$______ RECOVERY - PREMISES LIABILITY - NEGLIGENT SECURITY - UNAUTHORIZED 'NIGHT BAR' OPERATED IN LIQUOR STORE PARKING LOT - 31- YEAR-OLD MALE SHOT AND KILLED - WRONGFUL DEATH OF FATHER OF 3.

• Pages: 7-8

The jury found no negligence by the defendants and re-

turned a verdict in favor of the defendants.

REFERENCE

Brunetto, et al. vs. Hoffler, II, M.D., et al. Case no. 2018-

039218-CA-01; Judge Vivianne Del Rio, 07-22-22.

Attorney for plaintiff: Marc P. Kunen of The Ferraro

Law Firm, P.A. in Miami, FL. Attorney for defendant:

T. Michael Kennedy of Wicker Smith O’Hara McCoy &

Ford,P.A.inCoralGables,FL.

COMMENTARY

Following the verdict, the plaintiff filed a motion for new trial ar-

guing that the court precluded plaintiffs’ counsel from cross-exam-

ining the defendants’ expert with a threshold article authored by

Dr. Jorge Orbay, and subsequently precluded plaintiffs’ counsel

from refreshing another expert’s recollection with the same article.

The plaintiff maintained that there could be no dispute that Dr.

Orbay was authoritative in the field of orthopedic surgery of the

hand and, appropriately, the court ultimately found that Dr. Orbay

was authoritative. Notwithstanding the clear language of the stat-

ute, and the fact that Dr. Orbay was found to be authoritative, the

court ultimately precluded plaintiffs’ counsel from using the article

with the expert witnesses at trial which resulted in manifest

injustice to the plaintiffs.

Further, the plaintiff argued, defense counsel’s attacks on plain-

tiffs’ counsel during closing arguments resulted in irreparable prej-

udice to the plaintiffs. The plaintiff argued that defense counsel

attacked plaintiffs’ counsel as being “..incredibly disingenuous…”

and saying that “They selectively pick deceptive CAT scans to show

you …” The plaintiff asserted that the comments were intended to

impugn the integrity of plaintiffs’ counsel by suggesting that he

was being dishonest or deceptive. The plaintiff held that the totality

of the circumstances resulted in manifest injustice to plaintiff, citing

Carver v. Orange County, 444 So. 2d 452, 455 (Fla. 5th DCA 1983)

(holding that cumulative effect of individual trial errors deprived

the plaintiffs of a fair trial); McCloud v. Sherman Mobile Concrete

Co., 579 So. 2d 773, 774 (Fla. 2d DCA 1991) (holding plaintiff was

entitled to new trial).

The defendants opposed the plaintiffs’ motion arguing that neither

ground warranted a new trial. The defendants held that the court’s

rulings were sound and should not be disturbed. The defendants

contended that the court ruled correctly with regard to the plain-

tiffs’ attempt to cross-examine the defendants’ expert with an arti-

cle not recognized as authoritative by the witness. Absent the

requisite predicate of authoritativeness under section 90.706, it

would have been error for the court to permit plaintiffs’ counsel to

recite in front of the jury, or question the defendants’ expert about

the contents of this article, citing Call v. Tirone, 522 So. 2d 533, 534

(Fla. 3d DCA 1988); Myron By and Through Brock v. Doctors Gen.

Hosp., 704 So. 2d 1083, 1092 (Fla. 4th DCA 1997); Brown v. Crane,

Phillips, Thomas & Metts, P.A. 585 So. 2d 947, 948 (Fla. 2d DCA

1991). Accordingly, the court correctly sustained the defense objec-

tion, and an alternate ruling would have resulted in reversible

error.

The plaintiffs also took issue with their inability to “refresh the rec-

ollection” of another witness during cross-examination. The defen-

dants maintained that the plaintiffs did not provide any citation to

the record on this point; however, it was off base per Section

90.613, Florida Statutes which addresses refreshing the memory of

a witness. The statute applies where a witness relies on a writing to

refresh his or her recollection in aid of testimony. When that hap-

pens, the adverse party is entitled to cross-examine the witness

with the writing. This statute had no application to the witness’ tes-

timony as he did not reference or rely on the disputed article to

refresh his recollection in connection with any testimony.

Further, the defendants argued that defense counsel’s comments

during closing argument were appropriate comments on the evi-

dence and did not constitute improper attacks on plaintiffs’ counsel.

The defendants argued that, based on confusing testimony and the

optical illusion created by the x-ray when presented to a layperson,

it was completely appropriate for defense counsel to clarify points

during closing argument per Murphy v. Int’l Robotic Sys., Inc. 766

So. 2d 1010, 1028 (Fla. 2000) (“The purpose of closing argument is

to help the jury understand the issues in a case by ‘applying the ev-

idence to the law applicable to the case.’ Attorneys should be af-

forded great latitude in presenting closing argument....”) (quoting

Hill v. State, 515 So. 2d 176, 178 (Fla. 1987)).

$4,550,000 RECOVERY – PREMISES LIABILITY – NEGLIGENT SECURITY –

UNAUTHORIZED “NIGHT BAR” OPERATED IN LIQUOR STORE PARKING LOT – 31-

YEAR-OLD MALE SHOT AND KILLED – WRONGFUL DEATH OF FATHER OF 3.

Broward County, FL

This negligent security action was brought by the

mother of the 31-year-old Trabis Ward, a former

Tennessee State University football star who died

as a result of a shooting in the parking lot of the

defendant liquor store. The defendants also

included the owners and managers of the

shopping plaza where the shooting occurred. The

plaintiff claimed that the defendants were aware

of unauthorized late-night activities in the parking

lot of the premises, yet failed to prevent the

infractions or implement adequate security there.

The defendants argued that the decedent was

targeted for the murder and the crime could not

have been foreseen or prevented by the

defendants.

The Lauderdale Lakes, Florida, shopping plaza in ques-

tion was owned by the defendant American Federated

Title Corp. and managed by the co-defendant Fitzger-

ald Group, LLC. The plaza was known for one tenant: the

defendant J&L Liquors (Aquanysa 1, LLC). While J&L Li-

quors was supposed to be simply a retail liquor store, the

plaintiff alleged that everyone in the area knew that the

liquor store and plaza effectively operated as late night

bar, with people buying alcohol from the liquor store

and partying in the parking lot at night.

Police reported, at the time, that the decedent arrived

at the shopping plaza in a party bus on October 10,

2020. At approximately midnight, an unknown person

shot the decedent while he was in the parking lot. He

SUMMARIES WITH TRIAL ANALYSIS 7

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