Daniel Varone v. Publix Super Markets, Inc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

DANIEL VARONE and MELISSA VARONE,

as Co-Personal Representatives of the ESTATE OF S.V., deceased, and

DANIEL VARONE and DAVID VARONE, as Co-Personal Representatives

of the ESTATE OF LITHA G. VARONE,

Appellants,

v.

PUBLIX SUPER MARKETS, INC.,

Appellee.

No. 4D2024-1428

[March 18, 2026]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; G. Joseph Curley Jr., Judge; L.T. Case No. 50-2022-CA-

010290-XXXX-MB.

Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, and Sean C.

Domnick and Gregory M. Yaffa of Rafferty Domnick Cunningham & Yaffa,

Palm Beach Gardens, for appellants.

Jason B. Gonzalez, Alan Lawson, Jessica Slatten, Mathew D. Gutierrez,

and Robert Minchin III of Lawson Huck Gonzalez, Tallahassee, for

appellee.

Tiffany Roddenberry of Holland & Knight LLP, Tallahassee, and William

W. Large of Florida Justice Reform Institute, Tallahassee, for Amicus

Curiae Florida Justice Reform Institute in support of appellee.

CIKLIN, J.

We are called to confront a case arising from a brutal act of random

violence. Two people were tragically shot and killed inside the Publix at

the Crossroads on June 10, 2021, and the co-personal representatives of

their estates (the “plaintiffs”) filed suit against Publix Super Markets, Inc.

(“Publix”). The plaintiffs appeal a final summary judgment for Publix,

holding the store owed no legal duty to protect against the criminal acts.

We affirm, and we write to address the applicable case law.

In the proceedings below, Publix admitted that it managed, controlled,

possessed, and operated the subject store, and it conceded that it had a

duty to protect business invitees from “reasonably foreseeable” criminal

attacks on third parties. Publix moved for summary judgment, however,

arguing that, as a matter of law, the gunman’s acts were unforeseeable,

and that it did not have a duty to protect against those acts because no

prior, similar criminal acts had occurred in the two years before the

incident. Publix presented evidence reflecting that reported incidents

within the store from 2016 until the incident were minimal and did not

involve battery against a person.

The plaintiffs opposed the motion, arguing that Publix owed a legal duty

to protect against the criminal acts because those acts were foreseeable.

In support, the plaintiffs relied on evidence showing a national increase in

active shooting events beginning in the 2010s, including statistics of 448

gun “incidents” and 137 gun deaths in national grocery store chains from

January 1, 2020 to May 14, 2022, including 5 deaths at Publix stores.

The plaintiffs also pointed to the fact that the FBI and Homeland Security

issued videos on active shooter response, and, in 2016, Publix had

implemented mandatory annual active shooter training for most

associates of all Publix locations.

The trial court granted summary judgment, relying on Relyea v. State,

385 So. 2d 1378 (Fla. 4th DCA 1980), and limiting its ruling to a

determination that Publix did not owe a legal duty to protect against the

criminal attack at issue. The trial court rejected the plaintiffs’ argument

that Relyea is no longer good law, and distinguished the case law on which

the plaintiffs relied, primarily Holiday Inns, Inc. v. Shelburne, 576 So. 2d

322 (Fla. 4th DCA 1991), disapproved of on other grounds by Angrand v.

Key, 657 So. 2d 1146 (Fla. 1995). We affirm.

In the discussion that follows, we address negligence and duty

generally, and we further clarify the viability and proper application of the

above-cited cases and/or the principles discussed therein to questions of

foreseeability in the context of duty versus foreseeability and in the context

of breach and causation – two similar and overlapping but nevertheless

different analyses. In the case at hand, only the element of duty is at

issue.

The standard of review for an order granting summary judgment is de

novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,

130 (Fla. 2000). Likewise, “[t]he determination of duty, as an element of

negligence, is a question of law . . . and is therefore subject to de novo

review[.]” Chirillo v. Granicz, 199 So. 3d 246, 248 (Fla. 2016).

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I. Negligence & Duty Generally

“To state a claim for negligence, the plaintiff must allege: (1) a duty

recognized by law; (2) breach of the duty; (3) proximate causation; and (4)

damages.” Saunders v. Baseball Factory, Inc., 361 So. 3d 365, 369 (Fla.

4th DCA 2023). The Florida Supreme Court’s opinion in McCain v. Florida

Power Corp., 593 So. 2d 500 (Fla. 1992), is “the starting point for any duty

analysis under Florida’s negligence law.” Chirillo, 199 So. 3d at 249

(quoting United States v. Stevens, 994 So. 2d 1062, 1066 n.2 (Fla. 2008)).

“The duty element of negligence focuses on whether the defendant’s

conduct foreseeably created a broader ‘zone of risk’ that poses a general

threat of harm to others.” McCain, 593 So. 2d at 502.

“To determine whether the risk of injury to a plaintiff is

foreseeable under the concept of duty, courts must look at

whether it was objectively reasonable to expect the specific

danger causing the plaintiff’s injury, not simply whether it was

within the realm of any conceivable possibility.” Grieco v.

Daiho Sangyo, Inc., 344 So. 3d 11, 23 (Fla. 4th DCA 2022). A

legal duty does not exist merely because the harm in question

was foreseeable—instead, the defendant’s conduct must

“create” the risk. Aguila v. Hilton, Inc., 878 So. 2d 392, 396

(Fla. 1st DCA 2004). In other words, a duty requires one to

be in a position to “control the risk.” Surloff v. Regions Bank,

179 So. 3d 472, 476 (Fla. 4th DCA 2015).

Saunders, 361 So. 3d at 369.

Foreseeability may be relevant to both the element of duty (a legal

question) and the element of proximate causation (a question of fact).

McCain, 593 So. 2d at 502. “[F]oreseeability relates to duty and proximate

causation in different ways and to different ends.” Id. In McCain, the

Florida Supreme Court cautioned against the “temptation . . . to merge the

two elements into a single hybrid ‘foreseeability’ analysis, or to otherwise

blur the distinctions between them. A review of both precedent and public

policy convinces us that such blurring would be incorrect, even though it

often will yield the correct result.” Id.

The duty element of negligence focuses on whether the

defendant’s conduct foreseeably created a broader “zone of

risk” . . . . The proximate causation element, on the other

hand, is concerned with whether and to what extent the

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defendant’s conduct foreseeably and substantially caused the

specific injury that actually occurred. In other words, the

former is a minimal threshold legal requirement for opening

the courthouse doors, whereas the latter is part of the much

more specific factual requirement that must be proved to win

the case once the courthouse doors are open. As is obvious,

a defendant might be under a legal duty of care to a specific

plaintiff, but still not be liable for negligence because

proximate causation cannot be proven.

It might seem theoretically more appealing to confine all

questions of foreseeability within either the element of duty or

the element of proximate causation. However, precedent,

public policy, and common sense dictate that this is not

possible. Foreseeability clearly is crucial in defining the scope

of the general duty placed on every person to avoid negligent

acts or omissions. Florida, like other jurisdictions, recognizes

that a legal duty will arise whenever a human endeavor

creates a generalized and foreseeable risk of harming others.

...

....

Unlike in the “duty” context, the question of foreseeability

as it relates to proximate causation generally must be left to

the fact-finder to resolve. . . .

We believe the district court below erred in that it confused

the duty and proximate causation elements, resulting in a

mistaken assumption that Florida Power’s duty was to foresee

the specific sequence of events that led to McCain’s injury, in

light of the precautionary measures the company already had

taken. This approach in effect allowed the duty element to

subsume the question of proximate causation, with the result

that the district court improperly attempted to resolve on

appeal a factual question that should have been left with the

jury. As to duty, the proper inquiry for the reviewing appellate

court is whether the defendant’s conduct created a foreseeable

zone of risk, not whether the defendant could foresee the

specific injury that actually occurred.

Id. at 502-04 (citation and footnotes omitted).

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“[A] person or other entity generally has no duty to take precautions to

protect another against criminal acts of third parties . . . .” Gross v. Fam.

Servs. Agency, Inc., 716 So. 2d 337, 338 (Fla. 4th DCA 1998), approved

sub nom. Nova Se. Univ., Inc. v. Gross, 758 So. 2d 86 (Fla. 2000). This is

because “under ordinary circumstances it may reasonably be assumed

that no one will violate the criminal law.” Saunders, 361 So. 3d at 369

(quoting Restatement (Second) of Torts § 302B cmt. d (Am. Law Inst. 1965)).

“One of the limited exceptions to the general ‘no duty’ rule is that a duty

arises when the defendant has a ‘special relationship’ with the plaintiff,”

such as businesses toward their customers. Id. at 370 (quoting Knight v.

Merhige, 133 So. 3d 1140, 1145 (Fla. 4th DCA 2014)). Likewise, an

exception may arise when the defendant is in actual or constructive control

of the premises. Id. A premises owner/operator owes to a business invitee

a duty to guard against subjecting the invitee to dangers that the

owner/operator may have reasonably foreseen, including a criminal

assault by a third party. Fernandez v. Miami Jai-Alai, Inc., 386 So. 2d 4,

5 (Fla. 3d DCA 1980).

“The question is whether it was objectively reasonable to expect the

danger causing [the plaintiff’s] injury, not whether it was within the realm

of any conceivable possibility. Foreseeability must mean something more

than awareness of the remote possibility . . . .” Saunders, 361 So. 3d at

371 (underlined emphasis added). “It is incumbent upon the courts to

place limits on foreseeability, lest all remote possibilities be interpreted as

foreseeable in the legal sense.” Las Olas Holding Co. v. Demella, 228 So.

3d 97, 105 (Fla. 4th DCA 2017) (quoting Fla. Power & Light Co. v. Macias,

507 So. 2d 1113, 1115 (Fla. 3d DCA 1987)).

The principles discussed above are all well-established. The dispute

presented by the parties herein, however, involves the applicability of

Relyea, 385 So. 2d 1378, and, more specifically, whether it remains good

law in light of Shelburne, 576 So. 2d 322. As discussed in the sections

that follow, Relyea remains good law. In this case, applying Relyea

compels the result that Publix had no legal duty to protect against the type

of criminal conduct which occurred here.

II. Relyea v. State, 385 So. 2d 1378 (Fla. 4th DCA 1980)

Relyea involved consolidated wrongful death actions following the

killing of two students who were abducted while walking to their car from

a class in an outlying area of the FAU campus. Relyea, 385 So. 2d at

1379-80. After a hung jury resulted in a mistrial, the trial court granted

5

renewed motions for judgment on the pleadings and for directed verdict in

favor of the defendants. Id. at 1380.

On appeal, the plaintiffs argued that FAU had a mandatory duty to

provide reasonable security for all persons on campus, particularly

students. Id. In affirming, we explained that the other defendants were

sovereignly immune, and the trial court properly entered judgment in favor

of the insurance company “because no cause of action was alleged or

proved”:

In order to impose a duty upon a landowner to protect an

invitee from criminal acts of a third person a plaintiff, invitee,

must allege and prove that the landowner had actual or

constructive knowledge of prior, similar criminal acts

committed upon invitees. The landowner is not bound to

anticipate criminal activities of third persons where, as here,

the wrongdoers were complete strangers to the landowner and

to the victims, and where the incident occurred precipitously.

Appellants simply failed to allege or prove that any prior

assaults upon persons had been committed in the area of the

abduction and murder, or for that matter, anywhere on the

campus. In fact, the proof showed there had not been one

serious crime against a person since the school was founded

in 1963. The reported incidents involved minor larcenies from

automobiles and school buildings, hit and run complaints for

minor automobile damage, and miscellaneous incidents such

as malicious mischief. These facts do not give rise to the

foreseeability of violent assaults which, in turn, may give rise

to a duty to protect.

Id. at 1382-83 (emphasis added) (citations omitted); see also Salerno v.

Hart Fin. Corp., 521 So. 2d 234, 235 (Fla. 4th DCA 1988) (to establish a

duty to protect against reasonably foreseeable criminal conduct, “tenant

must prove that the landlord has knowledge of prior similar criminal

conduct occurring on the premises”).

III. Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322 (Fla. 4th DCA

1991)

We revisited Relyea in Shelburne. In Shelburne, the hotel’s security

guard prevented a patron from parking in the hotel parking lot, so the

patron parked in an adjacent lot and proceeded to drink with others at a

bar inside the hotel. 576 So. 2d at 324. While returning to their vehicles,

a fight erupted among the bar patrons, and three people were shot. Id. In

6

the lawsuit that followed against the hotel, the jury returned verdicts for

the plaintiffs. Id.

On appeal, we explained the duty of care of a “proprietor of a place of

public entertainment . . . to maintain the premises in a reasonably safe

condition commensurate with the activities conducted thereon,” and that

“the proprietor of a bar or saloon is bound to use every reasonable effort

to maintain order among the patrons, employees, or those who come upon

the premises and are likely to produce disorder to the injury or

inconvenience of patrons.” Id. at 325. The defendants argued that the

plaintiffs failed to prove that the defendants had “actual or constructive

knowledge of prior, similar criminal acts against invitees on their property,”

and that the defendants were not bound to anticipate the criminal act

where the wrongdoer was unknown to them and the act occurred

precipitously and off the defendants’ property. Id. (emphasis in original).

We rejected this argument, explaining:

Appellants rely upon this line of cases, specifically Relyea,

Worth and Gottschalk, for the proposition that a landowner

must have knowledge of prior, similar criminal acts in order

to impose a duty to protect invitees from criminal acts of a

third person. However, since these cases were decided, the

Florida Supreme Court has held differently. Hall v. Billy

Jack’s, Inc., 458 So. 2d 760 (Fla. 1984); Allen v. Babrab, Inc.,

438 So. 2d 356 (Fla. 1983); Stevens v. Jefferson, 436 So. 2d

33 (Fla. 1983).

Id. 1

Shelburne went on to describe the three Florida Supreme Court cases.

In Stevens, a bar patron was shot and killed, and his widow sued. 436 So.

2d at 34. She showed numerous fights and shootings had occurred in the

bar, the owner had failed to train or equip employees to maintain order,

and no security was on duty, but she did not allege that the owner knew

of any dangerous propensities of the assailant. Id. The supreme court

1 See Worth v. Stahl, 388 So. 2d 340, 341 (Fla. 4th DCA 1980) (affirming summary

judgment for tavern owner where plaintiff presented no proof that owner knew or

should have known of the assailant’s violent character); Gottschalk v. Smith, 334

So. 2d 102, 103 (Fla. 3d DCA 1976) (where fight erupted between gas station

customers, holding trial court should have granted directed verdict in gas station

operator’s favor because there was no evidence operator knew or could have

known of or anticipated attack).

7

rejected the owner’s argument that the widow could not prevail because of

this deficit. Id.

[S]pecific knowledge of a dangerous individual is not the

exclusive method of proving foreseeability. It can be shown

by proving that a proprietor knew or should have known of a

dangerous condition on his premises that was likely to cause

harm to a patron.

To affix liability against a tavern owner for injuries to patrons

intentionally inflicted by third parties, a risk of harm to his

patrons must be reasonably foreseeable, and the weight of

authority, both in this state and elsewhere, supports a

standard of reasonable foreseeability. Although knowledge of

a particular assailant’s propensity for violence is often found

to be evidence of foreseeability in these cases, we reject the

contention advanced by amicus curiae here that proof of

foreseeability should be limited by law to evidence of actual or

constructive knowledge of a particular assailant’s propensity

for violence. A tavern owner’s actual or constructive

knowledge, based upon past experience, that there is a

likelihood of disorderly conduct by third persons in general

which may endanger the safety of his patrons is also sufficient

to establish foreseeability.

....

It is incumbent upon the plaintiff to prove legal causation.

Mrs. Jefferson met her burden by showing that the bar was a

“rough” place with a history of fights and gunplay and that the

owner had terminated all security service and had left the

premises in the charge of a female employee who could not

maintain order. Under these facts a jury could determine that

a foreseeable risk of harm to patrons existed, that the risk was

either created or tolerated by Stevens, that he could have

remedied the danger but failed to do so, and that because of

that failure to perform his duties Jefferson was killed.

Id. at 34-35 (citations omitted).

Next, Shelburne described Allen. In Allen, an assailant in a parking lot

of a club threw a glass at the plaintiff and blinded her in one eye. 438 So.

2d at 357. The district court reversed and remanded for entry of judgment

for the club owner based on the absence of evidence that the assailant had

8

ever created a disturbance at or near the club. Id. The district court also

noted the unexpected nature of the attack. Id. The supreme court

quashed this decision, pointing to Stevens and explaining that a tavern

owner need not have known of the dangerous propensities of the specific

assailant, but rather that knowledge could be shown by proof that “based

on past experience, a proprietor knew of or should have recognized the

likelihood of disorderly conduct by third persons in general which might

endanger the safety of the proprietor’s patrons. Foreseeability of an

intervening cause is a question for the trier of fact.” Id. The supreme court

noted that the district court had relied on Relyea, among other cases, but

the supreme court did not denounce or disapprove of Relyea. Id.

Third, Shelburne addressed Hall. In Hall, a patron was assaulted by

another patron inside of a lounge while watching a pool game. 458 So. 2d

at 761. A jury found for the plaintiff and the Second District reversed

because no evidence supported that the lounge knew or should have

known that the assailant would attack without provocation. Id. The

supreme court disagreed, again pointed to Stevens, and explained:

A dangerous condition may be indicated if, according to past

experience (i.e., reputation of the tavern), there is a likelihood

of disorderly conduct by third persons in general which might

endanger the safety of patrons or if security staffing is

inadequate. These indicia are not exhaustive. If the lounge

management knew or should have known of a general or

specific risk to Hall and failed to take reasonable steps to

guard against that risk and if, because of that failure, Hall was

injured, Billy Jack’s may be shown to have breached its duty

and may be held financially responsible for Hall’s injuries.

The question of foreseeability is for the trier of fact.

Hall, 458 So. 2d at 762.

After summarizing these cases, the supreme court explained that the

failure to produce evidence of the “particular risk involved” was not

dispositive:

As illustrated by these three supreme court cases, appellants’

argument that they were entitled to a directed verdict because

appellees failed to produce evidence of the particular risk

involved is without merit. The cases cited in support of this

argument, Relyea, Gottschalk, Gilday, and Worth, all were

decided before Stevens, Allen, and Hall and are not in accord

with those cases. Therefore, the conflicting evidence of the

9

Rodeo Bar’s inadequate security and fifty-eight police incident

reports of problems at the Rodeo Bar, including crimes against

persons within the past eighteen months, provided a basis for

a finding of foreseeability and precluded a directed verdict.

Shelburne, 576 So. 2d at 326–27.

IV. Reconciling Relyea with Stevens, Allen, Hall, and Shelburne

The primary question presented by the parties is whether Relyea is still

good precedent insofar as it holds that, “to impose a duty upon a

landowner to protect an invitee from criminal acts of a third person a

plaintiff, invitee, must allege and prove that the landowner had actual or

constructive knowledge of prior, similar criminal acts committed upon

invitees.” Relyea, 385 So. 2d at 1383 (emphasis added).

We hold that Relyea remains good law, as it has not been reviewed en

banc or overruled by the Florida Supreme Court. See Pardo v. State, 596

So. 2d 665, 666 (Fla. 1992) (“[T]he decisions of the district courts of appeal

represent the law of Florida unless and until they are overruled by this

Court.” (quoting Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980))); Fox v.

Fox, 262 So. 3d 789, 792 (Fla. 4th DCA 2018) (reviewing en banc because

“[a] panel of our court has no authority to overrule or recede from our

precedent on the same legal issue”).

Specifically, Relyea’s holding requiring a showing of “prior, similar

criminal acts committed upon invitees” is not inconsistent with Stevens,

Allen, and Hall. In those cases, the supreme court did not reject Relyea’s

holding that an owner has no duty to protect against a sudden attack that

the owner has no reason to anticipate or that a plaintiff in such a case

must allege and prove that the owner had actual or constructive knowledge

of prior, similar criminal acts. Rather, the supreme court rejected the

requirement that an owner have “knowledge of a particular assailant’s

propensity for violence,” and instead adopted the holding that “[a] tavern

owner’s actual or constructive knowledge, based upon past experience,

that there is a likelihood of disorderly conduct by third persons in general

which may endanger the safety of his patrons is also sufficient to establish

foreseeability.” See Stevens, 436 So. 2d at 35 (emphasis added); accord

Allen, 438 So. 2d at 357; Hall, 458 So. 2d at 761-62. Consistently with

Stevens, Allen, and Hall, Relyea holds that constructive or actual

knowledge may be based on prior, similar acts – i.e., past experience – not

exclusively on knowledge of the particular attacker’s violent propensity.

Foreseeability, as it bears on duty, arises from a landowner’s knowledge of

10

prior similar conduct, not from the unforeseeable, isolated act of a

particular assailant.

Moreover, Relyea is distinguishable from and not displaced by Stevens,

Allen, and Hall because, in relevant part, Relyea addresses foreseeability

within the duty element of negligence. See Relyea, 385 So. 2d at 1383

(“[T]here being no duty to protect from the type of conduct which occurred

here, the trial court correctly entered judgment for the insurance

company.”). By contrast, in addition to duty, Stevens, Allen, and Hall each

address foreseeability as it relates or potentially relates to causation. See

Stevens, 436 So. 2d at 35; Allen, 438 So. 2d at 357-58; Hall, 458 So. 2d at

762. As discussed, the foreseeability inquiry within these elements is

different. See McCain, 593 So. 2d at 502 (holding “duty element . . .

focuses on whether the defendant’s conduct foreseeably created a broader

‘zone of risk’” whereas proximate causation element concerns “whether

and to what extent the defendant’s conduct foreseeably and substantially

caused the specific” resulting injury). The foreseeability analyses are not

indiscriminately interchangeable.

Post-Shelburne, we and other courts have continued to look to a

defendant’s knowledge of prior, similar acts in determining whether a duty

exists, further demonstrating that Relyea remains good law. See, e.g.,

Dama Holding LLC v. Guelmes, No. 3D24-0684, 2025 WL 3466840, at *2

(Fla. 3d DCA Dec. 3, 2025) (“[A] landowner does owe a duty to ‘protect an

invitee from criminal acts of a third person,’ where the invitee proves ‘that

the landowner had actual or constructive knowledge of prior, similar

criminal acts committed upon invitees.’” (quoting Medina v. 187th St.

Apartments, Ltd., 405 So. 2d 485, 486 (Fla. 3d DCA 1981))); Saunders, 361

So. 3d at 370 (“Baseball Factory’s operation of the baseball tournament

did not create a foreseeable zone of risk that a physical altercation would

occur between a player and an umpire. Saunders did not allege that the

player had a known history of violence or that any prior incidents of

violence had occurred at these tournaments.” (footnote omitted)); Bryan v.

Galley Maid Marine Prods., Inc., 287 So. 3d 1281, 1286 (Fla. 4th DCA 2020)

(quoting Relyea and determining that third party’s first attack on invitee

was not reasonably foreseeable so as to impose duty where there was no

evidence that landowner knew of third party’s criminal history or any

dangerous propensities); T.W. v. Regal Trace, Ltd., 908 So. 2d 499, 504

(Fla. 4th DCA 2005) (“[F]or the duty regarding third party criminal acts to

arise, it must be proven that the landlord has knowledge of prior similar

criminal conduct.”); Menendez v. The Palms W. Condo. Ass’n, 736 So. 2d

58, 61 (Fla. 1st DCA 1999) (“To impose such a duty, the tenant must allege

and prove that the landlord had actual or constructive knowledge of prior

similar acts committed on invitees on the premises.”).

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While Shelburne wrongly characterized Relyea, we need not recede

from Relyea at this juncture. Shelburne correctly relied upon the factually-

similar cases of Stevens, Allen and Hall to hold that the conflicting evidence

of the bar’s inadequate security and fifty-eight police incident reports of

problems at the bar, including crimes against persons within the past

eighteen months, provided a basis for a finding of foreseeability and

precluded a directed verdict. Shelburne, 576 So. 2d at 326. Like Stevens,

Allen, and Hall, Shelburne involved a venue with a history of violence or

crimes against persons, though not necessarily knowledge of the violent

propensity of the particular assailant. While the cases certainly overlap

regarding a tavern owner’s duty and other premises liability cases, courts

treat tavern cases differently. See, e.g., Burns Int’l Sec. Servs. Inc. of Fla.

v. Philadelphia Indem. Ins. Co., 899 So. 2d 361, 363-64 (Fla. 4th DCA 2005)

(placing “cases which involve a landlord, operator of land, or landowner

being sued, based upon . . . a criminal attack by a third party” in a different

category than “cases brought against the operators of bars for injuries

sustained during criminal attacks in or around the bar”). In the context

of this case, Relyea controls.

V. This Case

The general framework for determination of whether a duty exists

confirms no duty existed here. The “zone of risk” created by Publix is

effectively limited to the fact that it places its customers within a confined

space. Publix has a duty to guard against criminal attacks by third parties

only insofar as those attacks are reasonably foreseeable. Here, no evidence

was presented of prior batteries against a person, let alone shootings,

within the Publix at the Crossroads. As in Relyea, Publix had no legal

duty to anticipate the shooter’s criminal activity where the shooter was a

stranger to both Publix and the victims, and where the attack occurred

precipitously. 2 While a shooting remained within the realm of a

conceivable possibility, it was not objectively reasonable for Publix to

expect the subject attack. See Saunders, 361 So. 3d at 371. There is

simply insufficient evidence of foreseeability to establish a duty here. See

Las Olas Holding Co., 228 So. 3d at 105 (“It is incumbent upon the courts

2 We further note that the outcome would not change if, as the plaintiffs urge,

Relyea had been displaced by Stevens, Allen, and Hall. Applying the

Stevens/Allen/Hall reasoning, evidence of actual or constructive knowledge

“based upon past experience” of a “likelihood” of disorderly conduct that might

endanger patrons can establish such a duty. Here, no evidence was presented of

any “past experience” of a shooting or any violence upon customers at the Publix

at the Crossroads so as to give rise to a “likelihood” that such conduct may occur.

12

to place limits on foreseeability, lest all remote possibilities be interpreted

as foreseeable in the legal sense.” (quoting Macias, 507 So. 2d at 1115)).

The plaintiffs rely on Publix’s adoption of active shooting training for

employees and nationwide statistics of shootings as evidence of

foreseeability. These arguments fail. Publix’s active shooter training did

not create a foreseeable zone of risk; it merely showed that Publix was

aware of the possibility of an active shooter event somewhere at one of its

stores across the country at some point. Second, nationwide statistics of

shootings do not establish that it was objectively reasonable for Publix to

expect the specific danger of a random act of gun violence at this store.

While Relyea does not require allegations that prior misconduct occurred

in the exact place of the subject attack in order to prove knowledge, see

Eichenbaum v. Rossland Real Est., Ltd., 502 So. 2d 1333, 1334 (Fla. 4th

DCA 1987), we are not aware of any factually-similar Florida precedent

permitting a showing of knowledge based on events that did not even occur

within the same city. Accordingly, without more, the evidence relied upon

by the plaintiffs cannot support the existence of a legal duty.

In sum, while events giving rise to this case are undeniably tragic, the

law imposed no duty on Publix to protect against this unforeseeable

criminal act. We affirm the final summary judgment order.

Affirmed.

SHAW, J., concurs.

LEVINE, J., concurs specially with opinion.

LEVINE, J., concurring specially.

I fully concur with the majority opinion and the determination that

Relyea v. State, 385 So. 2d 1378 (Fla. 4th DCA 1980), controls. I write

only to discuss one facet of the potential unintended consequences of

appellants’ argument.

Appellants argue that the tragic shooting, that is the basis of this

litigation, was reasonably foreseeable to appellee and, consequently, a

duty was created. Appellants allege that the incident was reasonably

foreseeable to appellee by the creation of active shooter training, a

generalized awareness of the risk of an active shooter, and the generalized

increase in gun violence at large, specifically in grocery stores. If that alone

would make the incident of gun violence reasonably foreseeable, then it

would follow that all stores—large or small—would be required to follow

the same “duties” as appellants suggest we adopt.

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However, appellants contend in their briefs, as well as at oral argument,

that any foreseeability, and any resulting duty, would be generally limited

only to larger entities like appellee. 3 But how could one craft such a

limitation? Would not foreseeability, consequently, also be applicable to

all stores regardless of size? We are told that it would not apply to small

stores, due to “individual circumstances”—and only to large stores. But

by what legal forbearance, as suggested by appellants, would “Mom and

Pop” stores be exempted from the same alleged duty? I believe the answer

is clear. If large entities were determined to have a duty based on the facts

of this case, then eventually all smaller entities would be understood to

have foreseen the same risks.

At some point, video surveillance would be required, and then, not long

afterwards, active monitoring of those cameras in all stores—whether large

or small. A security guard at the door would potentially develop into

having an armed guard. And the ubiquitous guard would potentially be

in every commercial establishment regardless of its size. These

consequences would obviously have an impact on all store owners, and an

enormous “unintended” impact on “Mom and Pop” stores. See Sewell v.

Racetrac Petroleum, Inc., 245 So. 3d 822, 827 (Fla. 3d DCA 2017) (weighing

“the risks of unintended consequences”); Miccosukee Tribe of Indians of S.

Fla. v. Bermudez, 145 So. 3d 157, 160 (Fla. 3d DCA 2014) (rejecting

appellee’s theory, based partly on the “unintended consequences” it would

create); see also State v. Green, 944 So. 2d 208, 210 (Fla. 2006) (receding

from a prior decision based on its “unintended consequences”).

Further, consequences of such magnitude, it would seem, are best

determined by the people through their representatives in the legislative

branch and not by judicial fiat. Is the judiciary best equipped to make

such a wide-ranging decision, with such a potential impact on society as

a whole and, specifically, the economy?

3 Appellants deny that the duty would necessarily require “guards” or the

installation of “cameras.” Appellants argue that “[b]usinesses can present to

juries arguments—comparable to the amicus’s arguments—that such measures

are ineffective or unreasonably expensive, or that they would not have prevented

the attack.” (Reply Brief of Appellants at 20). Further, at oral argument, when

asked whether additional security measures—including monitoring, a security

guard, and shooter training—would apply to a sole proprietorship, such as a

“Mom and Pop” store, appellants responded that it would not “because what is

reasonable in terms of security measures will depend on . . . the facts and

circumstances of the store at issue and its resources. . . . And what is reasonable

will be determined by a jury.” Oral Argument at 3:03-3:57, 4:21-4:24,

https://www.youtube.com/watch?v=bVo31rZ16pA.

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Oliver Wendell Holmes, when considering the cost of torts, noted that

“[t]he liability for them is estimated, and sooner or later goes into the price

paid by the public. The public really pays the damages . . . .” Oliver

Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 467 (1897).

Holmes later noted that, in general, costs are best determined by legislative

action. “Establishment of a rate is the making of a rule for the future, and

therefore is an act legislative, not judicial.” Prentis v. Atlantic Coast Line

Co., 211 U.S. 210, 226 (1908); see also Claire’s Boutiques, Inc. v. Locastro,

85 So. 3d 1192, 1203 (Fla. 4th DCA 2012) (en banc) (Levine, J., concurring

in part, dissenting in part) (“It is axiomatic that the courts are not in the

best position to determine the most effective course for the furtherance

and extension of public policy as a whole.”).

Chief Justice Charles Evans Hughes noted, over a hundred years ago,

in words that still ring true today, the limits of judicial action:

The scope of judicial inquiry in deciding the question of power

is not to be confused with the scope of legislative

considerations in dealing with the matter of policy. Whether

the enactment is wise or unwise, whether it is based on sound

economic theory, whether it is the best means to achieve the

desired result, whether, in short, the legislative discretion

within its prescribed limits should be exercised in a particular

manner, are matters for the judgment of the legislature, and

the earnest conflict of serious opinion does not suffice to bring

them within the range of judicial cognizance.

Chicago, Burlington, & Quincy R. Co. v. McGuire, 219 U.S. 549, 569 (1911).

In summary, we in the judiciary should be mindful of the limitations of

our actions, as well as their resulting unintended consequences.

* * *

Not final until disposition of timely-filed motion for rehearing.

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