Linda Capobianco of Stone & Capobianco represents a man who sued after he was violently attacked on the premises of a Florida company. Courtesy photo.

The Fourth District Court of Appeal Wednesday reversed a summary judgment in favor of a Florida marine equipment and repair company embroiled in a negligence lawsuit, finding the business could be found liable for two on-premises attacks that left a man with a broken neck, facial fractures and nerve damage.

The appellate panel analyzed case law that says property owners do not have a duty to protect an invitee from a criminal attack by a third party, unless that attack was reasonably foreseeable.

And in this case it was, the panel found.

The defendant Galley Maid Marine Products Inc. had argued it had no duty to plaintiff Jacob Bryan, who was drinking with owner Ernest Tumoszwicz and three other acquaintances after hours, because it claimed there was no way of foreseeing what would happen.

Bryan was attacked "suddenly and without provocation" after going to Galley Maid to see a tank Tumoszwicz had restored, according to the opinion, which said some of those present, including the attacker James Long, had used cocaine.

The first attack knocked out one of Bryan's teeth, and left him unconscious for about 17 minutes, while the second attack happened after he regained consciousness. No one called 911 because they were allegedly scared of Long, who was later convicted of aggravated battery and sentenced to prison.

In the civil suit, Okeechobee Circuit Judge Laurie E. Buchanan sided with Galley Maid. She described the attacks as morally "horrific," and commented, "Morally, it's extremely bothersome that nobody did anything." But the judge also concluded the incidents were not foreseeable.

"Quite frankly, the idea of somebody doing that the first time, let alone the second time, is pretty shocking," she said.

But that was the wrong move, according to the Fourth DCA, which found that although the first attack was a surprise, the second was a different story.

The panel also found the trial court decision left unresolved issues over whether the owner had a duty to call for help and provide first aid, something a defendant is required to do once he or she knows a person is endangered, ill or injured.

"Other than an unsuccessful attempt to sit Bryan up after the first attack, and helping him put his shirt back on after the second attack, no assistance was provided to Bryan," the opinion said.

Plaintiff's attorney Linda Capobianco of Stone & Capobianco in Stuart said she's never seen a case involving "such a blatant disregard for someone's welfare." She argued her client was "absolutely helpless," as he was on a rural side road in the middle of the night, his phone was broken, he had no car and couldn't walk.

"When defendants have reason to know that an invitee on their premises is in danger, is injured and helpless, they have to simply use common sense, and frankly, just human kindness, to pick up the phone and call 911," Capobianco said.

Both attacks were captured on video, according to Capobianco, who said the defendant left the plaintiff with his attacker at the end of the night.

"You could see where people were standing around drinking beers, laughing while he's laying on the ground unconscious," Capobianco said.

Defense attorneys Louis Reinstein and Jack Frost of Kelley Kronenberg in Fort Lauderdale did not immediately respond to a request for comment. In court, they disputed that Bryan was an invitee, arguing there was no "special relationship" between the parties, and therefore no duty to prevent what the defendant described as unforeseeable attacks.

But the Fourth DCA disagreed, highlighting that Bryan's affidavit said Long had taunted and threatened him between the two attacks, and that owner Tumoszwicz testified that he'd been concerned for Bryan's safety "throughout the entire evening."

Capobianco claimed her client is lucky to be able to walk, and is seeking at least $1 million in damages.

Fourth DCA Judge Alan O. Forst wrote the opinion, with Judges Cory Ciklin and Jonathan Gerber concurring.

Read the ruling:

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