L.B. v. Naked Truth III, Inc.

117 So. 3d 1114, 2012 WL 385526, 2012 Fla. App. LEXIS 1545
CourtDistrict Court of Appeal of Florida
DecidedFebruary 8, 2012
DocketNo. 3D10-975
StatusPublished

This text of 117 So. 3d 1114 (L.B. v. Naked Truth III, Inc.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
L.B. v. Naked Truth III, Inc., 117 So. 3d 1114, 2012 WL 385526, 2012 Fla. App. LEXIS 1545 (Fla. Ct. App. 2012).

Opinions

LAGOA, J.

The Plaintiff/Appellant, L.B., appeals from a final judgment entered in favor of her employer, The Naked Truth III, Inc., on her claim for negligent security. We address two of the five issues L.B. raises on appeal as they are interrelated. However, because we are reversing and remanding for a new trial, we do not address the remaining issues raised on appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

L.B. worked as a sales clerk at an adult retail store owned by The Naked Truth, III, Inc. (the “Store”). On December 25, 2007, L.B. worked the overnight shift from midnight to 8:00 a.m. for a coworker. Only one sales clerk was assigned to work this shift. The Store’s security included, among other things, cameras, both inside and outside the Store, which could be viewed on monitors; extensive indoor and outdoor lighting; a locked front door which the sales clerk could open by a buzzer; and a panic alarm which could be activated by pressing a button under the counter.

At about 5:30 a.m., L.B. buzzed in a male customer who then walked to the back of the Store where the movies and viewing booths were located. Suddenly, the male customer appeared at the cashier’s counter brandishing a gun. He ordered L.B. to give him the money from the register and the safe, and then directed L.B. to lie on the floor. He then raped her. After he left, L.B. pressed the panic alarm and called 911 on her cellular phone.

Investigations revealed that four prior armed robberies had occurred at the Store during the overnight shift, the last one only two months before the attack on L.B. None of these incidents involved a sexual assault. Jose McCray (“the assailant”), who lived about twenty-two miles from the [1116]*1116Store, was identified as the assailant. L.B. did not know the assailant; however, a coworker, Xavier Powell, stated that about three days prior to the attack, the assailant had come into the Store and asked for L.B. The coworker told the assailant that L.B. no longer worked the overnight shift.

L.B. sued the Store alleging negligent security. Both parties retained experts to testify regarding the Store’s security. Plaintiffs expert, Rosemary Erickson, Ph. D., opined that the Store failed to implement sufficient security measures after the prior armed robberies and that the rape was a crime of opportunity that was foreseeable and preventable. Defendant’s expert, Gregg McCrary, testified that the attack was a “victim-targeted” crime which was unforeseeable and unpreventable by any security measures. He also testified that the security measures in place at the Store were reasonable.

Prior to trial, the judge denied L.B.’s motion to limit the testimony of McCrary, and to exclude Powell’s testimony regarding the assailant’s inquiry about L.B.

Ultimately, the jury returned a verdict finding no negligence. The trial court subsequently denied L.B.’s motion for a new trial, and this appeal followed.

II. ANALYSIS

A. The Trial Court Abused its Discretion in Admitting the Testimony of the Store’s Security Expert that this was a “Victim-Targeted” Crime

L.B. asserts that the trial court erred in admitting the testimony of the Store’s security expert, McCrary, that this was a “victim-targeted” crime.1 Specifically, L.B. asserts that McCrary’s testimony was speculative because it was based upon hearsay, and constituted inadmissible testimony as to “motive” pursuant to Smithson v. V.M.S. Realty, Inc., 536 So.2d 260 (Fla. 3d DCA 1988). The Store also cites to Smithson as support for its position that the testimony admitted was proper.

In Smithson, Smithson, a mall theatre manager, was murdered while he attempted to make a night deposit at a mall bank. The surviving wife sued the mall owners alleging inadequate security. The jury returned a defense verdict, and plaintiff appealed. Plaintiff argued that the trial court erred in permitting defendant’s expert to testify regarding the robbers’ motive for choosing to rob Smithson. As in the instant case, the plaintiff contended that the expert relied on inadmissible and prejudicial hearsay testimony. There the expert interviewed the assailants and, in testifying, recited their explanation of the plan and motive for committing the crime.

The Smithson court stated:

The purpose of expert testimony is to “assist the trier of fact in understanding the evidence, or in determining a fact issue ...,” § 90.702, Fla. Stat. (1985), but “expert testimony is not admissible at all unless the witness has expertise in the area in which his opinion is sought.” Husky Indus., Inc. v. Black, 434 So.2d 988, 992 (Fla. 4th DCA 1983). The witness was qualified to render an opinion on security matters and on the defendant’s allegedly negligent security procedures, but not on the robbers’ motives for choosing Mr. Smithson as their target. The reasoning behind the cocon-spirators’ conduct is a matter beyond the scope of his expertise.

[1117]*1117Smithson, 536 So.2d at 262 (citations omitted). L.B. points to this portion of the opinion in support of her argument that defendant’s expert testimony was inadmissible. L.B. contends that this Court already has determined that this type of evidence is not admissible in negligent security cases.

The Store distinguishes Smithson based on this Court’s statement that, “Although an expert witness is entitled to render an opinion premised on inadmissible evidence when the facts and data are the type reasonably relied on by experts on the subject, ... the witness may not serve merely as a conduit for the presentation of inadmissible evidence.” Id. at 261-62 (citations omitted). The Store argues that here the expert was not merely a conduit for inadmissible evidence because Powell testified that the assailant asked for L.B. a few days before the attack. Therefore, although McCrary relied on this statement to arrive at his opinion, the statement was not introduced solely through the expert’s testimony.

The Store’s reading of Smithson, however, is incorrect. This Court in Smithson further held that “[wjhere the expert’s actual opinion parallels that of the outside witness, then the outside witness should be produced to testify directly.” Id. at 262 (quoting Sikes v. Seaboard Coast Line R.R., 429 So.2d 1216, 1222 (Fla. 1st DCA 1983)). Powell testified at trial that the assailant asked for L.B. a few days prior to the attack. As such, it was unnecessary for the security expert to opine on this matter.

Moreover, as previously noted, admitting McCrary’s testimony on the issue of whether this was a victim targeted crime is contrary to this Court’s ruling in Smithson. As in Smithson, McCrary “was qualified to render an opinion on security matters and on the defendant’s allegedly negligent security procedures, but not on the [assailant’s] motives for choosing [L.B.] as [his] target. The reasoning behind the [assailant’s] conduct is a matter beyond the scope of his expertise.” Smithson, 536 So.2d at 262. Accordingly, based on the authority of Smithson, we find that the trial court abused its discretion in admitting McCrary’s opinion that this was an unforeseeable victim-targeted crime.2

B.

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Cite This Page — Counsel Stack

Bluebook (online)
117 So. 3d 1114, 2012 WL 385526, 2012 Fla. App. LEXIS 1545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lb-v-naked-truth-iii-inc-fladistctapp-2012.