Michele K. Feinzig Wins Denial of Rehearing and Rehearing En Banc in Negligent Security Appeal, Obtains New Trial for the Plaintiff
Michele K. Feinzig, along with Plaintiff’s trial counsel, Scott Sheftall of Sheftall & Torres, P.A., represented the Plaintiff/Appellant in an appeal of a defense final judgment following a zero verdict in a negligent security case (Third DCA Case No. 3D10-975). The Plaintiff was robbed and then raped at gunpoint while working the graveyard shift as a retail cash clerk early Christmas morning. She brought a negligent security action against the store due to its failure to provide adequate security despite a history of previous violent crimes, both on the premises and in the vicinity. During the trial, the Defendant store admitted that the Plaintiff was not negligent and in no way contributed to her being robbed and raped. Also, the Defendant store’s expert testified that had he been advising the store before the attack on the Plaintiff, he would have recommended that the store add an unarmed security guard to its security measures. The defense expert admitted that if such an unarmed security guard had been in place, the Plaintiff more than likely would not have been raped. Despite this and other compelling evidence supporting the Plaintiff’s case against the store, the jury came back with a zero verdict because it was allowed to hear improper, prejudicial testimony from the defense’s expert that this was a “victim-targeted crime” which could neither be foreseen nor prevented by any reasonable security measures.
In February 2012, the Third DCA reversed for a new trial, finding that the store’s expert’s testimony that this was an unforeseeable, unpreventable “victim-targeted crime” was beyond the scope of his expertise, and should not have been admitted. The store moved for rehearing and rehearing en banc, and in November 2012, the Third DCA denied both motions. All of the appellate judges at the Third DCA, including those on the original panel, joined in the denial of rehearing en banc. With respect to rehearing, one Judge who was on the original panel change her mind and wrote a dissent, stating that she would grant rehearing and affirm the jury’s zero verdict. Nonetheless, the majority’s reversal and denial of rehearing, along with the entire Court’s denial of rehearing en banc, ensured Plaintiff’s entitlement to a new trial at which she could seek fair compensation for the damages she has suffered due to the store’s negligence, without being tainted by the store’s expert’s “victim-targeted crime” theory. The parties have since reached a confidential settlement.