       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                      VIGNARAJ MUNSAMI PILLAY,
                              Appellant,

                                     v.

                        PUBLIC STORAGE, INC.,
                               Appellee.

                               No. 4D19-84

                           [November 13, 2019]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; David A. Haimes, Judge; L.T. Case No. 18-4261(08).

   Vignaraj Munsami Pillay, N. Fort Myers, pro se.

  Cindy J. Mishcon and Kevin M. Vannatta of Lewis Brisbois Bisgaard &
Smith LLP, Fort Lauderdale, for appellee.

FORST, J.

    In this caveat emptor case, Appellant Vignaraj Pillay appeals from the
final order of dismissal with prejudice. Pillay’s third amended complaint
alleged two counts of gross negligence and three counts of breach of
contract. We affirm the dismissal, addressing Pillay’s “gross negligence”
claims in this opinion.

                               Background

    In 2000, Pillay entered into a written storage unit rental agreement with
Appellee Public Storage.        The rental agreement required monthly
payments. Soon after entering into the rental agreement, Pillay moved to
Maryland and remained there until November 2015. During this time,
Pillay alleges that he used two rented units to store personal property
valued in excess of $100,000. Pillay further alleges that he received three
separate phone calls from Public Storage between 2005 and 2012
informing him that his storage units had been burglarized, with several
items left outside of the unit.
   Pillay returned to his units on December 7, 2015. He claims they were
in a state of disrepair, with pieces of the ceiling having dropped onto his
furniture and paintings. He also noticed several “high value” items were
either missing or damaged. Pillay met with a new facility manager to
gather information on what caused the damage to his property. The
manager purportedly refused to cooperate with Pillay. Nonetheless, Pillay
entered into a new lease with Public Storage and moved his items into a
smaller unit just a few feet away.

    On February 23, 2018, Pillay filed suit against Public Storage. The trial
court dismissed the original complaint without prejudice for failure to state
a claim. The first and second amended complaints met similar fates.
Pillay then filed a third amended complaint, which alleged two claims of
gross negligence, three claims of breach of contract, and one claim of
breach of the implied covenant of good faith. 1 Public Storage responded
with a motion to dismiss, which the trial court granted with prejudice.
This appeal followed.

                                     Analysis

   Orders granting motions to dismiss for failure to state a claim are
reviewed de novo. Regis Ins. Co. v. Miami Mgmt., Inc., 902 So. 2d 966, 968
(Fla. 4th DCA 2005).

   Pillay’s claims for gross negligence boil down to an alleged failure by
Public Storage to safeguard his storage unit, as well as an alleged failure
to monitor the condition of the unit and to make repairs when the unit
became damaged.

     A. Public Storage’s Failure to Safeguard Pillay’s Property

   Pillay’s gross negligence claim based on the alleged failure of Public
Storage to safeguard his property fails as a matter of law. First and
foremost, the claim is time-barred. An action founded on negligence must
be brought within four years from the time when the last element
constituting the cause of action occurs. § 95.11, Fla. Stat. (2018). Here,
the three alleged break-ins occurred between 2005 and 2012. The instant
suit was not filed until February 23, 2018—well outside the four-year
statutory period for bringing a negligence suit. See id.

  Pillay’s claim also fails due to the express terms of the rental agreement,
which contained the following exculpatory provisions:

1   As noted above, we address only the “gross negligence” claims in this opinion.

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      (1) ALL PERSONAL PROPERTY IS STORED BY OCCUPANT AT
      OCCUPANT’S SOLE RISK.

      (2) Owner and Owner’s agents . . . will not be responsible for,
      and Tenant releases Owner and Owner’s agents from any
      responsibility for, any loss, liability, claim, expense, damage
      to property . . . including without limitation any Loss arising
      from the active or passive acts, omission or negligence of
      Owner or Owner’s agents.

      (3) Tenant has inspected the Premises and the Property and
      hereby acknowledges and agrees that Owner does not
      represent or guarantee the safety or security of the Premises
      or the Property or any of the personal property stored therein,
      and this Rental Agreement does not create any contractual
      obligation for Owner to increase or maintain such safety or
      security.

   Florida courts have upheld the enforceability of exculpatory provisions
in contracts when the language of the provisions clearly and
unambiguously communicates the scope and nature of the waiver. See
Sainslo v. Give Kids the World, Inc., 157 So. 3d 256, 260-61 (Fla. 2015);
Brooks v. Paul, 219 So. 3d 886, 888 (Fla. 4th DCA 2017); Fresnedo v.
Porky’s Gym III, Inc., 271 So. 3d 1185, 1186 (Fla. 3d DCA 2019). Such
provisions are deemed to be unambiguous and enforceable when the
language unequivocally demonstrates a clear and understandable
intention for the defendant to be relieved from liability such that an
ordinary and knowledgeable person will know what he or she is
contracting away. Sainslo, 157 So. 3d at 260-61.

   By the express terms of the rental agreement, Public Storage had no
duty to safeguard Pillay’s storage units. 2            Pillay has not alleged
unconscionability, and while the agreement’s terms may favor Public
Storage, Pillay freely entered into the agreement and is bound by its terms.
See Barakat v. Broward Cty. Hous. Auth., 771 So. 2d 1193, 1195 (Fla. 4th
DCA 2000) (“It is never the role of a trial court to rewrite a contract to make
it more reasonable for one of the parties or to relieve a party from what

2 The rental agreement also contained a provision recommending that Pillay
obtain insurance for the items stored in the unit. Public Storage offered
insurance for purchase and it also informed Pillay that insurance could be
obtained from third parties.


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turns out to be a bad bargain.”); see also Medical Ctr. Health Plan v. Brick,
572 So. 2d 548, 551 (Fla. 1st DCA 1990) (“A party is bound by, and a court
is powerless to rewrite, the clear and unambiguous terms of a voluntary
contract.”).

   B. Public Storage’s Failure to Repair Pillay’s Unit

    Pillay also argues that Public Storage was grossly negligent for allowing
his units to fall into a state of disrepair. To maintain a cause of action
based on negligence “[t]he claimant must first demonstrate that the
defendant owed a duty, or obligation, recognized by the law, requiring the
[defendant] to conform to a certain standard of conduct, for the protection
of others against unreasonable risks.” Williams v. Davis, 974 So. 2d 1052,
1056 (Fla. 2007) (internal citation omitted).

    Commercial landlords do not have a duty to repair the premises absent
a specific provision in the contract imposing such a duty. See Veterans
Gas Co. v. Gibbs, 538 So. 2d 1325, 1328 (Fla. 1st DCA 1989) (explaining
that Florida statutes clearly distinguish between residential tenancies and
commercial tenancies with Florida law imposing a duty on residential
landlords to repair the premises and not on imposing the same duty on
commercial landlords); Rizzo v. Naranja Lakes Condo. Ass’n. Nos. One,
Two, Three, Four and Five, 498 So. 2d 451, 452 (Fla. 3d DCA 1986) (“It is
established Florida law that the lessee, not the lessor, has the duty to
make repairs of any kind to the demised premises in the absence of a
specific undertaking to the contrary.”). Here, the rental agreement did not
impose a duty on Public Storage to repair Pillay’s units. See Fischer v.
Collier, 143 So. 2d 710, 712 (Fla. 2d DCA 1962) (“[I]t is generally held that
in the absence of a special agreement to repair, the landlord is not under
such a duty.”).

                                Conclusion

   The trial court’s order dismissing Pillay’s third amended complaint with
prejudice is affirmed.

   Affirmed.

TAYLOR and MAY, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.


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