CAIN v. SHELL OIL COMPANY

Filing 77

ORDER GRANTING PLAINTIFF'S MOTIONS, ECF NOS. 64 and 66 - This Court has considered Plaintiffs' Motion for Order Authorizing Release of Social Security Numbers and Dates of Birth of Former Employees of Circle K Stores, Inc., ECF No. 64 , and Plaintiffs' Motion in Limine Regarding Trial Matters, ECF No. 66 , and heard argument from counsel at a hearing held on January 17, 2014. For the reasons and subject to the conditions stated on the record, the motions are GRANTED. Signed by JUDGE MARK E WALKER on 1/21/2014. (dlt)

IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
RALPH REGINALD CAIN,
Plaintiff,
v.

CASE NO. 4:13-cv-77-MW/CAS

SHELL OIL CO. and
CIRCLE K. STORES, INC.,
Defendants.
_______________________________/
ORDER GRANTING PLAINTIFF’S MOTIONS, ECF NOS. 64 and 661
This Court has considered Plaintiffs’ Motion for Order Authorizing Release
of Social Security Numbers and Dates of Birth of Former Employees of Circle K
Stores, Inc., ECF No. 64, and Plaintiffs’ Motion in Limine Regarding Trial
Matters, ECF No. 66, and heard argument from counsel at a hearing held on
January 17, 2014. For the reasons and subject to the conditions stated on the
record, the motions are GRANTED.
As to ECF No. 64, Defendant shall provide the requested identifying
information to Plaintiff on or before January 24, 2014. Plaintiff shall maintain the

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These motions were styled for both cases 4:13-cv-77-MW/CAS and 4:13-cv-78-MW/CAS
although they were only docketed in the prior case. At the hearing, the parties agreed that the
motions and this Court’s ruling were to apply to both cases.

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privacy of this information and disseminate it solely for purposes of locating the
two witnesses.2
As to ECF No. 66, Plaintiff’s claim against Defendant is based on
Defendant’s alleged negligence in failing to adequately secure its premises from
foreseeable risks and not on a theory of vicarious liability for the acts of a shooter.
These are uniquely independent claims. The fact that a shooter may be responsible
for an intentional tort in no way diminishes any negligence of Defendant.
Therefore, Defendant may not try to shift blame to a shooter or argue that a shooter
is at fault for Plaintiff’s injuries because such argument conflates theories of
liability and as such has been expressly rejected by the Florida Supreme Court.
See Merrill Crossings Assoc. v. McDonald, 705 So. 2d 560, 562-63 (Fla. 1997)
(“[N]egligent tortfeasors such as in the instant case should not be permitted to
reduce their liability by shifting it to another tortfeasor whose intentional criminal
conduct was a foreseeable result of their negligence. . . . [I]t would be irrational to
allow a party who negligently fails to provide reasonable security measures to
reduce its liability because there is an intervening intentional tort, where the
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Counsel for Plaintiff inquired at the hearing whether he could take depositions of these
witnesses if located. This Court ruled that no such depositions may be taken absent the parties’
consent. However, in so ruling, this Court acted under assumptions not expressed on the record.
First, this Court assumed that Plaintiff had not timely sought to depose these witnesses before the
close of discovery. Second, this Court assumed these witnesses, if found, could be subpoenaed
and compelled to appear at trial. If either of these assumptions are or turn out to be incorrect, the
issue may be revisited. Plaintiff was entitled to rely on Defendant’s disclosures. If either
witness is unavailable for trial because, for example, the witness now resides outside the
subpoena power of this Court, then this Court will permit the deposition of such witness.

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intervening intentional tort is exactly what the security measures are supposed to
protect against.”). In sum, and in direct response to Defendant’s inquiry,
Defendant will not be permitted to argue an “empty chair defense” or any variation
of such a defense.
Foreseeability, however, is a key issue in the instant claim which will
inevitably require a discussion of the shooters and whether a shooter’s actions were
foreseeable in light of the circumstances. For this reason, Defendant as well as
Plaintiff can reference the shooters to put the facts in context and to discuss the
facts related to foreseeability. For example, Defendant can argue that it did not
employ, know, or have reason to know of the shooters and their violent
propensities for purposes of discussing foreseeabilty. Such an argument is far
different than suggesting Defendant cannot be liable because we did not employ a
shooter, an issue of vicarious liability which is not before the jury. Similarly,
Defendant will not be permitted to argue that it cannot be held liable because the
shooting was an intervening act. In sum, the parties can place the shooting in
context and make argument regarding foreseeability but cannot make any
argument contrary to the law. This Court said what it meant, and meant what it

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said; no argument will be permitted which circumvents the Florida Supreme
Court’s Merrill decision.3
The parties are expected to abide by this distinction between discussing the
shooters for purposes foreseeability versus redirecting liability and failure to do so
will necessitate a strongly worded curative instruction and such other relief as this
Court deems appropriate under the circumstances up to and including a mistrial.
SO ORDERED on January 21, 2014.
s/Mark E. Walker
United States District Judge

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As an aside, this Court also will not permit any argument contrary to the facts in
evidence. As noted on the record, there may be no factual issue regarding Messrs. Willis’ and
Cain’s status.

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