                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                  FILED
                                                       U.S. COURT OF APPEALS
                             No. 10-15100                ELEVENTH CIRCUIT
                                                             APRIL 11, 2012
                         Non-Argument Calendar
                                                              JOHN LEY
                       ________________________
                                                               CLERK

                D. C. Docket No. 5:09-cv-00012-LGW-JEG


GLORIA LEE, as Surviving Spouse of
Roger Earl Lee, Deceased,
                                                           Plaintiff-Appellant,

                                  versus

THE CLOROX INTERNATIONAL COMPANY,
                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                   for the Southern District of Georgia
                      ________________________

                             (April 11, 2012)

Before TJOFLAT, EDMONDSON and FAY, Circuit Judges.


PER CURIAM:
      Plaintiff-Appellant Gloria Lee appeals the grant of summary judgment in

favor of The Clorox International Company (“Clorox”) in a wrongful death action

she brought as the surviving spouse of Roger Earl Lee (“Mr. Lee”). No reversible

error has been shown; we affirm.

      Mr. Lee was an independent contractor doing work for National Freight,

Inc. Clorox hired National Freight, Inc. to transport a load of bleach from

Clorox’s Houston facility to its Tampa facility. National Freight, Inc. engaged Mr.

Lee to accomplish the transport.

      On 22 February 2008, Mr. Lee arrived at Clorox’s Tampa facility just before

4:00 a.m.; his scheduled delivery time was 10:00 a.m. The security guard advised

Mr. Lee that he could not enter the facility before its scheduled opening at 6:30

a.m. Mr. Lee was aware of Clorox’s policy of denying middle-of-the-night

admittance from a previous delivery he had made just two months earlier. The

security guard advised that Mr. Lee could park under a nearby highway overpass

until the facility opened. Mr. Lee told the security guard that he would prefer to

park on the street outside of Clorox’s property. The security guard offered no

objection to Mr. Lee’s choice to park on public property adjacent to Clorox’s

facility. At approximately 4:30 a.m., while Mr. Lee was asleep in his truck, an

unknown assailant broke into the truck and fatally shot Mr. Lee.

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      Plaintiff filed this wrongful death action against Clorox; Plaintiff argued

that under Florida law Clorox owed Mr. Lee a duty of reasonable care to prevent

foreseeable harm from third-party misconduct and a duty to warn of dangerous

conditions in the area immediately outside Clorox’s facility. Clorox countered

that Plaintiff’s negligence-based claims fail as a matter of law because no duty was

owed Mr. Lee by Clorox; and Clorox did not proximately cause Mr. Lee’s death.

      The district court opinion examined in some detail Florida negligence law

on the creation of a duty and concluded that no basis existed for imposing a duty

on Clorox. We agree.

      Under Florida law, “[t]he general rule is that a party has no legal duty to

prevent the misconduct of third persons.... Florida courts have long been loathe to

impose liability based on a defendant’s failure to control the conduct of a third

party.” K.M. ex rel. D.M. v. Publix Super Markets, Inc., 895 So.2d 1114, 1117

(Fla. Dist. Ct. App. 2005) (internal quotations and citations omitted). But a duty

may be imposed where the defendant’s conduct creates a foreseeable zone of risk.

See McCain v. Fla. Power Corp., 593 So.2d 500, 503 (Fla. 1992) (“Where a

defendant’s conduct creates a foreseeable zone of risk, the law generally will

recognize a duty placed upon the defendant either to lessen the risk or see that




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sufficient precautions are taken to protect others from the harm that the risk

poses.”).

      Plaintiff argues that in the light of the high crime rate in the neighborhood

surrounding Clorox’s facility and the inadequacy of the lighting in that area,

Clorox’s refusal to allow truckers early entry into its facility created a foreseeable

zone of risk. But as the district court explained, Clorox’s policy of refusing entry

into its facility when that facility is closed did not create directly a foreseeable risk

of harm. Clorox had no involvement in a criminal act, it did nothing to encourage

or otherwise facilitate a criminal act, and no evidence suggested that the high

crime rate was related to Clorox’s delivery entrance policy.

      We can speculate that had Clorox allowed Mr. Lee early entry into the

facility his tragic death likely would have been avoided. But that does not mean

Clorox’s policy created or controlled the foreseeable risk. Clorox’s entry policy

was known to Mr. Lee when he chose nevertheless to arrive at the facility hours

before it opened knowing he would not be allowed entry. Clorox had no control

over Mr. Lee’s rejection of the security guard’s suggestion that he park at a

nearby highway overpass or over his decision to park on a public street adjacent to

its facility. That the public premises where Mr. Lee parked were inadequately

lighted represents no breach of duty by Clorox. And Clorox had no control over

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the criminal who took Mr. Lee’s life. In short, Clorox took no affirmative step nor

failed to take a step that directly and necessarily created a risk of foreseeable harm.

See Demelus v. King Motor Co. of Fort Lauderdale, 24 So.3d 759, 761 (Fla. Dist.

Ct. App. 2009) (“To impose a duty, it is not enough that a risk merely exists or that

a particular risk is foreseeable; rather, the defendant’s conduct must create or

control the risk before liability may be imposed”); Aquila v. Hilton, Inc., 878

So.2d 392, 396 (Fla. Dist. Ct. App. 2004).

      Plaintiff argues that a special relationship existed between Clorox and Mr.

Lee -- that of landowner or business-invitee -- that gave rise to a duty to prevent

harm caused by third persons. Florida has adopted the Restatement (Second) of

Tort § 315 (1965) which states: “[t]here is no duty so to control the conduct of a

third person as to prevent him from causing physical harm ... unless... a special

relation exists between the actor and the other which gives to the other a right to

protection.” See K.M. ex rel. D.M, 895 So.2d at 1117. But again as the district

court set out in detail, Mr. Lee was not an invitee of Clorox at the time of his

murder; to the contrary, Mr. Lee was barred from entry onto Clorox’s premises.

Mr. Lee knew that his 10:00 a.m. appointment was no invitation to enter the

premises or to engage in business before the facility’s scheduled 6:30 a.m.

opening. Although we accept that Florida law continues to evolve on the special

                                          5
relationships that might give rise to a duty, see Janis v. Pratt & Whitney Canada,

Inc., 370 F.Supp. 2d 1226, 1230 (M.D. Fla. 2005), the absence of Clorox’s

authority or ability to control Mr. Lee’s behavior belies the existence of a special

relationship in this context. Under the facts advanced by Plaintiff, we can not say

that Clorox’s relationship with Mr. Lee supports imposition of a duty upon Clorox

to prevent off-premises third-party harm to Mr. Lee.

      Plaintiff also argues that a duty to protect arose from Clorox’s actual or

constructive control over the site where the tragedy occurred. Where the

defendant controls “(1) the instrumentality; (2) the premises on which the tort was

committed; or (3) the tortfeasor,” Daly v. Denny’s, Inc., 694 So.2d 775, 777 (Fla.

Dist. Ct. App. 1997), Florida recognizes a duty to protect against third-party torts.

But Mr. Lee’s murder occurred on public property; it did not occur on premises

owned or controlled by Clorox. That some lighting at Clorox’s facility affected

the lighting on the public street where the murder occurred, imposes no obligation

on Clorox to monitor and maintain lighting on surrounding public property. We

agree with the district court that neither Clorox’s refusal to allow truckers early

admittance nor its provision of some light over the adjacent public street translates

into control over the public property in the immediate vicinity of its plant.




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      Plaintiff contends Clorox, with superior knowledge about crime rates in the

area surrounding its facility, owed Mr. Lee a duty to warn about the danger to

which he exposed himself. Again, however, the absence of a special relationship

between Clorox and Mr. Lee is fatal to Plaintiff’s claim. We are cited to no

Florida case where a duty to warn was recognized but no special relationship

existed to gave rise to that duty. And so Plaintiff’s reliance on Shurben v. Dollar

Rent-A-Car, 676 So.2d 467 (Fla. Dist. Ct. App. 1996), where a customer-rental

agency relationship existed, is misplaced. See T.W. v. Regal Trace, Ltd., 908

So.2d 499, 504 (Fla. Dist. Ct. App. 2005) (if no special relationship is shown, no

duty to warn arises; general rule of no liability for third-party criminal acts applies

unless another exception to the general rule may be invoked).

      AFFIRMED.




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