BEASLEY

v.

WELLS FARGO BANK, NA

THIS CAUSE is before the Court on Defendants’ Motions for Summary Judgment (Doc. Nos. 169, 173), Plaintiff’s Responses (Doc. Nos. 182, 188), and Defendants’ Replies (Doc. Nos. 195, 207). Also before the Court are Plaintiff’s Motion for Partial Summary Judgment (Doc. 174), Defendants’ Responses (Doc. Nos. 184, 185), and Plaintiff’s Replies (Doc. Nos. 197, 200).

I. BACKGROUND

It is undisputed that around midnight on November 17, 2018, Plaintiff, George E. Beasley, Jr., parked his car in the drive-thru lane of Defendant Wells Fargo Bank, NA’s (“Wells Fargo”) bank located in Sanford, Florida and walked to the Wet Spot bar across the street. (Doc. 1, ¶ 25; Doc. 169-7 at 75:17–18). Roughly thirty minutes later, Plaintiff was returning to his car when he was shot in the head by a man later identified as Andraus Lee.¹ (Doc. 1, ¶ 26; Doc. 169-4 at 18:24–19:3).

Sergeant Justiniano and Officer Garcia rolled Plaintiff onto his back and began performing CPR until emergency services arrived. (Doc. 169-5 at 9:14–21, 18:25–19:9; Doc. 169-8 at 13:2–16, 14:22–15:1, 16:15–17). It did not appear that Plaintiff had been moved before they intervened. (Doc. 169-8 at 87:15–88:1). When emergency services adjusted their equipment to aid Plaintiff, they alerted Sergeant Justiniano to a firearm exposed in Plaintiff’s sweater pocket. (Id. at 17:13–25, 84:16–23). Sergeant Justiniano retrieved the firearm from Plaintiff’s pocket, discovered it was loaded, and secured it in the trunk of her car. (Id. at 18:1–10, 18:22–19:15, 84:16– 85:6; Doc. 182-22 at 19). Thereafter, Sergeant Justiniano turned the firearm over to the crime scene technician. (Doc. 169-7 at 42:18–43:14; Doc. 169-8 at 19:11–22). Police also found baggies of suspected marijuana and cocaine on the pavement near Plaintiff. (Doc. 169-7 at 37:5–18, 38:8–15). He was transported to the hospital, where he received medical treatment for his injuries. (Doc. 173-15 at 1; Doc. 182-28 at 2). As a result, Plaintiff claims he suffers from memory loss and does not have an independent recollection of what happened. (Doc. 169-2 at 16:17–17:25, 44:25–45:2). Plaintiff alleges that when the shooting happened, the subject parking lot was owned by Defendant Lilac Group-Sanford, LLC (“LGS”) and managed and controlled by d=PyiHYRxzXGQhhIE%2bcRH7Hw%3d%3d (last visited Jan. 18, 2022) (“state court proceeding”). Wells Fargo. (Doc. 1, ¶ 6). LGS disputes it was the owner of the parking lot at that time. (Doc. 173-11 at 77:22–25). The parking lot was designed only for use by Wells Fargo customers and was not open to the public after business hours. (Doc. 169-6 at 29:9–13; Doc. 182-11 at 42:9–42:16). In fact, Wells Fargo had signs posted on the property,

including near the drive-thru lanes where Plaintiff parked his car, stating, “drive-up services Wells Fargo accountholders only,” and “parking for Wells Fargo customers only.” (Doc. 169-6 at 34:9–14; Doc. 169-7 at 60:17–61:7; Doc. 182-11 at 42:17–43:10). Plaintiff has never been a Wells Fargo accountholder. (Doc. 169-6 at 31:7–32:1). Nevertheless, the parking lot was frequently used as additional parking for nearby bars and restaurants. (Doc. 169-4 at 39:7–25; Doc. 169-8 at 9:8–12). Wells Fargo admits that there were no “no trespassing” signs posted on the property, and both Defendants admit never having Plaintiff trespassed from the premises prior to the incident in question. (Doc. 174-17, ¶ 1; Doc. 174-18, ¶¶ 1, 13). There were also no barricades or other obstructions to prevent unauthorized entry into the parking lot. (Doc. 182-11 at 50:10–17). Plaintiff alleges that Wells Fargo knew the parking lot was being used by the public after business hours and that both Wells Fargo and LGS were aware of prior incidents of violence on the premises and surrounding area. (Doc. 1, ¶¶ 20– 24; see generally Doc. Nos. 182-8, 182-10). Plaintiff reports that in the period between January¹, 2015, and his shooting, the Sanford Police Department recorded 153 calls for service and six reported offenses at the Wells Fargo street address. (Doc. 182-10 at 1– 2). And three years prior to Plaintiff’s shooting, a bank patron leaving Wells Fargo’s ATM was robbed at gunpoint. (Doc. 182-19 at 2). Wells Fargo was aware of a shooting that occurred in November 2016 near the subject parking lot. (Doc. 169-6 at 73:24–74:12, 290).

II. LEGAL STANDARD

Summary judgment is appropriate when the moving party demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material if it may “affect the outcome of the suit under the governing law.” Id. “The moving party bears the initial burden of showing the court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial.” Allen v. Bd. of Pub. Educ., 495 F. 3d 1306, 1313–14 (11th Cir. 2007). Stated differently, the moving party discharges its burden by showing “that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

However, once the moving party has discharged its burden, “Rule 56(e) . . . requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.” Id. at 324 (quotation omitted). The nonmoving party may not rely solely on “conclusory allegations without specific supporting facts.” Evers v. Gen. Motors Corp., 770 F. 2d 984, 986 (11th Cir. 1985). Nevertheless, “[i]f there is a conflict between the parties’ allegations or evidence, the [nonmoving] party’s evidence is presumed to be true and all reasonable inferences must be drawn in the [nonmoving] party’s favor.” Allen, 495 F. 3d at 1314.

III. DISCUSSION

Plaintiff brought a two-count Complaint against Defendants for negligence under a theory of negligent security. (See generally Doc. 1). All parties filed cross motions for summary judgment. Defendants seek summary judgment on their affirmative defenses and Plaintiff’s claims. Plaintiff, in turn, seeks partial summary judgment as to his legal status on the subject premises, the ownership, possession, or control of the subject premises, and Defendants’ affirmative defenses.

A. Affirmative Defenses

Defendants argue that Plaintiff’s claims are statutorily barred pursuant to section 768.075, Florida Statutes. At the summary judgment stage, the “defendant has the initial burden of making a showing that the [affirmative] defense is applicable.” Blue Cross & Blue Shield of Ala. v. Weitz, 913 F. 2d 1544, 1552 (11th Cir. 1990). “Once a defendant shows that the applicable [affirmative defense] bars the claim, the burden shifts to the plaintiff to demonstrate that an exception . . . applies.” Id. at 1552 n.13; see also Off. of

Thrift Supervision v. Paul, 985 F. Supp. 1465, 1470 (S.D. Fla. 1997). Wells Fargo and LGS contend that section 768.075, Florida Statutes, precludes Plaintiff from recovering against them for negligence because Plaintiff was engaged in the commission of a felony at the time of his injury. The statute provides: A person or organization owning or controlling an interest in real property, or an agent of such person or organization, shall not be held liable for negligence that results in the death of, injury to, or damage to a person who is attempting to commit a felony or who is engaged in the commission of a felony on the property. Fla. Stat. § 768.075(4) “The plain language of the statute bars recovery for any person who commits a felony on the property, not just a person whose injury arises out of the commission of a felony.” Gubanova v. Mia. Beach Owner, LLC, No. 12-22319-CIV, 2014 WL 1340988, at *3 (S.D. Fla. Apr.⁴, 2014) (quotation and emphasis omitted) (granting summary judgment for the defendant where the decedent was attempting to purchase cocaine in his hotel room at the time he was shot); see also Kuria v. BMLRW, LLLP, 101 So. 3d 425, 426–27 (Fla. 1st DCA 2012) (affirming summary judgment for the defendant where the decedent was operating an illegal chop shop and dealing in stolen property in the apartment at the time he was shot). Under Florida law, a person who has been convicted of a felony and possesses a firearm or ammunition commits a felony in the second degree. Fla. Stat. § 790.23(1), (3). It is undisputed that Plaintiff has been convicted of multiple felonies. (Doc. 169-2 at 37:23– 38:5; see generally Doc. 173-3). Furthermore, the uncontroverted evidence² before the Court demonstrates that Plaintiff was in possession of a loaded firearm at the time of his injury. Plaintiff has failed to direct this Court to any record evidence to the contrary, and this Court is not persuaded by Plaintiff’s attempts to create a material issue of fact by misrepresenting the record. This Court is also not persuaded by Plaintiff’s meritless argument that after he was shot, it was not possible for him “to possess anything but for a will to live[,]” (Doc. 174 at 19), which Plaintiff has failed to substantiate with any legal authority. Thus, because Plaintiff was engaged in the commission of a felony at the time of his injury by being a convicted felon in possession of a firearm, his claim for negligence is statutorily barred. See Gubanova, 2014 WL 1340988 at *3.3

B. Premises Liability

Even if Plaintiff’s claim withstood Defendants’ affirmative defense, Defendants would be entitled to summary judgment on the merits of Plaintiff’s claims. To establish a claim of negligence under Florida law, the plaintiff must prove the following elements: (1) a duty, (2) breach of that duty, (3) causation, and (4) damages. Virgilio v. Ryland Grp., Inc., 680 F. 3d 1329, 1339 (11th Cir. 2012). For a negligence action predicated on premises liability, the plaintiff must also show “the defendant’s possession or control of the premises and notice of the dangerous condition.” S.Y. v. Wyndham Hotels & Resorts, Inc., 519 F. Supp. 3d 1069, 1088 (M.D. Fla. 2021) (quotation omitted); see also Nicholson v. Stonybrook Apartments, LLC, 154 So. 3d 490, 494 (Fla 4th DCA 2015) (holding that negligent security cases fall under the umbrella of premises liability). LGS disputes the element of possession or control. At best, there is a material issue of fact as to whether LGS had possession or control of the parking lot at the time of the incident. However, because Plaintiff cannot show a breach of duty, the Court need not address the issue of possession or control. Under Florida common law, visitors who enter the land or property of another fall within one of three classifications: invitee, licensee, or trespasser. Post v. Lunney, 261 So. 2d 146, 147 (Fla. 1972). An invitee is “one who enters upon the premises of another for purposes connected with the business of the owner or occupant of the premises.” Id. at 147–48 (quotation omitted). An invitee includes one who is on the premises by invitation, either express or reasonably implied, of the owner of the property. Wood v. concerning the alleged controlled substances found on the pavement near Plaintiff’s body or the remaining affirmative defenses. Camp, 284 So. 2d 691, 695 (Fla. 1973). Meanwhile, a licensee is “one who enters upon the property of another for his own convenience, pleasure, or benefit.” Post, 261 So. 2d at 147 (quotation omitted). Similarly, a trespasser is “one who enters the premises of another without license, invitation, or other right, and intrudes for some definite purpose of his own, or at his convenience, or merely as an idler with no apparent purpose, other than perhaps to satisfy his curiosity.” Id. (quotation omitted). The duty owed by one in possession or control of property to a person injured by a third-party criminal attack on the property is dependent on the injured person’s relationship to the property. Barrio v. City of Mia. Beach, 698 So. 2d 1241, 1244 (Fla. 3d DCA 1997). “[W]here the material facts are not in dispute, the legal status of the person injured on the business premises is a question of law for the court.” Seaberg v. Steak N’ Shake Operations, Inc., 697 F. App’x 941, 943 (11th Cir. 2017) (citation omitted). The visitor’s status is determined as of the time of the injury. Byers v. Radiant Grp., L.L.C., 966 So. 2d 506, 509 (Fla. 2d DCA 2007).

Plaintiff argues he was a public invitee because the parking lot was held open to the public for parking purposes. In support, Plaintiff points to Defendants’ admissions that they did not have “No Trespassing” signs posted and that they never had Plaintiff trespassed from the premises prior to the incident as evidence that Plaintiff was permitted to park his car in the subject lot.⁴ The Court is not persuaded. See Arp v. Waterway E. Ass’n, 217 So. 3d 117, 122 (Fla. 4th DCA 2017) (“[T]he absence of a ‘No Trespassing’

74:17, 290). This single incident of gun violence would not support a finding that Defendants performed a willful and wanton negligent act causing Plaintiff’s injury, amounting to an intentional violation of Plaintiff’s rights, and Plaintiff has not directed this Court to any other evidence to support his argument. See Boyce, 476 F. 2d at 453 (holding that the trial court erred in submitting the issue of willful and wanton negligence to the jury where “the facts [did] not support a conclusion that defendant had a design, purpose, or intent to cause the injury . . . or that there was a knowing and intentional failure on defendant’s part to perform such acts as might have prevented the injury”); see also Bell, 2019 WL 5190907, at *5. Therefore, the Court finds Defendants have shown that there is no evidence upon which a reasonable jury could find that they breached a duty to Plaintiff and Defendants are entitled to summary judgment.

IV. CONCLUSION

For the reasons set forth herein, it is ORDERED and ADJUDGED that Defendants’ Motions for Summary Judgment (Doc. Nos. 169, 173) are GRANTED and Plaintiff’s Motion for Partial Summary Judgment (Doc. 174) is DENIED. The Clerk is directed to enter judgment, in favor of Defendants and against Plaintiff, providing that Plaintiff shall take nothing on any of his claims against Defendants. Thereafter, the Clerk is directed to terminate all pending motions and close this case. DONE AND ORDERED in Orlando, Florida on January 28, 2022.

WENDY W.B

UNITED STATES T JUDG

Copies furnished to: Counsel of Record