Opinion
Case No. 96-3125
Opinion filed June 25, 1997.
An appeal from the circuit court for Duval County. L. Haldane Taylor, Judge.
Dwight Chamberlin of Ebbets, Armstrong Chamberlin, Daytona Beach, Attorney for Appellants.
Gary Pajcic and Robert J. Link of Pajcic Pajcic, P.A., Jacksonville, Attorneys for Appellees.
This cause is before us on appeal from an order denying Appellants' motion for new trial following a jury verdict in favor of Appellees in their premises liability suit. Appellants raise four issues on appeal, only one of which merits discussion.
Both prior to and during trial, Appellants requested that the jury verdict form include the intentional tortfeasor for purposes of apportioning fault under section 768.81, Florida Statutes. The trial court denied Appellants' requests based onFabre v. Martin, 623 So.2d 1182 (Fla. 1993), and the Fourth District's recent opinion in Slawson v. Fast Food Enterprises, 671 So.2d 255 (Fla. 4th DCA 1996). The jury subsequently found Appellants liable and awarded Appellees damages in the amount of $219,775.
In Wal-Mart Stores, Inc. v. McDonald, 676 So.2d 12 (Fla. 1st DCA), rev. granted, 687 So.2d 1304 (Fla. 1996), we held that intentional tortfeasors are not to be included within the concept of fault when determining a negligent party's percentage of liability under section 768.81, Florida Statutes. Accordingly, we hold that the trial court in this case did not err. In an abundance of caution, however, we certify the same questions of great public importance as those certified in McDonald:
IS AN ACTION ALLEGING THE NEGLIGENCE OF THE DEFENDANTS IN FAILING TO EMPLOY REASONABLE SECURITY MEASURES, WITH SAID OMISSION RESULTING IN AN INTENTIONAL, CRIMINAL ACT BEING PERPETRATED UPON THE PLAINTIFF BY A NON-PARTY ON PROPERTY CONTROLLED BY THE DEFENDANTS, AN "ACTION BASED UPON AN INTENTIONAL TORT" PURSUANT TO SECTION 768.81(4)(b), FLORIDA STATUTES (1993), SO THAT THE DOCTRINE OF JOINT AND SEVERAL LIABILITY APPLIES?
IN SUCH AN ACTION, IS IT REVERSIBLE ERROR FOR THE TRIAL COURT TO EXCLUDE AN INTENTIONAL, CRIMINAL NON-PARTY TORTFEASOR FROM THE VERDICT FORM?
The final judgment is AFFIRMED.
BOOTH and VAN NORTWICK, JJ., CONCUR; JOANOS, J., CONCURRING SPECIALLY WITH WRITTEN OPINION.
I concur in the affirmance of this case.
However, as to the issue pertaining to the denial of appellant's request to have the jury verdict form include the intentional tortfeasor for purposes of apportioning fault under section 768.81, Florida Statutes, I concur only because absent en banc consideration, we are bound by this court's ruling inWal-Mart Stores, Inc. v. McDonald, 676 So.2d 12 (Fla. 1st DCA),review granted, by Merrill Crossings Associates v. McDonald, 687 So.2d 1304 (Fla. 1996). My view is that the law on this issue should be in accord with that stated Stellas v. Alamo Rent-A-Car, Inc., 673 So.2d 940, 942-943 (Fla. 3d DCA), review granted, 683 So.2d 485 (Fla. 1996), and by Judge Ervin of our court in his concurring and dissenting opinion in Department of Corrections v. McGhee, 633 So.2d 1091, 1099-1101 (Fla. 1st DCA 1995). That view is that the fault of both negligent and intentional tortfeasors should be apportioned as a means of fairly distributing the loss, based upon the percentage of fault of each tortfeasor contributing to that loss. To interpret section 768.81, Florida Statutes, otherwise would appear to me to be unreasonable and in conflict with what appears to have been the legislature's intent to limit a negligent defendant's liability to that defendant's percentage of fault.
I concur in the majority's certification of the questions certified in McDonald.