Flynn v. Polk County et al

Filing 59

ORDER: Defendant Polk County's Motion for Summary Judgment 50 is DENIED. Signed by Judge Virginia M. Hernandez Covington on 2/27/2013. (MEB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GARY FLYNN,
Plaintiff,
v.

Case No.: 8:11-cv-2054-T-33AEP

POLK COUNTY, MICHAEL PATRICK
THOUROT, and SHERRI DEVRIES
THOUROT,
Defendants.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Polk County’s Motion for Summary Judgment (Doc. # 50), filed
on December 10, 2012.

Plaintiff Gary Flynn filed a response

in opposition (Doc. # 52) on December 21, 2012.

For the

reasons that follow, the Motion is denied.
I.

Background
On October 3, 2009, Flynn visited a gun range, the Saddle

Creek Park Gun Range, which is “maintained and cared for” by
Polk County. (Doc. # 47 at ¶¶ 11, 13).

Defendants Michael

Thourot and Sherri Thourot also visited the gun range on
October 3, 2009, carrying, among other guns, a Jennings 9 mm
firearm, which they had never previously shot.
Thourot Dep. Doc. # 51 at 6, 9).

(Michael

Upon entry into the

facility, the range master asked the Thourots to place their

weapons on a table for inspection, “picked every one of them
up, made sure they were empty, gave them a quick visual onceover, set them all back on the table” and then directed the
Thourots to a stall.

Id. at 6-7.

After shooting a full round with the Jennings 9 mm
firearm without incident, Mr. Thourot reloaded the gun’s clip,
using pliers to squeeze the “ears” at the top of the clip so
that “the bullets fit better,” reloaded the clip into the gun,
and placed the gun on a nearby table. Id. at 10.

The gun then

suddenly started misfiring bullets on its own, spinning “like
a . . . pinwheel on the table.”

Id. at 18. Both of the

Thourots and Flynn were shot. Id. at 11-13.

Flynn was shot

through the throat and the shoulder, causing him “severe and
permanent injuries.” (Doc. # 47 at ¶ 14).
Flynn filed his complaint on September 9, 2011, naming
Polk County, the Thourots, and several fictitious parties as
Defendants.

(Doc. # 1).

In the complaint, Flynn alleged

counts for negligence (Count I) and negligent supervision
(Count II) against Polk County and alleged a separate count
for

negligence

against

the

Thourots

(Count

III).

Id.

Following their failure to respond to the complaint, the Clerk
entered a default against Michael and Sherri Thourot on April
17, 2012.

(Doc. ## 20-21).
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On April 20, 2012, the Court granted Polk County’s motion
to dismiss Count I as barred by sovereign immunity, based on
Flynn’s withdrawal of the Count. (Doc. # 22 at 4).

The Court

also dismissed most of the fictitious defendants from the
case. Id. at 4-5.

However, the Court declined to dismiss

Count II of the complaint. Id. at 8-9.
Upon Flynn’s agreed motion, on December 3, 2012, the
Court granted Flynn leave to file an amended complaint to add
the name of the non-party range master to several of the
complaint’s allegations. (Doc. # 46). Flynn filed his amended
complaint on December 5, 2012. (Doc. # 47).

After Flynn

failed to respond to Polk County’s motion to strike certain
portions of the amended complaint, the Court entered an Order
on January 4, 2013, granting the motion as unopposed and
striking Flynn’s prayer for joint and several liability, his
claim for attorney’s fees, and his reference to the remaining
fictitious defendants.

(Doc. # 53).

Polk County’s motion for summary judgment as to Flynn’s
negligent supervision claim and Flynn’s response thereto are
now before the Court.
II.

(Doc. # 50).

Legal Standard
Summary judgment is appropriate "if the movant shows that

there is no genuine dispute as to any material fact and the
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movant is entitled to judgment as a matter of law."
Civ. P. 56(a).

Fed. R.

A factual dispute alone is not enough to

defeat a properly pled motion for summary judgment; only the
existence of a genuine issue of material fact will preclude a
grant of summary judgment.

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 247-48 (1986).
An issue is genuine if the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.

Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996)(citing Hairston v. Gainesville Sun Publ’g
Co., 9 F.3d 913, 918 (11th Cir. 1993)).

A fact is material if

it may affect the outcome of the suit under the governing law.
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir.
1997).

The moving party bears the initial burden of showing

the court, by reference to materials on file, that there are
no genuine issues of material fact that should be decided at
trial. Hickson Corp. v. N. Crossarm Co., Inc., 357 F.3d 1256,
1260 (11th Cir. 2004)(citing Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986)).

“When a moving party has discharged

its burden, the non-moving party must then ‘go beyond the
pleadings,’ and by its own affidavits, or by ‘depositions,
answers to interrogatories, and admissions on file,’ designate
specific facts showing that there is a genuine issue for
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trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 59394 (11th Cir. 1995)(citing Celotex, 477 U.S. at 324).
If there is a conflict between the parties’ allegations
or evidence, the non-moving party’s evidence is presumed to be
true and all reasonable inferences must be drawn in the nonmoving party’s favor.

Shotz v. City of Plantation, Fla., 344

F.3d 1161, 1164 (11th Cir. 2003). If a reasonable fact finder
evaluating the evidence could draw more than one inference
from the facts, and if that inference introduces a genuine
issue of material fact, the court should not grant summary
judgment.

Samples ex rel. Samples v. City of Atlanta, 846

F.2d 1328, 1330 (11th Cir. 1988)(citing Augusta Iron & Steel
Works, Inc. v. Employers Ins. of Wausau, 835 F.2d 855, 856
(11th Cir. 1988)).
III. Analysis
The elements of a negligent supervision claim under
Florida law are: “(1) the existence of a relationship giving
rise to a legal duty to supervise; (2) the negligent breach of
that duty; and (3) that the negligence was the proximate cause
of plaintiff’s injury.”

Nationwide Mut. Co. v. Ft. Myers

Total Rehab Ctr., Inc., 657 F. Supp. 2d 1279, 1291 (M.D. Fla.
2009)(citing Collins v. Sch. Bd. of Broward Cnty., 471 So. 2d
560, 563 (Fla. 4th DCA 1985)).
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Although Polk County acknowledges that it owed Flynn a
duty of care to operate the gun range safely, Polk County
argues that it is entitled to summary judgment because its
duty did not include a standard of care broad enough for Flynn
to recover under.

Polk County also argues that even if it

breached any duty owed to Flynn, such breach was not the
proximate cause of Flynn’s injury.
A.

Duty

“In

negligence

law,

the

concept

of

‘duty’

has

two

components: (1) the relationship that justifies placing a
requirement of care upon the defendant, and (2) the general
standard of care that defines the risks to be foreseen by the
defendant and the level of care to be imposed upon the
defendant.” Monroe v. Sarasota Cnty. Sch. Bd., 746 So.2d 530,
534 n.6 (Fla. 2d DCA 1999)(citations omitted).
Under Florida law, once a governmental entity decides to
operate a recreational facility, “it assumes the common law
duty

to operate

the

facility

safely,

just

as

a

individual is obligated under like circumstances.”

private
Avallone

v. Bd. of Cnty. Comm’rs of Citrus Cnty., 493 So. 2d 1002, 1005
(Fla. 1986).
such

that

Polk County acknowledges that this duty exists,
the

first

component

of

the

duty

element

is

satisfied. Polk County’s arguments, thus, are targeted toward
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the second component -- the scope and fulfillment of the
standard of care required to satisfy its duty to operate the
gun range safely.
fulfilled

its

providing

“rules

Specifically, Polk County argues that it

duty

to

to

operate

keep

the

the
range

gun

range

safe

and

safely

by

orderly,”

providing “a range master to ensure that those rules were
followed by all patrons,” by “post[ing] safety rules and also
verbally inform[ing] each patron of those rules,” and by
having a range master on duty when the incident occurred.
(Doc. # 50 at 4).
Polk County contends that no reasonable person could find
that it owed any broader standard of care under which Flynn
could recover.

Specifically, Polk County argues that it had

no notice or knowledge of any propensity for Jennings 9 mm
handguns to spontaneously discharge bullets and did not have
any knowledge of any similar prior incidents with such guns.
Thus,

argues

Polk

County,

it

could

not

have

reasonably

foreseen or forestalled the Thourot’s Jennings 9 mm firearm
from malfunctioning as it did, such that Polk County had no
duty to prevent such injuries.

Further, Polk County contends

that it never undertook -- and never represented to patrons
that it had undertaken -- the duty to inspect and ensure the
safety of every gun brought to the gun range.
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Thus, Polk

County requests the Court to determine as a matter of law that
the standard of care it owed to Flynn was not broad enough to
encompass any duty that would allow recovery for Flynn’s
injuries.
However, the Court determines that in this case, the
standard of care Polk County owed is a question for the jury
and cannot properly be determined by the Court on summary
judgment. Indeed, under Florida law, “[w]hen [a] governmental
subdivision

sponsors

or

schedules

an

unusually

dangerous

activity at a park . . . , the standard of care required of a
governmental subdivision may create a jury question.”

Dennis

v. City of Tampa, 581 So. 2d 1345, 1349 (Fla. 2d DCA 1991).
As explained in Dennis, “the specific standard of care owing
under a duty typically involves a factual question which must
be submitted to a jury.”

Id. at 1350.

However, “a trial

judge is authorized to determine the standard of care as a
matter of law under undisputed facts in those rare cases in
which

the

movant

carries its

heavy

burden

of

proof

and

convinces the judge that no reasonable jury could decide in
favor of the plaintiff on the disputed standard of care.”
(Emphasis added).

Additionally, “there are limited occasions

when strong factors of public policy permit a trial judge to
determine the specific standard of care under undisputed
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facts.”

Id. (emphasis added).

The Court finds that neither of these situations is
present

here.

undisputed.

First,

the

facts

in

this

case

are

not

Despite Polk County’s assertion that it had no

prior knowledge of the malfunctioning propensities of Jennings
9 mm handguns, Flynn has supplied the testimony of Michael
Thourot,

in

which

Mr.

Thourot

states

that

immediately

following the incident, the range master asked him, “Was it
the Jennings?” (Michael Thourot Dep. Doc. # 51 at 12).

After

responding affirmatively, the range master stated, “I could
have told you not to shoot that thing.
notorious for that.” Id.

Those things are

Thus, this testimony raises a

question of fact as to whether or not it was foreseeable from
Polk County’s perspective that a Jennings 9 mm handgun could
cause such an incident, such that a jury could reasonably
impose a duty on Polk County to prohibit Jennings 9 mm
handguns,

or

any

other

guns

that

are

“notorious”

for

misfiring, from being used in the facility.
On this issue, Polk County argues that “it would be
impossible for Polk County to ensure the safety of every gun.
Even if the range master thoroughly handled and inspected each
gun that came onto the range, there would be no way to account
for latent modifications or user manipulation.” (Doc. # 50 at
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8)(citing Callender Aff. Doc. # 50-1 at ¶ 6).
acknowledges

that

perfection

possible

that

the

and

law

of

does

conduct
not

is

expect

unreasonable amount of care from anyone.

The Court
not

or

humanly
exact

an

However, short of

requiring Polk County to ensure the complete safety of every
gun brought into the range including those with unknown user
modifications, as explained above, a jury could reasonably
find that Polk County should at least be required to inspect
and prohibit guns it knows have a propensity to malfunction
and misfire even without any user modifications. Such a duty,
if found by the jury to be owed under the instant facts, could
potentially allow Flynn to recover in this case, such that
summary judgment is not warranted here.
Furthermore, the Court can imagine any number of other
duties a jury could reasonably impose on Polk County which
could possibly afford recovery to Flynn in this case, such as
requiring and ensuring that patrons empty all bullets from
their firearms prior to placing them down on range tables.
Again, the determination of the necessary standard of care,
including

the extent,

if

any,

to

which

Polk

County

was

required to ensure the safety of any or all firearms used by
patrons of its gun range, falls within the province of the
jury, not the Court.
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Polk County further argues that it “did not have the duty
to make sure that the firearms used by patrons were of a
certain quality because Polk County did not hold itself out as
an inspector and insurer of the safety of every gun on the
range. . . . Thus, it owed no duty to Plaintiff to ensure that
the Thourots’ firearm would not spontaneously discharge.”
(Doc. # 50 at 7). The Court finds this logic circular and the
argument unavailing.

While it is true that courts may impose

duties on defendants where the defendants held themselves out
to others as undertaking such duties, the inverse, which Polk
County advocates, does not necessarily hold.

In other words,

Polk County is not relieved of a potential duty merely because
it never held itself out to the public as undertaking such
duty.

Rather, it is a question for the jury to decide as to

what actions Polk County should have taken in order to fulfill
its duty to operate the gun range safely, including whether or
not Polk County should have undertaken to prohibit the use of
certain guns such as those that were known to be “notorious”
for misfirings.
B.

Proximate Cause

Finally, Polk County argues that even if it breached a
duty to Flynn, any such breach was not the proximate cause of
his

injury

such

that

summary
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judgment

is

appropriate.

However, under Florida law, causation “is generally an issue
for the trier of fact unless reasonable persons could not
differ

in

that

respect.

If

there

is

any

doubt

at

all

concerning proximate cause, that doubt should be left to a
jury.” Saullo v. Douglas, 957 So. 2d 80, 89 (Fla. 5th DCA
2007). Further, “the question of foreseeability as it relates
to proximate causation generally must be left to the factfinder to resolve.

Thus, where reasonable persons could

differ as to whether the facts establish proximate causation i.e., whether the specific injury was genuinely foreseeable or
merely an improbable freak - then the resolution of the issue
must be left to the fact-finder.” Whitt v. Silverman, 788 So.
2d 210, 217 (Fla. 2001).

As currently framed, the facts of

this case present an issue of causation about which reasonable
minds could differ, and, thus, the issue is not appropriate
for disposition upon summary judgment.
Accordingly, it is
ORDERED, ADJUDGED and DECREED:
Defendant Polk County’s Motion for Summary Judgment (Doc.
# 50) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 27th
day of February, 2013.

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Copies: All Counsel of Record

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