DEBORAH DALE BRAZIER GERLACH, APPELLANT/CROSS-APPELLEE,
v.
LEO TREPANIER, APPELLEE/CROSS-APPELLANT

Fla. 5th DCA | 1983-11-10
No. 83-182
FRANK D. UPCHURCH, Jr., J., concurs., DAUKSCH, J., dissents with opinion.
440 So. 2d 73 Florida District Court of Appeal, Fifth District (1983) Caution
Cited by 6 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

Deborah Gerlach was injured at a motorcycle race held on Leo Trepanier's land and sued for premises liability. The jury found her 90% negligent but awarded her $1,500 in damages. The appellate court reversed, holding that Trepanier owed no duty to Gerlach because he had surrendered complete possession and control of the premises to the race organizer.


Holding

Trepanier owed no duty to Gerlach because he had surrendered entire possession and control of the premises to Hiatt. The trial court erred in denying Trepanier's motion for directed verdict, as Gerlach's complaint failed to allege a cause of action against Trepanier and the proof at trial failed to establish he breached any duty.


Headnotes

[1] A lessor is not liable for injuries sustained on the premises when the lessor has surrendered entire possession and control of the premises to a lessee.

[2] A plaintiff's complaint must allege tortious conduct to establish a cause of action against a defendant.

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Key Quotes

“A lessor is not liable for injuries sustained on the premises where the lessor has surrendered the entire possession and control of the premises to a lessee.”

Establishes the foundational legal principle that Trepanier owed no duty to Gerlach by virtue of having relinquished control to Hiatt.

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Facts & Procedural History

Gerlach was injured during a motorcycle race organized and run by Lawrence Hiatt on land adjoining Trepanier's property. Hiatt used Trepanier's land a…

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Opinion of the Court
COBB, Judge.

COBB, Judge.

Appellant, plaintiff below, Deborah Ger-lach, was injured while watching a motorcycle race held on appellee/defendant Leo Trepanier’s land. The jury returned a verdict for Gerlach, although finding her 90% negligent. Gerlach appeals the trial court’s ruling excluding certain unpaid medical bills, which she contends resulted in a reduced award.1 Trepanier cross-appeals, contending that the trial court erred in denying his motion for a directed verdict. We reverse and remand for entry of judgment for the defendant.

Gerlach’s injuries occurred during a race, organized and run by a man named Lawrence Hiatt, who owned land adjoining Trepanier’s. Hiatt used Trepanier’s land as part of the race route, in return for a credit to Trepanier on a previously owed bill. Gerlach’s complaint never alleged any tortious conduct on Trepanier’s part; rather, it alleged only that Trepanier was liable for not providing safe premises simply because he owned the land where Hiatt, as the organizer of the race, had negligently failed to set up proper crowd control barriers. These allegations do not provide a cause of action against Trepanier. A lessor is not liable for injuries sustained on the premises where the lessor has surrendered the entire possession and control of the premises to a lessee. That is the situation here. See Wingard v. McDonald, 348 So. 2d 573 (Fla. 1st DCA 1977), cert. denied, 358 So. 2d 132 (Fla.1978); Gross v. Hatmaker, 173 So. 2d 158 (Fla. 2d DCA 1965).

Gerlach’s complaint failed to allege a cause of action against Trepanier and, consequently, the proof at trial failed to establish that he breached any duty. Therefore, Trepanier’s motion for a directed verdict should have been granted, and the trial court’s failure to do so was error. Appellant’s counsel contended at oral argument before this court that the issue of the existence of a duty on Trepanier’s part was not properly preserved for appellate review. We feel the issue was encompassed within the standard of care argument raised by the cross-appellant, and thus was properly preserved for our consideration.

An additional argument raised by the cross-appellant, and much debated by the parties, concerned Gerlach’s status on the property at the time of the accident. While such an inquiry is relevant in a premises liability case, it has no application to the instant case, where the injury was not caused by a defect in the land. See Maldonado v. Jack M. Berry Grove Corp., 351 So. 2d 967 (Fla.1977); Hix v. Billen, 284 So. 2d 209 (Fla.1973); Whitlock v. Elich, 409 So. 2d 110 (Fla. 5th DCA 1982).

The cause is reversed and remanded for entry of judgment for the defendant. Thus, the damage issue raised by the appellant is moot.

REVERSED and REMANDED with instructions.

FRANK D. UPCHURCH, Jr., J., concurs.

DAUKSCH, J., dissents with opinion.

. The jury found total damages of $15,000, with final judgment being entered for Gerlach for $1,500.

Dissent
DAUKSCH, Judge,

DAUKSCH, Judge,

dissenting:

I respectfully dissent;

Primarily, I do not agree the cross-appeal sufficiently raises the issue which the opinion uses to reverse the judgment. Secondly, that issue was not raised for the trial judge’s benefit and was thus waived. I would affirm the cross-appeal. As to the medical bills issue raised by the main appeal, I would affirm because the plaintiff did not prove the excluded bills were either; one, necessary and reasonable or, two, paid by plaintiff. This is a minimal requirement before a defendant should be obliged to pay.


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Citator

Cited By

  • Jacksonville Racing Ass'n, Inc. v. Harrison, 530 So. 2d 1001 (Fla. 1st DCA 1988)
    …e hired as supervisory personnel inside the pit. They also admitted control over the condition of the premises, which would include the unmarked road and the lack of signs. These admissions of control distinguish this case from Gerlach v. Trepanier, 440 So. 2d 73 (Fla. 5th DCA 1983), and other such cases where landowners had completely relinquished control to a lessee. As to the contention that a new trial is required because of the alternate juror’s presence, the question here is whether the alternate was…
  • Bettyann Kilgus v. Kilgus, 495 So. 2d 1230 (Fla. 5th DCA 1986)
    …sulted not from a defective or dangerous condition of the premises but from a negligent act occurring on the premises. Maldonado v. Jack M. Berry Grove Corp., 351 So. 2d 967 (Fla.1977); Hix v. Billen, 284 So. 2d 209 (Fla.1973); Gerlach v. Trepanier, 440 So. 2d 73 (Fla. 5th DCA 1983); Walt Disney World Co. v. Beattie, 428 So. 2d 693 (Fla. 5th DCA), pet. for rev. denied, 440 So. 2d 354 (Fla.1983); Whitlock v. Elich, 409 So. 2d 110 (Fla. 5th DCA 1982). The father’s suggestion to the son to use the lighter fluid…
  • Chalfin v. Brandon Kendall Invs., Inc., 540 So. 2d 926 (Fla. 3d DCA 1989)
    …PER CURIAM. Affirmed. See, e.g., Gerlach v. Trepanier, 440 So. 2d 73 (Fla. 5th DCA 1983); Stolzenberg v. Forte Towers South, Inc., 430 So. 2d 558, 559 (Fla. 3d DCA 1983).…

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