ALLEGATIONS IN THE COMPLAINT DID NOT RISE TO THE LEVEL OF GROSS NEGLIGENCE AND EVEN IF THEY HAD, THE PLAINTIFF FAILED TO MAKE A REASONABLE SHOWING OF A REASONABLE BASIS FOR THE RECOVERY OF PUNITIVE DAMAGES AS REQUIRED BY SECTION 768.72

Crump v. American Multi-Cinema, 49 Fla. L. Weekly D692 (Fla. 5th DCA Mar. 28, 2024):

Back to the status quo on punitive damages proffer as of late, the court in this case affirmed the denial of punitive damages.

Here, the plaintiff and her friend went to the movies to see a popular movie, and after someone in the parking lot fired a gun, causing 300 to 400 people to flee into the already crowded movie theater, a theater employee started shouting that everyone needed to leave due to an emergency (while the lights were off, and the movie was running). People were running and screaming to get out of the theater. Someone else screamed that there was an active shooter. In the chaos, the plaintiff sustained injuries and sued the theater.

There was testimony that the employee’s conduct violated the theater’s policy. The plaintiff moved to add a claim for punitive damages based on the theater’s gross negligence. The theater filed several depositions in response.

Punitive damages are only permissible when, based on clear and convincing evidence, the trier of fact finds that the defendant was personally guilty of intentional misconduct or gross negligence. This burden, according to the court, is “not a modest one.” The plaintiff must proffer that the alleged negligence reached a level akin to that needed to sustain a conviction for criminal manslaughter.

The plaintiff failed to meet that burden in this case. The allegations did not support that the conduct was so reckless or wanting in care that it constituted a conscious disregard or indifference to the plaintiff’s life, safety, or her rights. Even if the plaintiff’s complaint was legally sufficient on this point, the plaintiff failed to make a reasonable showing of a reasonable basis for the recovery of punitive damages.

As to any claim for the theater’s direct liability for punitive damages because of its alleged failure to adequately train its employees, there was no reasonable evidentiary basis for a jury to conclude that the theater itself engaged in conduct that constituted gross negligence and contributed to the loss or damage suffered by the plaintiff.

While the employees were alleged to have violated the theater’s policies, there was not adequate evidence proffered from which a jury could have a reasonable basis to award punitive damages against the theater for its own negligence.

As to a claim for vicarious liability, the actions of the theater’s employees at the time after the shots were fired also did not rise to the level of gross negligence, thus failing to meet the preliminary threshold.