       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 18, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1420
                         Lower Tribunal No. 15-24843
                             ________________


              Competitive Softball Promotions, Inc., etc.,
                                    Appellant,

                                        vs.

                              Yasser Ayub, etc.,
                                    Appellee.



     An Appeal from the Circuit Court for Miami-Dade County, Samantha Ruiz-
Cohen, Judge.

     Conroy Simberg, and Hinda Klein (Hollywood), for appellant.

     Fischer Redavid PLLC, and Jordan Redavid, for appellee.


Before ROTHENBERG, C.J., and SALTER and SCALES, JJ.

     ROTHENBERG, C.J.
      Competitive Softball Promotions, Inc. (“CSP”) appeals the trial court’s entry

of an order denying its post-trial motion for a directed verdict or a new trial, which

was entered after Yasser Ayub (“Ayub”) prevailed in a jury trial. For the reasons

that follow, we find that the trial court erred by denying CSP’s motion for a

directed verdict, and therefore, we reverse and remand with instructions to the trial

court to enter a directed verdict in CSP’s favor.

                                 BACKGROUND

      Ayub is a member of a softball team that participated in a softball

tournament that was run by CSP at a public park that is owned by Miami-Dade

County. CSP paid Miami-Dade County for the right to use several softball fields,

but there are common areas open to the public outside of the rented fields and

dugouts. On the morning on the day of the tournament, Ayub’s team had a heated

altercation with another team during a softball game, and the umpire declared that

both teams forfeited the game as a result. Later that evening, another fight broke

out between members of the two teams in a common area of the park, outside of

the rented softball fields and dugouts. Ayub was injured during this second

altercation while allegedly attempting to keep the other players from fighting. The

fight ultimately ended after the police arrived.

      Ayub filed a premises liability cause of action against CSP, alleging that

CSP had a duty to keep its business invitees safe and that CSP breached this duty



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by failing to provide adequate security during the softball tournament. During the

proceedings before the trial court, CSP repeatedly raised the argument that it had

no duty to provide security in the common area of the public park where the fight

occurred because CSP did not have any control over that area. After hearing the

arguments and evidence at trial, the jury returned a verdict in favor of Ayub and

against CSP in the amount of $319,914.71, and the trial court entered a final

judgment. Thereafter, CSP filed a renewed motion for a directed verdict and a new

trial, reiterating that Ayub failed to establish that CSP controlled the premises on

which Ayub was injured, and thus, CSP owed no legal duty to Ayub.1 The trial

court denied the motion, and this appeal followed.

                                   ANALYSIS

      We review a trial court’s ruling on a motion for a directed verdict de novo,

and we must evaluate the evidence in the light most favorable to the nonmoving

party. Fasani v. Kowalski, 43 So. 3d 805, 812 (Fla. 3d DCA 2010); Posner v.

Walker, 930 So. 2d 659, 665 (Fla. 3d DCA 2006). Whether a legal duty exists is a

question of law subject to the de novo standard of review. Weber ex rel. Estate of

Weber v. Marino Parking Sys., Inc., 100 So. 3d 729, 730 (Fla. 2d DCA 2012); R.J.



1 Because we reverse the trial court’s order denying CSP’s motion for a directed
verdict and remand for judgment in favor of CSP based on our finding that CSP
did not owe Ayub a legal duty, we decline to discuss the other issues that CSP
raised in its post-trial motion and on appeal.

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Reynolds Tobacco Co. v. Grossman ex rel. Estate of Grossman, 96 So. 3d 917, 920

(Fla. 4th DCA 2012).

      Negligent security cases, such as this one, fall under the auspices of

premises liability. See Nicholson v. Stonybrook Apartments, LLC, 154 So. 3d 490,

493-94 (Fla. 4th DCA 2015). The legal duty to protect invitees from injuries

caused by third parties is tied to the defendant’s control over the premises where

the injury occurred. Brown v. Suncharm Ranch, Inc., 748 So. 2d 1077, 1078 (Fla.

5th DCA 1999). Therefore, generally, if the plaintiff cannot demonstrate that the

defendant controlled the premises where the plaintiff was injured, then the

defendant cannot be liable for failing to protect the plaintiff from third-party

misconduct. Publix Super Markets, Inc. v. Jeffery, 650 So. 2d 122, 124 (Fla. 3d

DCA 1995) (holding that Publix, as lessee of a store in a shopping center, had no

duty to protect its invitees from third-party criminal assaults in the adjoining

parking lot because Publix was not responsible for and did not control the parking

lot); see also Daly v. Denny’s, Inc., 694 So. 2d 775, 777 (Fla. 4th DCA 1997)

(“[T]he duty to protect strangers against the tortious conduct of another can arise

if, at the time of the injury, the defendant is in actual or constructive control of: 1.

the instrumentality; 2. the premises on which the tort was committed; or 3. the tort-

feasor.”).




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      Control over the premises is demonstrated where the defendant is shown to

have the right to control access to the property. Brown, 748 So. 2d at 1078 (“The

duty to protect others from injury resulting from a dangerous condition on a

premises rests on the party who has the right to control access by third parties to

the premises, be it the owner, an agent, or a lessee of the property.”); Welch v.

Complete Care Corp., 818 So. 2d 645, 649 (Fla. 2d DCA 2002) (“The duty to

protect others from injury resulting from a dangerous condition on the premises

rests on the right to control access to the property.”).

      In the instant case, there is no evidence in the record to suggest that CSP

exercised any control over the premises where Ayub was injured. Ayub was

injured in a common area of a public park that is owned by Miami-Dade County,

and CSP only rented the softball fields adjacent to this common area. Although

Ayub suggests that there was evidence that CSP used the common areas of the

public park to collect fees from the members of the softball teams and posted

tournament results in the common area, this limited use in a common area does not

demonstrate the type of control necessary to give rise to a duty to provide adequate

security against third-party misconduct. Namely, this kind of use does not suggest

that CSP had the authority to control access to and from the common areas of the

public park. See Publix Super Markets, Inc., 650 So. 2d at 125 (reasoning that

Publix did not control the parking lot because, although Publix bag carriers used



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the parking lot and Publix previously hired security guards for the parking lot, this

“limited use” did not indicate that Publix had the authority to exclude anyone from

the premises).

      Alternatively, Ayub argues on appeal that CSP had a duty to secure the area

where the fight took place because it was foreseeable that there could be a fight

outside of the premises CSP controlled. On the facts of this case, we disagree. It is

true that a duty can arise where the defendant’s conduct creates conditions that

cause injuries to invitees that occur beyond the limits of the premises within the

defendant’s control. In those cases, the scope of the defendant’s duty extends to the

foreseeable zone of risk that the defendant’s conduct created. See Almarante v. Art

Inst. of Fort Lauderdale, Inc., 921 So. 2d 703, 705 (Fla. 4th DCA 2006) (“A

landowner’s conduct can give rise to a zone of risk extending beyond the physical

boundaries of his property when harm reaching outside those boundaries is

foreseeable.”) (emphasis added); Daly, 694 So. 2d at 777 (holding that the

landowner did not have a duty to protect the plaintiff from third-party criminal

conduct taking place outside of the landowner’s property, contrary to the plaintiff’s

theory that the landowner created a “zone of risk,” because the landowner “did not

create the conditions that led to the criminal conduct by the third parties”)

(emphasis added); Johnson v. Howard Mark Prods., Inc., 608 So. 2d 937, 938 (Fla.

2d DCA 1992). In the instant case, however, there is no record evidence that CSP’s



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conduct created the conditions that led to the fight in the common area of the

public park, and thus, CSP did not owe Ayub a duty to secure the area where the

fight occurred.

                                   CONCLUSION

      In conclusion, we find that the trial court erred by denying CSP’s motion for

a directed verdict. The record reflects that CSP exercised no control over the

common areas of the public park, and thus, it had no duty to provide adequate

security to protect its invitees there. On these facts, because Ayub was injured in

this common area, CSP’s liability cannot be implicated. Additionally, we find the

remainder of Ayub’s arguments on appeal to be without merit, and thus, we

decline to specifically address them here. Accordingly, we reverse the trial court’s

order denying CSP’s motion for a directed verdict and remand with instructions to

the trial court to enter a directed verdict in CSP’s favor.

      Reversed and remanded.




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