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Readers
John D. McKinnon's article entitled "Looking Glass Law," [FT, July 1996] is both misleading and wrong. He describes the fall back rule relating to the doctrine of joint and several liability in the context of a rapist or murderer who can't pay, therefore imposing the burden on the business owner. He states that because the rapist or murderer can't pay, it falls on the business owner to pay. This is simply untrue.
First, a jury is not asked to award money against the criminal. The jury is asked to decide whether the business owner failed to protect the innocent victim as the common law requires. If the jury decides the business owner did everything they could have and should have done, the jury is instructed not to award any money, regardless of how heinous the crime may be. If the jury finds that the business owner did something they shouldn't have done, or didn't do something they should have done, only then will the jury be allowed to consider awarding money for the business owner's wrong ? not for the criminal's wrong.
I give as an example a case I tried in Orlando against Leona Helmsley and the Harley Hotel. For years, armed robberies and rapes occurred in the immediate vicinity of the hotel, with both employees and guests being attacked in the hotel's parking garage. Unbeknownst to the prospective guests of the hotel, management instituted a policy of escorting its employees into and out of the garage on a daily basis. Prospective guests were not told of the numerous forced entries into rooms, numerous rapes, armed robberies and murders, nor were they told of the hotel's escort policy. Instead, prospective guests shopping for a hotel were told that the hotel was safe, notwithstanding the ongoing crime and escort policy provided to the employees. These facts were presented to a jury here in Orlando, a known conservative, Republican community, with the jury deciding that the hotel should have done more to look out for its guests' safety. The jury then determined the value of the wrong committed by the hotel. The jury was never asked to determine how much the rapist should pay and such burden was never imposed upon the hotel.
Second, Mr. McKinnon's article is decidedly pro-business, anti-consumer, and ignores the benefits of accountability. When the law requires a property owner, who is running a business for profit, to provide reasonably safe accommodations, shouldn't such property owner be accountable if he disregards his obligation in the name of profit?
I challenge you to print the above response in the name of journalistic integrity. Thank you for your consideration.
Eric H. Faddis
Faddis, Oldham & Smith, P.A.
Orlando
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Trend's John McKinnon responds:
In essence, Mr. Faddis tries to make two points: First, that plaintiffs' lawyers never have asked the courts to make corporate defendants pay the damages inflicted by criminal wrongdoers in premises-liability cases.
And second, that they will not do so in the future, even though the recent Burger King decision I wrote about specifically says that they may. Neither contention bears much scrutiny.
For readers who need a recap, the principle announced in the recent Burger King decision allows a typical plaintiff who is injured by a criminal while on business property to collect essentially all of his or her damages from the business owner, so long as the victim's lawyer can convince a jury that the business owner was even slightly negligent ? say, by failing to install enough lights. The appeals court reached this result by refusing to allow premises-liability defendants to benefit from a 1986 law that appeared to say, essentially, that someone who was merely negligent need only worry about paying his or her percentage of the damage in a personal-injury case.
Instead, the court of appeals interpreted the 1986 law to mean that as long as any wrongdoer committed a criminal act, then apportionment is not available to any of the defendants, including those who were merely negligent.
Here's how this interpretation worked in the Burger King case: After being raped by a drunken customer in a restaurant bathroom, the victim sued both the rapist and the restaurant owners. The jury assessed the plaintiff's damages at $300,000. It found the restaurant 20% liable because its employees had ignored the rapist, who had been acting disorderly. The jury found the rapist 80% liable. Yet under the appeals court's decision, the restaurant owner was not entitled to use the 1986 law to reduce its liability by the rapist's 80% share.
Despite the plain facts of the Burger King case, Mr. Faddis tries to suggest that plaintiff lawyers never have sought to collect a criminal's share of damages from a premises' owner.
Mr. Faddis' first point contains a grain of truth. It's correct that plaintiff lawyers haven't always named the criminal as a defendant, the way the Burger King plaintiff's lawyer did. (In essence, many plaintiff lawyers have sued only the corporate defendant in hopes of pinning all the victim's damages on the deep-pocket defendant.)
And even in cases where criminals haven't been named as parties, business defendants' lawyers consistently have sought apportionment of fault among the various actors, including the criminal. Now the Burger King case has provided one definitive answer on the question of how the 1986 law works in these cases. If it holds up on appeal, apportionment simply won't be available to the corporate defendant in premises cases based on random criminal acts. But the damages assessed will continue to be more or less all of the plaintiff's damages, despite Mr. Faddis' attempts to suggest otherwise.
Mr. Faddis' second suggestion is even less credible. Under the Burger King ruling, plaintiff attorneys would be foregoing the bulk of the damages available to their clients if they did not try to have juries determine the damages caused by the criminal wrongdoer so that they could be obtained from the corporate co-defendant. Knowing the admirable zealousness of Florida's plaintiff bar, this scenario seems unlikely.
When businesses are held accountable for someone else's wrongdoing, that should be a cause for concern. But it's likely that many lawyers are celebrating the Burger King case as a victory. Unfortunately, they ignore the mounting cost of premises-liability cases for people who live in high-crime communities, where businesses often refuse to locate ? not out of fear of the inhabitants, but of premises liability.
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Service
Kudos on your "Secrets of Service" article [FT, Sept. 1996]. As chief operating officer of a community bank, I was interested in a comment from Mike Dye, who hit the nail on the head: Willingness to serve comes from the individual; not the corporate philosophy.
It's the old adage: you can lead a horse to water but you can't make him drink. Like style and grace, service cannot be taught; instead, it is a gift born in some. People waste more effort trying to avoid being of service nowadays than in trying to find alternatives to resolve customer concerns. I continue to be more distressed daily over the general malaise in the service industries. No longer is it easy to find people who take pride in themselves, let alone the work they do. It is yet another sign of our societal decline.
When I have the good fortune of fine service, I always try to comment on it in writing. People who go the extra step need positive reinforcement for their actions because their jobs are made harder every time a customer has an unfortunate experience. "Five Star" service is not easy to maintain. It takes a consistent, forward-thinking attitude. My personal favorite is the Boca Raton Resort and Club. Recently I sat at their pool on July 4th weekend. I ordered a soft drink, and after that order, the waiter called me by name each time he stopped to check on my needs. There is a strong sense of pride at the Boca Raton Resort and Club. Pride is what it is all about!
Marsha J. Wheeler
Winter Park
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Florida's Children
Regarding "Florida's Forgotten Ones" [FT, John F. Berry's Close-up, Aug. 1996]: A society that neglects its children is like a farmer who eats his seed corn. Soon nothing is left to give hope for the future. Every generation needs to raise its children to a higher level. This can best be done by loving, nurturing and educating them to their potential. Who or what the parents are is not relevant. Circumstances of birth should not be a deciding factor. Every child has a right to the same chance, as a birthright. Are we giving the next generation the best future we know they deserve? Are we proud of the job we're doing?
Robert A. Richardson
Longboat Key
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Much praise to you and Florida Trend for the article on "Florida's Forgotten Ones." The information you shared was both shocking and enlightening. For years, as a member of South Florida's business community, rarely did I take such a hard look at our educational system and the statistics you presented regarding my home state. I was fortunate enough to have been sent to private boarding school in Indiana by a South Florida businessman, George Hillenbrand. Now as a new proud father of my first child (June 25, 1996) I am very interested in such valuable information as shared in your Florida Close-up column.
My hope is that it doesn't take a newborn to wake others up to the challenge of getting involved and making the necessary changes to better our educational system and the communities that we live in. Thanks, Mr. Berry, for splashing cold water in my face. I needed it!
Ray Jones
Boca Raton
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I share John Berry's sentiments in his excellent editorial, "Florida's Forgotten Ones." The shame is that more aggressive oversight might have curbed abuses of the present welfare system; perhaps Clinton would not have signed such a far-reaching reform bill. Alas, the pendulum always swings too far. I wonder how many recipients have cashed their checks at liquor stores or at dog tracks? I would gladly travel to Tallahassee for the privilege of auditing the endorsement stamps on the backs of the checks. Put me down for one week, at my own expense. Any others interested?
W.D. Cain
Orlando
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Bob Graham
Your appraisal of Sen. Bob Graham, "Man in the Middle," in your June 1996 issue attached too much importance to Graham's style and not enough to his voting record. His style may well be "bland," "centrist" or even "conservative." But while he is putting your reporter to sleep, he is simultaneously casting votes for a more expansive and expensive federal government.
The latest ratings from the National Taxpayers Union (cited rather selectively in the article) indicate that Graham voted to increase federal spending by $11.7 billion dollars (net) between January 5, 1995, and April 16, 1996. Compare this to the mild cuts voted by Sen. Mack ($8.5 billion) and you will see, style aside, which of Florida's senators has been behaving moderately as of late.
Philip Blumel
Editor, Voices of the Florida Taxpayer
West Palm Beach
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Oversight
The article in the August 1996 issue, "Why Money Loves Florida" contained a very serious oversight. Fort Walton Beach was rated as the 18th Best Place to live in Florida by Money magazine, up from 31st in 1995. We are very proud of this rating and we wanted your readers to share in our pride.
Roger E. Peters
Executive Director
Greater Fort Walton Beach
Chamber of Commerce
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The Old World
I appreciated the editorial, "The Old World," that appeared in the July 1996 edition. You struck a chord of recognition with the folks here at Florida Atlantic University. We are concerned that Florida must take a stronger role in dealing with the European Union. We may have ignored them in recent years, somewhat because of our concern with Latin America.
There are several programs that Florida Atlantic University has undertaken to deal with this problem. First, we have developed strong ties with the European Union through its president, Jacques Santer. He has visited FAU several times, and we are now in the process of developing a 1997 conference on international development and business opportunities for the European Union in Florida.
We have a joint master's degree program in business administration with the Escuela Superior De Gestion Commercial Y Marketing in the Universidad Complutenese in Madrid, Spain. More than 300 Spanish students are working for their degrees through this joint program.
In addition to the students' work in Madrid with FAU professors, they spend time on one of our campuses in Southeast Florida. This offers an excellent opportunity to develop relationships with the emerging managerial class in Europe.
Anthony James Catanese
President and Professor
Florida Atlantic University
Boca Raton
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Corrections
The directory of public companies in the July issue of Florida Trend should have indicated that William K. Mackey is the chairman and CEO of Aqua Care Systems Inc.
The Miami Herald reported incorrect advertising rates for the Top Rank Florida list of Daily Newspapers, which appeared in the September issue. The correct retail, per-inch, B/W ad rates are $147.60 (daily) and $196.20 (Sunday).
Business Beat - Week of May 3rd
