Torts — Premises liability — Action against defendant which ran softball tournament at rented softball fields at public park owned by county by plaintiff who was injured in a fight between members of two teams that occurred in common area of park outside softball fields — Because defendant exercised no control over common area of park where plaintiff was injured, it had no duty to provide adequate security to protect plaintiff

COMPETITIVE SOFTBALL PROMOTIONS, INC., etc., Appellant, vs. YASSER AYUB, etc., Appellee. 3rd District. Case No. 3D17-1420. L.T. Case No. 15-24843. April 18, 2018. An Appeal from the Circuit Court for Miami-Dade County, Samantha Ruiz-Cohen, Judge. Counsel: 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.

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 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.

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.”).

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 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 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.

Reversed and remanded.

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¹Because 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.