       Third District Court of Appeal
                               State of Florida

                          Opinion filed August 1, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-2362
                         Lower Tribunal No. 14-15183
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                    Regal Entertainment Group, Inc.,
                                    Appellant,

                                        vs.

                                Maria Navas,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, John
Schlesinger, Judge.

      Marshall Dennehey Warner Coleman & Goggin and Ryan D. Burns, and
Shane Haselbarth (Ft. Lauderdale), for appellant.

      The Haggard Law Firm, P.A. and James C. Blecke, for appellee.

Before ROTHENBERG, C.J., and EMAS and FERNANDEZ, JJ.

      FERNANDEZ, J.

      Regal Entertainment Group, Inc. (“Regal”) appeals the final judgement in

the sum of $652,900.10 entered in favor of Maria Navas (“Navas”). We reverse the
final judgement in part because the trial court erred in removing David Martin

(“Martin”) as a Fabre1 defendant from the verdict form. We affirm the final

judgment as to all other issues.

        On July 30, 2012, Navas went to Regal South Beach to watch the midnight

showing of The Dark Night Rises. During the movie, Martin, another patron in the

theater, stood up and began to pace up and down the aisle while speaking to

himself for approximately eight to ten minutes. Martin then exited the theater and

returned approximately thirty seconds later. After reentering, Martin yelled, “Right

now, right f***ing now,” to another patron who was sitting in the bottom front

row. On edge because of the shooting that occurred in an Aurora, Colorado theater

ten days earlier, the other patrons frantically exited the theater after Martin’s

outburst. Navas was among the patrons who fled. While descending the stairs of

the theater, an unknown patron pushed Navas from behind causing Navas’s foot to

land on the edge of a step, which caused her ankle to roll resulting in a Lisfranc

fracture.2 Officer David Calderin, who was called to subdue Martin, testified that

he smelled alcohol on Martin’s breath.

        Navas underwent multiple surgeries to repair the fracture and, afterward,

struggled to resume her active lifestyle. Navas sued Regal alleging that she injured

1   Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).
2A Lisfranc fracture is an injury of the foot in which one or more of the metatarsal
bones are displaced from the tarsus.

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her ankle after Martin’s conduct prompted the other patrons to frantically exit the

theater. Throughout the jury trial, the parties filed multiple motions for directed

verdict that were denied, except for one motion that was granted in part as to one

point, which is not germane to this appeal. The jury deliberated and found Regal

40% negligent and Martin 60% negligent. Navas once again moved for directed

verdict to strike Martin’s liability. The trial court entered an amended final

judgment, which struck the jury’s apportionment of 60% comparative fault to

Martin.

      On appeal, Regal contends that Martin should not have been removed as a

Fabre defendant from the verdict form. We review the trial court’s decision de

novo. Christensen v. Bowen, 140 So. 3d 498, 501 (Fla. 2014).

      A non-party may be added to the verdict form by a defendant to reduce the

defendant’s potential liability. § 768.81(3), Fla. Stat. (2011). Florida law holds

each of multiple tortfeasors responsible for only that tortfeasor’s portion of

liability. Fabre, 623 So. 2d at 1185. The only applicable exception to this rule is

found in the statute, preventing application of the statute to actions “based upon an

intentional tort.” § 768.81(4), Fla. Stat. (2011).

      The trial court improperly removed Martin as a Fabre defendant having

previously found, as a matter of law, that “at most Martin was negligent.”

Moreover, Navas argued at trial that the evidence clearly supported a conclusion



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that Martin was negligent in his conduct. Therefore, the record does not support a

conclusion that Martin committed an intentional tort. Thus, Martin does not fall

within the only exception that would disqualify him as a Fabre defendant.3

      We therefore conclude that the trial court improperly removed Martin from

the verdict form as a Fabre defendant because Martin’s conduct did not fall within

the exception to section 768.81, Florida Statute (2011), as his conduct did not rise

to the level of an intentional tort. We thus reverse and remand to reinstate the

jury’s apportionment to Martin as a Fabre defendant. We affirm the final judgment

as to all other issues without further discussion.

      Affirmed in part; reversed in part and remanded.




3Navas argued that because Regal was derivatively liable for Martin’s conduct,
Martin could not be a Fabre defendant. In the cases cited by Navas in support of
her position, the holdings were based on the courts’ findings that the actions were
based on an intentional tort. Navas also relies on the Restatement (Second) of
Torts, section 449, a position that ignores section 768.81, Florida Statute (2011).

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