Second District of Florida Tackles Bar Fight Appeal

photo_10084_20090418-300x218The phrase “premises liability” is generally associated with slip and falls or shoddy construction. However, premises liability can extend to a wide variety of other types of dangerous conditions. For instance, the Second District Court of Appeal recently rendered judgment in Grover v. Karl, which addressed whether a business owner could be liable for a patron’s injuries arising from a bar fight.

Grover started with a fight at The Karl Reef, which is located near New Port Richie, Florida. The plaintiff did not participate in the fight, but she fell and was injured during the course of events. The plaintiff brought a premises liability suit against the bar’s alleged owner and property owner. The bar’s manager was near the plaintiff when the fight ensued. The facts regarding how the plaintiff fell were unclear. The plaintiff originally alleged that she fell when a different bar patron intentionally attacked her. However, during her deposition, the plaintiff testified that when the fight broke out, the manager was shoved and, as a result, fell onto the plaintiff unintentionally. Following discovery, the defendant moved for summary judgment, contending that the allegations in the complaint were contradicted by the deposition testimony, and there was no issue of material fact regarding the defendant’s notice of the danger or an opportunity to prevent it. Following the defendants’ motion for summary judgment, the plaintiff moved to amend her complaint. The proposed amended complaint sought to add the bar’s manager as a defendant and change the allegations so that they were more consistent with the deposition testimony. Specifically, the plaintiff sought to allege that the manager grabbed her arm and jostled her during the fight, resulting in the fall. The trial court granted summary judgment based on the original complaint and denied the plaintiff leave to amend. The plaintiff appealed.

On appeal, the plaintiff argued that the trial court erred in both granting summary judgment and denying her motion to amend. The Second District, however, restricted its inquiry to only the second of these questions. Under Florida law, a plaintiff should be denied leave to amend only if the trial court finds that permitting amendment would be prejudicial to the opposing party, that amendment has been abused by the plaintiff, or that proposed amendment would be futile. In the current case, the trial court granted summary judgment based on the original complaint and denied leave to amend because the proposed amendment was “too attenuated” in its connection to the original claim. However, this was not a basis for denying amendment. Indeed, “even if summary judgment is warranted as to the claim alleged, . . . if the record indicates that the plaintiff may have a cause of action not previously pled, or a better one than originally pled, it is entirely appropriate . . . to grant summary judgment without prejudice to the plaintiff seeking leave to amend to assert such a claim.” Hervey v. Alfonso, 650 So. 2d 644, 647 (Fla. 2d DCA 1995). Accordingly, although there was no error granting summary judgment on the claim as originally pled, the court should have afforded the plaintiff leave to amend to assert liability based on the alternate theory more consistent with deposition testimony or, alternatively, made a specific finding with respect to prejudice, abuse, or futility.

Although this is a victory for the plaintiff, the trial court, on remand, could still deny amendment based on one of the specific grounds for denying amendment. Furthermore, the inconsistency in the plaintiff’s narration of events could lead to an issue with ultimately proving liability to a jury. In any event, Glover demonstrates that business owners’ liability isn’t limited to wet floors. Indeed, a business owner’s  duty of reasonable care extends to controlling many conditions on their property, including, in some cases, the acts of other patrons and staff. If you’ve recently been harmed in a case of possible negligence, you should consider consulting an attorney who can help you properly assess all possible avenues for liability. The South Florida premises liability attorneys at Frankl & Kominsky have ample experience representing injured South Floridians, and we are prepared to help you assess a possible case. Feel free to contact us if you are interested in a free case evaluation.

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