. Plaintiff also sued the private

research facility which produced this anthrax. Stevens, 994 So.2d at 962.

The government moved to dismiss, urging it owed no duty to protect Mr.

Stevens (a stranger) and no duty or ability to control the independent third party

responsible for intercepting and mailing anthrax to his workplace. Motions to dismiss

were denied, but a federal district court authorized defendants' appeal to the Eleventh

Circuit, which certified the dispositive "duty" question to this Court.

On appeal, defendants "focus[ed] on what they perceived to be the

unforeseeable criminal agency of a third party in causing harm to the decedent. . ."

Id. at 1067. In contrast, plaintiff focused on the magnitude ofthe risk ofharm created

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by the defendants' decision to deal with a dangerous substance.

This Court turned to §§302, 302A, and 302B of the Restatement (Second) of

Torts (1965), which largely mirrored McCain's "foreseeable zone of risk" analysis.

Stevens, 994 So.2d at 1067. This Court also drew on prior precedent "clearly

recognizing that negligence liability may be imposed on the basis ofaffirmative acts

which create an unreasonable risk ofharm by creating a foreseeable opportunity for

third party criminal conduct, even though there is no special relationship between the

parties that independently imposes a duty to warn or guard against that misconduct."

Stevens, 904 So.2d at 1068. The applicable sections of the Restatement provide:

§302 Risk of Direct or Indirect Harm.

A negligent act or omission may be one whichinvolves an unreasonable risk of harm to another througheither:

(a) the continuous operation of a force staited orcontinued by the act or omission, or

(b) the foreseeable action ofthe other, a third person, ananimal, or a force ofnature.

§302A Risk ofNegligence or Recklessness of Others.

An act or omission may be negligent if the actorrealizes or should realize that it involves an unreasonablerisk of harm to another through the negligent or recklessconduct of the other or a third person.

§302B Risk of Intentional or Criminal Conduct.

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An act or omission may be negligent if the actorrealizes or should realize that it involves an unreasonablerisk ofharm to another through the conduct of the other ora third person which is intended to cause harm even thoughsuch conduct is criminal.

There are two situations where an actor is required to guard against the

intentional, or even criminal misconduct of others: (1) where the actor's own

affirmative act has created or exposed the other to a recognizable high degree ofrisk

of harm through misconduct, which reasonable persons would take into account; or

(2) where the actor was under a special responsibility to the victim. Rest. (Second)

of Torts §302B, cmt.e (1965).

This Court rejected the defense arguments in Stevens, based on allegations that

death was a foreseeable consequence ofdefendants' failure to use reasonable care in

adopting and implementing security measures necessary to protect against the

unauthorized interception and release of biohazardous material, by third parties.

InVining and Schwartz, this Court rejected the traditional approach to "key-in-

the ignition" cases, which denied relief to a party injured in an accident with a car

thiefby holding either that the car owner owed no duty to the victim, or that the theft

constituted "an unforeseeable intervening criminal act" which broke the chain of

causation between the car owner's negligence and the victim's injuries. Vining, 354

So.2d at 55. It squarely held that a car owner's negligence in leaving keys in the

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ignition of the owner's car foreseeably created the opportunity for injury by acts of

a third party car thief."

Here, Reider's affirmative acts created an unreasonable risk of hann by

creating a foreseeable opportunity for Noordhoek's intentional acts. Reider actively

pursued Dorsey after he left Corbett's, trapped Dorsey between himself and

Noordhoek and two parked vehicles, actively prevented Dorsey's escape, and left his

truck unlocked with a dangerous tomahawk in the rear seat. In this age oftechnology,

cars may be locked or unlocked at a distance. All that stood between Dorsey and

injury here was the click of Reider's electronic key.

The Third District avoided these settled principles by resort to inapplicable

district court cases. Carney v. Gambel, 751 So.2d 653, 654 (Fla. 4th DCA 1999)

involved an unsuccessful effort to hold parents ofan adult child liable for his conduct

merely because the child still resided with his parents. The parents took no

affirmative acts creating a risk ofharm.

In Michael & Philip, Inc. v. Sierra, 776 So.2d at 294, the Fourth District held

that a gym which provided a place for members to store keys while they exercised had

"No wrongful act constitutes an "intervening" cause unless it is independentof and not set in motion by, the original wrongful acts. Loftin v. McCrainie, 47So.2d 298 (Fla. 1950); Sardell v. Malanio, 202 So.2d 746, 747 (Fla. 1967); Gibsonv. Avis Rent-A-Car System, Inc., 386 So.2d 520, 522 (Fla. 1980).

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no duty to protect a total stranger injured by a car thief. It concluded that "the

foreseeable zone ofrisk created by the placement ofa key on a gymnasium wall, does

not include a motorist injured many miles and many hours away." Id. at 299. It

distinguished Schwartz and Vining as "address[ing] the duty of the owners ofcars to

protect the public from theft and the later conduct ofcar thieves." Michael & Phillip,

Inc., 776 So.2d at 299. The gym was not a car owner, but provided storage "as a

convenience "l'

Reliance on Keenan v. Oshman Sporting Goods, Inc., 629 So.2d 210 (Fla. 5th

DCA 1994) was equally misplaced. The Third District acknowledged it drew facts

and argument from a dissenting opinion to a majority per curiam affirmance without

opinion. Reider, 98 So.3d at 1227-28, n.4.* Under settled law, a per curiam decision

without written opinion has no precedential value and "may not be relied upon for

anything other than res judicata." Reliance on such a decision creates uncertainty

in the law because there is no way to determine what the case actually held. Dep't of

Legal Affairs v. District Court of Appeal, 434 So.2d 310, 312-13 (Fla. 1983). A

dissent to a per curiam affirmance without written opinion has no precedential value

19]udge Klein dissented on the basis that this theft "was just as foreseeableas the theft in Schwartz and Vining." Michael & Phillip, Inc., 776 So.2d at 300.

2aThis analysis was similarly derived from Reider's Brief. (I.B. pp.15-16,n.2).

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or reliability. By definition, it contains information, interpretation, or legal analysis,

rejected in whole or part, by the majority. Jenkins v. State, 385 So.2d 1356, 1358 (Fla.

1980).

In the instant case, the Third District ignored long-established legal principles,

multiple decisions of this Court, and overwhelming record evidence to order a

directed verdict on the fact-specific issue ofproximate cause, cloaked in verbiage of

duty. Its decision misapplies settled law and should be quashed.

IIL NONE OF REIDER'S REMAININGAPPELLATE ISSUES HAD MERIT

Once this Court obtains jurisdiction, it has the discretion to consider any issue

affecting the case. See e.g. PK Ventures, Inc. v. Raymond James & Assoc., Inc., 690

So.2d 1296, 1297, n.3 (Fla. 1977); Cantor v. Davis, 489 So.2d 18, 20 (Fla. 1986);

Trushin v. State, 425 So.2d 1126, 1130 (Fla. 1982). None ofthe remaining appellate

issues Reider raised before the Third District had merit.

A. Comparative Negligence

"Where there is no evidence tending to prove a plaintiff's comparative

negligence, the issue should be taken from the jury." Jacobs v. Westgate, 766 So.2d

1175, 1178 (Fla. 3d DCA 2000). That is precisely the case here. Undisputed

evidence reflects that Dorsey left the bar to get away from Reider and Noordhoek.

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He was headed home when he was trapped by the two, and was trying to escape from

the tomahawk wielded by Noordhoek, by pushing Reider out of the way. Dorsey

didn't cause or contribute to his own injury. (T. 186; 190; 223). Reider simply

"didn't remember" if this was the case. (T. 127; 129).

Broward County School Board v. Ruiz, 493 So.2d 474 (Fla. 4* DCA 1986) is

persuasive in concluding there is no comparative negligence when a party attempts

to avoid danger by retreat.

B. No Abuse of Discretion Demonstrated Warranting a NewTrial Based on Evidentiary Rulings

Evidentiary rulings are reviewed for abuse ofdiscretion in the context ofall the

evidence in the case. The complaining party is required to demonstrate error as well

as prejudice. Tallahassee Memorial Regional Medical Center v. Meeks, 560 So.2d

778, 780 (Fla. 1990); Wall v. Alvarez, 742 So.2d 440 (Fla. 4th DCA 1999). When a

trial court has weighed probative value against prejudicial effect, a clear abuse of

discretion is required to overturn its decision. Trees by and through Trees v. K-Mart

Corp., 467 So.2d 401, 403 (Fla. 4* DCA 1985).

Reider did not even try to meet this burden in the Third District. Instead, he

simply listed bullet points without record citation, without addressing preservation

of error, and without addressing the trial court's actual rulings. (I.B. pp.25-26).

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Dorsey addressed each of these items in full and in context. (A.B. pp.35-42). The

only issue the Third District addressed was Dorsey's testimony that Reider had in fact

seen Noordhoek with the tomahawk. Reider v. Dorsey, 98 So.3d at 1228 n.5. It

reviewed this evidentiary ruling de novo, concluding:

[This] of course, was error. See Rutherford v. Moore, 774So.2d 637, 646 (Fla. 2000)(emphasis added)("A witness isincompetent to testify if the trial court determines thewitness is... (3) unable to perceive and remember theevents.") Noordhoek did not testify at the trial. The juryreceived no competent evidence from which it could haveinferred Reider knew Noordhoek was about to inserthimself into the fray. (emphasis in original).

There are multiple problems with this analysis, apart from the erroneous

standard of review. First, the testimony at issue came from Dorsey, who had no

problems remembering anything, and was presumed competent. Rutherford, 774

So.2d at 646. The trial court made no determination that Dorsey was incompetent.

Second, a lay witness may convey what he perceives, see aenerally §90.701, Fla. Stat.

(2011), and his personal knowledge may be established by the witness' own

testimony. §90.604, Fla. Stat. (2011). Third, the district couit ignored the

surrounding circumstances. These included the parties' close proximity (only 5 to 6

feet) separating Reider and Noordhoek (with Dorsey in between), the size of the

tomahawk, the well lit parking lot, Dorsey's sight of the tomahawk before turning

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back to ask Bobby, "What is this?," Bobby's movement towards Dorsey to hold him,

instead of away, and the 10 to 15 seconds which elapsed before Noordhoek struck.

All ofthis was "competent" to establishReider's knowledge ofNoordhoek's conduct.

Fourth, Reider voiced just one overruled objection. (T. 182-83). The same evidence

was adduced twice thereafter (once by the defense), without objection. (T. 184; 223).

It was therefore cumulative. Tallahassee Memorial v. Meeks, 560 So.2d at 778. Fifth,

at worst, given the totality ofevidence in the record, admission ofDorsey's opinion,

even if error, was extremely harmless. §59.041, Fla. Stat. (2011).

C. No Abuse of Discretion in Refusing to Remit the Verdict

Post-trial, Reider moved to remit the intangible damage awards, but the trial

court refused. Reider cannot demonstrate that the trial court abused its discretion.

First, a jury is accorded wide latitude in assessing non-economic damages.

Seaboard Coast Line R. Co. v. McKelvey, 270 So.2d 705, 706 (Fla. 1972); Allred v.

Chittenden Pool Supply, Inc., 298 So.2d 361, 365 (Fla. 1974)("Great effect is given

by ourjudicial system to the fact-finder's award ofdamages."); Hendryv. Zelaya, 841

So.2d 572, 575 (Fla. 3d DCA 2003).

Second, "[t]he fact that a damage award is large does not in itself render it

excessive nor does it indicate that the jury was motivated by improper consideration

in arriving at the award." Allred v. Chittenden Pool Supply, Inc., 298 So.2d at 365

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(Fla. 1974); Rudy's Glass Construction Co. v. Robins, 427 So.2d 1051 (Fla. 3d DCA

1983). A verdict should not be disturbed unless it is so inordinately large as to

obviously exceed the maximum range within which the jury may properly operate.

Bould v. Touchette, 349 So.2d 1181, 1184 (Fla. 1977).

Third, a court "should never declare a verdict excessive merely because it is

above the amount which the court itself considers the jury should have allowed."

Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309, 1313-14 (Fla. 1986); Bould

v. Touchette, 349 So.2d at 1184-85 (Fla. 1977). "Although a jury may award a

greater sum than the trial court deems appropriate, the court may not interfere unless

the sum is so large that it indicates the jury may have been under the influence of

passion, prejudice, or gross mistake." Lassitter v. Int'l Union ofOperating Engineers,

349 So.2d 622 (Fla. 1977); Pierard v. Aerospatiale Helicopter Corp., 689 So.2d 1099

(Fla. 3d DCA 1997).

Fourth, the record must affirmatively show the impropriety of the verdict or

there must be an independent determination by the trial court that the verdict was

against the manifest weight of the evidence or the jury was influenced by matters

outside the record. Ashcroft v. Calder Race Course, Inc., 492 So.2d 1309, 1313-14

(Fla. 1986)(reinstating jury verdict where trial court simply reached different

conclusions than the jury on the amount of damages to be awarded); Kaine v. Gov't

42

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Employees Ins. Co., 735 So.2d 599, 600-01 (Fla. 3d DCA 1999); Adams v. Saavedra,

65 So.3d 1185 (Fla. 4th DCA 2011)(reinstating jury verdict finding "no justification

for this remittitur" of pain and suffering awards).

Intangible damages for pain and suffering are inherently difficult to measure

R.J. Reynolds Tobacco Co. v. Townsend, 90 So.3d 307, 308 (Fla. 1" DCA 2012).

Accordingly, our judicial system places great faith in the jury's ability to assess the

amount of these damages:

[J]urors know the nature of pain, embarrassment andinconvenience, and they also know the nature of money.Their problem ofequating the two to afford reasonable andjust compensation calls for a higher order of humanjudgment, and the law has provided no better yardstickto their guidance than their enlightened conscience.Their problem is not one of mathematical calculationbut involves an exercise of their sound judgment ofwhat is right and fair. The problem is often furthercomplicated by the fact that pain and suffering are yet to besuffered and thus even further removed from exactcalculations and certain measurement. But such furtheruncertainty does not change the problem of one ofjudgment to one of calculation. It still rests within theenlightened conscience of the jury.

Braddock v. Seaboard Air Line R. Co., 80 So.2d 662, 668 (Fla. 1955).

In the instant case, Dorsey sustained very severe injury to the back ofhis head,

immense pain and suffering. He spent months in bed incapacitated. He was

diagnosed with traumatic brain injury, which left him unable to work, participate in

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activities with his sons, his church, or even help his wife around the house. He

continues to suffer headaches, cranial cervical pain, and had permanent nerve damage

to the back of his head and significant scarring. (T. 456). Defense counsel did not

contest Dr. Kobetz' medical findings, and called no medical witnesses of their own.

The award of $923 per day for past, and $93 per day for future pain and suffering did

not shock the trial court's conscience. Nor was the defense able to demonstrate it was

the result ofpassion and prejudice.

This was a one-sided case in which the Plaintiff presented overwhelming

evidence, and the defense presented little (if anything) in response. The trial court

did not abuse its discretion in determining that the verdict, while large, was not

excessive.

CONCLUSION

The Third District's decision is fatally flawed, creates a real and embarrassing

conflict with multiple decisions of this Court, and upends settled negligence law. It

should be quashed and remanded with directions to reinstate the jury's verdict.

44

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Respectfully submitted,

Stewart D. Williams, Esq.HUNTER, WILLIAMS & LYNCH, P.A.

The Monarch Grove Building2977 McFarlane Road, Suite 301Miami, Florida [email protected]

Phillip A. Hubbart, Esq.Wetherington Klein & Hubbart2655 S. LeJeune Rd., PH1GCoral Gables, FL [email protected]

Lauri Waldman Ross, Esq.Theresa L. Girten, Esq.Ross & GIRTEN

Two Datran Center, Suite 16129130 South Dadeland BoulevardMiami, Florida 33156-7818

By:a i aldman Ross', Lsq.

(Fla(Bar No.: 311200)[email protected]

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing wasserved via e-mail and=We=Mail this /_7day of May, 2013 to:

Joseph R. Giaramita, Esq.Hankin & Giaramita, P.A.7450 Griffin Road, Suite 270Davie, FL [email protected]

45

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Mark Tinker, Esq.Charles Hall, Esq.Banker, Lopez Gassler, P.A.501 1* Avenue North, Ste. 900St. Petersburg, FL [email protected]

By:att'pfWaldman lÍøÉs, Esq.

[email protected]

CERTIFICATE OF TYPE SIZE AND FONT

I hereby certify that the Type Size and Font utilized in this brief is New TimesRoman, 14pt.

Byi Waldman RóÉs, Esq.

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Documents

PETITION E R'S INITIAL BRIEF ON TilE M E RITS · 2018. 7. 22. · PETITION E R'S INITIAL BRIEF ON TilE M E RITS Trial Counsel Appellate Counsel Stewart D. Williams, Esq. Lauri Waldman