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March 18, 2026 Get Citation Alerts Download PDF Add Note

Daniel Varone v. Publix Super Markets, Inc.

District Court of Appeal of Florida

• Citations: None known
• Docket Number: 4D2024-1428

• Disposition: Affirmed

• Opinion

• Authorities (33)

• Cited By (0)

• Summaries (0)

• Similar Cases (5.6K)

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Disposition

Affirmed

Combined Opinion

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

DANIEL VARONE and MELISSA VARONE,
as Co-Personal Representatives of the ESTATE OF S.V., deceased, and
DANIEL VARONE and DAVID VARONE, as Co-Personal Representatives
of the ESTATE OF LITHA G. VARONE,
Appellants,

v.

PUBLIX SUPER MARKETS, INC.,
Appellee.

No. 4D2024-1428

[March 18, 2026]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; G. Joseph Curley Jr., Judge; L.T. Case No. 50-2022-CA-
010290-XXXX-MB.

Bryan S. Gowdy of Creed & Gowdy, P.A., Jacksonville, and Sean C.
Domnick and Gregory M. Yaffa of Rafferty Domnick Cunningham & Yaffa,
Palm Beach Gardens, for appellants.

Jason B. Gonzalez, Alan Lawson, Jessica Slatten, Mathew D. Gutierrez,
and Robert Minchin III of Lawson Huck Gonzalez, Tallahassee, for
appellee.

Tiffany Roddenberry of Holland & Knight LLP, Tallahassee, and William
W. Large of Florida Justice Reform Institute, Tallahassee, for Amicus
Curiae Florida Justice Reform Institute in support of appellee.

CIKLIN, J.

We are called to confront a case arising from a brutal act of random
violence. Two people were tragically shot and killed inside the Publix at
the Crossroads on June 10, 2021, and the co-personal representatives of
their estates (the “plaintiffs”) filed suit against Publix Super Markets, Inc.
(“Publix”). The plaintiffs appeal a final summary judgment for Publix,
holding the store owed no legal duty to protect against the criminal acts.
We affirm, and we write to address the applicable case law.
In the proceedings below, Publix admitted that it managed, controlled,
possessed, and operated the subject store, and it conceded that it had a
duty to protect business invitees from “reasonably foreseeable” criminal
attacks on third parties. Publix moved for summary judgment, however,
arguing that, as a matter of law, the gunman’s acts were unforeseeable,
and that it did not have a duty to protect against those acts because no
prior, similar criminal acts had occurred in the two years before the
incident. Publix presented evidence reflecting that reported incidents
within the store from 2016 until the incident were minimal and did not
involve battery against a person.

The plaintiffs opposed the motion, arguing that Publix owed a legal duty
to protect against the criminal acts because those acts were foreseeable.
In support, the plaintiffs relied on evidence showing a national increase in
active shooting events beginning in the 2010s, including statistics of 448
gun “incidents” and 137 gun deaths in national grocery store chains from
January 1, 2020 to May 14, 2022, including 5 deaths at Publix stores.
The plaintiffs also pointed to the fact that the FBI and Homeland Security
issued videos on active shooter response, and, in 2016, Publix had
implemented mandatory annual active shooter training for most
associates of all Publix locations.

The trial court granted summary judgment, relying on Relyea v. State,
385 So. 2d 1378 (Fla. 4th DCA 1980), and limiting its ruling to a
determination that Publix did not owe a legal duty to protect against the
criminal attack at issue. The trial court rejected the plaintiffs’ argument
that Relyea is no longer good law, and distinguished the case law on which
the plaintiffs relied, primarily Holiday Inns, Inc. v. Shelburne, 576 So. 2d
322 (Fla. 4th DCA 1991), disapproved of on other grounds by Angrand v.
Key, 657 So. 2d 1146 (Fla. 1995). We affirm.

In the discussion that follows, we address negligence and duty
generally, and we further clarify the viability and proper application of the
above-cited cases and/or the principles discussed therein to questions of
foreseeability in the context of duty versus foreseeability and in the context
of breach and causation – two similar and overlapping but nevertheless
different analyses. In the case at hand, only the element of duty is at
issue.

The standard of review for an order granting summary judgment is de
novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,
130 (Fla. 2000). Likewise, “[t]he determination of duty, as an element of
negligence, is a question of law . . . and is therefore subject to de novo
review[.]” Chirillo v. Granicz, 199 So. 3d 246, 248 (Fla. 2016).

2
I. Negligence & Duty Generally

“To state a claim for negligence, the plaintiff must allege: (1) a duty
recognized by law; (2) breach of the duty; (3) proximate causation; and (4)
damages.” Saunders v. Baseball Factory, Inc., 361 So. 3d 365, 369 (Fla.
4th DCA 2023). The Florida Supreme Court’s opinion in McCain v. Florida
Power Corp., 593 So. 2d 500 (Fla. 1992), is “the starting point for any duty
analysis under Florida’s negligence law.” Chirillo, 199 So. 3d at 249
(quoting United States v. Stevens, 994 So. 2d 1062, 1066 n.2 (Fla. 2008)).

“The duty element of negligence focuses on whether the defendant’s
conduct foreseeably created a broader ‘zone of risk’ that poses a general
threat of harm to others.” McCain, 593 So. 2d at 502.

“To determine whether the risk of injury to a plaintiff is
foreseeable under the concept of duty, courts must look at
whether it was objectively reasonable to expect the specific
danger causing the plaintiff’s injury, not simply whether it was
within the realm of any conceivable possibility.” Grieco v.
Daiho Sangyo, Inc., 344 So. 3d 11, 23 (Fla. 4th DCA 2022). A
legal duty does not exist merely because the harm in question
was foreseeable—instead, the defendant’s conduct must
“create” the risk. Aguila v. Hilton, Inc., 878 So. 2d 392, 396
(Fla. 1st DCA 2004). In other words, a duty requires one to
be in a position to “control the risk.” Surloff v. Regions Bank,
179 So. 3d 472, 476 (Fla. 4th DCA 2015).

Saunders, 361 So. 3d at 369.

Foreseeability may be relevant to both the element of duty (a legal
question) and the element of proximate causation (a question of fact).
McCain, 593 So. 2d at 502. “[F]oreseeability relates to duty and proximate
causation in different ways and to different ends.” Id. In McCain, the
Florida Supreme Court cautioned against the “temptation . . . to merge the
two elements into a single hybrid ‘foreseeability’ analysis, or to otherwise
blur the distinctions between them. A review of both precedent and public
policy convinces us that such blurring would be incorrect, even though it
often will yield the correct result.” Id.

The duty element of negligence focuses on whether the
defendant’s conduct foreseeably created a broader “zone of
risk” . . . . The proximate causation element, on the other
hand, is concerned with whether and to what extent the

3
defendant’s conduct foreseeably and substantially caused the
specific injury that actually occurred. In other words, the
former is a minimal threshold legal requirement for opening
the courthouse doors, whereas the latter is part of the much
more specific factual requirement that must be proved to win
the case once the courthouse doors are open. As is obvious,
a defendant might be under a legal duty of care to a specific
plaintiff, but still not be liable for negligence because
proximate causation cannot be proven.

It might seem theoretically more appealing to confine all
questions of foreseeability within either the element of duty or
the element of proximate causation. However, precedent,
public policy, and common sense dictate that this is not
possible. Foreseeability clearly is crucial in defining the scope
of the general duty placed on every person to avoid negligent
acts or omissions. Florida, like other jurisdictions, recognizes
that a legal duty will arise whenever a human endeavor
creates a generalized and foreseeable risk of harming others.
...

....

Unlike in the “duty” context, the question of foreseeability
as it relates to proximate causation generally must be left to
the fact-finder to resolve. . . .

We believe the district court below erred in that it confused
the duty and proximate causation elements, resulting in a
mistaken assumption that Florida Power’s duty was to foresee
the specific sequence of events that led to McCain’s injury, in
light of the precautionary measures the company already had
taken. This approach in effect allowed the duty element to
subsume the question of proximate causation, with the result
that the district court improperly attempted to resolve on
appeal a factual question that should have been left with the
jury. As to duty, the proper inquiry for the reviewing appellate
court is whether the defendant’s conduct created a foreseeable
zone of risk, not whether the defendant could foresee the
specific injury that actually occurred.

Id. at 502-04 (citation and footnotes omitted).

4
“[A] person or other entity generally has no duty to take precautions to
protect another against criminal acts of third parties . . . .” Gross v. Fam.
Servs. Agency, Inc., 716 So. 2d 337, 338 (Fla. 4th DCA 1998), approved
sub nom. Nova Se. Univ., Inc. v. Gross, 758 So. 2d 86 (Fla. 2000). This is
because “under ordinary circumstances it may reasonably be assumed
that no one will violate the criminal law.” Saunders, 361 So. 3d at 369
(quoting Restatement (Second) of Torts § 302B cmt. d (Am. Law Inst. 1965)).

“One of the limited exceptions to the general ‘no duty’ rule is that a duty
arises when the defendant has a ‘special relationship’ with the plaintiff,”
such as businesses toward their customers. Id. at 370 (quoting Knight v.
Merhige, 133 So. 3d 1140, 1145 (Fla. 4th DCA 2014)). Likewise, an
exception may arise when the defendant is in actual or constructive control
of the premises. Id. A premises owner/operator owes to a business invitee
a duty to guard against subjecting the invitee to dangers that the
owner/operator may have reasonably foreseen, including a criminal
assault by a third party. Fernandez v. Miami Jai-Alai, Inc., 386 So. 2d 4,
5 (Fla. 3d DCA 1980).

“The question is whether it was objectively reasonable to expect the
danger causing [the plaintiff’s] injury, not whether it was within the realm
of any conceivable possibility. Foreseeability must mean something more
than awareness of the remote possibility . . . .” Saunders, 361 So. 3d at
371 (underlined emphasis added). “It is incumbent upon the courts to
place limits on foreseeability, lest all remote possibilities be interpreted as
foreseeable in the legal sense.” Las Olas Holding Co. v. Demella, 228 So.
3d 97, 105 (Fla. 4th DCA 2017) (quoting Fla. Power & Light Co. v. Macias,
507 So. 2d 1113, 1115 (Fla. 3d DCA 1987)).

The principles discussed above are all well-established. The dispute
presented by the parties herein, however, involves the applicability of
Relyea, 385 So. 2d 1378, and, more specifically, whether it remains good
law in light of Shelburne, 576 So. 2d 322. As discussed in the sections
that follow, Relyea remains good law. In this case, applying Relyea
compels the result that Publix had no legal duty to protect against the type
of criminal conduct which occurred here.

II. Relyea v. State, 385 So. 2d 1378 (Fla. 4th DCA 1980)

Relyea involved consolidated wrongful death actions following the
killing of two students who were abducted while walking to their car from
a class in an outlying area of the FAU campus. Relyea, 385 So. 2d at
1379-80. After a hung jury resulted in a mistrial, the trial court granted

5
renewed motions for judgment on the pleadings and for directed verdict in
favor of the defendants. Id. at 1380.

On appeal, the plaintiffs argued that FAU had a mandatory duty to
provide reasonable security for all persons on campus, particularly
students. Id. In affirming, we explained that the other defendants were
sovereignly immune, and the trial court properly entered judgment in favor
of the insurance company “because no cause of action was alleged or
proved”:

In order to impose a duty upon a landowner to protect an
invitee from criminal acts of a third person a plaintiff, invitee,
must allege and prove that the landowner had actual or
constructive knowledge of prior, similar criminal acts
committed upon invitees. The landowner is not bound to
anticipate criminal activities of third persons where, as here,
the wrongdoers were complete strangers to the landowner and
to the victims, and where the incident occurred precipitously.
Appellants simply failed to allege or prove that any prior
assaults upon persons had been committed in the area of the
abduction and murder, or for that matter, anywhere on the
campus. In fact, the proof showed there had not been one
serious crime against a person since the school was founded
in 1963. The reported incidents involved minor larcenies from
automobiles and school buildings, hit and run complaints for
minor automobile damage, and miscellaneous incidents such
as malicious mischief. These facts do not give rise to the
foreseeability of violent assaults which, in turn, may give rise
to a duty to protect.

Id. at 1382-83 (emphasis added) (citations omitted); see also Salerno v.
Hart Fin. Corp., 521 So. 2d 234, 235 (Fla. 4th DCA 1988) (to establish a
duty to protect against reasonably foreseeable criminal conduct, “tenant
must prove that the landlord has knowledge of prior similar criminal
conduct occurring on the premises”).

III. Holiday Inns, Inc. v. Shelburne, 576 So. 2d 322 (Fla. 4th DCA
1991)

We revisited Relyea in Shelburne. In Shelburne, the hotel’s security
guard prevented a patron from parking in the hotel parking lot, so the
patron parked in an adjacent lot and proceeded to drink with others at a
bar inside the hotel. 576 So. 2d at 324. While returning to their vehicles,
a fight erupted among the bar patrons, and three people were shot. Id. In

6
the lawsuit that followed against the hotel, the jury returned verdicts for
the plaintiffs. Id.

On appeal, we explained the duty of care of a “proprietor of a place of
public entertainment . . . to maintain the premises in a reasonably safe
condition commensurate with the activities conducted thereon,” and that
“the proprietor of a bar or saloon is bound to use every reasonable effort
to maintain order among the patrons, employees, or those who come upon
the premises and are likely to produce disorder to the injury or
inconvenience of patrons.” Id. at 325. The defendants argued that the
plaintiffs failed to prove that the defendants had “actual or constructive
knowledge of prior, similar criminal acts against invitees on their property,”
and that the defendants were not bound to anticipate the criminal act
where the wrongdoer was unknown to them and the act occurred
precipitously and off the defendants’ property. Id. (emphasis in original).
We rejected this argument, explaining:

Appellants rely upon this line of cases, specifically Relyea,
Worth and Gottschalk, for the proposition that a landowner
must have knowledge of prior, similar criminal acts in order
to impose a duty to protect invitees from criminal acts of a
third person. However, since these cases were decided, the
Florida Supreme Court has held differently. Hall v. Billy
Jack’s, Inc., 458 So. 2d 760 (Fla. 1984); Allen v. Babrab, Inc.,
438 So. 2d 356 (Fla. 1983); Stevens v. Jefferson, 436 So. 2d
33 (Fla. 1983).

Id. 1

Shelburne went on to describe the three Florida Supreme Court cases.
In Stevens, a bar patron was shot and killed, and his widow sued. 436 So.
2d at 34. She showed numerous fights and shootings had occurred in the
bar, the owner had failed to train or equip employees to maintain order,
and no security was on duty, but she did not allege that the owner knew
of any dangerous propensities of the assailant. Id. The supreme court

1 See Worth v. Stahl, 388 So. 2d 340, 341 (Fla. 4th DCA 1980) (affirming summary

judgment for tavern owner where plaintiff presented no proof that owner knew or
should have known of the assailant’s violent character); Gottschalk v. Smith, 334
So. 2d 102, 103 (Fla. 3d DCA 1976) (where fight erupted between gas station
customers, holding trial court should have granted directed verdict in gas station
operator’s favor because there was no evidence operator knew or could have
known of or anticipated attack).

7
rejected the owner’s argument that the widow could not prevail because of
this deficit. Id.

[S]pecific knowledge of a dangerous individual is not the
exclusive method of proving foreseeability. It can be shown
by proving that a proprietor knew or should have known of a
dangerous condition on his premises that was likely to cause
harm to a patron.

To affix liability against a tavern owner for injuries to patrons
intentionally inflicted by third parties, a risk of harm to his
patrons must be reasonably foreseeable, and the weight of
authority, both in this state and elsewhere, supports a
standard of reasonable foreseeability. Although knowledge of
a particular assailant’s propensity for violence is often found
to be evidence of foreseeability in these cases, we reject the
contention advanced by amicus curiae here that proof of
foreseeability should be limited by law to evidence of actual or
constructive knowledge of a particular assailant’s propensity
for violence. A tavern owner’s actual or constructive
knowledge, based upon past experience, that there is a
likelihood of disorderly conduct by third persons in general
which may endanger the safety of his patrons is also sufficient
to establish foreseeability.

....

It is incumbent upon the plaintiff to prove legal causation.
Mrs. Jefferson met her burden by showing that the bar was a
“rough” place with a history of fights and gunplay and that the
owner had terminated all security service and had left the
premises in the charge of a female employee who could not
maintain order. Under these facts a jury could determine that
a foreseeable risk of harm to patrons existed, that the risk was
either created or tolerated by Stevens, that he could have
remedied the danger but failed to do so, and that because of
that failure to perform his duties Jefferson was killed.

Id. at 34-35 (citations omitted).

Next, Shelburne described Allen. In Allen, an assailant in a parking lot
of a club threw a glass at the plaintiff and blinded her in one eye. 438 So.
2d at 357. The district court reversed and remanded for entry of judgment
for the club owner based on the absence of evidence that the assailant had

8
ever created a disturbance at or near the club. Id. The district court also
noted the unexpected nature of the attack. Id. The supreme court
quashed this decision, pointing to Stevens and explaining that a tavern
owner need not have known of the dangerous propensities of the specific
assailant, but rather that knowledge could be shown by proof that “based
on past experience, a proprietor knew of or should have recognized the
likelihood of disorderly conduct by third persons in general which might
endanger the safety of the proprietor’s patrons. Foreseeability of an
intervening cause is a question for the trier of fact.” Id. The supreme court
noted that the district court had relied on Relyea, among other cases, but
the supreme court did not denounce or disapprove of Relyea. Id.

Third, Shelburne addressed Hall. In Hall, a patron was assaulted by
another patron inside of a lounge while watching a pool game. 458 So. 2d
at 761. A jury found for the plaintiff and the Second District reversed
because no evidence supported that the lounge knew or should have
known that the assailant would attack without provocation. Id. The
supreme court disagreed, again pointed to Stevens, and explained:

A dangerous condition may be indicated if, according to past
experience (i.e., reputation of the tavern), there is a likelihood
of disorderly conduct by third persons in general which might
endanger the safety of patrons or if security staffing is
inadequate. These indicia are not exhaustive. If the lounge
management knew or should have known of a general or
specific risk to Hall and failed to take reasonable steps to
guard against that risk and if, because of that failure, Hall was
injured, Billy Jack’s may be shown to have breached its duty
and may be held financially responsible for Hall’s injuries.
The question of foreseeability is for the trier of fact.

Hall, 458 So. 2d at 762.

After summarizing these cases, the supreme court explained that the
failure to produce evidence of the “particular risk involved” was not
dispositive:

As illustrated by these three supreme court cases, appellants’
argument that they were entitled to a directed verdict because
appellees failed to produce evidence of the particular risk
involved is without merit. The cases cited in support of this
argument, Relyea, Gottschalk, Gilday, and Worth, all were
decided before Stevens, Allen, and Hall and are not in accord
with those cases. Therefore, the conflicting evidence of the

9
Rodeo Bar’s inadequate security and fifty-eight police incident
reports of problems at the Rodeo Bar, including crimes against
persons within the past eighteen months, provided a basis for
a finding of foreseeability and precluded a directed verdict.

Shelburne, 576 So. 2d at 326–27.

IV. Reconciling Relyea with Stevens, Allen, Hall, and Shelburne

The primary question presented by the parties is whether Relyea is still
good precedent insofar as it holds that, “to impose a duty upon a
landowner to protect an invitee from criminal acts of a third person a
plaintiff, invitee, must allege and prove that the landowner had actual or
constructive knowledge of prior, similar criminal acts committed upon
invitees.” Relyea, 385 So. 2d at 1383 (emphasis added).

We hold that Relyea remains good law, as it has not been reviewed en
banc or overruled by the Florida Supreme Court. See Pardo v. State, 596
So. 2d 665, 666 (Fla. 1992) (“[T]he decisions of the district courts of appeal
represent the law of Florida unless and until they are overruled by this
Court.” (quoting Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980))); Fox v.
Fox, 262 So. 3d 789, 792 (Fla. 4th DCA 2018) (reviewing en banc because
“[a] panel of our court has no authority to overrule or recede from our
precedent on the same legal issue”).

Specifically, Relyea’s holding requiring a showing of “prior, similar
criminal acts committed upon invitees” is not inconsistent with Stevens,
Allen, and Hall. In those cases, the supreme court did not reject Relyea’s
holding that an owner has no duty to protect against a sudden attack that
the owner has no reason to anticipate or that a plaintiff in such a case
must allege and prove that the owner had actual or constructive knowledge
of prior, similar criminal acts. Rather, the supreme court rejected the
requirement that an owner have “knowledge of a particular assailant’s
propensity for violence,” and instead adopted the holding that “[a] tavern
owner’s actual or constructive knowledge, based upon past experience,
that there is a likelihood of disorderly conduct by third persons in general
which may endanger the safety of his patrons is also sufficient to establish
foreseeability.” See Stevens, 436 So. 2d at 35 (emphasis added); accord
Allen, 438 So. 2d at 357; Hall, 458 So. 2d at 761-62. Consistently with
Stevens, Allen, and Hall, Relyea holds that constructive or actual
knowledge may be based on prior, similar acts – i.e., past experience – not
exclusively on knowledge of the particular attacker’s violent propensity.
Foreseeability, as it bears on duty, arises from a landowner’s knowledge of

10
prior similar conduct, not from the unforeseeable, isolated act of a
particular assailant.

Moreover, Relyea is distinguishable from and not displaced by Stevens,
Allen, and Hall because, in relevant part, Relyea addresses foreseeability
within the duty element of negligence. See Relyea, 385 So. 2d at 1383
(“[T]here being no duty to protect from the type of conduct which occurred
here, the trial court correctly entered judgment for the insurance
company.”). By contrast, in addition to duty, Stevens, Allen, and Hall each
address foreseeability as it relates or potentially relates to causation. See
Stevens, 436 So. 2d at 35; Allen, 438 So. 2d at 357-58; Hall, 458 So. 2d at
762. As discussed, the foreseeability inquiry within these elements is
different. See McCain, 593 So. 2d at 502 (holding “duty element . . .
focuses on whether the defendant’s conduct foreseeably created a broader
‘zone of risk’” whereas proximate causation element concerns “whether
and to what extent the defendant’s conduct foreseeably and substantially
caused the specific” resulting injury). The foreseeability analyses are not
indiscriminately interchangeable.

Post-Shelburne, we and other courts have continued to look to a
defendant’s knowledge of prior, similar acts in determining whether a duty
exists, further demonstrating that Relyea remains good law. See, e.g.,
Dama Holding LLC v. Guelmes, No. 3D24-0684, 2025 WL 3466840, at *2
(Fla. 3d DCA Dec. 3, 2025) (“[A] landowner does owe a duty to ‘protect an
invitee from criminal acts of a third person,’ where the invitee proves ‘that
the landowner had actual or constructive knowledge of prior, similar
criminal acts committed upon invitees.’” (quoting Medina v. 187th St.
Apartments, Ltd., 405 So. 2d 485, 486 (Fla. 3d DCA 1981))); Saunders, 361
So. 3d at 370 (“Baseball Factory’s operation of the baseball tournament
did not create a foreseeable zone of risk that a physical altercation would
occur between a player and an umpire. Saunders did not allege that the
player had a known history of violence or that any prior incidents of
violence had occurred at these tournaments.” (footnote omitted)); Bryan v.
Galley Maid Marine Prods., Inc., 287 So. 3d 1281, 1286 (Fla. 4th DCA 2020)
(quoting Relyea and determining that third party’s first attack on invitee
was not reasonably foreseeable so as to impose duty where there was no
evidence that landowner knew of third party’s criminal history or any
dangerous propensities); T.W. v. Regal Trace, Ltd., 908 So. 2d 499, 504
(Fla. 4th DCA 2005) (“[F]or the duty regarding third party criminal acts to
arise, it must be proven that the landlord has knowledge of prior similar
criminal conduct.”); Menendez v. The Palms W. Condo. Ass’n, 736 So. 2d
58, 61 (Fla. 1st DCA 1999) (“To impose such a duty, the tenant must allege
and prove that the landlord had actual or constructive knowledge of prior
similar acts committed on invitees on the premises.”).

11
While Shelburne wrongly characterized Relyea, we need not recede
from Relyea at this juncture. Shelburne correctly relied upon the factually-
similar cases of Stevens, Allen and Hall to hold that the conflicting evidence
of the bar’s inadequate security and fifty-eight police incident reports of
problems at the bar, including crimes against persons within the past
eighteen months, provided a basis for a finding of foreseeability and
precluded a directed verdict. Shelburne, 576 So. 2d at 326. Like Stevens,
Allen, and Hall, Shelburne involved a venue with a history of violence or
crimes against persons, though not necessarily knowledge of the violent
propensity of the particular assailant. While the cases certainly overlap
regarding a tavern owner’s duty and other premises liability cases, courts
treat tavern cases differently. See, e.g., Burns Int’l Sec. Servs. Inc. of Fla.
v. Philadelphia Indem. Ins. Co., 899 So. 2d 361, 363-64 (Fla. 4th DCA 2005)
(placing “cases which involve a landlord, operator of land, or landowner
being sued, based upon . . . a criminal attack by a third party” in a different
category than “cases brought against the operators of bars for injuries
sustained during criminal attacks in or around the bar”). In the context
of this case, Relyea controls.

V. This Case

The general framework for determination of whether a duty exists
confirms no duty existed here. The “zone of risk” created by Publix is
effectively limited to the fact that it places its customers within a confined
space. Publix has a duty to guard against criminal attacks by third parties
only insofar as those attacks are reasonably foreseeable. Here, no evidence
was presented of prior batteries against a person, let alone shootings,
within the Publix at the Crossroads. As in Relyea, Publix had no legal
duty to anticipate the shooter’s criminal activity where the shooter was a
stranger to both Publix and the victims, and where the attack occurred
precipitously. 2 While a shooting remained within the realm of a
conceivable possibility, it was not objectively reasonable for Publix to
expect the subject attack. See Saunders, 361 So. 3d at 371. There is
simply insufficient evidence of foreseeability to establish a duty here. See
Las Olas Holding Co., 228 So. 3d at 105 (“It is incumbent upon the courts

2 We further note that the outcome would not change if, as the plaintiffs urge,

Relyea had been displaced by Stevens, Allen, and Hall. Applying the
Stevens/Allen/Hall reasoning, evidence of actual or constructive knowledge
“based upon past experience” of a “likelihood” of disorderly conduct that might
endanger patrons can establish such a duty. Here, no evidence was presented of
any “past experience” of a shooting or any violence upon customers at the Publix
at the Crossroads so as to give rise to a “likelihood” that such conduct may occur.

12
to place limits on foreseeability, lest all remote possibilities be interpreted
as foreseeable in the legal sense.” (quoting Macias, 507 So. 2d at 1115)).

The plaintiffs rely on Publix’s adoption of active shooting training for
employees and nationwide statistics of shootings as evidence of
foreseeability. These arguments fail. Publix’s active shooter training did
not create a foreseeable zone of risk; it merely showed that Publix was
aware of the possibility of an active shooter event somewhere at one of its
stores across the country at some point. Second, nationwide statistics of
shootings do not establish that it was objectively reasonable for Publix to
expect the specific danger of a random act of gun violence at this store.
While Relyea does not require allegations that prior misconduct occurred
in the exact place of the subject attack in order to prove knowledge, see
Eichenbaum v. Rossland Real Est., Ltd., 502 So. 2d 1333, 1334 (Fla. 4th
DCA 1987), we are not aware of any factually-similar Florida precedent
permitting a showing of knowledge based on events that did not even occur
within the same city. Accordingly, without more, the evidence relied upon
by the plaintiffs cannot support the existence of a legal duty.

In sum, while events giving rise to this case are undeniably tragic, the
law imposed no duty on Publix to protect against this unforeseeable
criminal act. We affirm the final summary judgment order.

Affirmed.

SHAW, J., concurs.
LEVINE, J., concurs specially with opinion.

LEVINE, J., concurring specially.

I fully concur with the majority opinion and the determination that
Relyea v. State, 385 So. 2d 1378 (Fla. 4th DCA 1980), controls. I write
only to discuss one facet of the potential unintended consequences of
appellants’ argument.

Appellants argue that the tragic shooting, that is the basis of this
litigation, was reasonably foreseeable to appellee and, consequently, a
duty was created. Appellants allege that the incident was reasonably
foreseeable to appellee by the creation of active shooter training, a
generalized awareness of the risk of an active shooter, and the generalized
increase in gun violence at large, specifically in grocery stores. If that alone
would make the incident of gun violence reasonably foreseeable, then it
would follow that all stores—large or small—would be required to follow
the same “duties” as appellants suggest we adopt.

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However, appellants contend in their briefs, as well as at oral argument,
that any foreseeability, and any resulting duty, would be generally limited
only to larger entities like appellee. 3 But how could one craft such a
limitation? Would not foreseeability, consequently, also be applicable to
all stores regardless of size? We are told that it would not apply to small
stores, due to “individual circumstances”—and only to large stores. But
by what legal forbearance, as suggested by appellants, would “Mom and
Pop” stores be exempted from the same alleged duty? I believe the answer
is clear. If large entities were determined to have a duty based on the facts
of this case, then eventually all smaller entities would be understood to
have foreseen the same risks.

At some point, video surveillance would be required, and then, not long
afterwards, active monitoring of those cameras in all stores—whether large
or small. A security guard at the door would potentially develop into
having an armed guard. And the ubiquitous guard would potentially be
in every commercial establishment regardless of its size. These
consequences would obviously have an impact on all store owners, and an
enormous “unintended” impact on “Mom and Pop” stores. See Sewell v.
Racetrac Petroleum, Inc., 245 So. 3d 822, 827 (Fla. 3d DCA 2017) (weighing
“the risks of unintended consequences”); Miccosukee Tribe of Indians of S.
Fla. v. Bermudez, 145 So. 3d 157, 160 (Fla. 3d DCA 2014) (rejecting
appellee’s theory, based partly on the “unintended consequences” it would
create); see also State v. Green, 944 So. 2d 208, 210 (Fla. 2006) (receding
from a prior decision based on its “unintended consequences”).

Further, consequences of such magnitude, it would seem, are best
determined by the people through their representatives in the legislative
branch and not by judicial fiat. Is the judiciary best equipped to make
such a wide-ranging decision, with such a potential impact on society as
a whole and, specifically, the economy?

3 Appellants deny that the duty would necessarily require “guards” or the
installation of “cameras.” Appellants argue that “[b]usinesses can present to
juries arguments—comparable to the amicus’s arguments—that such measures
are ineffective or unreasonably expensive, or that they would not have prevented
the attack.” (Reply Brief of Appellants at 20). Further, at oral argument, when
asked whether additional security measures—including monitoring, a security
guard, and shooter training—would apply to a sole proprietorship, such as a
“Mom and Pop” store, appellants responded that it would not “because what is
reasonable in terms of security measures will depend on . . . the facts and
circumstances of the store at issue and its resources. . . . And what is reasonable
will be determined by a jury.” Oral Argument at 3:03-3:57, 4:21-4:24,
https://www.youtube.com/watch?v=bVo31rZ16pA.

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Oliver Wendell Holmes, when considering the cost of torts, noted that
“[t]he liability for them is estimated, and sooner or later goes into the price
paid by the public. The public really pays the damages . . . .” Oliver
Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 467 (1897).
Holmes later noted that, in general, costs are best determined by legislative
action. “Establishment of a rate is the making of a rule for the future, and
therefore is an act legislative, not judicial.” Prentis v. Atlantic Coast Line
Co., 211 U.S. 210, 226 (1908); see also Claire’s Boutiques, Inc. v. Locastro,
85 So. 3d 1192, 1203 (Fla. 4th DCA 2012) (en banc) (Levine, J., concurring
in part, dissenting in part) (“It is axiomatic that the courts are not in the
best position to determine the most effective course for the furtherance
and extension of public policy as a whole.”).

Chief Justice Charles Evans Hughes noted, over a hundred years ago,
in words that still ring true today, the limits of judicial action:

The scope of judicial inquiry in deciding the question of power
is not to be confused with the scope of legislative
considerations in dealing with the matter of policy. Whether
the enactment is wise or unwise, whether it is based on sound
economic theory, whether it is the best means to achieve the
desired result, whether, in short, the legislative discretion
within its prescribed limits should be exercised in a particular
manner, are matters for the judgment of the legislature, and
the earnest conflict of serious opinion does not suffice to bring
them within the range of judicial cognizance.

Chicago, Burlington, & Quincy R. Co. v. McGuire, 219 U.S. 549, 569 (1911).

In summary, we in the judiciary should be mindful of the limitations of
our actions, as well as their resulting unintended consequences.

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Not final until disposition of timely-filed motion for rehearing.

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