This case is from 2003, but courts and attorneys still use it today. This isn’t my case, but a lot can be learned from it.
In Hendry v. Zelaya, 841 So. 2d 572 (Fla. 3d DCA 2003), Marcos Zelaya was a police officer with the City of Miami Beach police department.
On May 21, 1998, the Thursday evening before the Memorial Day weekend, Officer Zelaya and his girlfriend went to the Clevelander Hotel in order to celebrate his successful completion of SWAT team training.
Approximately 100 other off-duty officers, all dressed in civilian clothes, were also in attendance at the private party in a segregated area.
(US Euro Micro Ventures is a company that used to own the Clevelander Hotel on Miami Beach. Ian Hendry was its trustee.)
Hotel Knew Memorial Day Weekend Gets Rowdy
Knowing well in advance that the Memorial Day weekend patrons tended to become extremely rowdy, Hendry requested that the Miami Beach police department provide at least three off-duty uniformed officers to increase the Clevelanders’ security personnel.
A few days prior, the City informed the Clevelander that it could only send one officer on May 21.
That officer arrived at the Clevelander, observed the size of the crowd and the rowdiness of the patrons at the pool bar, and called the dispatcher to request more officers.
He was told that none were available. Additionally, the Clevelander used in-house security personnel for crowd control.
10 to 12 Clevelander Security Personnel Were Needed; Only 4 Were Working
Ordinarily, the Clevelander used five or six security personnel on a Thursday night, but some ten to twelve are required on a Memorial Day weekend.
On May 21, however, only four in-house security personnel were working.
The day before the incident, the security manager and the restaurant manager realized that the bar was going to be seriously understaffed during the weekend and advised the Clevelander of the problem.
Against their advice, the Clevelander decided to proceed with only the scheduled four in-house personnel and one uniformed, armed police officer.
Off Duty Officer Didn’t Approach the Rowdy Crowd Because He Was The Only Uniformed Officer
Detective Ricardo Arias was the one off-duty police officer working at the Clevelander on May 21.
He noticed a large, somewhat rowdy gathering congregated at the yogurt bar and would ordinarily have approached them to request they settle down or leave, but as he was the only uniformed officer there, he decided against it.
As Officer Zelaya made his way through the crowd past the yogurt bar, someone seated at the pool bar reached out and grabbed Officer Zelaya’s girlfriend.
Someone Hits Zelaya With Beer Bottle, Caused Skull Fracture and Surgery
Officer Zelaya pushed the man away, then someone else struck Officer Zelaya on the head with a beer bottle. Officer Zelaya suffered a severe skull fracture and required surgery to remove bone fragments from his brain.
He was left with permanent brain damage resulting in diminished cognitive functions such as memory loss and the inability to process information. He also has a constant tingling sensation in the area of the injury.
The jury awarded him $4.5 million for past and future pain and suffering.
Jury Gets to Decide if This Incident Was Forseeable
For a tavern owner to be liable for injuries inflicted on a patron by a third party, the risk of harm must be reasonably foreseeable. Stevens v. Jefferson, 436 So.2d 33, 34 (Fla.1983). The question of foreseeability is for the jury.
There was evidence to support the jury’s verdict that due to the inadequate security, it was foreseeable that rowdy patrons would injure other patrons.
Hendry Knew Memorial Day Weekend Created Big Crowds
Hendry testified that the Memorial Day weekend created severe crowd control problems at the Clevelander and that a larger than usual police presence was required, as well as additional in-house security personnel.
However, the Clevelander was understaffed on the day in question and there was only one off-duty police officer rather than the minimum three needed to maintain the premises in a safe condition.
Hendry made no attempt to request officers from other police departments or to add extra employees.
Appeals Court OKs $4.5 Million Past and Future Pain and Suffering Award
The appeals court said that the verdict was generous, but not shocking. The verdict was based on the evidence presented and Zelaya’s life expectancy.
There was evidence that Officer Zelaya suffered permanent brain damage resulting in memory loss, that his marriage has been affected by his injuries, and that he continues to suffer from migraines and depression.
The appeals court approved the $4.5 million verdict for past pain and suffering and future pain and suffering.
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