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Bryan v. Galley Maid Marine Products, Inc.

Florida Court of Appeals, Fourth District

January 15, 2020

JACOB BRYAN, Appellant,
v.
GALLEY MAID MARINE PRODUCTS, INC., a Florida corporation, d/b/a Off Road Innovations, a/k/a ORI, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; Laurie E. Buchanan, Judge; L.T. Case No. 2017CA000110.

          Linda Elise Capobianco of Stone & Capobianco, P.L., Stuart, for appellant.

          Louis Reinstein and Jack T. Frost, of Kelley Kronenberg, Fort Lauderdale, for appellee.

          FORST, J.

         In this negligence case, plaintiff Jacob Bryan appeals from the circuit court's final summary judgment in favor of defendant Galley Maid. The case arose following an incident at Galley Maid's shop, after hours, in which Bryan was violently attacked twice by a third party, James Long. We conclude that genuine issues of material fact remain in this case regarding the reasonable foreseeability of Long's second attack on Bryan, and whether Galley Maid's owner had a duty to render or call for aid after the attacks. Therefore, we reverse the final summary judgment.

         Background

         The record presents the following facts. Bryan was out drinking at a bar one night with Ernest Tumoszwicz (Galley Maid's alleged owner/co-owner), and three other acquaintances, including Long. When the bar closed, the group left and went to Tumoszwicz's shop, Galley Maid. Galley Maid is a business which builds and manufactures equipment for yachts, and does outside machine shop work and job shop work for other companies. On this night, the group went to Galley Maid not for business, but to hang out and see a tank which Tumoszwicz had restored. At the shop, the group continued drinking, and some of the group (including Long) used cocaine.

         About fifteen to twenty minutes after the group arrived at Galley Maid, Long attacked Bryan, suddenly and without provocation. Bryan recalled of the first attack: "I didn't know there was any problems. We were all talking, socializing, more or less enjoying our evening, and I go to the bathroom to use the restroom and I'm being hit in the back of [the] head, pulled out of the bathroom with my shirt over my head. . . [Long] picks me up and slams me head first on the concrete." As a result of the first attack, Bryan allegedly lost a tooth, was bleeding from the mouth, and was unconscious for approximately seventeen minutes.[1]

         While Bryan was "out," one of the women in the group walked over to him to see if he could sit up. He could not. No one administered first aid or attempted to contact the police or call an ambulance. Tumoszwicz had a cell phone in his truck, and telephones in the shop, but claimed he did not call 911 because he was scared of Long. At one point, Long gave him a threatening look and told him not to touch Bryan, and to leave him alone because he was fine. Yet, Tumoszwicz agreed that Long never verbally threatened him. Tumoszwicz also agreed that "everyone was free to walk through the premises." In fact, while Bryan lay unconscious for seventeen minutes, Tumoszwicz walked outside to get his iPod out of his truck so he could play music.

         When Bryan regained consciousness, he asked Tumoszwicz what had happened, and the two men talked for several minutes. Tumoszwicz claimed he did not offer to help Bryan at that time because Bryan "was standing there talking to [him]," and "seemed to be okay." However, Tumoszwicz also gave sworn testimony that Bryan did not "look like he [was] in too good a shape," that he was "disoriented and . . . not sure what was going on," and that Tumoszwicz was concerned for Bryan's safety "[e]ver since the first assault happened," and "throughout the entire evening."

         After talking with Tumoszwicz, Bryan walked outside with Long to the parking lot, where Long attacked Bryan a second time. Long purportedly attacked Bryan again because "[Bryan] told him he didn't give him a fair chance. So he took him outside and gave him a fair chance." The second attack rendered Bryan unconscious again, and Tumoszwicz saw Bryan laying on the ground after the attack.

         Shortly after the second attack, Long helped Bryan to get back on his feet, and the two men reentered the building. One of the women helped Bryan put his shirt back on, but again, no one called for medical attention. Tumoszwicz testified that he did not call 911, because he was "still scared" and because Bryan "was up and moving around." Instead, he told everyone to leave and went to bed in his RV on the property. Bryan left the shop in a car with Long. Long was later arrested, charged, and convicted of aggravated battery.

         Bryan sued Galley Maid for negligence, alleging he was an invitee on Galley Maid's premises, and that Galley Maid, through its director/agent Tumoszwicz, knew or should have known that Bryan was injured and/or incapacitated and therefore had a duty "to exercise reasonable care and to take reasonable action to give or secure first aid." Bryan also alleged that Tumoszwicz knew or should have known that Long posed a risk of harm to Bryan and that he (Bryan) was permanently injured as a result of the incident, and that his injuries (a broken neck, facial fractures, nerve damage, and an avulsed ...


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