Negligent Security Seminar | March 2015

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John Leighton speaks on Violent Crime at Resorts, Hotels, Bars and Theme Parks starstarstarstarstar

John Leighton speaks to National Crime Victim Bar Association on Resort, Bar and Theme Park Security Cases

John Leighton speaks to the National Crime Victim Bar Association on Resort, Bar and Theme Park Security Cases

LITIGATING VIOLENT CRIME CASES IN RESORT SETTINGS:
HOTELS, RESORTS, BARS AND THEME PARKS

John Elliott Leighton
Leighton Law, P.A.
Miami & Orlando
888-395-0001
www.LeightonLaw.com
John@LeightonLaw.com

National Crime Victim Bar Association

National Conference 2014

Resort crimes are based on civil liability for negligent or intentional acts that arise in resort, vacation or recreational settings. These can involve aspects of hotel and motel safety, amusement and theme park liability, bars and taverns, rental car liability, and any travel and hospitality industry liability for crime victims. Resort crime can encompass a vast array of types of cases but they have one thing in common: tourists, business travelers and locals alike are all exposed to risk while traveling, vacationing or engaging in resort or pleasure activities.
The challenge in litigating security negligence cases in resort settings are many. First, the witnesses (if any) may be spread across the country or globe, as the others in attendance at an event are often visitors themselves. The defendants are usually uncooperative with authorities lest they be seen as a “high crime” venue. One thing most resorts do not want is the presence of police greeting visitors, especially in this social-media-controlled world.

Next, there are other hurdles facing the crime victim in resort settings. Often there are releases and waivers of liability that have been signed before engaging in activities, especially for those involving sporting activities. Another obstacles facing the crime victim is that the entity in control may be an €œindependent contractor€ that is technically not the operator of the resort and in fact may have little in the way of liability insurance, assets or qualifications.

Because Florida is a huge resort destination, and due in large part to our year round climate that encourages resort activities, these crimes against tourists occur with great frequency here. Tourists by their very nature are less attentive to dangers because they are in a strange place and are focused on enjoying the surroundings. Often there are higher duties owed to tourists because of their lack of familiarity and awareness of risks that would be otherwise known to the proprietors of certain businesses.

With 82 million visitors each year, Florida is a tourist haven. There must be places to house these visitors and facilities to entertain and amuse them. The business industry has responded, and Florida is flush with places to stay and things to do. The draw to the state includes 1200 miles of sandy beaches and over 8,000 lakes. Yet there are hazards hidden from tourists, who are usually on vacation and unaware of the dangers they face. Of the 100 most dangerous cities in America, 11 are located in Florida. That reality poses issues of liability for entities in the tourism business.

Hotels, Resorts, Amusement and Theme Parks
In general, every property owner or occupier has a duty to keep its premises in a reasonably safe condition and to protect the invitee from dangers of which the owner is or should be aware or which the owner might reasonably foresee. Newalk v. Florida Supermarkets, Inc., 610 So. 2d 528 (Fla. 3d DCA 1993); Levy v. Home Depot, 518 So. 2d 941 (Fla. 3d DCA 1988); Winseman v. Travelodge Corporation, 205 So. 2d 315 (Fla. 2d DCA 1967). This duty applies to hotel owners/operators as the law specifically imposes on hotel owners the duty to keep their premises in a reasonably safe condition. Goldin v. Lipkind, 49 So. 2d 539 (Fla. 1950); Marhefka v. Monte Carlo Management Corp., 358 So. 2d 1171 (3rd DCA 1978).

Theme Parks/Amusement Parks

Theme parks present extraordinary hazards to the public that may not be otherwise visible. Often the theme park visitor is distracted by the many amusements and attractions, as well as by children or family. There is a natural assumption that such parks are safe, that they would not be operating a particular attraction if it wasn€™t, and that nothing can go wrong. But often it does.
The big daddy of them all, Walt Disney World, has only been required to report incidents at its parks to state inspectors since 2001. For a one year period €“ 2004-2005- there were 4 deaths and 19 injuries reported by Disney at its Florida theme parks. Rarely do the theme park operators publicize €“ or even report €“ violent crimes and sexual assaults occurring on their property.
Not everyone thinks theme parks are the happiest places on earth. Parents of children might find it uncomfortable to learn that the people in the costumes at theme parks, those working on rides, and escorting guests through the resorts might be pedophiles on the prowl.

In several €œTo Catch A Predator-style€ stings, police in Florida have recently arrested a number of Disney employees for child sex offenses. CNN conducted an investigation that found at least 35 Disney employees have been arrested since 2006 for sex crimes involving children. Some were caught with child porn on Disney property. One, a Disney World employee who oversaw ride repairs, was arrested when he arrived at a house thinking he was going to meet a 14 year-old girl. Instead he was arrested.

In July 2014, numerous employees of Disney and Universal were arrested when they too showed up at a house planning to meet children. One was a concierge at Disney’s Animal Kingdom, who thought he was going to “fulfill a fantasy” with a 14 year-old boy.

The arrests have been documented in detail by the mass media and paint a frightening picture of the people who have access to hundreds of thousands of children every day.

The predators are particularly dangerous because parents often feel that theme parks are among the safest places for their children. Many parents who would never allow their children to go someplace without their supervision freely encourage their kids freely walk these parks. But the risks from sex offenders is often greater at those venues because the pedophiles know that children will be there, and often are less aware of risks and more trusting of adults and, in particular, employees at those parks.

Pedophiles tend to be smart and manipulative, making them more insidious and dangerous to our kids. The fact that dozens of Disney employees have been charged with child sex crimes does not mean that the problem is limited to Disney. Many other theme parks and similar amusements are attractive to pedophiles. Parents must remain vigilant and speak openly with their children about the risks and what is and is not acceptable. Unfortunately today’s social media and electronic communications afford the pedophiles new tools that 20th century child abusers did not enjoy.

Virtually all of the major theme parks like Universal Orlando, Islands of Adventure, Busch Gardens, Hollywood Studios, Blizzard Beach, Animal Kingdom, EPCOT and Seaworld, are replete with hazards to which tourists and locals alike are exposed. Many times the harm is not catastrophic; sometimes the damages are tragic and life altering.

Of course, the owner/operator of a hotel, resort, amusement of theme park is subject to the law of respondeat superior and actual and apparent agency to the same extent any other employer is. Therefore, they are liable for the negligent acts and omissions of their employees and agents. However, in violent crime cases it is often disputed that the employee was acting within the course and scope of his or her employment when the crime took place.
Negligent security cases involving hotels, resorts, and amusement and theme parks typically involve criminal assaults, including robberies and sexual assaults. The law governing negligent security cases is largely derivative of general premises liability law. The general statement of law is that one who possesses property (landlord/owner/lessee) owes a duty of care to the public (visitors, guests, invitees) to eliminate and protect them against accidental, negligent, and intentional acts of third parties. See generally, Restatement (Second) of Torts, § 344 (1963) (land possessor entreating members of public to do business is subject to liability to public for physical harm caused by intentionally harmful acts of third persons on property and by land possessor’s failure to exercise reasonable care to provide adequate warning or protection).
The criminal act is not a supervening and intervening cause when the act is foreseeable and the defendant’s negligence permitted the criminal act to occur. See generally, Holley v. Mt. Zion Terrace Apartments, Inc., 382 So.2d 978 (Fla. 3d DCA 1980) (“We first reject, as entirely fallacious, the defendant’s claim that the brutal and deliberate act of the rapist-murderer constituted an “independent intervening cause” which served to insulate it from liability. It is well-established that if the reasonable possibility of the intervention, criminal or otherwise, of a third party is the avoidable risk of harm which itself causes one to be deemed negligent, the occurrence of that very conduct cannot be a superseding cause of a subsequent misadventure).
As the Florida Supreme Court has stated, “a negligent tortfeasor whose acts or omissions give rise to or permit an intentional tortfeasor’s actions as a matter of public policy, negligent tortfeasors such as in the instant case should not be permitted to reduce their liability by shifting it to another tortfeasor whose intentional criminal conduct was a foreseeable result of their negligence.” Merrill Crossings Associates v. Wal-Mart Stores, Inc., 705 So. 2d 560 (Fla. 1997).

 

Different types of premises can give rise to different duties. Here are some examples:

Hotels:

Hotels have “a non-delegable duty to guests to provide a reasonably safe premises, including reasonable protection against third party criminal attacks.” U.S. Security Services Corp. v. Ramada Inn, 665 So. 2d 268 (Fla. 3d DCA 1996) (landowner can contract out performance of non-delegable duty, but he is still legally responsible).
The law imposes on hotels, apartments, innkeepers, etc. the duty to keep their buildings and premises in a condition reasonably safe for the use of their guests. The duty of maintaining safe premises cannot be delegated to another. Goldin v. Lipkind, 40 So. 2d 539, 541 (Fla. 1950). A hotel owner’s actual or constructive knowledge, based on past experience, of the likelihood of disorderly conduct by third persons in general that may be a safety risk is sufficient to establish foreseeability. Hardy v. Pier 99 Motor Inn, 664 So. 2d 1095 (Fla. 1st DCA 1995).
The duty to provide reasonably safe premises is non-delegable, so even though hotel/motel may contract with an independent contractor to provide required security for guests, the hotel/motel is nonetheless vicariously liable for any negligence of the security service. U.S. Security Services Corp. v. Ramada Inn, 665 So. 2d 268 (Fla. 3d DCA 1995).
An innkeeper must take reasonable precautions to protect its guests from foreseeable criminal assault. Reichenbach v. Days Inn, Inc., 401 So.2d 1366, 1367 (Fla. 5th DCA 1981)(innkeeper may be liable if he fails to take reasonable precautions to deter the type of criminal activity which resulted in a guest’s injury).

What can the operator of a hotel, inn or theme park do to minimize risks to the public?

First, they need to clearly define each job, its responsibilities and what contact may be had with the public and under what conditions. What jobs will allow contact with children or others that may be particularly vulnerable? What observation is available (natural surveillance)?

Second, a background check is an essential first step in hiring the correct personnel. There are many ways for resort and tourist businesses to perform background checks, and most involve outsourcing some or all of that to professionals who have skills in that area. One obvious example of negligent hiring is where an employee has a gap in employment or residency (which may or may not be explained by time spent incarcerated). The general rule is that any job where the employee will have unfettered access to guests or tourists, the greater the background check must be. That may include contacting references, employers, neighbors and others to see whether their stories match. Usually a prospective employee will only offer references of those he or she knows will provide a positive response. Due diligence requires several steps more “double blind reference checks”“ before an employee can be hired.

Third, just because a business hired an “independent contractor” does not mean that they are absolved from the responsibility for negligent hiring. If a business is responsible for placing someone in contact with a victim, they have the duty to make sure that there has been a due diligence in hiring and checking that person’s background.
Beyond hiring, there is an ongoing duty of assuring that the person is performing their job properly and is not a threat to the public. Failure to do so gives rise to a case of negligent retention. That is, retaining an employee after the employer knows or should have known that the employee is unfit for that job or poses an actual or potential threat.

Negligent supervision is where the employer fails to take steps to supervise and observe the employee, therefore ensuring negligent retention by negligently or deliberately not knowing of hazards.

Gas Stations:

Gas stations and mini-marts are often the site of vacationers who are victimized. Often that is because the tourist is unfamiliar with the area and wanders into a neighborhood where they are vulnerable to crime. A self-service gas station’s standard of care may include duty to protect customer from known ongoing attack. Butala v. Automated Petroleum and Energy Co., 656 So. 2d 173 (Fla.2d DCA 1995) (plaintiff attacked by another customer, who poured gas on him and ignited it).

Bars and Nightclubs:

A duty may arise on the part of a bar where there is chronic, long-standing violence at bar, the management fails to have proper security, and injury ensues. Adelsperger v. Riverboat, Inc., 573 So. 2d 80 (Fla. 2d DCA 1990) (police officer injured-application of exception to fireman’s rule). If a bar proprietor knew or should have known of the likelihood of disorderly conduct by third parties which might endanger invitees, foreseeability exists. Allen v. Babrab, Inc., 438 So. 2d 356 (Fla. 1983); see also Stevens v. Jefferson, 436 So. 2d 33 (Fla. 1983) (plaintiff need not show that particular assailant’s propensity for violence).
A bar or saloon, although not an insurer of a patron’s safety, has a duty to use every reasonable effort to maintain order among the patrons, employees, and those who come upon the premises€ and are likely to produce disorder or cause injury. Priester v. Grand Aerie of the Fraternal Order of Eagles, Inc., 688 So. 2d 376 (Fla. 3d DCA 1997).
Cases have held that if it was foreseeable that rowdy patrons would cause injury to others, the bar may be held liable for their damages. Hendry v. Zelaya, 841 So. 2d 572 (Fla. 3d DCA 2003); see also Hall v. Billy Jack€™s, 458 So. 2d 760 (Fla. 1983); Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322 (Fla. 4th DCA 1991); Smith v. Hooligans Pub & Oyster Bar, 753 So. 2d 596 (Fla. 3d DCA 2000); Daly v. Denny’s, Inc., 694 So. 2d 775 (Fla. 4th DCA 1997); Crown Liquors of Broward v. Evenrud, 436 So. 2d 927 (Fla. 2d DCA 1983).

In recent years there has been an epidemic of “drink spiking” taking place at bars. This is where substances, often GHB or “roofies”, are placed in the drink of an unsuspecting victim. The victim consumes the drink and becomes totally incapacitated and they are then taken to another location where often they are sexually assaulted. One of the features of these substances is that they often cause amnesia, so the victim does not have a clear recollection of what transpired. Even if they do, by the time they perceive what has happened the perpetrator is long gone and so is the evidence (the drink). Often the only evidence left is the toxic substance in the victim’s blood stream.
Recent attempts to combat drink spiking include placing covers on drinks, and a campaign to warn guests to never take a drink from a stranger (watch the drink being poured or open it themselves. Drink spiking takes place all the time and in a variety of locations (theme parks, bars, restaurants, hotels, etc.). A hotel is particularly attractive since the perpetrator can take the victim back up to their room, complete the crime, and disappear.
The use of video cameras at bars, often in conjunction with equipment that records the ID displayed to the bouncer, provides a strong deterrent to drink spiking because there will be some proof as to who was present that evening plus it will often record who left and with whom.

Common Carriers (taxicabs, buses, air travel):

Almost all visitors to Florida engage in some use of common carriers. A common carrier is defined as “any person engaged in motor carrier transportation of persons for compensation over the public highways of this state who holds his service out to the public and provides transportation over regular or irregular routes.” Nazareth v. Herndon Ambulance Service, Inc., 467 So. 2d 1076 (Fla. 5th DCA 1985). A special relationship is created once a common carrier accepts a passenger for transportation. See Holland America Cruises, Inc. v. Underwood, 470 So. 2d 19 (Fla. 2nd DCA 1985); Nazareth v. Herndon Ambulance Service, 467 So. 2d 1076 (Fla. 5th DCA 1985).

The special relationship imposes upon the common carrier the duty to exercise the highest degree of care for the safety of its passengers. See Swilley v. Economy Cab Company of Jacksonville, 46 So.2d 173 (Fla.1950); Holland America Cruises, Inc. v. Underwood, 470 So.2d 19 (Fla. 2nd DCA 1985); Nazareth v. Herndon Ambulance Service, Inc., 467 So.2d 1076 (Fla. 5th DCA 1985); Transit Casualty Co. v. Puchalski, 382 So.2d 359 (Fla. 5th DCA 1980).
This heightened standard of care is due in part the nature of the carrier’s undertaking whereby the passenger must entrust his or her bodily safety to the care and control of the carrier€™s vehicle and employees, and he or she cannot freely or independently walk away, once the undertaking has commenced. This situation creates a special duty to protect. Nazareth v. Herndon Ambulance Service, Inc., supra at 1079.

The duty owed by a common carrier toward its passengers is to “exercise the highest degree of care, foresight, prudence and diligence reasonably demanded at any given time by the conditions and circumstances then affecting the passenger and the carrier during the contract of carriage.” Swilley v. Economy Cab Company of Jacksonville, 46 So. 2d 173, 177 (Fla.1950); Whitman v. Red Top Sedan Service, Inc., 218 So. 2d 213, 215-216 (Fla.3rd DCA 1969) quoting Red Top Cab & Baggage Co. v. Masilotti, 190 F. 2d 668, 671 (5th Cir. 1951). Once a duty is established, the carrier may not delegate that duty to anyone else.

Despite the extraordinary duty a carrier owes its passengers, a common carrier is not an insurer of the safety of its passengers. Transit Casualty Co. v. Puchalski, 382 So. 2d 359 (Fla. 5th DCA 1980). The duty of care does not extend to the point of requiring the carrier and its employees to possess superhuman powers of anticipation or to exercise such powers in a threatened emergency. The carrier’s duty also does not require it to place a guard over its passenger or to deliver him to the place of destination safely at any and all events or to keep him free from all harm under any and all circumstances. Swilley v. Economy Cab Company of Jacksonville, supra.

The duty of care begins when the relationship of carrier and passenger is established and does not end until that relationship ceases. Id. The courts have held that a common carrier passenger is one who enters or occupies the carrier’s vehicle or conveyance for the purpose of transportation with the carrier’s express or implied consent, and he ceases to be a passenger at the time he safely alights from the carrier’s vehicle or conveyance. Sheir v. Metropolitan Dade County, 375 So. 2d 1114, 1116 (Fla. 3rd DCA 1979).
Common carriers have been held to owe an even higher duty of care when it accepts passengers with unusual conditions. For example, in Swilley v. Economy Cab Company of Jacksonville, supra, the defendant cab company accepted and intoxicated person as a passenger. When the driver got out of the cab to fix a flat tire, the plaintiff offered to assist. The driver did not prevent the plaintiff from assisting despite his condition. The plaintiff was injured when he was hit by another vehicle as he was assisting the cab driver. The court stated: The fact that the defendant was intoxicated at the time of the acceptance of his services by the driver did not lessen the burden of any duty owed by the defendant to the plaintiff but, if fact, increased it€¦ Though, generally speaking, a common carrier is not bound to protect intoxicated persons from the consequences which may result from their own wrongs and follies, there may by responsibility where the carrier accepts the passenger, being aware of his intoxication and inability to take care of himself, and places him in a position where the carrier could or should foresee that he might suffer injury as the result of his exposure to danger. Swilley v. Economy Cab Company of Jacksonville, 46 So. 2d 173, 178 (Fla. 1950).

There was a time not long ago when rental cars were totally identifiable to the average person (and criminal). They often bore stickers identifying the rental agency, which made it easier for the company to inventory and identify their property but was a red flag to criminals. Incredibly, for years in Florida the Department of Highway Safety and Motor Vehicles issued rental car companies license plates that began with the letters “Y” and “Z”. That meant that criminals shopping for an out of town tourist would find their target when they spotted cars bearing tags starting with Y or Z. There were numerous murders in the Miami area where robbers followed these cars and committed violent crimes.
Tourists identified as such are much more vulnerable. Criminals know that they are less likely to know where they are going and understand the lay of the land. More importantly they are less likely to be willing and able to return to a place far from home if and when there is an arrest and prosecution. Criminals know this and thrive on it.

Given the fact that many visitors to Florida engage a common carrier  taxicab, bus, air carrier, cruise ship  common carrier law is highly relevant to violent crimes committed upon tourists.

Rental Cars:

Rental car companies reap millions, if not billions of dollars, every year from Florida tourists. Car rental agencies have a duty to warn renters of foreseeable criminal conduct and a high crime neighborhood particularly in light of the superior knowledge of the car rental company. Shurben v. Dollar Rent-A-Car, 676 So.2d 467 (Fla. 3rd DCA 1996)(renter was British tourist).

Agency and Respondeat Superior

An issue that often arises in resort tort cases is apparent agency. That is because often the innkeeper, resort, cruise line, transportation provider or other business may subcontract out the actual service. When tragedy ensues, the provider may claim that the tortfeasor was not its employee and was an independent contractor for which it is not liable. The Florida Supreme Court has made it clear that an independent contractor may also be an agent. Stoll v. Noel, 694 So. 2d 701,703 (Fla. 1997).

The rule has long been settled in Florida law that a principal is bound by the acts of his servants and/or agents. Courts employ various legal doctrines to find vicariously liability including, respondeat superior, apparent or ostensible agency, agency by estoppel and the non-delegable duty doctrine. The authority of an agent may be actual or it may be apparent. The agent’s authority may be conferred by writing, by parol, or it may be inferred from the related facts of the case. See Stuyvesant Corp. v. Stahl, 62 So. 2d 18, 20 (Fla. 1953).

Actual Agency

Essential to the existence of actual agency relationship is:
(1) Acknowledgment by the principal that the agent will act for him;
(2) The agent€™s acceptance of the undertaking; and
(3) Control by the principals over the actions by the agent.
Robbins v. Hess, 659 So. 2d 424, 427 (Fla. 4th DCA 1995)(citing Goldschmidt v. Holman, 571 So. 2d 422, 424 n.5 (Fla. 1990); Restatement (Second) Agency § 1 (1957).

Apparent Agency

Even where control and dominion are not actual, a principal is estopped from denying an agency relationship if the principal or employer has held the agent or employee out to the public as being possessed of the requisite authority and a third person is aware of the agent’s authority and has relied on it to his detriment. National Indemnity Co. of the South v. Consolidated Ins. Serv., 778 so. 2d 404, 407 (Fla. 4th DCA 2001); Irving v. Doctors Hosp. of Lake Worth, 415, So.2d 55, 57 n. 2 (Fla. 4th DCA 1982); Sapp v. City of Tallahassee, 348 So.2d 363 (Fla. 1st DCA 1977); O’Neal v. Crumpton Builders, Inc., 143 So.2d 344, 345 (Fla. 1st DCA 1962).
Florida long ago adopted the doctrine of apparent agency, or agency by estoppels as it is sometimes known, set forth in the Restatement (Second) Agency § 267 (1957) and which provides that:
One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of skill of the one appearing to be a servant or other agent as if he were such.
Irving v. Doctors Hosp. of Lake Worth, 415, So.2d 55, 57-58 (Fla. 4th DCA 1982)(citing Thomas v. Checker Cab Co., 66 Mich. App. 152, 238 N.W.2d 558, 560-61 (1975) and Mehlman v. Powell, 281 Md. 269, 378 a.2d 1121, 1123-24 (1977)); Orlando Executive Park, Inc. v. P.D.R., 402 So. 2d 442,450 (Fla. 5th CA 1981)(citing Mercury Cab Owners Ass’n v. Jones, 79 So. 2d 782 (Fla. 1955)).

The doctrine of apparent authority is also referred to as the “holding out” theory. Irving v. Doctors Hasp. of Lake Worth, 415, So.2d 55, 58 (Fla. 4th DCA 1982)(quoting Arthur v. St. Peters Hosp., 169 N.J. Super. 575, 405 A.2d 443 (1979). The doctrine “imposes liability, not as a result of the reality of a contractual relationship but rather because of the actions of a principal or an employer in somehow misleading the public into believing that the relationship or the authority exists. The concept is essentially one of €œestoppel.” Id. at 59.

The estoppel works as follows:

The principal is bound by the acts of his agent with the apparent authority which he knowingly permits the agent to assume, or which he holds the agent out to the public as possessing. The question in every case ***is whether the principal has by his voluntary act placed the agent in such a situation that a person of ordinary prudence, conversant with business usage and the nature of the particular business, is justified in presuming that such agent has authority to perform the particular act in question. Id.

For the doctrine of apparent authority (agency) to apply, it must be demonstrated that the principal held the agent out to the public as being possessed of the requisite authority and the third person knew of his holding out and relied thereon to that third person€™s detriment. H.S.A., Inc. v. Harris-in-Hollywood, Inc., 285 So. 690, 693 (Fla.4th DCA 1973).
Although courts commonly intertwine the doctrines of apparent agency and agency by estoppel, in fact, the two are distinct. An element of estoppel is a showing of reliance. By contrast, apparent authority exists separately from the effects it may induce in third parties, such as reliance or detrimental changes in position.

Apparent authority exists whenever third parties reasonably believe an agent to be authorized based on the principal’s manifestation. Restatement of Agency (Third) § 2.03 (2000), comment c. Manifestations may take many forms, including for example, where the agent’s name and affiliation with the principal are included in a listing of representatives that is provided to a third party. Id.
Often defendants argue that they cannot be vicariously liable for the acts of the parties who actually provided a service because they were independent contractors are not and cannot be, its agents. The Florida Supreme Court addressed this very issue in Stoll v. Noel, 694 So. 2d 701, 703 (Fla. 1997).

Ironically, in the Stoll case, independent contractor physicians employed by HRS were attempting to establish that they were agents of HRS so as to escape liability for medical malpractice under the statutory sovereign immunity provision. While the Supreme Court acknowledged the physician’s independent contractor status, the Court relied upon the Restatement (Second) of Agency § 14N (1957) in holding that the physicians were also HRS’s agents. Section 14N states:
One who contracts to act on behalf of another and subject to the other€™s control except with respect to his physical conduct is an agent and also an independent contractor.

It is well settled that the issue of agency does not turn exclusively on the labels chosen by parties to a contract. Instead, it derives from the relationship of the parties. Robinson v. Linzer, 758 So. 2d 1163, 1164 (Fla. 4th DCA 2000); Shands Teaching Hosp. and Clinics, Inc. v. Pendley, 577 So. 2d 632,634 (Fla. 1st DCA 1991); Singer v. Star, 510 So. 2d 637, 640 (Fla. 4th DCA 1987)(a jury may infer the existence of an agency even when the parties deny it and even when a statement in an agreement describes the parties as independent contractors). What is absolute under Florida law is that the doctrine of apparent authority rests on the appearances created by the principal, not by the agent.
Under Florida law, issues of agency, including apparent agency and ostensible agency are ordinarily questions of fact to be determined by the jury. See Goldschmidt v. Holman, 571 So. 2d 422, 424 (Fla. 1990)(citing Orlando Executive Park, Inc. v. Robbins, 433 So. 2d 491, 494 (Fla. 1983)); Robbins v. Hess, 659 So. 2d 424, 427 (Fla. 4th DCA 1995); Kobel v. Scholosser, 614 So. 2d 6, 7 (Fla. 4th DCA 1993); Webb v. Priest, 413 So. 2d 43, 47 n. 2 (Fla. 3rd DCA 1982); Garcia v. Tarrio, 380 So. 2d 1068 (Fla. 3d DCA 1980). The determination of an agency relationship can be resolved by summary judgment only when evidence is capable of just one interpretation. Robbins, 659 So. 2d at 427 (Fla. 4th DCA 1995); Moore v. River Ranch, Inc., 642 So. 2d 642 (Fla. 2d DCA 1994)(jury question whether ultralight plane operator was the apparent agent of the resort where guest was injured when the ultralight crashed).
An interesting case is Samuel Friedland and Family Enterprises v. Amoroso, 604 So. 2d 827 (Fla. 4th DCA 1992). The Amoroso plaintiff was a hotel guest who rented a sailboat while staying at the Diplomat. The sailboat€™s crossbar broke while the guest was on the boat and she was injured. The plaintiff sued the boat owner, the rental stand company, the hotel for negligence, breaches of warranties, and strict liability.
The trial court directed a verdict in favor of the Diplomat Hotel on the grounds that there was neither a joint venture or apparent authority established the Diplomat and the boat owner or the boat rental company. The appellate court reversed the ruling as to the hotel, concluding that the hotel could be liable on a theory of apparent agency. See also Holiday Inn v. Shelburne, 576 So. 2d 322 (Fla. 4th DCA)(discussing apparent agency between hotel franchisor and franchisee); Sims v. Marriot International, Inc., 184 F. Supp. 2d 616 (W.D. KY, 2001)(franchisee/franchisor apparent agency question); Wyndham Hotel Co. v. Self, 893 S.W. 2d 630 (Tex. App. 1994)(water sports, van transportation issues).
Conclusion

Negligent security case soften arise in resort and vacation settings. The target rich environment of a resort and vacation locale makes for ripe pickings to rational criminals seeking victims. Because of that, crime in resort and vacation settings will continue to be a threat to the public. Resorts and related entities, including theme and amusement parks, bars, restaurants, rental car agencies and other transportation providers are in the best position to guard against the type of crimes perpetrated on tourists and travelers. The civil justice system provides these victims with the means to hold accountable those who both profit from these travelers and are best able to provide reasonable security.

 

 

 

 

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