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Florida Legislature 2005 (click for ongoing coverage)

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Senate rejects liability protection

In a surprising defeat, state senators block the business lobby's push to have some shield against negligence claims stemming from criminal activity.

By JONI JAMES
Published May 6, 2005

TALLAHASSEE - In a stunning defeat for the Florida business lobby, 10 Republican state senators sided with Democrats late Thursday to reject a plan to make it harder for crime victims to collect damages from a business where they are victimized.

With a 24-16 vote, the Senate soundly rejected a House plan that would require a jury to award a level of blame to the criminal, even if he or she hasn't been identified, thereby reducing a business' liability.

The vote came after an hourlong debate in which the Senate's public gallery was filled with dozens of high-powered business lobbyists and trial attorneys sitting on the edge of their seats. Both sides said they had not known how the vote would go.

"I think we just got whooped," Rick McAllister, president and chief executive of the Florida Retail Federation, said moments after the vote. "We thought it was going to be closer."

Just hours earlier, as Gov. Jeb Bush toured the fourth floor of the Capitol, he named major reform to the state's premises liability law, specifically in the area of criminal activity, a top priority. So has House Speaker Allan Bense, R-Panama City.

Opponents said they worried the plan would narrow businesses' obligation to keep visitors safe to the point that they would stop taking security measures.

"They want the bad guy on the verdict because he's not going to be 80 percent responsible, he's going to be found 100 percent responsible," said Sen. Rod Smith, D-Alachua, a onetime prosecutor who is running for governor.

"But we do not let people off their responsibility to make the community safe."

By the time the Senate was done late Thursday, the upper chamber had abandoned any attempt to address the business lobby's push to have some shield against negligence claims stemming from criminal activity.

The Senate stripped from its bill a provision that would have given businesses a "safe harbor" from negligence claims if they could prove they had taken security measures, such as installing surveillance cameras.

The retail federation, along with major companies like Publix, had argued the standards would be impossible to meet 365 days a year, thereby providing little real protection.

All that's left of the Senate's premises liability plan is a modification of the state's "slip-and-fall" law, which is part of the House plan.

The proposed change would put more burden on plaintiffs injured at a business to prove the business knew of the hazard and failed to act.

Even keeping that proposal alive will require action today by the House and Senate.

Senate President Tom Lee made no apologies. His potential success in winning more financial disclosure from lobbyists has been linked to being able to accommodate Bense's push for tort changes.

Lee, who voted in the minority to accept the House plan, said he'd promised to give Bense a fair hearing of the plan and that it was only by his insistance that it was heard.

He said he expects the House to take up his lobbying bill today.

"It's a fist fight between special interest groups and, for whatever reason, the business community could not prevail over the trial lawyers," Lee, R-Brandon, said.

Thursday's drama, on the next-to-last day of the legislative session, played against increasing tensions as the session comes to a close today.

Dramatic issues remain unresolved, including whether to make changes to the state's property insurance market in the wake for four hurricanes; what kind of slot machines to allow at Broward County parimutuels in light of November's statewide vote; and whether Bush will receive new latitude to revamp the state's costly Medicaid program.

Proposed tort changes are just as uncertain. All session, the House has pushed harder to make civil courts friendlier to businesses than the Senate. Both chambers have approved measures that Bush is expected to sign: one granting limited immunity for streetlight providers for injuries that occur under malfunctioning lights and one that limit suits against asbestos manufacturers to people who are sick with asbestos-related disease.

But broader issues remain unsettled. The Senate tentatively approved plans Thursday to curb punitive damages in class-action suits and shield retailers from liability for some products' defects. Neither bill goes as far as the House's class-action and product liability bills, leaving unclear what might be approved today.

Joni James can be reached at jjames@sptimes.com or 850 224-7263.

[Last modified May 6, 2005, 00:38:16]