EDWARD GOTTSCHALK AND ALLSTATE INSURANCE COMPANY, A FOREIGN CORPORATION, APPELLANTS,
v.
GEORGE E. SMITH AND GRACE SMITH, APPELLEES
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In this negligent security case, a business operator was sued for injuries sustained when a customer was attacked by another customer at a service station. The appellate court reversed the judgment, holding that the operator could not be held liable for failing to prevent an unforeseeable assault that occurred after the initial conflict had subsided and the injured party had been told to leave.
The appellate court held that Gottschalk could not be held liable because he did not have actual or constructive knowledge of the particular risk or a reasonable opportunity to protect Smith from the attack. The attack was unforeseeable because the initial altercation had ended, Smith had completed his business and been told to leave, and Smith himself provoked the renewed conflict by yelling back at Miles.
[1] A proprietor of a public place may be held liable for breach of duty to a customer only if the proprietor had actual or constructive knowledge of the particular risk invo…
[2] A proprietor is not liable for a customer's injuries arising from an altercation that the proprietor could not have known or anticipated.
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Join FLexlaw to unlock all legal intelligence“The law is clear that in order for the proprietor of a public place to be held liable for a breach of duty to a customer he must have either actual or constructive knowledge of the particular risk involved and/or a reasonable opportunity to protect him from that risk.”
Establishes the legal standard for proprietor liability for harm to customers
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Join FLexlaw to unlock all legal intelligenceOn March 13, 1973, George E. Smith drove into a service station operated by Edward Gottschalk. Smith allegedly brushed William H. Miles with his car, …
The full statement of facts, procedural history, and disposition for this case are member content.
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BARKDULL, Chief Judge.
The case sub judice arose out of an altercation between the appellee, George E. Smith, and one William H. Miles. On March 13, 1973, Smith drove his automobile into a Standard Oil Company service station operated by the appellant, Edward Gottschalk. As he approached the gasoline pumps, he allegedly struck or brushed against Miles with his automobile. At the time, Miles (a customer at the station) was walking from the pumps toward the mechanical • stalls of the station where his automobile was being worked on. Upon being brushed by Smith’s car, Miles banged upon the hood of the car and started cursing Smith. This was when the appellant, Gottschalk, first became aware of a problem between his customers. Gottschalk, at the time, was proceeding toward the pump area to service Smith’s automobile. Another customer, a Mr. Alexander, interceded and lead Miles away toward his car and attempted to get Miles to control his temper. Miles did, in fact, cool down to a degree and the incident appeared closed. Gottschalk filled Smith’s car with gas, made out the charge slip, and gave it to Smith to sign. He told Smith to go ahead and leave the area. As Smith was walking toward his car, Miles yelled some obscenity at him and Smith yelled at Miles to shut up. Upon hearing Smith’s remark, Miles came toward him and asked Smith if he wanted to fight. Smith replied that he did and a fight of short duration ensued. Smith being injured in that fight, brought the instant suit against Miles, Gottschalk, Standard Oil Company, Highlands Insurance Company, Allstate Insurance Company, and Market Insurance Company. The suit against Miles was based upon an intentional tort. The suit against Gottschalk sought damages for breach of duty to provide reasonable security and protection of all persons lawfully on the premises. The cause proceeded to trial against Miles, Gottschalk, and Allstate. At the beginning of the trial, Miles admitted liability. At the close of all the evidence, Gottschalk moved for a directed verdict, which was denied. Thereupon, the jury returned a verdict in favor of the appellees against Miles, Gottschalk, and Allstate. Gotts-chalk’s and Allstate’s motion for judgment in accordance with their motion for directed verdict and/or a new trial and for re-mittitur were denied and final judgment was entered in accordance with the jury verdict.
The appellants have raised several points on this appeal, only one of which need be considered in determining this appeal. We find merit in the appellants’ allegation that the trial court erred in failing to direct a verdict in favor of the appellants herein. There is nothing in the facts of this case to show that Gottschalk knew or could have known or anticipated the attack by Miles or that Smith would act in a manner so as to provoke that attack. The initial altercation had subsided; Smith’s business at the station had been completed, and he had been advised to leave. Had he done so, instead of provoking Miles, it is reasonable to assume that the attack would not have taken place.
The law is clear that in order for the proprietor of a public place to be held liable for a breach of duty to a customer he must have either actual or constructive knowledge of the particular risk involved and/or a reasonable opportunity to protect him from that risk. Wometco Theatres Corporation v. Roth, Fla.App.1960, 123 So. 2d 472; Elmore v. Sones, Fla.App.1962, 140 So. 2d 59; Reynolds v. Deep South Sports, Inc., Fla.App.1968, 211 So. 2d 37; Warner v. Florida Jai Alai, Inc., Fla.App. 1969, 221 So. 2d 777.
Therefore, based on the foregoing, the final judgment is reversed insofar as it affects the appellants herein, and the cause is remanded to the trial court with directions to enter a judgment for the appellants.
Reversed and remanded, with directions.
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Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322 (Fla. 4th DCA 1991)…Fla. 4th DCA), rev. denied, 411 So. 2d 382 (Fla.1981); Relyea v. State, 385 So. 2d 1378 (Fla. 4th DCA 1980), overruled on other grounds, 493 So. 2d 1002 at 1005 (Fla.1986); Worth v. Stahl, 388 So. 2d 340 (Fla. 4th DCA 1980); and Gottschalk v. Smith, 334 So. 2d 102 (Fla. 3d DCA), cert. denied, 341 So. 2d 1085 (Fla.1976). Appellants rely upon this line of cases, specifically Relyea, Worth and Gottschalk, for the proposition that a landowner must have knowledge of prior, similar criminal acts in order to impose…
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Reichenbach v. Days INN OF Am., Inc., 401 So. 2d 1366 (Fla. 5th DCA 1981)…venting the act, duties have not been imposed. See, e. g., Abblett v. The First Nat. Bank & Trust Co., 392 So. 2d 331 (Fla. 4th DCA 1981) [1981 F.L.W. 169]; Drake v. Sun Bank & Trust Co. Inc., 377 So. 2d 1013 (Fla. 2d DCA 1979); Gottschalk v. Smith, 334 So. 2d 102 (Fla. 3d DCA), cert. denied, 341 So. 2d 1085 (Fla. 1976); Nance v. James Archer Smith Hospital, 329 So. 2d 377 (Fla. 3d DCA), cert. denied, 339 So. 2d 1171 (Fla.1976); Warner v. Fla. Jai Alai, 221 So. 2d 777 (Fla. 4th DCA 1969), cert. denied, 235 So…
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Drake v. SUN Bank & Tr. Co. OF ST. Petersburg, 377 So. 2d 1013 (Fla. 2d DCA 1979)…id not constitute “exceptional circumstances or conditions creating a foreseeable danger which would give rise to a duty by the defendant to protect the plaintiff from the assaults of criminals.” 126 So. 2d at 605. The court in Gottschalk v. Smith, 334 So. 2d 102 (Fla.3d DCA 1976), reversed a judgment against the operator of a service station for injuries inflicted by one of his customers. There had been an argument between the plaintiff and another customer in the presence of the service station operator wh…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Warner v. Fla. JAI Alai, Inc., 221 So. 2d 777 (Fla. 4th DCA 1969)
- Gaye v. State, 140 So. 2d 59 (Fla. 2d DCA 1962)
- Reynolds v. Deep S. Sports, Inc., 211 So. 2d 37 (Fla. 2d DCA 1968)
- Wometco Theatres Corp. v. Rath, 123 So. 2d 472 (Fla. 3d DCA 1960)