USCA11 Case: 24-12196 Document: 32-1 Date Filed: 05/05/2025 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 24-12196 Non-Argument Calendar ____________________
MARILYS GIMENEZ, individually and as Parent and Natural Guardian of A.J.G., Plaintiff-Appellant, versus MCLANE COMPANY, INC., et al.,
Defendants,
MCLANE FOODSERVICE, INC., USCA11 Case: 24-12196 Document: 32-1 Date Filed: 05/05/2025 Page: 2 of 7
2 Opinion of the Court 24-12196
Defendant-Appellee.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:23-cv-01102-GAP-RMN ____________________
Before BRANCH, TJOFLAT, and ANDERSON, Circuit Judges. PER CURIAM: This case arises from a tragic and senseless act of violence. Marilys Gimenez was working a routine shift at McLane Foodser- vice when her former partner, Felix Joseph, unlawfully entered the facility and set her on fire. Her injuries were catastrophic. In the aftermath, Ms. Gimenez sued McLane for negligence. She alleged that inadequate security measures made the attack foreseeable, and that McLane breached its duty to protect her. The District Court disagreed and granted summary judgment for McLane. The question on appeal is not whether Ms. Gimenez suf- fered grievous harm—she did. Nor is it whether Joseph should be held accountable—he was criminally convicted and sentenced. The narrow issue is whether under Florida law, McLane is liable for Ms. Gimenez’s injuries. Because we find proximate causation lacking, we hold that it is not. We affirm. USCA11 Case: 24-12196 Document: 32-1 Date Filed: 05/05/2025 Page: 3 of 7
24-12196 Opinion of the Court 3
I. Facts Marilys Gimenez worked in customer service and payroll at McLane Foodservice’s Orlando facility. Her assailant, Felix Joseph, had previously worked as a truck driver for McLane but was termi- nated in 2019 for aggressive driving. In 2018, the two began an in- timate relationship that lasted about four months. They remained on amicable terms until October 2020. That October, Joseph began expressing anger over the breakup. By January 2021, Ms. Gimenez cut off all contact. Still, Joseph continued to send her messages, including one threatening to get her fired. Ms. Gimenez never reported these communica- tions to McLane. At the time, McLane’s facility was secured by a badge-access entry system and a closed-circuit camera system. The company had a written policy prohibiting unauthorized entry and trained em- ployees annually on security procedures. About one year after Ms. Gimenez cut off contact, Joseph rented a car to drive to McLane’s Orlando facility and attack her. He wore his old McLane sweatshirt, a freezer suit, gloves, and sun- glasses to blend in with other employees. Joseph first tried to enter the facility through locked warehouse doors. When that failed, he waited outside until an employee used a badge-access entrance, then followed the employee inside. Once in the building, Joseph located Ms. Gimenez at her desk, doused her with gasoline, and set her on fire. He fled through an emergency exit. USCA11 Case: 24-12196 Document: 32-1 Date Filed: 05/05/2025 Page: 4 of 7
4 Opinion of the Court 24-12196
Joseph was arrested and pleaded guilty to attempted first-de- gree murder and arson causing serious injury. He was sentenced to fifteen years in prison followed by fifteen years of probation. He told investigators he targeted McLane because he knew Ms. Gimenez would be there without her family, and he “got lucky” when another employee opened the door. Ms. Gimenez sued McLane alleging (1) negligence and (2) loss of parental consortium under Florida law. Both sides moved for summary judgment. The District Court granted it to McLane, reasoning that: the record does not demonstrate that McLane could (or should) have known (or expected) that a “trig- gered” former employee might: (1) don an old uni- form in an effort to blend in; (2) rent a car to conceal his identity; (3) drive to McLane’s Tradeport ware- house; (4) wait for an opportunity to circumvent McLane’s security measures and annual employee trainings; (5) get “lucky”; (6) break into a warehouse that is generally locked and closed to the public in broad daylight; and (7) proceed to heinously attack a former intimate partner and current employee while she was working at her desk. Gimenez v. McLane Foodservice, Inc., 2024 WL 3346884, at *6 (M.D. Fla. June 10, 2024). Ms. Gimenez timely appeals. USCA11 Case: 24-12196 Document: 32-1 Date Filed: 05/05/2025 Page: 5 of 7
24-12196 Opinion of the Court 5
II. Discussion To prevail on her negligence claim, Ms. Gimenez must es- tablish that McLane owed her a legal duty, breached that duty, and that the breach both actually and proximately caused her injuries. See Stone v. United States, 373 F.3d 1129, 1130 (11th Cir. 2004). Alt- hough causation is typically a question of fact, summary judgment is appropriate when no reasonable jury could conclude that the de- fendant’s conduct foreseeably caused the injury. See McCain v. Fla. Power Corp., 593 So. 2d 500, 503–04 (Fla. 1992); Fed. R. Civ. P. 56. That is the case here. On this record, even if McLane owed Ms. Gimenez a duty and breached it—questions we do not decide—her claim fails at the causation stage. “Under Florida law, a ‘harm is proximate in a legal sense if prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omis- sion in question.’” Colon v. Twitter, Inc., 14 F.4th 1213, 1224 (11th Cir. 2021) (quoting Ruiz v. Tenet Hialeah Healthsystem, Inc., 260 So. 3d 977, 982 (Fla. 2018)). “Where a third party . . . has committed an intentional tort or criminal act causing the plaintiff’s injuries, ‘[t]he proper question is whether th[at] individual’s conduct is ‘so unu- sual, extraordinary, or bizarre (i.e., so unforeseeable) that the pol- icy of the law will relieve the [defendant] of any liability for negli- gently creating [the] dangerous situation.’” Id. (quoting Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105, 1006 (Fla. 2005)). Even accepting all of Ms. Gimenez’s allegations, the record contains no facts or inferences that McLane’s conduct proximately USCA11 Case: 24-12196 Document: 32-1 Date Filed: 05/05/2025 Page: 6 of 7
6 Opinion of the Court 24-12196
caused her harm.1 See Chirillo v. Granicz , 199 So. 3d 246, 252-53 (Fla. 2016) (holding that a judge can remove proximate causation from the fact-finder “where the evidence supports no more than a single reasonable inference” (quoting McCain, 593 So. 2d at 504)). Ms. Gimenez points to several asserted failures: McLane allowed for- mer employees to keep company uniforms, inadequately enforced badge-access procedures, failed to station security guards, did not monitor cameras in real time, and permitted doors to be propped open. But none of these lapses, if true, makes it foreseeable that a former employee would don a disguise, sneak inside, and set an employee on fire at her desk. Said differently, Ms.
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USCA11 Case: 24-12196 Document: 32-1 Date Filed: 05/05/2025 Page: 1 of 7
[DO NOT PUBLISH] In the United States Court of Appeals For the Eleventh Circuit
____________________
No. 24-12196 Non-Argument Calendar ____________________
MARILYS GIMENEZ, individually and as Parent and Natural Guardian of A.J.G., Plaintiff-Appellant, versus MCLANE COMPANY, INC., et al.,
Defendants,
MCLANE FOODSERVICE, INC., USCA11 Case: 24-12196 Document: 32-1 Date Filed: 05/05/2025 Page: 2 of 7
2 Opinion of the Court 24-12196
Defendant-Appellee.
Appeal from the United States District Court for the Middle District of Florida D.C. Docket No. 6:23-cv-01102-GAP-RMN ____________________
Before BRANCH, TJOFLAT, and ANDERSON, Circuit Judges. PER CURIAM: This case arises from a tragic and senseless act of violence. Marilys Gimenez was working a routine shift at McLane Foodser- vice when her former partner, Felix Joseph, unlawfully entered the facility and set her on fire. Her injuries were catastrophic. In the aftermath, Ms. Gimenez sued McLane for negligence. She alleged that inadequate security measures made the attack foreseeable, and that McLane breached its duty to protect her. The District Court disagreed and granted summary judgment for McLane. The question on appeal is not whether Ms. Gimenez suf- fered grievous harm—she did. Nor is it whether Joseph should be held accountable—he was criminally convicted and sentenced. The narrow issue is whether under Florida law, McLane is liable for Ms. Gimenez’s injuries. Because we find proximate causation lacking, we hold that it is not. We affirm. USCA11 Case: 24-12196 Document: 32-1 Date Filed: 05/05/2025 Page: 3 of 7
24-12196 Opinion of the Court 3
I. Facts Marilys Gimenez worked in customer service and payroll at McLane Foodservice’s Orlando facility. Her assailant, Felix Joseph, had previously worked as a truck driver for McLane but was termi- nated in 2019 for aggressive driving. In 2018, the two began an in- timate relationship that lasted about four months. They remained on amicable terms until October 2020. That October, Joseph began expressing anger over the breakup. By January 2021, Ms. Gimenez cut off all contact. Still, Joseph continued to send her messages, including one threatening to get her fired. Ms. Gimenez never reported these communica- tions to McLane. At the time, McLane’s facility was secured by a badge-access entry system and a closed-circuit camera system. The company had a written policy prohibiting unauthorized entry and trained em- ployees annually on security procedures. About one year after Ms. Gimenez cut off contact, Joseph rented a car to drive to McLane’s Orlando facility and attack her. He wore his old McLane sweatshirt, a freezer suit, gloves, and sun- glasses to blend in with other employees. Joseph first tried to enter the facility through locked warehouse doors. When that failed, he waited outside until an employee used a badge-access entrance, then followed the employee inside. Once in the building, Joseph located Ms. Gimenez at her desk, doused her with gasoline, and set her on fire. He fled through an emergency exit. USCA11 Case: 24-12196 Document: 32-1 Date Filed: 05/05/2025 Page: 4 of 7
4 Opinion of the Court 24-12196
Joseph was arrested and pleaded guilty to attempted first-de- gree murder and arson causing serious injury. He was sentenced to fifteen years in prison followed by fifteen years of probation. He told investigators he targeted McLane because he knew Ms. Gimenez would be there without her family, and he “got lucky” when another employee opened the door. Ms. Gimenez sued McLane alleging (1) negligence and (2) loss of parental consortium under Florida law. Both sides moved for summary judgment. The District Court granted it to McLane, reasoning that: the record does not demonstrate that McLane could (or should) have known (or expected) that a “trig- gered” former employee might: (1) don an old uni- form in an effort to blend in; (2) rent a car to conceal his identity; (3) drive to McLane’s Tradeport ware- house; (4) wait for an opportunity to circumvent McLane’s security measures and annual employee trainings; (5) get “lucky”; (6) break into a warehouse that is generally locked and closed to the public in broad daylight; and (7) proceed to heinously attack a former intimate partner and current employee while she was working at her desk. Gimenez v. McLane Foodservice, Inc., 2024 WL 3346884, at *6 (M.D. Fla. June 10, 2024). Ms. Gimenez timely appeals. USCA11 Case: 24-12196 Document: 32-1 Date Filed: 05/05/2025 Page: 5 of 7
24-12196 Opinion of the Court 5
II. Discussion To prevail on her negligence claim, Ms. Gimenez must es- tablish that McLane owed her a legal duty, breached that duty, and that the breach both actually and proximately caused her injuries. See Stone v. United States, 373 F.3d 1129, 1130 (11th Cir. 2004). Alt- hough causation is typically a question of fact, summary judgment is appropriate when no reasonable jury could conclude that the de- fendant’s conduct foreseeably caused the injury. See McCain v. Fla. Power Corp., 593 So. 2d 500, 503–04 (Fla. 1992); Fed. R. Civ. P. 56. That is the case here. On this record, even if McLane owed Ms. Gimenez a duty and breached it—questions we do not decide—her claim fails at the causation stage. “Under Florida law, a ‘harm is proximate in a legal sense if prudent human foresight would lead one to expect that similar harm is likely to be substantially caused by the specific act or omis- sion in question.’” Colon v. Twitter, Inc., 14 F.4th 1213, 1224 (11th Cir. 2021) (quoting Ruiz v. Tenet Hialeah Healthsystem, Inc., 260 So. 3d 977, 982 (Fla. 2018)). “Where a third party . . . has committed an intentional tort or criminal act causing the plaintiff’s injuries, ‘[t]he proper question is whether th[at] individual’s conduct is ‘so unu- sual, extraordinary, or bizarre (i.e., so unforeseeable) that the pol- icy of the law will relieve the [defendant] of any liability for negli- gently creating [the] dangerous situation.’” Id. (quoting Goldberg v. Fla. Power & Light Co., 899 So. 2d 1105, 1006 (Fla. 2005)). Even accepting all of Ms. Gimenez’s allegations, the record contains no facts or inferences that McLane’s conduct proximately USCA11 Case: 24-12196 Document: 32-1 Date Filed: 05/05/2025 Page: 6 of 7
6 Opinion of the Court 24-12196
caused her harm.1 See Chirillo v. Granicz , 199 So. 3d 246, 252-53 (Fla. 2016) (holding that a judge can remove proximate causation from the fact-finder “where the evidence supports no more than a single reasonable inference” (quoting McCain, 593 So. 2d at 504)). Ms. Gimenez points to several asserted failures: McLane allowed for- mer employees to keep company uniforms, inadequately enforced badge-access procedures, failed to station security guards, did not monitor cameras in real time, and permitted doors to be propped open. But none of these lapses, if true, makes it foreseeable that a former employee would don a disguise, sneak inside, and set an employee on fire at her desk. Said differently, Ms. Gimenez’s inju- ries were the result of a “freakish and improbable chain of events” that were “utterly unpredictable in light of common human expe- rience.” See McCain, 593 So.2d at 503; accord Las Olas Holding Co. v. Demella, 228 So. 3d 97, 106-07 (Fla. Dist. Ct. App. 2017). Consider the allegation that McLane was negligent in allow- ing former employees to keep their uniforms. No prudent mind would conclude that such a policy made it foreseeable that a for- mer employee would sneak in the facility and set a current em- ployee on fire. The same is true of the propped-open doors. One might plausibly argue that such a lapse creates a risk of trespass or theft. But the notion that it makes foreseeable a violent and calcu- lated attack of this nature stretches foreseeability far beyond its
1 At the summary judgment stage, we “view all evidence and make all reason-
able inferences in favor of” Ms. Gimenez. See Whatley v. CNA Ins. Cos., 189 F.3d 1310, 1313 (11th Cir. 1999). USCA11 Case: 24-12196 Document: 32-1 Date Filed: 05/05/2025 Page: 7 of 7
24-12196 Opinion of the Court 7
legal limits. So it goes for the remaining alleged breaches. Ulti- mately, Joseph’s deliberate decision to disguise himself, exploit an unanticipated opportunity, and commit a brutal and preplanned at- tack is exactly the sort of “unusual, extraordinary, [and] bizarre be- havior” that severs the causal chain as a matter of law. 2 See Colon, 14 F.4th at 1224 (quoting Goldberg, 899 So. 2d at 1116). No reason- able jury could find that McLane’s alleged breaches substantially and foreseeably caused the harm Ms. Gimenez suffered.3 III. Conclusion What happened to Ms. Gimenez is unspeakable. She was targeted in a place where she had every right to feel safe—her workplace—by someone she once trusted. But under Florida law, negligence liability does not extend to every imaginable harm. It reaches only those harms that were the foreseeable and substantial result of the defendant’s conduct. Because no reasonable jury could find that McLane’s alleged lapses made this brutal, calculated attack foreseeable, we affirm. AFFIRMED.
2 Ms. Gimenez’s loss-of-consortium claim is derivative of her negligence claim.
See Stone, 373 F.3d at 1132. Because the negligence claim fails, so does the loss- of-consortium claim. See id. 3 The District Court resolved this case mainly on the ground that McLane
lacked a duty. Because we resolve this appeal on causation, we need not and do not address whether Ms. Gimenez’s claim would also fail at the duty or breach stages.