final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
Okeechobee County; Laurie E. Buchanan, Judge; L.T. Case No.
Elise Capobianco of Stone & Capobianco, P.L., Stuart, for
Reinstein and Jack T. Frost, of Kelley Kronenberg, Fort
Lauderdale, for appellee.
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.
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
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
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.
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."
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.
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.
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