KEITH R.E. JOHNSON AND KREJ LEASING, INC. v. AKEEFE GARRETT

• Court: District Court of Appeal of Florida
• Decided: April 4, 2024
• Docket: 23-1205
• Status: Published

Opinion

SIXTH DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

Case No. 6D23-1205 Lower Tribunal No. 2015-001414-CA _____________________________

KEITH R.E. JOHNSON and KREJ LEASING, INC.,

Appellants,

v.

AKEEFE GARRETT,

Appellee.

_____________________________

Appeal from the Circuit Court for Orange County. Chad K. Alvaro and Vincent Falcone, III, Judges.

April 4, 2024

STARGEL, J.

Appellants Keith R.E. Johnson and KREJ Leasing, Inc. “KREJ”, challenge

the final judgment entered after a jury verdict in favor of Appellee Akeffe on his

complaint for negligent security arising from a shooting at a strip club in Orlando. 1

Appellants argue that the final judgment should be reversed because they lacked

sufficient control over the premises to establish a duty of care toward Garrett. We

1 This case was transferred from the Fifth District Court of Appeal to this Court on January 1, 2023. agree and hold that based on the evidence presented at trial, Appellants were entitled

to a directed verdict on Garrett’s allegations of a breach of duty for failure to provide

a reasonably safe premises. We reverse and remand for entry of a directed verdict

in favor of Appellants.

Background

On February 11, 2013, Garrett visited “Flashdancers” strip club after a night

of drinking. Upon his arrival, an armed guard was posted at the entrance to the club,

and all guests were patted down before being admitted. No firearms were allowed

to be carried inside the club. Shortly after entering the club, Garrett, who by his own

admission was intoxicated, slapped a dancer on the buttocks and then turned his

attention to a female patron whose companion, Thomas McCrimmon, did not

appreciate the behavior. The two men exchanged words, then exchanged punches,

and McCrimmon pulled out a pistol and shot Garrett in the abdomen. Garrett

suffered serious injuries.

Two years later, Garrett filed suit against the following parties 2: (1) Orlando

Flashdancers, LLC (“Flashdancers”), the entity that owned and ran the day-to-day

operations of the club; (2) Johnson, who owned the property upon which

Flashdancers was located; and (3) KREJ, a corporate entity formed by Johnson to

manage the property that leased the premises to Flashdancers. The suit claimed

2 Garrett’s first amended complaint named three additional entities which were later dropped. None of them play a significant role in this appeal.

2 damages based on the defendants’ general breach of their duty to provide a

reasonably safe premises for Garrett as a patron of the strip club. Garrett’s suit did

not include Elite Security Company, the entity hired by Flashdancers for security of

the business, and he later filed a second amended complaint dropping Flashdancers

as a defendant. Ultimately, this left only Johnson and KREJ as defendants in the

suit at the time the case was tried.

After discovery, Garrett moved for partial summary judgment against Johnson

and KREJ on the issue of whether there was non-delegable duty to invitees of

Flashdancers to provide a reasonably safe business premises, including protection

against third-party criminal attacks. The trial court granted the motion in part,

finding that a landowner has a non-delegable duty to provide reasonable protection

against third-party attacks on the premises, especially where the landowner retains

at least some degree of control over the premises, and thus “any duty, if found by

the jury to exist, was not delegated to [Flashdancers] by virtue of the lease of the

premises.” However, the court found disputed issues of fact regarding the existence

of a duty based on the foreseeability of the shooting and denied summary judgment

to that extent. 3 Appellants moved for reconsideration of the partial summary

3 The partial summary judgment order found that the degree of control exercised by KREJ over the premises and the identity of interests between Johnson and KREJ rendered KREJ liable to the same extent as Johnson. Appellants raise this as a separate point of error on appeal; however, our holding renders the issue, and every other issue raised by Appellants, moot.

3 judgment order and for summary judgment in their favor, which the trial court

denied. Based on much of the same evidence that would later be presented at trial,

the trial court rejected the notion that Johnson’s right to terminate the lease was the

sole evidence of his control over the premises and concluded that he did not turn

over complete possession and control of the premises.

At trial, multiple witnesses testified about security measures at the club and

the relationship between Johnson, KREJ, and Flashdancers. William Sierer was

hired by Flashdancers as a consultant and manager to handle the club’s day-to-day

operations. Sierer testified that Flashdancers contracted with Elite Security

Company to provide security services at the club and there was a written policy

governing safety, which included a prohibition against firearms inside the club.

Sierer was responsible for ensuring that security personnel did their job, but final

decisions regarding security were made by the club’s owner, Carl Shedrick. Any

problems with the operations of the club, including security, were handled in-house.

According to Sierer, although Johnson came by to check on the property

occasionally, he “hardly ever” saw Johnson. Sierer’s only relationship with Johnson

and KREJ was sending a rent check to their office every month.

Johnson testified that he purchased the subject property in 1989 from a Mr.

Prigden. The warranty deed Johnson received contained various covenants that

would terminate upon satisfaction or foreclosure of Johnson’s mortgage on the

property. The effect of these restrictions was to protect the grandfathered right to

4 conduct adult entertainment on the property. In 1994, Johnson formed KREJ to

manage the various leases associated with the property, which also housed other

businesses including an adult bookstore. In 2011, Johnson was introduced to

Shedrick, who was interested in running an adult entertainment business on the

property. After Shedrick obtained an adult entertainment license and a license to

sell alcohol and tobacco, KREJ entered into a lease agreement with Flashdancers. 4

The terms of the lease required the property to “be used solely for the purpose

of continually operating an adult entertainment” venue and provided that the tenant’s

failure to do so would constitute a default and give KREJ “the absolute and

immediate right to enter the premises and operate adult entertainment therein and/or

provide independent contractors to perform adult entertainment.” More specifically,

it would be a violation for the lessee to fail to operate adult entertainment on the

premises for twenty-four consecutive hours excluding legal holidays. The lease also

granted KREJ or its agents the right to enter the premises at all reasonable times to

inspect the property or make repairs and required the lessee to “comply with all

governmental and quasi-governmental laws, ordinances, rules and regulations.” The

Lease Modification Agreement under which Flashdancers was named the lessee

4 The Adult Entertainment License, which was entered into evidence, lists “Orlando Flashdancers, LLC” as the licensee. A renewal application for the license that was completed in 2012 lists Shedrick as the owner of Flashdancers and Sierer as the person with “authority to manage or control the day-to-day operation of the establishment,” while Johnson is listed as the owner of the property.

5 further provided that the tenant “shall be responsible for all items of the premises,

excluding roof repairs and exterior walls, but including plumbing, electrical and

HVAC systems.”5

During his testimony, Johnson explained that KREJ charged lower rent for

the property because the tenant was responsible for maintaining the building and

parking lot and paying the property taxes. He denied that he or KREJ shared in any

of Flashdancers’ profits. Johnson stated that he visited the property two to three

times per year. When asked if there was security at the club on the night of the

shooting, Johnson responded that he assumed so because most clubs would have

someone working the door, but he did not know for sure. Throughout his testimony,

Johnson repeatedly indicated that he had no personal knowledge of how

Flashdancers ran the club because it was not his business.

At the close of Garrett’s case-in-chief, Appellants moved for a directed verdict

and for reconsideration of the prior summary judgment rulings, arguing that the

evidence showed that neither Johnson nor KREJ had sufficient control over the

premises to establish a duty of care. Appellants also challenged the prior ruling that

KREJ and Johnson were one and the same, and that KREJ was liable to the same

extent as Johnson. Counsel argued the ruling was a violation of due process since

5 The original lease was entered between KREJ and “T.N.A. Topless Go Go, Inc. d/b/a Temptations Topless Go Go” in October 1997. The Lease Modification Agreement, which had an effective date of January 1, 2012, extended the term of the original agreement and named Flashdancers as the new lessee.

6 the issue was never pled, nor were they able to respond. In response, Garrett

maintained that the negligence of Flashdancers was attributable to Appellants

because they had a non-delegable duty to the club’s business invitees. The trial court

denied both motions and sent the case to the jury, which ultimately returned a verdict

in favor of Garrett.

Standard of Review

Appellants contested Garrett’s duty of care allegations at several stages of the

proceedings below. While the trial court’s initial ruling on the issue came at the

summary judgment stage, Appellants later raised the same issue as grounds for a

directed verdict. “[W]e review de novo the trial court’s decision to grant partial

summary judgment.” Restal v. Nocera, 268 So. 3d 270, 272 (Fla. 5th DCA 2019)

(citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130

(Fla. 2000)); see also R.J. Reynolds Tobacco Co. v. Grossman, 96 So. 3d 917, 920

(Fla. 4th DCA 2012) (“The existence of a legal duty is purely a question of law and

is subject to de novo review.”). Additionally, “[t]he standard of review on appeal of

the trial court’s ruling on a defendant’s motion for directed verdict is the same test

used by the trial court in ruling on the motion.” Sims v. Cristinzio, 898 So. 2d 1004,

1005-06 (Fla. 2d DCA 2005) (“In considering a motion for directed verdict, the court

must evaluate the testimony in the light most favorable to the nonmoving party and

every reasonable inference deduced from the evidence must be indulged in favor of

the nonmoving party.” (citations omitted)).

7 Analysis

Under Florida law, “the duty to protect third persons from injuries on the

premises rests not on legal ownership of the premises, but on the rights of possession,

custody, and control of the premises.” Wal-Mart Stores, Inc. v. McDonald, 676 So.

2d 12, 15 (Fla. 1st DCA 1996) (first citing Kline v. 1500 Mass. Ave. Apt. Corp., 439

F.2d 477, 481 (D.C. Cir. 1970); and then citing Bovis v. 7-Eleven, Inc., 505 So. 2d

661, 663-64 (Fla. 5th DCA 1987)); see also Competitive Softball Promotions, Inc.

v. Ayub, 245 So. 3d 893, 895 (Fla. 3d DCA 2018) (“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.”). In cases involving a leased property, “the

extent of responsibility for injuries occurring on the leased premises during the term

of the lease depends upon the extent the owner of the property maintains control

over the premises.” Brown v. Suncharm Ranch, Inc., 748 So. 2d 1077, 1078 (Fla.

5th DCA 1999). Where a property owner surrenders complete possession and

control of the premises to a tenant, the owner is not liable for injuries to third parties

occurring on the premises. Wal-Mart Stores, Inc., 626 So. 2d at 14. In short, the

duty to protect others from injury on the premises “does not rest on legal ownership

of the dangerous area but on the right to control access by third parties which right

usually exists in the one in possession and control of the premises.” Bovis, 505 So.

2d at 664; see also Restatement (Second) of Torts §§ 355, 360 (Am. L. Inst. 1965).

8 In the proceedings below, the trial court ruled that Appellants had a non-

delegable duty to Flashdancers’ business invitees under U.S. Security Services Corp.

v. Ramada Inn, Inc., 665 So. 2d 268 (Fla. 3d DCA 1995). In Ramada, the plaintiff

was the victim of a third-party criminal attack while he was a business invitee of

Ramada. Id. at 269. Ramada conceded that it owed a duty to the plaintiff to provide

a reasonably safe premises, including reasonable protection against third-party

criminal attacks. Id. at 270. However, Ramada argued that it could delegate that

duty by hiring an independent contractor to provide the necessary security, thereby

avoiding liability to its guests when the independent contractor provided inadequate

security. Id. The Third District rejected this argument and held that while Ramada

was free to contract out the performance of its duty to provide a reasonably safe

environment for its guests, it could not delegate the ultimate legal responsibility for

the proper performance of that duty. Id.

The facts before us do not align with those presented in Ramada. If Garrett

had proceeded to trial against Flashdancers, which had then disclaimed liability

based upon contracting with Elite Security Company for security services, an

analysis similar to Ramada would be appropriate. Unlike Ramada, the present case

involves a property owner and his corporate managing entity who are not the

operators of the business, do not maintain control over decisions involving security,

and did not contract with the company providing security. Whereas the property

owner in Ramada was operating a business on the premises and contracted for the

9 performance of its duty to provide security to an independent contractor. The

property owner in Ramada maintained the responsibility of oversight of its

independent contractor, while Appellants had no responsibility to hire security,

much less to oversee the responsibilities of the security contractor. Because the

relationship between Appellants and Flashdancers differs in this respect from the

relationship between the hotel and the security company in Ramada, the trial court’s

reliance on Ramada in concluding that Appellants owed a non-delegable duty to

Flashdancers’ business invitees was misplaced.

Instead, to determine whether Appellants owed a duty under the

circumstances in this case, we look to case law involving facts where the owner of a

commercial property has leased the premises to another. In Brown, a patron of the

Dixie Doodle Lounge was fatally shot by another patron of the lounge. The lounge

was located on property owned by Suncharm Ranch and leased on a month-to-month

basis to Larry Simmons. Brown, 748 So. 2d at 1078. The decedent’s estate sued

Suncharm, Suncharm’s president, and Simmons. Id. Suncharm moved for summary

judgment, arguing that it could not be held liable because Simmons had sole control

of the leased premises. Id. The Fifth District held that Suncharm was entitled to

summary judgment. Id. at 1078-79. Significant to the court’s decision was the fact

that Simmons “was in complete control of the operation of the lounge,” and “[t]he

only control that Suncharm had was the right to terminate the lease upon fifteen

days’ notice.” Id. at 1078. The Fifth District concluded that Suncharm’s authority

10 to terminate the lease “does not constitute sufficient control over the leased premises

for purposes of imposing liability.” Id. at 1079.

Similarly, in Jones v. Basha, Inc., 96 So. 3d 915 (Fla. 2d DCA 2011), Jones

was the victim of an attempted carjacking outside a convenience store. Id. at 916.

Jones filed suit against Basha, which she alleged was the owner of the store and

surrounding property. Id. Basha moved for summary judgment, arguing that it had

previously sold the business to Becker Enterprises and had no control over the

operation of the store, and filed a lease agreement showing that the property had

been leased to Becker. Id. While the lease did not contain specific language

regarding the provision of security, it placed the responsibility for maintaining the

premises exclusively on Becker. Id. The trial court granted summary judgment in

favor of Basha, and the Second District affirmed, holding that there was no question

of fact regarding whether Basha maintained control over the store:

[Basha’s president] testified that neither he nor Basha had any control over the operation of Central Food Market, and [Becker’s president] testified that he ran Central Food Market’s daily operations and was responsible for maintaining the premises. The fact that the lease did not specifically address security or responsibility for maintaining a safe premises does not create an issue of fact because the record establishes that Becker had this responsibility.

Id. at 917.

Here, the evidence shows that neither Johnson nor KREJ had control over the

general operation of Flashdancers’ business practices, and they were not involved

with security. Sierer’s testimony established that Flashdancers was responsible for

11 all decisions regarding security, including prohibiting firearms inside the club and

hiring security personnel to conduct pat downs on guests entering the club. 6 While

Garrett points to the lease provision granting KREJ the right to enter the premises

and operate the club upon the lessee’s failure to continually conduct adult

entertainment as evidence that Appellants retained control over the property, the

existence of a right to take control of the premises under default is not the same as

actually exercising that control. Because there is no evidence that Flashdancers ever

failed to continually operate adult entertainment on the premises, KREJ was never

even in the position to exercise the rights outlined in that provision.

Garrett further argues Johnson and KREJ had sufficient control for the

purpose of establishing liability based on the lease provision allowing KREJ or its

agents to enter the premises to inspect the property or make repairs. This does not

constitute sufficient control for purposes of establishing liability. See Narvaez v.

Pestana, 780 So. 2d 267, 268 (Fla. 4th DCA 2001) (“By itself, a landlord’s right to

enter the premises and make repairs under a lease does not constitute control of the

premises so as to impose on the landlord a duty to protect a tenant’s patrons from

the criminal or even negligent acts of third parties on the premises.”). Unlike the

situation in Russ v. Wollheim, 915 So. 2d 1285 (Fla. 2d DCA 2005), which Garrett

6 While we recognize that portions of Johnson’s testimony reflected his familiarity with the operation of adult entertainment venues in general, there is no indication that he had input in any decisions regarding Flashdancers’ day-to-day operations, including security.

12 relies upon in his brief, any control KREJ retained to enter the premises to inspect

the property or make repairs was completely unrelated to the injuries Garrett

sustained in the shooting. 7

Garrett also argues that the lease provision requiring the tenant to comply with

local ordinances governing adult entertainment venues constitutes evidence of

Appellants’ control over the premises. But while compliance with local ordinances

may have necessitated certain security measures at the club, we note that

Flashdancers was required to comply with all governing laws and ordinances

regardless of whether the lease said so. In any event, we reject the suggestion that a

lease provision requiring a tenant to abide by the law—a term no doubt common to

many commercial leases—should be treated as evidence of the landlord’s control of

the premises for purposes of imposing liability. To do so would risk eroding the

established legal protections afforded to landowners who turn over complete

possession and control of their properties to lessees.

Conclusion

For the reasons outlined above, the trial court erred in granting partial

summary judgment for Garrett on the duty element. Based on the evidence at trial,

7 In Russ, the Second District held that a lease provision allowing the tenant to make improvements to the property subject to the landlords’ approval precluded the entry of summary judgment on Russ’s claim for injuries suffered while using a ladder that had been constructed on the property. 915 So. 2d at 1287. This was because under the lease, the landlords “retained a possessory interest or control over the very activity Russ alleged resulted in his injuries.” Id.

13 when viewed in the light most favorable to Garrett, neither Johnson nor KREJ

maintained sufficient control over the premises to establish a duty of care toward

Garrett. We conclude that Appellants are entitled to a directed verdict. Accordingly,

we reverse the final judgment and remand the case for the entry of a directed verdict

REVERSED and REMANDED with instructions.

TRAVER, C.J., and GANNAM, J., concur.

Michael M. Brownlee, of The Brownlee Law Firm, P.A., Orlando, for Appellants.

Jeremy K. Markman, of King & Markman, P.A., Orlando, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED