THE LAS OLAS HOLDING CO. v. MICHAEL DEMELLA a/p/r of the ESTATE OF ALANNA DEMELLA

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

THE LAS OLAS HOLDING COMPANY, d/b/a RIVERSIDE HOTEL, a

foreign corporation,

Appellant,

v.

MICHAEL DEMELLA, a/p/r of the Estate of ALANA DEMELLA,

Appellee.

No. 4D16-231

[July 19, 2017]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Jeffrey R. Levenson, Judge; L.T. Case No.

CACE12028526 (13).

Hinda Klein of Conroy Simberg, Hollywood, for appellant.

Gary M. Farmer, Sr., Gary M. Farmer, Jr., and Bradley J. Edwards of

Farmer Jaffe Weissing Edwards Fistos & Lehrman, P.L., Fort Lauderdale,

and Daniel W. Cotter of The Maher Law Firm, Winter Park, for appellee.

FORST, J.

The Las Olas Holding Company d/b/a Riverside Hotel (“Riverside”)

appeals a negligence award in favor of the plaintiff, Michael Demella, as

personal representative of the estate of his late wife, Alana Demella. The

plaintiff sued Riverside for negligence related to a tragic incident in which

an intoxicated driver recklessly drove her car into a wall of Riverside’s pool

cabana. This caused a collapse of the structure and killed the plaintiff’s

pregnant wife, who was a guest of Riverside. The jury returned a verdict

finding Riverside’s negligence was a partial cause of this death. On appeal,

Riverside makes several arguments, one being that the trial court should

have granted its motion for a directed verdict on the issue of negligence.

As set forth below, we agree with this argument and therefore reverse and

remand with instruction for the trial court to grant Riverside’s motion.

This opinion also briefly addresses several impermissible comments made

by the plaintiff’s counsel during opening and closing arguments.

Background

Shortly after one p.m. on a Sunday, Rosa Rivera Kim (“Kim”) was driving

east on SE 4th Street, also known as Sagamore Road (“Sagamore Road”),

in Fort Lauderdale. Kim’s blood alcohol content at the time of the incident

was later determined to be three times the legal limit. As Kim approached

a curve in the road, she allegedly failed to turn her steering wheel, failed

to move her foot from the gas pedal to the brake pedal, and accelerated

straight into Riverside’s cabana which was located about fifteen feet away

from the road. 1 The force of the impact collapsed the walls of the structure,

killing Ms. Demella and slightly injuring her husband, the plaintiff. The

latter, as personal representative of his wife’s estate, sued Kim and

Riverside for negligence. The jury ultimately found both Riverside and Kim

responsible and awarded total damages of $24,057,283.00. The jury

found that Kim’s negligence caused eighty-five percent of the damages,

and that Riverside’s negligence caused the remaining fifteen percent.

Accordingly, the plaintiff was awarded $3,608,592.45 in damages from

Riverside.

At trial, the plaintiff introduced evidence to support the argument that

Riverside’s negligence caused the victim’s death. The plaintiff introduced

several aerial photographs showing that, as Sagamore Road curves, motor

vehicles at one point travel straight toward the cabana before turning right.

The plaintiff argued that the physical layout of the road created a

foreseeable zone of risk encompassing the cabana. To buttress its case,

the plaintiff utilized an expert who specialized in barriers and low speed

accidents. The expert testified that if Riverside had placed palm trees in

front of the cabana, the deadly incident may not have occurred. 2 However,

per photographs taken of the premises prior to the incident, to reach the

outer wall of the cabana—fifteen feet from the road—a vehicle would need

to “jump” an approximately three-inch curb, cross a sidewalk, drive

through a wall of bushes, and avoid hitting both a utility pole and a palm

tree.

1 Riverside’s expert witness testified that Kim must have been significantly

accelerating to reach 58 miles per hour on a 600 feet roadway. He also concluded

that Kim did not apply the brakes at any point prior to impact with the building.

He based this conclusion on the fact that there were no brake marks on the

roadway—indicating the car did not try to stop—and based on video footage of

the car seconds before impact.

2 We need not address whether the expert was qualified for purposes of section

90.702, Florida Statutes, given our reversal on the motion for a directed verdict.

However, we do note that the trial court judge expressed “extraordinary, extreme

misgivings” about the expert’s qualifications and that even the expert himself

stated, “I’m not an expert in palm trees.”

2

The plaintiff also sought to show that the road in front of the cabana

was dangerous due to speeding. He introduced an email in which

Riverside’s then-general manager told the City Commissioner in 2011,

Sagamore Street at my hotel seems like a race track. My

customers cross this street to get to the pool and the marina.

My valet staff crosses the street to get to cars out of valet lots.

Numerous times, I have seen cars drive this road at above the

speed limit and nearly hit somebody. We need to do

something to slow down that traffic and make sure—and

clearly make the two crosswalks. I would love to meet with

the traffic engineer to discuss some ideas.

The plaintiff then presented several former Riverside employees who

testified that they and Riverside had known about the speeding on

Sagamore Road. A former Riverside executive explained that he received

“multiple reports from coworkers regarding concerns about speeding on

[Sagamore Road],” and a former employee likened the road to I-95. The

plaintiff also presented evidence that Riverside had previously erected, on

at least two occasions, stop signs to slow traffic. Riverside’s witness, who

was an engineer for Broward County, later explained that the county

removed the signs after conducting a traffic study and finding that the

road did not merit them. 3 To counter this traffic study, the plaintiff

presented a separate study conducted by the county in 2011 which

showed that about fifteen percent of vehicles sped on Sagamore Road on

the day of observation. However, even though the study recognized that

there was speeding, it contained the conclusion of an engineering

technician that there were no “sight-distance limitations or other physical

conditions that would indicate Southeast 4th [was] operating in an unsafe

manner.”

At the conclusion of the plaintiff’s case, Riverside moved for a directed

verdict. Riverside argued that the plaintiff “failed to sustain the burden of

demonstrating that before this accident happened it was reasonably

foreseeable that [an incident of this nature] would take place on

[Riverside’s] premises.” Riverside noted that the cabana had complied with

all building codes and zoning regulations since its creation in 1963.

Moreover, while conceding that the plaintiff’s evidence showed that there

was some speeding on the road, Riverside argued that the speeding posed

a foreseeable threat only to invitees crossing that road, and not to

3Although this witness testified after Riverside’s motion for directed verdict, we

are required to consider the evidence both before and after the motion which was

denied. McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 1992).

3

individuals in the cabana. Riverside also noted that, in the more than

forty-nine-years of the road’s existence, there had never been an off-road

accident. 4 The trial court was ultimately unpersuaded, and denied

Riverside’s motion.

Following the denial of its motion, Riverside presented its own evidence.

First, it submitted expert testimony by a professional structural engineer

who opined about the structural integrity of the cabana at the time of the

incident. The engineer explained that the cabana contained solid concrete

columns reinforced with steel and that each column weighed about one

thousand pounds. Between the concrete columns was wood siding.

Relying primarily on the pictures of the aftermath of the incident, the

engineer concluded that when Kim crashed into the cabana, her vehicle

mainly struck one of these concrete columns, knocking it back twelve feet.

The expert calculated that Kim’s car had to generate about 40,000 to

43,000 pounds of force to shear the column off its base and, in order to

generate such force with her car, Kim must have been driving about fifty-

three to fifty-four miles per hour.

Riverside then presented a second engineer who was an expert in traffic

engineering and accident reconstruction. The expert began by noting that

Sagamore Road was only three blocks long, situated in a central business

district filled with shops, restaurants, and residences. The expert then

focused on the road’s curve, concluding it was “not a problem.” The road

lanes were a standard twelve feet wide. The radius of the road’s curve was

“right in line with typical curves in urban areas with a 25-mile-per-hour

speed limit.” There were also no sight limitations. The pavement was

clearly marked, and a driver could tell from 600 feet away that the road

would curve. The expert concluded, “And all of the factors: speed, volume,

curvature, width, length, you name it, all indicated that this was a roadway

that’s functioning very well and does not have problems with its curve.”

The same expert then testified that, based on historical data from

various city and county documents, there had never been a car crash at

or near the curve from 1963 until 2012. The expert then discussed the

traffic volume on the road, estimating that about thirty million cars had

driven on it from 1963 until 2012. In light of the historical data and

4Although this argument was later supported by Riverside’s own evidence, the

expert called by the plaintiff who testified regarding the fifteen percent statistic

described above also testified that, again based on a county traffic study, there

had in fact been one previous accident on the road. However, the engineer did

not provide any specifics about the accident, including whether it was an on-road

or off-road accident.

4

volume statistics, the expert concluded that the chances of a car crash

happening at the time of the instant drunk driving incident were

“statistically as close to zero as you can get in a roadway transportation

system.” At the conclusion of the case, once the jury returned a verdict

finding Riverside partly responsible, Riverside renewed its motion for a

directed verdict, and the trial court again denied it.

Riverside also moved for a mistrial during opening and closing

arguments because of various statements made by the plaintiff’s counsel.

In particular, the plaintiff’s counsel stated during opening that, “the

reason why we are in this courtroom today is that this corporation has

refused to accept any responsibility for its role in this death.” Riverside

objected to this statement, and the trial court sustained the objection.

Nevertheless, counsel made a similar statement moments later: “They will

look at everyone else’s conduct but their own. And these are defenses that

are just attempts to avoid responsibility.” In closing, when seeking

damages for wrongful death, counsel remarked:

What do we put price tags on in our society today? What is

it? I mean, if we—what do we pay LeBron James for the

excitement that he brings? . . . We pay $30 million a year for

the value that he brings to Miami. We pay a boxer $180

million for 12 rounds of boxing. We pay this expert $500 an

hour. If her life is worth what that expert . . . . If her life is

worth that type of enjoyment, those are just ways to come

about: What is this really worth? . . . .

The two arguments raised by Riverside on appeal which we address are

that the trial court erred in denying its motion for a directed verdict on the

issue of negligence, and that the court erred in denying its motions for

mistrial based on the above-quoted comments by the plaintiff’s counsel

during opening and closing arguments.

Analysis

A. Riverside’s motion for a directed verdict regarding negligence

“The standard for reviewing a trial court’s ruling on a motion for

directed verdict is de novo.” Schein v. Ernst & Young, LLP, 77 So. 3d 827,

830 (Fla. 4th DCA 2012). “A trial court should grant a motion for directed

verdict when the evidence, viewed in the light most favorable to the non-

moving party, shows that a jury could not reasonably differ about the

existence of a material fact and the movant is entitled to judgment as a

matter of law.” Id. (quoting Meruelo v. Mark Andrew of Palm Beaches, Ltd.,

5

12 So. 3d 247, 250 (Fla. 4th DCA 2009)).

“A negligence claim has four elements: (1) a duty by defendant to

conform to a certain standard of conduct; (2) a breach by defendant of that

duty; (3) a causal connection between the breach and injury to plaintiff;

and (4) loss or damage to plaintiff.” Bartsch v. Costello, 170 So. 3d 83, 86

(Fla. 4th DCA 2015) (citing Clay Elec. Co-Op., Inc. v. Johnson, 873 So. 2d

1182, 1185 (Fla. 2003)). “[A] plaintiff in a premises liability action must

allege the defendant’s duty to the plaintiff and the defendant’s breach of

that duty by alleging ultimate facts that show a relationship from which a

duty is implied by law, and the acts and omissions that caused the injury,

together with the allegation that they were negligently done or omitted.

The plaintiff must also plead that the [defendant’s negligence] was a

proximate cause of the [plaintiff’s injury].” Kaid v. Store Cent. Food Mkt.,

Inc., 668 So. 2d 1110, 1111 (Fla. 3d DCA 1996) (alterations in original)

(quoting 41 FLA. JUR. 2D Premises Liability § 96 (1994)). Here, the trial

court erred in denying Riverside’s motion for a directed verdict based on

each of the first three elements (duty, breach, and proximate cause).

1. Duty

The existence of a duty is a “legal requirement for opening the

courthouse doors.” McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla.

1992) (footnote omitted). In the context of general negligence, those doors

open only if the injury was the product of a reasonably foreseeable

danger—one within the foreseeable zone of risk. Id. In a premises liability

case, this Court stated that a property owner “is ordinarily under no duty

to exercise any care to warn or guard against the harmful acts of a third

party unless that third party’s harmful behavior is reasonably

foreseeable.” Leitch v. City of Delray Beach, 41 So. 3d 411, 412 (Fla. 4th

DCA 2010).

The standard jury instructions for premises liability, which were given

in this case, frame the issue as follows:

[W]hether (defendant) negligently failed to maintain [its]

premises in a reasonably safe condition, or negligently failed

to correct a dangerous condition about which (defendant)

either knew or should have known, by the use of reasonable

care, or negligently failed to warn (claimant) of a dangerous

condition about which (defendant) had, or should have had,

knowledge greater than that of (claimant); and, if so, whether

such negligence was a legal cause of loss, injury, or damage

6

to (claimant, decedent or person for whose injury claim is

made).

Fla. Std. Jury Inst. (Civ.) 401.20.

The plaintiff’s evidence at trial of Riverside’s duty was lacking. First,

the plaintiff sought to prove a duty by presenting aerial photographs of the

physical layout of Sagamore Road, which showed that, as the road slightly

curves, motor vehicles at one point travel straight towards the cabana

before turning right to continue on the road. We need not decide in this

case whether such a curve in this particular road, with a twenty-five miles

per hour speed limit, was a “dangerous condition” to pedestrians on the

sidewalk or lawn maintenance workers trimming the bushes. However,

we do hold that this curve was not a “dangerous condition” giving rise to

a duty with respect to people, like the plaintiff’s wife, who were inside

Riverside’s cabana. Evidence that Riverside was aware of the road’s slight

curve is legally insufficient to establish that Riverside “knew or should

have known” of a dangerous condition on its own premises. 5

In fact, not only did the plaintiff fail to present the evidence required,

Riverside presented compelling evidence to the contrary. As noted in the

Background Section above, Riverside’s expert in traffic engineering and

accident reconstruction testified, based on his review of city and county

documents, that there had never been an off-road accident on Sagamore

Road since its creation in 1963. In other words, in more than forty-nine

years, a car had never swerved off the road except in the current case

involving a severely intoxicated (blood alcohol content three times over the

legal limit) and reckless (no indication that she attempted to make the turn

or slowdown from her above-the-limit speed) driver. Statistically speaking,

the engineer explained, the chances of a crash were “as close to zero as

you can get in a roadway transportation system.” 6 Though case law has

held that an “absence of accidents” statistic does not dispositively relieve

a landowner of his or her duty to protect an invitee, in the absence of

“constructive knowledge of similar accidents at other similar locations,”

such a statistic can certainly still shed light on the difference between

5 We note that the plaintiff did not argue that the death in this case was

attributable to a design or building flaw with respect to the cabana, from which

Riverside may have had a duty to protect the plaintiff and his wife, as opposed to

the claim that Riverside should have built a sturdier cabana to protect from the

allegedly separate risk posed by the road.

6 Even accepting the plaintiff’s evidence which indicated that there was one

accident of an unknown nature on this road in the past, Riverside’s expert’s

conclusion remains compelling.

7

whether an accident is merely possible and whether it is reasonably

foreseeable. Springtree Props., Inc. v. Hammond, 692 So. 2d 164, 168 (Fla.

1997); see also Lewis v. Sun Time Corp., 47 So. 3d 872, 873 (Fla. 3d DCA

2010) (“It is well recognized that a no-accident history of the location of a

premises liability case may be admitted into evidence for a variety of

purposes including the central one of showing that the area was not in fact

dangerous or defective.”).

We are also unpersuaded that the evidence of “speeding” on Sagamore

Road established that the placement of this particular cabana fifteen feet

from the road constituted a dangerous condition about which Riverside

knew or should have known. The former Riverside employees who testified

were concerned with speeding solely in relation to Riverside’s invitees

crossing the road from one hotel building to the next. None of the plaintiff’s

witnesses stated or even hinted that they or Riverside’s management were

afraid that speeding might lead to an accident involving a nearby structure

such as the cabana, or even pedestrians on the sidewalk.

Various Florida courts have determined that some accidents are too

unusual or extraordinary to be reasonably foreseeable. In Florida Power

& Light Co. v. Macias ex rel. Macias, 507 So. 2d 1113 (Fla. 3d DCA 1987),

the court held that a utility company did not have a duty to protect drivers

from a utility pole it placed six feet away from Okeechobee Road. Id. at

1114-16. The court held that, without more evidence suggesting the road

was dangerous, and because “the chance that a vehicle in the ordinary

course of travel will deviate from the roadway and collide with a pole is

only a remote possibility, under certain circumstances [such a collision] is

not a legally foreseeable event.” Id. at 1115. Those “certain

circumstances” the court alluded to include evidence that the pole “was

not obscured from view, visibility was good, and the speed limit was

moderate.” Id. at 1116. The present case is similar. As the county’s 2011

speed study showed, there were no “sight-distance limitations or other

physical conditions that would indicate Southeast 4th [was] operating in

an unsafe manner.” Moreover, the speed limit of the road was “moderate,”

arguably even low—only twenty-five miles per hour. As in Macias, this

case presents such a remote possibility of an injury that the placement of

this pool cabana in relation to Sagamore Road cannot be found to have

created a “dangerous condition” to people in the pool cabana of which

Riverside was actually or constructively aware and that further created a

duty on the part of Riverside to protect the plaintiff’s wife and other invitees

from said “danger.”

The case of Graham v. Langley, 683 So. 2d 1147 (Fla. 5th DCA 1996),

is also similar to the instant case. There, an intoxicated driver, while

8

attempting to park in a restaurant’s parking lot, drove over a curb, across

a sidewalk, and through a plate glass window of the restaurant, hitting a

customer who then filed a negligence claim against the restaurant owner.

Id. at 1148. The plaintiff contended his injuries were attributable, in part,

to the height of the parking lot curb, with his expert opining “that the curb

at the point of the accident was approximately 3 ½ inches high and that,

had it been six inches high, it may have stopped Langley's vehicle.” Id.

The Fifth District Court of Appeal first held that, “in order to impose a duty

upon [the restaurant], Langley’s driving into [the restaurant] must have

been reasonably foreseeable, not just possible.” Id. (citing Firestone Tire &

Rubber Co. v. Lippincott, 383 So. 2d 1181 (Fla. 5th DCA 1980)). Next, in

addressing foreseeability, the court noted that this type of “specific

incident” had not occurred “with such frequency that it may be expected

to happen again,” and thus there was no “suggest[ion] that the defendant

reasonably needed to take steps to avoid or prevent the incident.” Id. In

both Graham and the instant case, “the record is clear that no vehicle

previously had been driven into that . . . restaurant [or cabana].” Id.

Moreover, in both this case and Graham, there was no evidence

presented that there was a construction code violation (in Graham with

respect to the height of the curb, in the instant case with respect to the

cabana’s structure or distance from the road). Finally, the Graham opinion

referenced two earlier opinions from the First and Second District Courts

of Appeal for the proposition “that although store owners have a duty to

exercise ordinary care to maintain their premises in a reasonably safe

condition, they have no duty to protect patrons from injuries caused by a

vehicle driven through a window and into the store.” Graham, 683 So. 2d

at 1148 (citing Jones v. Dowdy, 443 So. 2d 467, 467 (Fla. 2d DCA

1984); Schatz v. 7-Eleven, Inc., 128 So. 2d 901, 904 (Fla. 1st DCA 1961));

see also Food Fair, Inc. v. Gold, 464 So. 2d 1228, 1229-31 (Fla. 3d DCA

1985) (reversing and remanding for the trial court to enter a directed

verdict in favor of the defendant store because the store owed no duty to

protect its invitee from a car crashing into her in the parking lot).

In sum, the mere fact that some speeding occurred on the slightly-

curved Sagamore Road does not mean that a dangerous condition existed

at Riverside’s premises, of which Riverside was aware or should have been

aware, which extended to persons inside the cabana situated fifteen feet

back from the road. Sagamore Road had a twenty-five mile per hour speed

limit sign, visibility was clear, there was no history of any off-road

accidents in the forty-nine year existence of this road and curve, and there

were no other physical conditions that would indicate the road was

dangerous. “It is incumbent upon the courts to place limits on

foreseeability, lest all remote possibilities be interpreted as foreseeable in

9

the legal sense.” Macias, 507 So. 2d at 1115. We do so here, and reverse

the trial court with respect to Riverside’s motion for directed verdict on the

issue of duty.

2. Breach

Even if we were to agree with the trial court that, due to the placement

of this pool cabana in relation to Sagamore Road, a dangerous condition

existed on Riverside’s premises of which it knew or should have known,

thus creating an affirmative duty on the part of Riverside to protect the

users of its pool cabana from these dangers, we hold that Riverside did not

breach that duty.

“In a negligence action, whether a defendant exercised reasonable care

under a given set of facts is generally an issue for the jury to decide.” L.A.

Fitness Int’l, LLC v. Mayer, 980 So. 2d 550, 557 (Fla. 4th DCA 2008)

(emphasis added). However, “where the facts are undisputed, or are

viewed in the light most favorable to the plaintiff, the question of breach

can be decided by a court on . . . a motion for directed verdict.” Langbehn

v. Pub. Health Tr. of Miami-Dade Cty., 661 F. Supp. 2d 1326, 1336-37 (S.D.

Fla. 2009) (citing L.A. Fitness, 980 So. 2d at 557-62; Franco v. Miami-Dade

Cty., 947 So. 2d 512, 517 (Fla. 3d DCA 2006); St. Joseph’s Hosp. v. Cowart,

891 So. 2d 1039, 1041-42 (Fla. 2d DCA 2004)).

Even viewing the facts in the light most favorable to the plaintiff,

Riverside took sufficiently reasonable precautions to fortify and protect its

invitees within the cabana from car accidents such that it did not breach

its duty, if one existed, as a matter of law. As already mentioned, Riverside

protected its cabana from any danger posed by the road by use of a curb

(whether this was placed by Riverside or merely used by it is irrelevant), a

palm tree, and various hedges. Then, although the cabana itself was

partially comprised of wood siding, it contained thousand-pound solid

concrete columns reinforced with steel. The cabana was up-to-code and

in a proper location according to the zoning regulations. Finally, Riverside

attempted, on multiple occasions, to slow the traffic on Sagamore Road,

even going so far as to erect its own stop signs before the county

government removed them.

It is easy, in hindsight, to recognize exactly what precautions could

have been taken to avoid any specific injury. The fact that Riverside did

not erect a palm tree or other barricade in exactly the right spot to prevent

a driver from taking this particular path through its defenses is both

unfortunate and tragic, but it is not a breach of duty. Assuming Riverside

had a duty to take reasonable care to protect its invitees, including the

10

plaintiff’s wife, from the dangers of the road, it did so as a matter of law

under the specific facts of this case.

3. Proximate Cause

Finally on the issue of the directed verdict, even if Riverside breached

a duty of care to the plaintiff’s wife, the evidence with respect to proximate

causation was sufficiently “unequivocal” to “take this matter from the fact-

finder.” McCain v. Fla. Power Corp., 593 So. 2d 500, 504 (Fla. 1992); see

also Chirillo v. Granicz, 199 So. 3d 246, 252-53 (Fla. 2016) (holding that a

court may decide the issue of proximate cause without sending it to the

jury if “the evidence supports no more than a single reasonable inference”

(quoting McCain, 593 So. 2d at 504)). As our supreme court explained,

“[t]he law does not impose liability for freak injuries that were utterly

unpredictable in light of common human experience.” McCain, 593 So. 2d

at 503.

Contrary to the plaintiff’s argument below and on appeal, the death of

the plaintiff’s wife was not caused by Riverside’s failure to place additional

palm trees between the road and the cabana. Instead, her death was

unequivocally attributable only to “an improbable freak [accident].” Id. To

recap: Kim (the driver) was intoxicated to more than three times the legal

limit and, with no apparent attempt to brake or turn away, drove across

an oncoming traffic lane, over a curb, across a pedestrian sidewalk,

through a row of bushes, narrowly avoided a palm tree and utility pole,

and collided with the steel-reinforced concrete column of the cabana, set

back fifteen feet from the road, with enough force to cause it to collapse.

“An intervening cause may relieve the defendant . . . from liability if the

intervening cause is completely independent of the defendant’s negligence,

was not set in motion by the defendant’s negligence, and was not

foreseeable by the defendant.” Bosket v. Broward Cty. Hous. Auth., 676

So. 2d 72, 74 (Fla. 4th DCA 1996). Here, the jury found that Kim was the

primary cause of the plaintiff’s damages. We hold but a step further, that

under the “freakish and improbable chain of events” involved in this case,

“the evidence supports no more than a single reasonable inference.”

McCain, 593 So. 2d at 504. That inference is that the plaintiff’s wife’s

death was “unquestionably unforeseeable,” even assuming it was caused

by a dangerous condition. Id. at 503.

For the reasons set forth above, we hold that Riverside owed no duty of

care to the plaintiff’s wife where the cabana’s placement near the road did

not create a dangerous condition of which Riverside should have been

aware. We further hold that, even assuming such a duty, the facts (viewed

11

in the light most favorable to the plaintiff) establish that Riverside met this

duty by establishing various barriers to vehicles, meeting all building and

zoning codes, and by taking action to minimize the speed at which traffic

passed. Finally, we hold that, even assuming a duty and breach had been

established, the entirely unforeseeable (“freakish and improbable”)

scenario which led to the plaintiff’s wife’s death in this case removes, as a

matter of law, the necessary element of proximate cause connecting any

duty and breach on the part of Riverside to the injuries sustained.

Accordingly, we reverse the trial court’s denial of Riverside’s motion for a

directed verdict and remand with instructions to grant said motion.

B. Riverside’s motions for a mistrial based on opening statements and

closing arguments

“A trial court’s denial of a motion for mistrial and a motion for new trial

based on improper closing arguments are reviewed for abuse of discretion.”

R.J. Reynolds Tobacco Co. v. Calloway, 201 So. 3d 753, 759 (Fla. 4th DCA

2016) (quoting Whitney v. Milien, 125 So. 3d 817, 818 (Fla. 4th DCA 2013)).

Riverside argues on appeal that the trial court erred in denying its

motion for a mistrial based on the plaintiff’s counsel’s remarks during

opening and closing arguments. “Generally, a mistrial or new trial should

be granted only when counsel’s arguments are so inflammatory and

prejudicial that they deny the opposing party a fair trial.” Bakery Assocs.,

Ltd. v. Rigaud, 906 So. 2d 366, 367 (Fla. 3d DCA 2005) (quoting Maksad

v. Kaskel, 832 So. 2d 788, 793 (Fla. 4th DCA 2002)). When assessing the

comments, “[c]ontext is crucial. To determine whether the challenged

statements and arguments were in fact prejudicial, the statements cannot

be evaluated in isolation but must be placed and evaluated in context.”

Engle v. Liggett Grp., Inc., 945 So. 2d 1246, 1272 (Fla. 2006).

Though we are not required to address this matter in light of our

holding on the directed verdict issue, we express our concern regarding

several of the comments made by the plaintiff’s counsel during opening

and closing arguments, and caution against their future use. The

plaintiff’s counsel stated during opening that, “the reason why we are in

this courtroom today is that this corporation has refused to accept any

responsibility for its role in this death.” After the trial court correctly

sustained objections to this statement, the plaintiff’s lawyer doubled down,

stating, “[t]hey will look at everyone else’s conduct but their own. And

these are defenses that are just attempts to avoid responsibility.”

As the Third District Court of Appeal has declared, “[t]he law is clear

that it is improper for an attorney to disparage an opposing party’s defense

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of a case or to suggest that a party should be punished for contesting a

claim.” Fasani v. Kowalski, 43 So. 3d 805, 809 (Fla. 3d DCA 2010). We

recently reaffirmed this principle. See Calloway, 201 So. 3d at 765. We

thus find it inexplicable that counsel would so wantonly make statements

opening the door for a mistrial, both in these statements made during

opening, as well as in the “value of human life” comments made during

closing. See City of Orlando v. Pineiro, 66 So. 3d 1064, 1070 (Fla. 5th DCA

2011) (“It is clearly error to ask a jury to place a monetary value on the life

of a decedent because ‘the value of a human life is not an element of

damages and is not the proper topic for closing argument.’” (quoting Wilbur

v. Hightower, 778 So. 2d 381, 383 (Fla. 4th DCA 2001))).

Conclusion

The plaintiff and his wife were, unfortunately and through no fault of

their own, in the wrong place at the wrong time. However, Riverside was

also without fault. Riverside owed no duty of care to invitees within its

walls with regard to Sagamore Road, as a danger to the hotel’s invitees

from the placement of the pool cabana in relation to that road was not one

of which Riverside knew or should have known. Additionally, even if a

duty was owed, the actions taken to prevent injury were legally sufficient

such that there was no breach of this duty. Finally, even assuming a duty

and a breach, the collision of the severely intoxicated driver’s car with the

pool cabana, at such speed and force as to collapse the steel-reinforced

concrete columns of the cabana, was an extraordinary and unforeseeable

event, making Riverside legally not the proximate cause of any of the

injuries suffered in this highly fact-specific case. Thus, we reverse and

remand for the trial court to grant Riverside’s motion for a directed

verdict. 7

Reversed and remanded.

WARNER and LEVINE, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

7In light of our holding, we need not rule on the trial court’s denial of Riverside’s

motions for mistrial related to the plaintiff’s counsel’s opening and closing

arguments.

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