STANLEY LEVITZ, APPELLANT,
v.
BURGER KING CORPORATION, APPELLEE
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Levitz sued Burger King for negligence after being injured in a violent altercation with a third party in the restaurant's parking lot. The trial court granted Burger King's summary judgment motion, but the appellate court reversed, finding genuine issues of material fact regarding whether Burger King breached its duty to protect business invitees from foreseeable criminal attacks.
A landowner and business proprietor owes a duty to business invitees to guard against dangers, including criminal assaults by third parties, that the proprietor might have reasonably foreseen. Summary judgment was improper because the plaintiff presented sufficient evidence of unresolved factual issues regarding the foreseeability of the attack and Burger King's actual or constructive knowledge of prior dangerous incidents.
[1] A business proprietor owes a duty to its business invitees to guard against foreseeable dangers, including criminal assaults by third parties.
[2] A business proprietor's duty to protect invitees from third-party assaults depends on actual or constructive knowledge of prior similar acts and a reasonable opportunity…
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Join FLexlaw to unlock all legal intelligence“Among the duties owed by the [landowner and business proprietor] to ... a business invitee is the duty to guard against subjecting such invitees to dangers which the [landowner and business proprietor] might have reasonably foreseen. Included among those dangers is a criminal assault by a third party.”
Establishes the foundational duty of business proprietors to protect invitees from foreseeable criminal attacks by third parties
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Join FLexlaw to unlock all legal intelligenceOn June 27, 1983, at approximately 12:15 A.M., Levitz purchased a drink at a Burger King drive-through window. After people in the parking lot made co…
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BASKIN, Judge.
Appellant Stanley Levitz seeks reversal of a final summary judgment entered in favor of appellee Burger King Corporation. We reverse.
On June 27, 1983, at approximately 12:15 A.M., appellant purchased a drink at a Burger King restaurant drive-through window. Some of the people who were congregating in the restaurant parking lot shouted comments about appellant’s car. Thinking that he recognized a person in the group, appellant drove over and stepped out of his car; he was severely injured during an altercation with Richard Darren Sleter. Appellant sued Burger King Corporation to recover damages for injuries he alleged he sustained as a result of Burger King’s negligence.1 Specifically, he contended that Burger King breached its duty to use reasonable care to protect business invitees from the foreseeable danger of an injurious attack occurring on its premises. When Burger King filed a motion for summary judgment, the trial court granted the motion and entered final judgment in Burger King’s favor. “Among the duties owed by the [landowner and business proprietor] to ... a business invitee is the duty to guard against subjecting such invitees to dangers which the [landowner and business proprietor] might have reasonably foreseen. Included among those dangers is a criminal assault by a third party.” Fernandez v. Miami Jai-Alai, Inc., 386 So. 2d 4, 5 (Fla. 3d DCA 1980) (citations omitted), appeal after remand, 454 So. 2d 1060 (Fla. 3d DCA 1984); see Stevens v. Jefferson, 436 So. 2d 33 (Fla.1983); Federated Dept. Stores, Inc. v. Doe, 454 So. 2d 10 (Fla. 3d DCA 1984); Admiral’s Port Condominium Assoc., Inc. v. Feldman, 426 So. 2d 1054 (Fla. 3d DCA), review denied, 434 So. 2d 887 (Fla.1983); School Bd. v. Anderson, 411 So. 2d 940 (Fla. 4th DCA 1982); Medina v. 187th Street Apartments, Ltd., 405 So. 2d 485, 486 (Fla. 3d DCA 1981); see also Doe v. United States, 718 F. 2d 1039 (11th Cir.1983). Burger King’s obligations to business invitees depend on whether it has actual or constructive knowledge of prior similar acts and a reasonable opportunity to take precautions against the recurrence of those acts. See Stevens; Green Cos. v. Divincenzo, 432 So. 2d 86 (Fla. 3d DCA 1983); Gottschalk v. Smith, 334 So. 2d 102, 103 (Fla. 3d DCA), cert. denied, 341 So. 2d 1085 (Fla.1976).
In seeking summary judgment, Burger King contended that it lacked actual or constructive knowledge of the particular risk and had no reasonable opportunity to protect Levitz. Burger King asserted that Levitz failed to present evidence that Burger King had notice of dangerous incidents involving its invitees and thus could not establish that Burger King breached its duty to Levitz. However, appellant submitted depositions and an affidavit which provided sufficient evidence of the existence of unresolved factual issues, including the foreseeability of the attack in the restaurant parking lot, to avert the entry of summary judgment. Drawing every possible inference in favor of the nonmovant, Moore v. Morris, 475 So. 2d 666 (Fla.1985); Holl v. Talcott, 191 So. 2d 40 (Fla.1966), we conclude that genuine issues of material fact remain for decision. See Meyers v. Ramada Hotel Operating, Inc., 833 F. 2d 1521 (11th Cir.1987). Accordingly, we reverse the final summary judgment under review and remand for proceedings consistent with this opinion.
Reversed and remanded.
. Appellant also filed an action against Richard Darren Sleter and his father; they are not parties to this appeal.
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Byers v. The Radiant Grp., L.L.C., 966 So. 2d 506 (Fla. 2d DCA 2007)…mployees would have prevented the death and injuries arising from the final fight. Although this theory is generally supported by case law, it only applies if the plaintiffs were invitees at the time of the incident. See Levitz v. Burger King Corp., 526 So. 2d 1048, 1049 (Fla. 3d DCA 1988). Radiant admits that the Byerses were initially invitees but contends that the Byerses exceeded the scope of their invitation by affirmatively choosing to remain on the property to engage in a brawl with the Hahn party. By…
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Vazquez v. Lago Grande Homeowners Ass'n & Centurion Protective Servs., Inc., 900 So. 2d 587 (Fla. 3d DCA 2004)…politan Dade Co. v. Ivanov, 689 So. 2d 1267 (Fla. 3d DCA 1997), review denied, 698 So. 2d 543 (Fla.1997); Ameijeiras v. Metropolitan Dade Co., 534 So. 2d 812 (Fla. 3d DCA 1988), review denied, 542 So. 2d 1332 (Fla.1989); Levitz v. Burger King Corp., 526 So. 2d 1048 (Fla. 3d DCA 1988); Admiral’s Port Condo. Ass’n v. Feldman, 426 So. 2d 1054 (Fla. 3d DCA 1983), pet. for review denied, 434 So. 2d 887 (Fla.1983); Medina v. 187th Street Aparts. Ltd., 405 So. 2d 485 (Fla. 3d DCA 1981); Ten Associates v. McCutchen, 3…
Authorities Cited (13 total)
- Gory Roofing Tile Mfg., Inc. v. Davison, 191 So. 2d 40 (Fla. 1966)
- Moore v. Morris, 475 So. 2d 666 (Fla. 1985)
- Stevens v. Jefferson, 436 So. 2d 33 (Fla. 1983)
- Agustin Fernandez v. Miami Jai-Alai, Inc., 386 So. 2d 4 (Fla. 3d DCA 1980)
- Virgilio Medina and Digna Medina v. 187TH St. Apts., Ltd., 405 So. 2d 485 (Fla. 3d DCA 1981)
- Admiral's Port Condo. Ass'n, Inc. v. Feldman, 426 So. 2d 1054 (Fla. 3d DCA 1983)
- Federated Dep't Stores, Inc. v. DOE, 454 So. 2d 10 (Fla. 3d DCA 1984)
- The Green Cos. v. Divincenzo, 432 So. 2d 86 (Fla. 3d DCA 1983)
- Gottschalk v. Smith, 334 So. 2d 102 (Fla. 3d DCA 1976)
- DOE v. United States, 718 F.2d 1039 (11th Cir. 1983)