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.
this negligence case, plaintiff Jacob Bryan appeals from the
circuit courts final summary judgment in favor of defendant
Galley Maid. The case arose following an incident at Galley
Maids 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
foreseeability of Longs second attack on Bryan, and whether
Galley Maids owner had a duty to render or call for aid
after the attacks. Therefore, we reverse the final summary
record presents the following facts. Bryan was out drinking
at a bar one night with Ernest Tumoszwicz (Galley Maids
alleged owner/co-owner), and three other acquaintances,
including Long. When the bar closed, the group left and went
to Tumoszwiczs 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.
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 didnt 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 Im 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 Bryans
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 didnt 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 ...