May 1, 2018

Clyde team wins affirmation in Florida wrongful death case

A team from Clyde & Co’s Miami office secured an affirmation for an insurance company client’s insured in a wrongful death case alleging negligent security. The team, comprising partner Barry Davis, senior counsel Carly Celmer and of counsel Stephanie Kolman, successfully argued for the defendants in an appeal of Cruz v. Nebraska Food Market Inc. et al. before Florida’s 2nd District Court of Appeal.

The appellate court issued a per curiam affirmance (PCA) – an affirmation without explanation or a full opinion -- of the decision by 13th Judicial Circuit Court of Hillsborough County, Florida, finding that the defendants, Nebraska Food Market Inc. and Muneer Investments Inc., were not liable for the injuries or subsequent death of the plaintiff. This decision is significant because Florida courts generally have tended to favor plaintiffs in civil liability actions. A PCA is a particularly strong form of judicial affirmation that is not subject to review by the state supreme court.

In the underlying lawsuit, plaintiff Tomas Cruz alleged that Nebraska Food Market’s negligent security led to his tragic injuries following an armed robbery at the convenience store. Cruz observed three men with guns entering the store and he went to a nearby diner to contact police. Cruz then followed the robbers to a parking lot, brandishing a knife. One of the robbers shot him, rendering Cruz a quadriplegic. Cruz later died, and his estate appealed the trial court decision.

The circuit court found that Cruz’s injuries were preventable because he “chose to voluntarily return to the Nebraska Food Market from a place of safety and knowingly put himself back into harm’s way.” The Clyde & Co team, moving for summary judgment in the appellate court, argued that Cruz’s deliberate and voluntary act was “the direct and proximate cause of his injuries, constituting an independent, efficient intervening cause that absolved the appellees of any negligence in this case as a matter of law.”