IN THE CIRCUIT COURT OF THE

NINTH JUDICIAL CIRCUIT IN AND

FOR ORANGE COUNTY, FLORIDA

CASE NO.: 08-CA-25927

JOHN W. LATSON, SR. and VALORIA

LATSON, as Co-Personal Representatives of
the Estate of decedent, JOHN W. LATSON, JR.

Plaintiffs,

v.

AVALON RESERVE, LTD., a Florida Limited

Partnership, RIVERSTONE RESIDENTIAL
HELP, LLC, a Foreign Limited Liability Company
and NOVA SECURITY AGENCY, INC.,

Defendants.
_____________________________________/

DEFENDANT, NOVA SECURITY AGENCY, INC.’S

AMENDED MOTION FOR FINAL SUMMARY JUDGEMENT AND MEMORANDUM
OF LAW IN SUPPORT THEREOF

COMES NOW the Defendant, Nova Security Agency, Inc., (“Nova”) by and through the

undersigned attorneys submits this Defendant’s Amended Motion for Final Summary Judgment

pursuant to Florida Rule of Civil Procedure, 1.450 requesting an order granting final summary

judgment in favor of the defendant Nova on the issue of defendant’s liability. Plaintiffs John W.

Latson Sr., Valoria Latson, as co-personal representatives of the estate, and father and mother of

the decedent, and Moneka Grace, as parent and guardian of posthumous minor daughter of

decedent, Mylani Nicole Latson, brought suit against the defendant Nova, alleging that

defendant’s negligence in securing the premises owned and operated by co-defendants Avalon

Reserve Ltd. and Riverstone Residential Help, LLC (hereinafter “Avalon Reserve”) resulted in
the wrongful death of the decedent, John W. Latson Jr., a tenant of Avalon Reserve, who was

shot and killed after a verbal altercation on the premises of the apartment complex.

MEMORANDUM OF LAW

1. Summary Judgment Standard

Florida law is well established on the legal standards required for granting a Motion for

Summary Judgment. Pursuant to Rule 1.510(c) of the Florida Rules of Civil Procedure, a

summary judgment shall be granted upon the showing of an absence of any genuine issues of

material fact and that the moving party is entitled to judgment as a matter of law. Whitten v.

Progressive Casualty Ins.Co., 410 So.2d 501 (Fla. 1982). Summary judgment shall be granted if

the proof brought forth by the moving party overcomes all reasonable inferences in favor of the

party opposing summary judgment. Holl v. Talcott, 191 So.2d 40 (Fla. 1966).

2. Defendant Nova Was Not Negligent In Performing the Limited Duty it Owed to the

Decedent

The threshold issue in the instant case is whether Defendant, Nova, owed any duty to the

plaintiff. Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003). It is a question

of law whether any duty in tort exists. McCain v. Fla. Power Corp., 593 So.2d 500 (Fla. 1992).

In general “an action for injuries for negligence may be maintained only by those between whom

and the negligent party there existed at the time of the negligent act some relation or privity out

of which a contract or legal duty, express or implied, arose in favor of the injured party.”

Woodbury v. Tampa Waterworks Co., 57 Fla. 249 (Fla. 1909).

 In similar case involving a private security provider, the Fourth District Court of Appeal held

that the duty of a security provider to guard against crime is “founded upon [the] particular

undertakings and hence obligations of the [security provider] to do so.” Vazquez v. Lago Grande

Homeowner’s Ass’n., 900 So.2d 587, 593 (Fla.4th DCA 2004.) In the instant case, defendant

Nova only undertook the very limited duty of providing a single security officer to patrol the

Avalon Reserve apartment complex on a random and rotating schedule. Plaintiff has presented

no evidence that Nova failed to do even this and so was negligent in performing this limited

duty. Nor is there any implication that Nova could have even prevented the criminal act which

led to the death of decedent by performing the duty it agreed to perform as specified by the

contract. Nova cannot be found negligent in performing a duty it was not even asked to perform.

3. Nova Did Not Assume the Higher Duty of Care Owed by Avalon Reserve to

Decedent

There is also no evidence that defendant Nova ever undertook by affirmative action co-

defendant Avalon Reserve’s duty to protect the residents or guests of the apartment complex

from criminal activity. As evidenced by the Affidavit of Joseph Conover, President and Chief

Executive Officer of Nova Security Agency, there is no evidence that Nova did any more or less

than was agreed to. Conover Aff., Attach ___, at 2. By its agreement, as well as by its actions,

Nova assumed only the duty to supply a single employee to drive around the apartment complex

on a random basis solely to protect the Co-defendant’s property and to advise the co-defendant

of certain events. In another case on facts similar to this one regarding the duties of a private

security contractor, the Florida Fourth District Court of Appeal held that where “there is no
evidence that the contractor ever undertook by any affirmative act to assume the association’s

duty to protect its residents or its guests” the contractor could not be held liable for any

negligence in protecting residents or guests from known risks of harm. Robert – Blier v.

Statewide Enterprises, Inc., 890 So.2d 522, 523 (Fla. 4th DCA 2005). In holding so, the Court

of Appeals cited to other cases regarding the duties owed by private security contractors to

residents and guests. In Frederick v. TPG Hospitality, Inc. 56 F.Supp.2d 76 (D.C. 1999) the

court granted a security contractor’s motion for summary judgment because it had not agreed to

owe any contractual duty to invitees. Similarly, in Cassell v. Collins, 344 N.C. 160, 472 S.E.2d

770 (1996) on similar facts, the court held that the security company’s “mere act of providing a

security guard” did not impose any duty to protect the guests of the tenants from criminal assault.

The court also cited to Potharaju v. Jaising Maritime, Ltd., 193 F.Supp.2d 913 (E.D.Tex. 2002),

where the court held that a security company for a docking facility did not create a duty to keep

premises safe for invitees, where the security measures provided under contract were undertaken

solely for the benefit of the facility owner. Defendant Nova did no more and no less required by

the terms of its agreement with Avalon Reserve and, not having assumed any duties owed to the

decedent by Avalon Reserve, cannot be considered negligent for failing to perform what is

properly Avalon Reserve’s duty of care.

4. Nova Did Not Assume a Higher Duty of Care by Virtue of its Contract with Avalon

Reserve

It also cannot be said that Nova owed a higher duty of care to the decedent by virtue of its

contract with Avalon Reserve. There existed no contract between defendant Nova and the
decedent, nor did the contract create a duty to the decedent, and so decedent’s death cannot

create an implication on the part of Nova that it negligently failed to abide by any contractually

assumed duty to decedent. Nor can it be argued that the decedent was a third-party beneficiary

of the contract between Nova and co-defendant Avalon Reserve, as the plain terms of the service

agreement do not establish a “clear and manifest intent of the contracting parties that the contract

primarily and directly benefit the third party.” Foundation Health v. Westside KEG Assoc., 944

So. 2d 188 (Fla. 2006). Rather, the service agreement clearly limits the duties of Nova to

“furnish uniformed officers to assist in the protection of the client’s property” and states that

Nova “has not been engaged as a consultant or otherwise to provide an assessment of security

needs at the site covered.” Service Agreement, Exhbit ___, at 2. Plaintiff has provided no

evidence that the contract created anything more than the limited duty to the decedent discussed

above.

5. Nova Did Not Owe a Duty of Due Care to Residents and Invitees As a Result of

Exercising Possession, Custody or Control Over the Apartment Complex

Nova also owed no duty of due care to residents and invitees of the Avalon Reserve

apartment complex by virtue of being the owner or possessor of the apartment complex. As

noted in the case of Michael & Phillip, Inc. v. Sierra, 776 So.2d 294 (Fla. 4th DCA 2004) the

duty to protect strangers against the tortious conduct of others arises in three contexts: when the

defendant has control of (a) the instrumentality of harm; (b) the tortfeasor, himself; or (c) the

premises upon which the tort was committed. Id at 297 (quoting Vic Potamkin Chevrolet v.

Horne, 505 So.2d 560, 562 (Fla. 3rd DCA 1987.) In this regard, the duty to protect third persons
from injuries rests on the party who has the right of possession, custody and control of the

premises, in that the duty to protect others from injury resulting from a dangerous condition on

the property rests upon “the right to control access by third parties.” Bovis v. 7-Eleven, Inc., 505

So.2d 661, 663,664 (FLA 5th DCA 1987). But it cannot be said that Nova exercised any

custody, control or possession of the Avalon Reserve apartment complex. According to the clear

and unambiguous terms of the Contract, Nova’s sole contractual obligation is to provide an

officer as follows:

Service Schedule: Random/rotating schedule four (4) days per week, with four (4)

patrols per shift during a rotating/random patrol schedule as outlined by [Avalon

Reserve.]

Service Agreement, Attach. ___, at 1.

There is no competent evidence that Nova, its employees or agents were present on the

property of Avalon Reserve at the time of the subject shooting, or were required to be present

under the terms of the contract. The totality of the evidence conclusively establishes that Nova

was not on the property at the time of the shooting:

8. At the time of the subject aggravated battery involving the Decedent, Defendant,

Nova Security Agency, its employees, agents or servants were not scheduled to be

on the Property, and were in fact not on the Property, did not own the Property

and were not involved in the management, control or operation of the Property

located at 14451 Avalon Reserve Boulevard, Orlando, Florida.

Conover Aff. Attach ___, at 2, 3.

Nova was not present on the property at the time of the event which precipitated this

lawsuit, nor by the terms of the service agreement was it required to be present at that particular
time. By this and the general terms of the service agreement, Nova cannot be said to have been

in possession, custody or control of the premises at the time of the assault on the decedent, and

so cannot be said to have owed a duty of care to the decedent in this respect that it was negligent

in performing.

6. Conclusion

Because Plaintiff has failed to produce any competent evidence that Defendant, Nova, was

negligent in performing its limited duty towards decedent, assumed and was negligent in

performing the broad, general duty owed by Avalon Reserve to decedent, owed a duty to

decedent by virtue of its contract with Avalon Reserve, or acted in possession, custody or control

of the Avalon Reserve apartment complex such that it would owe a higher duty of care to the

decedent, the Defendant, Nova, is entitled to summary judgment as a matter of law.

CERTIFICATE OF SERVICE

I hereby certify that on ______, I electronically filed the foregoing with the Clerk of the
Courts by using the ECF system which will send a notice of electronic filing to the following:
Michael Mills, Esq., 2816 E. Robinson Street, Orlando, FL 32803 (Attorney for Plaintiff) and
Richards Ford, Esq., Wicker, Smith, O'Hara, McCoy & Ford, P.A., Bank of America Center,
390 N. Orange Avenue, Suite 1000, Orlando, Florida 32801 (Attorney for Defendants Riverstone
and Avalon).
/s/Gregory Gerjel_________
GREGORY GERJEL, ESQUIRE
Florida Bar No.: 492620
Law Office of Michael J. Krakar
1900 Summit Tower Boulevard, Suite 500
Orlando, Florida 32810
Tel: 407-659-0700
Fax: 407-659-0202
Attorney for Defendant Nova Security Agency