author: POLSTON, J. LAWSON, J.,

text:
    VENICE HMA, LLC d/b/a Venice Regional Medical Center, Appellant, v. SARASOTA COUNTY, et al., Appellee. Sarasota Doctors Hospital, Inc., et al., Appellant, v. Sarasota County, et al., Appellee.
    No. SC15-2289
    No. SC15-2292
    Supreme Court of Florida.
    July 6, 2017

      Geoffrey D,' Smith, Timothy B. Elliott, Kara L. Gross, and Susan C, Smith of Smith & Associates, Tallahassee, Florida, for Appellant Venice HMA, LLC, d/b/a Venice Regional Medical Center
    • Raoul G. Cantero, David P. Draigh, and Ryan A. Ulloa of White & Case LLP, Miami, Florida; and Stephen A. Ecenia and J. Stephen Menton of Rutledge Ece-nia, P.A., Tallahassee, Florida, for Appellants Sarasota Doctor’s Hospital, Inc., and Englewood Community Hospital, Inc;
    Raymond T. Elligett, Jr., and Amy S. Farrior of Buell & Elligett, P.A., Tampa, Florida; Robert L. Nabors of Nabors, Gib-lin & Nickerson, P.Á., Tallahassee, Florida; and Stephen E. DeMarsh, County Attorney, and Frederick ,J. Elbrecht, Deputy County Attorney, Sarasota, Florida, for Appellee Sarasota County.
    David A. Wallace of Bentley & Bruning, P.A., Sarasota, Florida, for Appellee Sarasota County Public Hospital District
   POLSTON, J.

These consolidated cases are before the Court on appeal from the decision of the Second District Court of Appeal in Venice HMA, LLC v. Sarasota County, 198 So.3d 23 (Fla. 2d DCA 2015), which held that the indigent care provision of the special law applicable only'to Sarasota County constitutes an unconstitutional privilege because it provides for reimbursement to the public and private hospitals only in Sarasota County rather than in the entire State of Florida. However, because a special law by definition operates only in a defined subdivision of the State, we reverse the Second District’s decision. The indigent care provision does not grant a privilege to a private corporation in violation of article III, section ll(a)(12) of the Florida Constitution because it applies equally to all hospitals- in Sarasota County, whether public or private. .

BACKGROUND

The Second District described the background of the statutory provision at issue and the factual history of'these cases as follows:

[B]y special law in 1949, the legislature established the Sarasota County Public Hospital District, one of thirty-four special hospital districts. The special law granted the hospital district its own taxing authority separate from Sarasota County. See ch. 26468, Laws of Fla. (1949). Sarasota County voters approved the special act in a 1950 referendum.
Almost a decade later, in 1959, the legislature amended the special law. The legislature added an indigent care provision requiring Sarasota County to reimburse the hospital district for medical services provided to indigent patients at hospital district facilities. See ch. 59-1839, § 8(i), at 3884-85, Laws of Fla. Significantly, the indigent care provision also required reimbursement to any other hospital in Sarasota County providing indigent care. See id.
The indigent care provision was not submitted for voter approval. Our record does not contain documentation of public notice; presumably, such .notice was published pursuant to article III, section 20 of the 1885 Constitution as an alternative to a referendum. The parties do not claim otherwise.
[I]n 2003, the legislature repealed the 1959 special law. See ch. 03-359, § 2, at 316, Laws of Fla. It enacted a 2003 special law for “the codification of all special acts relating to [the] Sarasota County Public Hospital District” to provide “a single, comprehensive special act charter for the District including all current legislative authority granted to the District by its several legislative' enactments.” See id § 1. The 1959 indigent care provision, with only minor nonsub-stantive changes, remained a part of this 2003 comprehensive legislation. Compare 1959 Laws of Fla. § 8(i), 3884-85 with ch. 03-369, § 8(9), at 321, Laws of Fla. Notice of the 2003 special law was published in compliance with article III, section 10 of the 1968 Constitution. See Fla. H.R. Comm. on Local Gov’t & Veterans Affairs HB 1113 (2003) Staff Analysis 5 (Mar. 7, 2003).
Beginning in November 2008, and monthly thereafter, the Private Hóspitals[] submitted to the County a list of costs associated with providing hospital care to the indigent in Sarasota County. The Private Hospitals requested reimbursement for these costs pursuant to section 8(9) of the 2003 special law[.] The County refused to pay. .

Venice HMA, 198 So.3d at 25-28 (footnotes omitted).

In 2011, the Private Hospitals “sought a declaration establishing their right to reimbursement from the County for providing indigent care under the indigent care provision of, the 2003 special law.” Id at 28. However, “[t]he County maintained that such reimbursement would provide an unconstitutional privilege to private corporations” in violation of article III, section 11(a)(12). Id The trial court entered summary judgment agreeing with the County. Id. at 29.

On appeal, the Second District affirmed, stating, that “[t]he correct analysis is whether the 2003 special act gives the Private Hospitals in Saraspta County a privilege that private hospitals elsewhere in the state do not share.” Id. at 30 (quoting and agreeing, with the County). The Second District explained that “[b]efore addition of the indigent care provision in the 1959 special law, no non-District hospital was entitled to reimbursement for providing medical care to the indigent” and that “[t]he Private Hospitals, if they prevail, certainly would have an advantageous position relative to other private hospitals in Florida, indeed, even as to .those that may exist in adjacent counties.” Id. at 29-30.

ANALYSIS

“The constitutionality of- a statute is a pure question of law subject to de novo review.” City of Fort Lauderdale v. Dhar, 185 So.3d 1232, 1234 (Fla. 2016). “[A] determination that a statute is facially unconstitutional 'means that no set-of circumstances exists under which the statute would be valid.” Pub. Defender, Eleventh Jud. Cir. v. State, 115 So.3d 261, 280 (Fla. 2013).

Article X, section 12(g) of the Florida Constitution explains that “‘[sjpecial law’ means a special or local law.” And this Court has described special and local laws as follows:

[A] special law is one relating to, or designed to operate upon, particular persons or things, or one that purports to operate upon classified persons or things when classification is not permissible or the classification adopted is illegal; • a local law is one relating to, or designed to operate only in, a specifically indicated part of the state, or one that purports to operate within classified territory when classification is not permissible or the classification adopted is illegal. '

Florida Dep’t of Bus. & Prof'l Reg. v. Gulfstream Park Racing Ass’n, 967 So.2d 802, 807 (Fla. 2007) (quoting State ex rel. Landis v. Harris, 120 Fla. 555, 163 So. 237, 240 (1934)) (emphasis added). In contrast, “[a] general law operates universally throughout the state, or uniformly upon subjects as they may exist throughout the state, or uniformly within permissible classifications by population of counties or otherwise, or is a law relating to a state function, or instrumentality.” Id. No one disputes that the law at issue here is a local law (which is included in the constitutional definition of special law) in that it operates only in Sarasota County.

Article III, section 10 of the Florida Constitution provides that “[n]o special law shall be passed unless notice of intention to seek enactment thereof has been published in the manner provided by general law;” however, such notice is unnecessary if the special law is “conditioned to become effective only upon approval by vote of the electors of the area affected.” As the Second District explained, no one is claiming that the provision at issue in this case was not properly noticed as a special law. See Venice HMA, 198 So.3d at 26.

Furthermore, article III, section 11 provides a list of subjects that may not be addressed by special law. Specifically, according to article III, section 11(a) (emphasis added), “[tjhere shall be no special law or general law of local application pertaining, to:”

(1) election, jurisdiction or duties of officers, except officers of municipalities, chartered counties, special districts or local governmental agencies;
(2) assessment or collection of taxes for state or county purposes, including extension of time therefor, relief of tax officers from due. performance of their duties, and relief of their sureties from liability;
(3) rules of evidence in any court;
(4) punishment for crime;
(5) petit -juries, including- compensation of jurors, except establishment of jury commissions;
(6) change of civil or criminal venue;
(7) conditions precedent to bringing any civil or criminal proceedings, or limitations of time therefor;
(8) refund of money legally paid or remission of fines, penalties or forfeitures;
(9) creation, enforcement, extension or impairment of liens based on private contracts, or fixing of interest rates on private contracts;
(10) disposal of public property, including any interest therein, for private purposes;
(11) vacation of roads;
(12) private incorporation or grant of privilege to a private corporation;
(13) effectuation of invalid deeds, wills or other instruments, or change in the law of descent;
(14) change of name of any person;
(15) divorce;
(16) legitimation or adoption of persons;
(17) relief of minors from legal disabilities;
(18) transfer of any property interest of persons under legal disabilities or of estates of decedents;
(19) hunting or fresh water fishing;
(20) regulation of occupations which are regulated by a state agency; or
(21) any subject when prohibited by general law passed by-a three-fifths vote of the membership of each house. Such law may be amended or repealed by like vote.

The Private Hospitals argue that the indigent care provision of the special law at issue here does not grant a privilege to a private corporation in violation of article III, section 11(a)(12) because it applies equally to all hospitals in Sarasota County, whether public or private. We agree.

In Lawnwood Medical Center, Inc. v. Seeger, 990 So.2d 503, 517-18 (Fla. 2008), this Court held that a special law affecting two private hospitals in St. Lucie County, which were both owned by the same private corporation, provided an unconstitutional privilege because it granted the corporation “almost absolute power in running the affairs of the hospital, essentially without meaningful regard for the recommendations or actions of the medical staff.” In its analysis, this Court considered whether the “privilege” prohibited by section 11(a)(12) is “economic favoritism over other entities similai’ly situated” or whether “ ‘privilege’ encompasses more than a financial benefit.” Id. at 510. This Court “conclude[d] that a broad reading of the term ‘privilege’ as used in article III, section 11(a)(12),—one not limiting the term to any particular type of benefit or advantage—is required.” Id. at 512.

. In determining the plain meaning of the constitutional text “grant of privilege to a private corporation,” this Court in Lawn-wood considered dictionary definitions of “privilege” from the time when the text was adopted, noting that “[t]he definitions have not substantially changed from those that existed at the time of the 1968 constitutional revision.” Id. at 511 n.10; see Myers v. Hawkins, 362 So.2d 926, 930 (Fla. 1978) (“[W]e initially consult widely circulated dictionaries, to see if there exists some plain, obvious, and ordinary meaning for the words or phrases approved for placement in the Constitution.”). Specifically, we referenced Black’s Law Dictionary, which defined “privilege” as “a particular and peculiar benefit or advantage enjoyed by a person, company, or class, beyond the common advantage of other citizens.” Lawnwood, 990 So.2d at 511 (quoting Black’s Law Dictionary 1359 (4th ed. 1968)). We also considered Webster’s Seventh New Collegiate Dictionary, which defined “privilege” as “a right or immunity granted as a peculiar benefit, advantage, or favor.” Id at 511 (quoting Webster’s Seventh New Collegiate Dictionary 677 (7th ed. 1967)). Further, this Court in Lawnwood explained that “definitions from other state supreme courts construing similar provisions in their constitutions parallel the dictionary definitions as well as the common sense understanding of a ‘privilege’ as connoting a special benefit, advantage, or right enjoyed by a person or corporation.” Id at 512. In other words, in common parlance, a privilege is having something that others do not have.

Here, the indigent care provision provides for reimbursement to all hospitals in Sarasota County for expenses related to care for indigent patients:

To certify to the Board of County Commissioners of Sarasota County,, on or before the 15th day of each month commencing with the month of November 1959, a list of all the medically indigent persons who have been hospitalized in any of the hospitals which are operated by the Hospital Board during the preceding month, together with the itemized charges for the hospital services and care for each of said medically indigent persons which have been rendered in such preceding month by the said hospital.' The Board of County Commissioners of Sarasota County shall, within 45 days after the receipt of such certified list of medically indigent patients with the hospital charges, make remittance to the treasurer of the Hospital Board of the sum total of the amount shown on the certified list to be the amount owing to the Hospital Board for the hospital services and care rendered to the medically indigent persons during the month embraced in said certification.
The said Board of County Commissioners shall in like mariner reimburse any other hospital in Sarasota County, approved by the State Board of Health, for hospital services rendered to medically indigent persons as herein defined, upon like certification by such hospital and at such rates as shall not exceed those prescribed for such patients by hospitals owned and operated by said Hospital Board.

Ch. 2003-359, § 3, at 321, Laws of Fla. (emphasis added). Therefore, because the provision provides for reimbursement to all hospitals in Sarasota County (private and public), it is not providing a “particular and peculiar benefit or advantage”- to a private corporation that is “beyond the common advantage of other citizens.” Lawnwood, 990 So.2d at 511 (quoting Black’s Law Dictionary 1359, (4th ed. 1968)). Accordingly, the indigent care provision does not violate the plain meaning of article III, section 11(a)(12) of the Florida Constitution.

Importantly, we reach this holding based upon the plain meaning of the text in the Florida Constitution, including the plain meaning of the term “privilege.” And we reject the dissent’s accusation that our decision adds words to the text of our state’s foundational document. We believe that the language “grant of privilege to a private corporation” contained in section 11(a)(12) reasonably means providing a benefit to a private corporation that others do not receive. This special law neither singles out private corporations as a class or any particular private corporations for any privilege.

The County argues, and the Second District agreed, that “[t]he correct analysis is whether the 2003 special act gives the Private Hospitals in Sarasota County a privilege that private hospitals elsewhere in the state do not share.” Venice HMA, 198 So.3d at 30 (quoting and agreeing with the County), However, this argument conflates the definition of “privilege” with the very nature of special laws,, which by definition only operate in a defined subdivision of the State. See article X, §. 12(g), Fla. Const, (providing that “ ‘[s]pecial law’ means a special or local law”); Gulfstream Park Racing Ass’n, 967 So.2d at 807 (explaining that “a local law is one relating to, or designed to operate only in, a specifically indicated part of the state” (quoting State ex rel. Landis, 163 So. at 240)); see also State v. Leavins, 599 So.2d 1326, 1331 n.10 (Fla. 1st DCA 1992). Because the special law only applies to Sarasota County, we must limit our comparisons to Sarasota County,

The dissent observes that, the special law in Lawnwood—the St. Lucie County Hospital Governance Law—“was a local law that applied only to hospitals in St. Lucie County.’-’ Dissenting op. at 84. Because this Court in Lawnwood invalidated such a local law (by ruling that it “imper-missibly provide[d] a privilege to a private corporation”), the dissent contends that “Lawnwood made clear that the appropriate analysis is between the hospitals affected by the local law and other similarly situated hospitals in the State of Florida.” Id. Based on this understanding of Lawn-wood, the dissent asserts that our “resolution of this case is ... directly and irreconcilably in conflict with Lawnwood on the facts.” Id. at 85.

But our opinion in Lawnwood repeatedly makes the point that, the special law affected only privately owned hospitals in St. Lucie County. And that fact was central to our reasoning in support of the conclusion that the special law at issue in Lawnwood impermissibly granted a corporate privilege. In reciting the facts in Lawnwood, we observed that “[i]t is uncontroverted that the special law affected only the two private hospitals in St. Lucie County, which are both owned by the same private parent corporation.” 990 So.2d at 508. In our analysis, we stated that an express provision of the special law “makes clear that the hospitals affected by the law are only those whose licenses are held by corporations,” and we observed that “[i]t is apparent from the express language in the [special law] that the law was intended to affect only those privately operated hospitals located in St. Lucie County.” Id. at 510. From this we concluded that the special law “is unquestionably a special law affecting a private corporation.” Id. We reiterated that the special act “was passed as a special law and specifically enacted to affect only private, corporately owned hospitals in St. Lucie County.” Id.

Contrary to the dissent’s apparent interpretation, all of this in the Lawnwood opinion cannot reasonably be understood as designed to make the obvious point that hospitals outside St. Lucie County were not affected by the St. Lucie County Hospital Governance Act. Rather, the point the Lawnwood opinion turned on was that only hospitals owned by private corporations were affected—that is, granted a privilege—-by the special law. And that is what distinguishes Lawnwood from the present case. In other words, the special law was invalidated in Lawnwood because it affected only private hospitals, whereas the special law is permissible here because it affects both public and private hospitals.

Additionally, although not- addressed in the Second District’s decision, the County and the District contend that the indigent care provision violates the County’s home-rule powers because it was not approved by the voters in Sarasota County. The County and District cite article VIII. section 1(g) of the Florida Constitution in support of their‘argument. But, while article VIII, section 1(g) of the 1968 Florida Constitution discusses charter counties’ powers of self-government and mentions “special law approved by vote of the - electors,” this provision was not in effect when the .indigent care -provision was enacted in 1959. See art. XII, § 6(a), Fla. Const. (“All laws in effect upon the adoption of this revision, to the extent not inconsistent with it, shall remain in force until they expire, by their terms or are repealed.”). Moreover, when a statute is “repealed and substantially re-enacted,” as this one was in 2003, it is “deemed to have been in operation continuously from the original enactment.” McKibben v. Mallory, 293 So.2d 48, 53 (Fla. 1974). Therefore, we disagree with the County’s and District’s argument that the indigent care provision unconstitutionally violates the County’s home-rule powers.

CONCLUSION

Accordingly, because the indigent care provision of the special law applies to all hospitals (public and private) in Sarasota County, it does not grant a privilege to a private corporation in violation of the plain meaning of article III, section ll(a)(12). We reverse the Second District’s decision affirming the invalidation and severance of the-indigent care provision.

It is so ordered.

LABARGA, C.J., and LEWIS, QUINCE, and CANADY, JJ., concur.

LAWSON, J., dissents with an opinion, in which PARIENTE, J., concurs.

LAWSON, J.,

dissenting.

In my view, our decision in Lawnwood Medical Center, Inc. v. Seeger, 990 So.2d 503 (Fla. 2008), applies the unambiguous language of article III, section 11(a)(12), and article X, section 12(g), of the Florida Constitution and is controlling here. Staying the constitutional course charted by our precedent, I would approve the decision of the Second District Court of Appeal. Therefore, I respectfully dissent.

In Lawnwood, we defined “privilege” in the context of article III, section 11(a)(12)’s prohibition against a “special law”—-which pursuant to article X, section 12(g), includes a “local law” of the type at issue here—as “a right, a special benefit [including “a financial benefit”], or an advantage.” Lawnwood, 990 So.2d at 511. The law at issue in Lawnwood was a local law that applied only to hospitals in St. Lucie County. Id. at 506 (“The parties do not dispute that the HGL is a special law applicable to private corporations only in St. Lucie County .... ”). Our Court held the act to be invalid because it “impermissibly providefd] a privilege to ... a private corporation” in St. Lucie County not granted to other hospitals in the state. Id. After recognizing that the Florida Constitution defines “a special law as ‘a special or local law,’ ” our Court clearly stated: “It is apparent from the express language in the HGL that the law was intended to affect only those privately operated hospitals located in St. Lucie County. Therefore, the HGL is unquestionably a special law affecting a private corporation.” Id. at 510 (emphasis added). Thus, Lawnwood made clear that the appropriate analysis is between the hospitals affected by the local law and other similarly situated hospitals in the State of Florida.

I would apply Lawnwood the same way here and thereby stay the constitutional course.. Specifically, the payment of .local government funds to private hospital corporations mandated by the special law at issue here is a financial benefit and therefore a privilege as defined by Lawnwood. Because this financial benefit was conferred by special law, it violates article III, section 11(a)(12). Mandating these payments to private corporations from local tax dollars may constitute sound public policy that should be implemented on a statewide basis by general law. But, article III, section 11(a)(12), unambiguously bars the grant of this type of benefit to private corporations by special law.

Instead of applying the straightforward language of the Constitution in this straightforward manner, the majority focuses on the fact that the word “privilege” connotes a benefit not enjoyed by others. In my view, it makes no sense to ask whether the benefit conferred is “enjoyed by others” when that concept is a structural part of the constitutional provision. In other words, granting a benefit by special law means that the benefit is not extended to other similarly situated private corporations in the state. This is especially apparent when considering a non-local special law.

For example, if the special law at issue here had granted this very same financial benefit to one or more private hospital corporations by name, petitioners readily and properly concede that the financial benefit would constitute an unauthorized privilege because other private hospital corporations operating in Florida would be excluded from the same financial benefit. This same straightforward application should apply to local laws because the Constitution uses the exact same language for all special laws. Instead of applying the Constitution as written—to prohibit this local law “pertaining to ... private ihcor-poration or grant of privilege to a private corporation,” article III, section 11(a)(12), Florida Constitution—the majority has effectively rewritten the Constitution to differentiate between local laws and other special laws as follows:

The legislature shall not enact either: (1) special laws that pertain to private incorporation or grant of privilege to a private corporation or (2) local laws that pertain to private incorporation or grant of privilege to a private corporation where the privilege is not also granted to other similar private and public corporations within the same locality.

My first observation regarding this judicially reworked constitutional language is that it appears to always permit the grant of a privilege by local law because, by definition, “a local law is one relating to, or designed to operate only in, a specially indicated part of the state ....” Lawnwood, 990 So.2d at 509 (quoting Florida Dep’t of Bus. & Prof'l Regulation v. Gulfstream Park Racing Ass’n, 967 So.2d 802, 807 (Fla. 2007). Therefore, a local law directed at hospitals, like the law at issue here and in Lawnwood, by definition necessarily applies to all hospitals in the locality (because that is the very nature of a local law). If the law were drawn more narrowly, to apply to only specified hospitals in the area, it would be a non-local special law.

My second observation is that this rewrite of the Constitution directly contradicts the acknowledgment in Lawnwood that “we are not at liberty to add words to article III, section ll(a)(12), which were not placed there by the drafters of the Florida Constitution.” Id. at 512. Ironically, not only is this addition of language to article III, section 11(a)(12), expressly prohibited by Lawnwood, but the majority’s resolution of this case is also directly and irreconcilably in conflict with Lawnwood on the facts.

My third observation about the majority’s judicial rewrite of this constitutional provision is that it makes no logical sense to treat local laws differently than non-local special laws because it allows the Legislature to grant the exact same corporate privilege by local law that would clearly be barred by non-local special law. For example, take a county with one public hospital (say, the “Local Hospital”) and one private hospital (the “ABC Hospital Corp.”). Clearly, the Legislature could not pass a special law requiring millions of local tax dollars to be paid to the Local Hospital and the ABC Hospital Corp, by-name, and no other hospital in the state. There is no rational argument that this non-local special law would not violate article III, section ll(a)(12). But, under the majority’s interpretation of article III, section ll(a)(12), the Legislature could provide the exact same corporate privilege to the same private hospital by local law. That makes no sense where the language prohibits the grant of this type of privilege by any type of special law. Of course, I could come up with any number of hypothetical involving counties with no private hospitals or multiple public and private hospitals where a non-local special law granting the .privilege would be barred under the majority’s interpretation but a local law granting the same corporate privilege would be upheld as constitutional. This odd anomaly of the majority’s interpretation is really just another way of pointing out that the majority’s reading of the language barring special law corporate privileges actually allows the Legislature to grant a corporate privilege by local law.

Finally, it seems worth reflecting upon the obvious policy concerns underlying this particular provision of the Florida Constitution, as written. Some relaté to all special laws. For example, it seems that granting special benefits to private corporations by any type of special law would be subject to criticism as an improper use of taxpayer money or as unfair in a free market system or as rife with the potential for graft. Again, if it is good public policy to give taxpayer money to a class of private corporations (such as hospital corporations) in the state, then it should be good public policy throughout the state. Othér-wise, the special'treatment begins'to look like legislative largess to particularly connected corporations in that class instead of just good public policy. But, at least the enactment of a non-local special law privilege (to a private corporation) would be consistent with the underlying structure of our .representative form, of government. That is, if a non-local special law privilege were permitted by the Constitution and the Florida Legislature voted to directly grant .a significant financial benefit to,a select group of named for-profit private hospitals in the state from general, revenue,, the citizens of this state would have recourse: at the ballot box if they, disagreed with the action. ' (

But, with a local law like the one at issue here, legislators from other parts of the state could force the citizens ,.of a single county to bear.a significant.financial burden flowing to a few private corporations in their county even if their local representatives voted against the measure and even if the electorate never had an opportunity to rktify the action by a local vote, as happened here. That, to me, seems like the most troublesome type of special law privilege because it could be enacted entirely by legislators not accountable to the local citizens on whom they placed the burden of financing the corporate privilege, Unfortunately, the majority has now written the protection against granting a corporate privilege by local law out of our Constitution. Therefore, I dissent.

PARIENTE, J., concurs.

      . We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

      . Sarasota Doctors Hospital, Inc,, Englewood Community Hospital, Inc., and Venice HMA, LLC d/b/a Venice Regional Medical Center are collectively referred to as "the Private Hospitals.” See Venice HMA, 198 So.3d at 24.

      . The brief filed in this Court by Sarasota Doctor’s Hospital, Inc. arid Englewood Community Hospital, Inc. states that there are 33 special hospital districts created by special law in Florida, and "[f]ully one-third of [those] authorize reimbursement for the delivery of medical care to indigent patients by nonpublic providers.” Initial Brief at 12-13 (citing special laws involving the Health Care District of Palm Beach County, the West Vo-lusia Hospital Authority, the Lakeshore Hospital Authority in Columbia County, the North Broward Hospital District, and the Citrus County Hospital District, among others).

      .- We also reject without further comment the County's and District’s argument that the special law is void for vagueness.

      . Article X, section 12(g), of the Florida Constitution defines "[sjpecial law” as "a special or local law.” (Emphasis added.) The law at issue here is a local law, meaning that it is a special law. Id Article III, section 11(a)(12), prohibits any "special law" that "pertain[s] to ... private incorporation or grant of privilege to a private corporation.”

      . In this case, it is estimated that the citizens of Sarasota County will owe $30.0 million to the private hospital corporations in their county.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE: STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES-REPORT 2017-01
    No. SC17-1438
    Supreme Court of Florida.
    October 12, 2017
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard jury instructions, and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee proposes amending the following standard criminal jury instructions: 3.6(o) (Transferred Intent); 11.17(a) (Soliciting a [Child] [Person Believed by the Defendant to be a Child] for Unlawful Sexual Conduct Using Computer Services or Devices); 11.17(b) (Soliciting a Parent, Legal Guardian, or Custodian of a Child for Unlawful Sexual Conduct Using Computer Services or Devices); 11.17(c) (Traveling to Meet a Minor); and 11.17(d) (Traveling to Meet a Minor Facilitated by Parent, Legal Guardian, or Custodian). The Committee published its proposals for comment. No comments were received by the Committee. The Court did not publish the proposals after they were filed..

Having considered the Committee’s report, we amend the standard jury instructions as proposed by the Committee, with a purely technical correction to instruction 3.6(o), and authorize them for publication and use.

We note the following. significant changes to the jury instructions as. amended. First, with regard to Instruction 3.6(o), the phrase “but instead” is replaced with “and in the process,” the word “the” is replaced with “any,” and the word “actually” is removed from the instruction. The Committee explains that these changes are made so that the instruction will be suitable for use in all cases in which it applies. The Committee has also updated the Comment section of the instruction with relevant case law pertaining to the doctrine of transferred intent.

.Next, with regard to Instructions 11.17(a), (b), (c), and (d), the crime of Unlawful Use of a Two-Way Communications Device is added, as a category two lesser included offense. With regard to Instruction 11.17(b), the phrase “Legal Guardian, or Custodian” is added to the first sentence of the instruction to mirror its title and the language of section 847.0135(3)(b), Florida Statutes (2017).

The amended criminal jury instructions, as set forth in the appendix to this opinion, are hereby authorized for publication and use. New language is indicated by underlining, and deleted language is indicated by struck-through type. In authorizing the publication and use of these instructions, we express no opinion on their, correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effé’ctive when this opinion becomes final.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

APPENDIX

3.6(o) TRANSFERRED INTENT

If a person intends to [hit] [strike] [shoot] a person, but insteadand in the process [hits] [strikes] [shoots] a different person, the law transfers the intent to [hit] [strike] [shoot] from the person who was aimed at to theany person who was actually [hit] [struck] [shot].

Comments

See State v. Brady, 745 So.2d 954 (Fla. 1999) and Nelson v. State, 853 So.2d 563 (Fla. 4th DCA 2003). Also, in Mordica v. State, 618 So.2d 301, 303 (Fla. 1st DCA 1993), the First District rejected the contention that the doctrine of transferred intent is applicable only where the defendant entirely misses the intended victim and hits the unintended victim.

The doctrine of transferred intent may not apply to the crime of Attempted First Degree Murder. See Bell v. State, 768 So.2d 22 (Fla. 1st DCA 2000)(stating that if the issue is whether the defendant attempted to murder multiple victims, then such specific intent is not subject to transfer but rather such intent should be independently evaluated as to each victim); but see Frederick v. State, 93 So.3d 445 (Fla. 4th DCA 2012) (holding that the giving of a transferred intent instruction was not fundamental error because defendant was not charged with attempting to murder multiple victims).

This instruction was adopted in 2013 [131 So.3d 720] and amended in 2017.

11.17(a) SOLICITING A [CHILD] [PERSON BELIEVED BY THE DEFENDANT TO BE A CHILD] FOR UNLAWFUL SEXUAL CONDUCT USING COMPUTER SERVICES OR DEVICES

§ 847.0135(3)(a), Fla. Stat.

To prove the crime of Soliciting a [Child] [Person Believed by the Defendant to be a Child] for Unlawful Sexual Conduct Using Computer Services or Devices, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) knowingly used a[n] [computer on-line service] [Internet service] [local bulletin board service] [device capable of electronic data storage or transmission] to contact (victim).
2. (Victim) was a child or a person believed by the defendant to be a child.
3. During that contact, (defendant) [seduced] [solicited] [lured] [enticed] [attempted to [seduce] [solicit] [lure] [entice]] (victim) to [commit (any illegal act as charged in the indictment or information under chapter 794, 800, or 827) ] [or] [engage in (other unlawful sexual conduct with a child or with a person believed by the defendant to be a child) ].

The mere fact that an undercover operative or law enforcement officer was involved in the detection and investigation of this offense shall not constitute a defense from prosecution.

Enhanced penalty. Give if applicable.

If you find (defendant) guilty of Soliciting a Child for Unlawful Sexual Conduct Using Computer Services or Devices, you must also determine whether the State proved beyond a reasonable doubt that during the contact, (defendant) misrepresented [his] [her] age to [ (victim) ] [the person believed by thé defendant to be a child].

Definitions.

A “child” means any person, whose identity is known or unknown, less than 18 years of age.

Give the folloiving definitions if applicable. Additional definitions can be added as applicable depending on the nature of the alleged illegal conduct. See §, 8^7.001, Fla. Stat.

“Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

“Sadomasochistic abuse” means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm upon another or receiving such harm oneself.

“Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any, other object; however, sexual battery does not include an act done for a bona fide medical purpose.

Lakey v. State, 113 So.3d 90 (Fla. 5th DCA 2013).

“An object” includes a finger.

“Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

“Sexual bestiality” means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.

Give if applicable. § 775.0862, Fla. Stat.

Enhancement for sexual offense against student by school authority figure.

If you find that (defendant) committed the crime of Soliciting a [Child] [Person Believed by the Defendant to be a Child] for Unlawful Sexual Conduct Using Computer Services or Devices, you must also determine whether the State has proved beyond a reasonable doubt that (defendant) was an authority figure at a school and (victim) was a student at the same school.

“Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

“School” means an organization of students for instructional purposes on an elementary, middle or junior high school, secondary or high school, [or other public school level authorized under the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions - from § •775.0862(l)(b), Fla. Stat. for ■ “private school” or “voluntary prekindergarten education program” or “early 'learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

“Student” means a person younger than 18 years of age who is enrolled at a school.

Lesser Included Offenses

■No-lesser' included ■ -offenses have-been identified-for-thiS' offense.'

Comment

This instruction was adopted in 2009 [6 So.3d 574] and amended in 2013 [122 So.3d 263], and 2015 [163 So.3d 478], and 2017.

11.17(b) SOLICITING A PARENT, LEGAL GUARDIAN, OR CUSTODIAN OF A CHILD FOR UNLAWFUL SEXUAL CONDUCT USING COMPUTER SERVICES OR DEVICES

§ 847,0135(3)(b), Fla. Stat.

To prove the crime of Soliciting a Parent, Legal Guardian, or Custodian of a Child for Unlawful Sexual Conduct Using Computer Services or Devices, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) knowingly used a[n] [computer on-line service] [Internet service] [local bulletin board service] [device capable of electronic data storage or transmission] to contact a [parent of a child] [legal guardian of a child] [custodian of a child] [person the defendant believed to be a [parent] [legal guardian] [custodian of] a child].
2. During that contact, (defendant) [solicited] [lured] [enticed] [attempted to [solicit] [lure] [entice]] a [parent of a child] [legal guardian of a child] [custodian of a child] [person believed by the defendant to be a [parent] [legal guardian] [custodian of] a child] to consent to the participation of the child in (any illegal act as charged in the indictment. or information under chapter 794, 800, 827, or other unlawful sexual conduct).

The mere fact that an undercover operative or law enforcement officer was involved in the detection and investigation of this offense shall not constitute a defense from prosecution.

Enhanced penalty. Give if applicable.

If you find (defendant) guilty of Soliciting a Parent of a Child for Unlawful Sexual Conduct Using Computer Services or Devices, you must also determine whether the State proved beyond a reasonable doubt that during the contact, (defendant) misrepresented [his] [her] age to the [parent] [legal guardian] [custodian] [person believed by the defendant to be a [parent] [legal guardian] [custodian]].

Definitions.

A “child” means any person, whose identity is known or unknown, less than 18 years of age.

Give the following definitions if applicable. Additional definitions can be added as applicable depending on the nature of the alleged illegal conduct. See § 84.7.001, Fla. Stat.

“Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

“Sadomasochistic abuse” means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm upon another or receiving such harm oneself.

“Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.

Lakey v. State, 113 So.3d 90 (Fla. 5th DCA 2013).

“An object” includes a finger.

“Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva. , ,

“Sexual bestiality” means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.

Give if applicable. § 775.0862, Fla. Stat.

Enhancement for sexual offense against student by school authority figure.

. If you find that (defendant) committed the crime of. Soliciting a Parent of a Child for Unlawful Sexual Conduct Using Computer Services or Devices, you must also determine whether the State has proved beyond a reasonable doubt that (defendant) was an authority figure at a school and (victim) was a student at the same school.

“Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

“School” means an organization of students for instructional purposes on an elementary, middle or junior high school, secondary or high school, [or other public school level authorized under the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from §■ 775.0862(l)(b), Fla. Stat. for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 102.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

“Student” means a person younger than 18 years of age who is enrolled at a school.

Lesser Included Offenses

No-lesser-ine&ded offenses have-been identified for this offense.

Comment

■ This instruction was adopted in 2009 [6 So.3d 574] and amended in 2013 [122 So.3d 263], and2015[163 So.3d 478], and 2017.

11.17(c) TRAVELING TO MEET A MINOR
§ 847.0135(4)(a), Fla. Stat.

To prove the crime of Traveling to Meet a Minor, the State must prove the following two elements béyond a reasonable doubt:

1. (Defendant) used a[n] [computer on-lin¿ service] [Internet service] [local bulletin board service] [device capable of electronic data storage or transmission] to [seduce] [solicit] [lure] [entice] [attempt to [seduce] [solicit] [hire] [entice]] a [child] [person believed by the defendant to be a child] to engage in [ (insert illegal act in chapter 794, 800, or 827 as alleged in the charging instrument) ] [unlawful sexual conduct].
2. (Defendant) then [traveled] [attempted to travel] [caused another to travel] [attempted to cause another to travel] [within this state] [to this state] [from this state] for the purpose of [ (insert violation of chapter 794, 800, or 827 as alleged in the charging instrument) ] [unlawful sexual conduct] with a [child] [person believed by the defendant to be a child].

The mere fact that an undercover operative or law enforcement officer was involved in the detection and investigation of this offense shall not constitute a defense from prosecution.

Definitions.

A “child” means any person, whose identity is known or unknown, less than 18 years of age.

Give the following definitions if applicable. Additional definitions can be added as applicable depending on the nature of the alleged illegal conduct. See § 847.001, Fla. Stat.

“Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

“Sadomasochistic abuse” means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm upon another or receiving such harm oneself.

“Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.

Lakey v. State, 113 So.3d 90 (Fla. 5th DCA 2013).

“An object” includes a finger.

“Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

“Sexual bestiality” means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.

Give if applicable. § 775.0862, Fla. Stat.

Enhancement for sexual offense against student by school authority figure.

If you find that (defendant) committed the crime of Traveling to Meet a Minor, you must also determine whether the State has proved beyond a reasonable doubt that (defendant) was an authority figure at a school and (victim) was a student at the same school.

“Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

“School” means an organization of students for instructional purposes on an elementary, middle or junior high school, secondary or high school, [or other public school level authorized under the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat. for “private school” or “voluntary prékindergarten education program” or “early learning program” or “public school as described in s. 402.3025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School" or the “K-8 Virtual'School.”

“Student” means a person younger than 18 years of age who is enrolled at a school.

Lesser Included Offenses

Comment

This instruction was adopted in 2009 [6 So.3d 574] and amended in 2013 [122 So.3d 263], and 2016 [195 So.3d 356], and 2017.

11.17(d) TRAVELING TO MEET A MINOR FACILITATED BY PARENT, LEGAL GUARDIAN, OR CUSTODIAN

§ 847.0135(4)(b), Fla. Stat.

To prove the crime of Traveling to Meet a Minor Facilitated by Parent, Legal Guardian, or Custodian, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) used a[n] [computer on-line service] [Internet service] [local bulletin board service] [device capable of electronic data storage or transmission] to [solicit] [lure] [entice] [attempt to [solicit] [lure] [entice]] a [parent] [legal guardian] [custodian] [person believed by the defendant to be a [parent] [legal guardian] [custodian]] of a child to consent for the [child] [person believed by , the defendant to be a child] to participate in [ (insert violation of chapter 794, 800, or 827 as alleged in the charging • instrument) ] [sexual conduct].
2. (Defendant) then [traveled] [attempted to travel] [caused another to travel] [attempted to cause another to travel] [within this state] [to this state] [from this state] for the purpose of engaging in any illegal act described in [ (insert violation of chapter 794, 800, or 827 as • ' alleged in the charging instrument) ] [other unlawful sexual conduct] with a child or a person believed by the defendant to be a child.

The mere fact that an undercover operative or law enforcement officer was involved in the detection and investigation of this offense shall not constitute a defense from prosecution.

Definitions.

A “child” means any person, whose identity is known or unknown, less than 18 years of age.

Give the following definitions if applicable, Additional definitions can be added as applicable depending on the nature of the alleged illegal conduct. See § 847.001, Fla. Stat.

“Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

“Sadomasochistic abuse” means flagellation or torture by or upon a person or animal, or the condition of being fettered, bound, or otherwise physically restrained, for the purpose of deriving sexual satisfaction, or satisfaction brought about as a result of sadistic violence, from inflicting harm upon another or receiving such harm oneself.

“Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.

Lakey v. State, 113 So.3d 90 (Fla. 5th DCA 2013).

“An object” includes a finger.

“Deviate sexual intercourse” means sexual conduct between persons not married to each other consisting of contact between the penis and the anus, the mouth and the penis, or the mouth and the vulva.

“Sexual bestiality” means any sexual act, actual or simulated, between a person and an animal involving the sex organ of the one and the mouth, anus, or vagina of the other.

Give if applicable. § 775.0862, Fla. Stat.

Enhancement for sexual offense against student by school authority figure.

If you find that (defendant) committed the crime of Traveling to Meet a Minor Facilitated by Parent, Legal Guardian, or Custodian, you must also determine whether the State has proved beyond a reasonable doubt that (defendant) was an authority figure at a school and (victim) was a student at the same school.

“Authority figure” means a person 18 years of age or older who is employed by, volunteering at, or under contract with a school.

“School” means an organization of students for instructional purposes on an elementary, middle or junior high school, secondary or high school, [or other public school level authorized under the rules of the State Board of Education]. The term “school” does not include facilities dedicated exclusively to the education of adults. If needed, insert appropriate definitions from § 775.0862(1)(b), Fla. Stat., for “private school” or “voluntary prekindergarten education program” or “early learning program” or “public school as described in s. 402.8025(1)” or “the Florida School for the Deaf and the Blind” or the “Florida Virtual School” or the “K-8 Virtual School.”

“Student” means a person younger than 18 years of age who is enrolled at a school.

Lesser Included Offense

Comment

This instruction was adopted in 2009 [6 So.3d 574] and amended in 2013 [122 So.3d 263], and 2016[195 So.3d 356], and 2017.

      . Technical changes to the amended jury instructions are not discussed,

      . The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court's website at www.floridasu13remecburt.org/ju1yAnstruc-tions/instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.


author: Forst, J.

text:
    The LAS OLAS HOLDING COMPANY, d/b/a Riverside Hotel, a foreign corporation, Appellant, v. Michael DEMELLA, a/p/r of the Estate of Alana Demella, Appellee.
    No. 4D16-231
    District Court of Appeal of Florida, Fourth District.
    [July 19, 2017]

      Hinda Klein of Conroy Simberg, Hollywood, for appellant.
    Gary M. Farmer, Sr., Gary M. Farmer, Jr., and Bradley J. Edwards of Farmer Jaffe Weissing Edwards Fistos & Lehr-man, P.L., Fort Lauderdale, and Daniel W. Cotter of The Maher-Law Firm, Winter Park, for appellee.
   Forst, J.

The Las Olas Holding Company d/b/a Riverside Hotel (“Riverside”) appeals a negligence award in favor of the plaintiff, Michael Demella, as personal representative of the estate of his late wife, Alana Demella. The plaintiff sued Riverside for negligence related to a tragic incident in which an intoxicated driver recklessly drove her car into a wall of Riverside’s pool cabana. This caused a collapse of the structure and killed the plaintiffs pregnant wife, who was a guest of Riverside. The jury returned a verdict finding Riverside’s negligence was ,a partial cause of this death. On appeal, Riverside makes several arguments, one being that the trial court should have granted its motion for a directed verdict on the issue of negligence. As set forth below, we agree with this argument and therefore reverse and remand with instruction for the trial court to grant Riverside’s motion. This opinion also briefly addresses several impermissible comments made by the plaintiffs counsel during opening and closing arguments,

Background

Shortly after one p.m. on a Sunday, Rosa Rivera Kim (“Kim”) was driving east on SE 4th Street, also known as Sa-gamore Road (“Sagamore Road”), in Fort Lauderdale, Kim’s blood alcohol content at the time of the incident was later determined to be three times the legal limit. As Kim approached a curve in the road, she allegedly failed to turn her steering wheel, failed to move her foot from the gas pedal to the brake pedal, and accelerated straight' into Riverside’s cabana which was located about fifteen feet away from the road. The force of the impact collapsed the walls of the structure, killing Ms. Demella and slightly injuring her husband, the plaintiff. The latter, as personal representative of his wife’s estate, sued Kim and Riverside for negligence. The jury ultimately found both Riverside and Kim responsible and awarded total damages of $24,057,283.00. The jury found that Kim’s negligence caused eighty-five percent of the damages, and that Riverside’s negligence caused the remaining fifteen percent. Accordingly, the plaintiff was awarded $3,608,592.45 in damages from Riverside.

At trial, the plaintiff introduced evidence to support the argument that Riverside’s negligence caused the victim’s death. The plaintiff introduced several aerial photographs showing that, as Sagamore Road curves, motor vehicles at one point travel straight toward the cabana before turning right. The plaintiff argued that the physical layout of the road created a foreseeable zone of risk encompassing the cabana. To buttress its case, the plaintiff utilized an expert who specialized in barriers and low speed accidents. The expert testified that if Riverside had placed palm trees in front of the cabana, the deadly incident may not have occurred. However, per photographs taken of the premises prior to the incident, to reach the outer wall of the cabana— fifteen feet from the road—a vehicle would need to “jump” an approximately three-inch curb, cross a sidewalk, drive through a wall of bushes, and avoid hitting both a utility pole and a palm tree.

The plaintiff also sought to show that the road in front of the cabana was dangerous due to speeding. He introduced an email in which Riverside’s then-general manager told the City Commissioner in 2011,

Sagamore Street at my hotel seems like a race- track. My customers cross this street to get to the pool and the marina. My valet staff crosses the street to get to cars out of valet lots. Numerous times, I have seen cars drive this road at above the speed limit and nearly hit somebody. We need to do something to slow down that traffic and make sure— and clearly make the two crosswalks. I would love to meet with the traffic engineer to discuss some ideas.

The plaintiff then presented several former Riverside employees who testified that they and Riverside had known about the speeding on Sagamore Road. A former Riverside executive explained that he received “multiple reports from coworkers regarding concerns about speeding on [Sa-gamore Road],” and a former employee likened the road to 1-95. The plaintiff also presented evidence that Riverside had previously erected, on at least two occasions, stop signs to slow traffic. Riverside’s witness, who was an engineer for Broward County, later explained that the county removed the signs after conducting a traffic study and finding that the road did not merit them. To counter this traffic study, the plaintiff presented a separate study-conducted by the county in 2011 which showed that about fifteen percent of vehicles sped on Sagamore Road on the day of observation. However, even though the study recognized that there was speeding, it contained the conclusion of an engineering technician that there were no “sight-distance limitations or other physical conditions that would indicate Southeast 4th [was] operating in an unsafe manner.”

At the conclusion of the plaintiffs case, Riverside moved for a directed verdict. Riverside argued that the plaintiff “failed to sustain the burden of demonstrating that before this accident happened it was reasonably foreseeable that [an incident of this nature] would take place on [Riverside’s] premises.” Riverside noted that the cabana had complied with all building codes and zoning regulations since its creation in 1963. Moreover, while conceding that the plaintiffs evidence showed that there was some speeding on 'the road, Riverside argued that the speeding posed a foreseeable threat only to invitees crossing that road, and not- to individuals in the cabana.. Riverside also noted that, in the more than forty-nine-years of the road’s existence, there had never been an off-road accident. The trial court was ultimately unpersuaded, and denied Riverside’s motion.

Following the denial of its motion, Riverside presented its own evidence. First, it submitted expert testimony by a professional structural engineer' who opined about the structural integrity of the cabana at the time of the incident. The engineer explained that the cabana contained solid concrete columns reinforced with steel and that each column weighed about one thousand pounds. Between the concrete columns was wood siding. Relying primarily on the pictures of the aftermath of the • incident, the engineer concluded that when Kim crashed into the cabana, her vehicle mainly struck one of these concrete columns, knocking it back twelve feet. The expert calculated that Kim’s car had to generate about 40,000 to 43,000 pounds of force to shear the column off its base and, in order to generate such force with her car, Kim must have been driving about fifty-three to fifty-four miles per hour.

Riverside then.presented a second engineer who was an expert in traffic engineering and accident reconstruction. The expert began by noting'that Sagamore Road was only three blocks long, situated in a central business district filled with shops, restaurants, and residences. The expert then focused on the road’s curve, concluding it was “not a problem.” The road lanes were a standard twelve feet wide. The radius of the road’s curve was “right in line with typical curves in urban areas with a 25-mile-per-hour speed limit.” There were also no sight limitations. The pavement was clearly marked, and a driver co.uld tell from 600 feet away that the road would curve. The expert concluded, “And all of the factors: speed, volume, curvature, width, length, you name it, all indicated that this was a roadway that’s functioning very well and does riot have problems with its curve.”

The same expert then testified that, based on historical data from various city and county documents, there had never been a car crash at or near the curve from 1968 until 2012. The expert then discussed the traffic volume on the road, estimating that about thirty million cars had driven on it from 1963 until 2012. In light of the historical data and volume statistics, the expert concluded that the chances of a car crash happening at the time of the instant drunk driving incident were “statistically as close to zero as you.can get in a roadway transportation system.” At the conclusion of the case, once the jury returned a verdict finding Riverside partly responsible, Riverside renewed its motion for a directed verdict, and the trial court again denied it.

Riverside also moved for a mistrial during opening and closing arguments because of various statements made by the plaintiffs - counsel. In particular, the plaintiffs counsel stated during opening that, “the reason-why we are in this courtroom today is that this corporation has refused to accept any responsibility for its role in this death.” Riverside objected to this statement, and the trial court sustained the objection. Nevertheless, counsel made a similar statement moments' later: “They will look at everyone else’s conduct but their own. And these are defenses that are just attempts to avoid responsibility.” In closing, when seeking damages for wrongful death, counsel remarked:

What do we put price tags on in our society today? What is it? I mean, if we—what'do we pay LeBron James' for the excitement that he brings? ... We pay $30 million a year for the value that he brings to Miami. We pay a boxer $180 million for 12 rounds of boxing. We pay this expert $500 an hour. If her life is worth what that expert .... If her life is worth that type of enjoyment, those are just ways to come about:, What is this really worth? ....

The two arguments raised by Riverside on appeal which we address are that the trial-court- erred in denying its motion for a directed verdict' on the issue of negli-gente, and that the court erred in denying its - motions for mistrial based on the above-quoted comments by the plaintiffs counsel during opening and closing arguments. '

Analysis

A. Riverside’s motion for a directed verdict regarding negligence ■

“The standard for reviewing a trial court’s ruling on a motion for directed verdict is de novo.” Schein v. Ernst & Young, LLP, 77 So.3d 827, 830 (Fla. 4th DCA 2012). “A trial court should grant a motion for directed verdict when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ about the existence of a material fact and the movant is entitled to judgment as a matter of law.” Id. (quoting Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009)).

“A negligence.claim has four elements: (1) a duty by defendant to conform to a certain standard of conduct; (2) a breach by defendant of that'duty; (3) a causal connection between the breach and injury to plaintiff; and (4) loss or damage to plaintiff.” Bartsch v. Costello, 170 So.3d 83, 86 (Fla. 4th DCA 2015) (citing Clay Elec. Co-Op., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla. 2003)). “[A] plaintiff in a premises liability action must allege the defendant’s duty to, the plaintiff and the defendant’s breach of that duty-by alleging ultimate facts that.. show a relationship from which a duty is implied by law, and the acts and omissions that caused the injury, together with the allegation that they were negligently done or omitted: The plaintiff must also plead that the [defendant’s negligence] was a proximate cause of the [plaintiffs injury].” Kaid v. Store Cent. Food Mkt., Inc., 668 So.2d 1110, 1111 (Fla. 3d DCA 1996) (alterations in original) (quoting 41 Fla. Jur. 2d Premises Liability § 96 (1994)). Here, the trial court erred in denying Riverside’s motion for a directed verdict based on each of the first three elements (duty, breach, and proximate cause).

1. Duty

The existence of a duty is a “legal requirement for opening the courthouse doors.” McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla. 1992) (footnote omitted). In the "context of general negligence, those doors open only if the injury was the product of a reasonably foreseeable danger—one within the foreseeable zone of risk. Id. In a premises liability case, this Court stated that á property owner “is ordinarily under no duty to exercise any care to warn or guard against the harmful acts of a third party unless that third party’s harmful behavior is reasonably foreseeable.” Leitch v. City of Delray Beach, 41 So.3d 411, 412 (Fla. 4th DCA 2010).

The standard jury instructions for premises liability, which were given in this case, frame the issue as follows:

[Wjhether (defendant) negligently failed to "maintain [its] premises in a reasonably safe condition, or negligently failed to correct a dangerous condition about which (defendant) either knew or should have known, by the use of reasonable care, or negligently failed to" warn (claimant) of a dangerous condition about-which (defendant) had, or should have had, knowledge greater than that of (claimant); and, if so, whether such negligence was a legal cause of loss, injury, or damage to (claimant, decedent or person for whose injury claim is ■ made).

Fla. Std. Jury Inst. (Civ.) 401.20.

Tlie plaintiffs evidence at trial of Riverside’s duty was lacking, First, the plaintiff sought to prove a duty by presenting aerial photographs of the physical layout of Sagamore Road, which showed that, as the roád slightly curves, motor vehicles at one point travel straight towards "the cabana before turning right to continue on the road. We need not decide in this case whether such a curve in this particular road, with a twenty-five miles per hour speed limit, was a “dangerous condition” to pedestrians on the sidewalk or lawn maintenance workers trimming the bushes. However, we do hold that this curve was not a “dangerous condition” giving rise to a duty with respect to people, like the plaintiffs wife, who wére inside Riverside’s cabana. Evidence that Riverside was aware of the road’s slight curve is legally insufficient to establish that Riverside “knew or should have known” of a dangerous" condition bn its own premises.

In fact, not only did the plaintiff fail to present the evidence required, Riverside presented compelling evidence to the contrary. As noted in the Background Section above, Riverside’s expert in traffic engineering and accident reconstruction testified, based on his reviéw of city and county documents, that there had never been an off-road accident on Sagamore Road since its creation in 1963. In other words, in more "than forty-nine years, a car had never swerved off the road except" in the current case involving a severely intoxicated (blood alcohol content three times over the legal limit) and reckless (no indication that she attempted to make the turn or slowdown from her above-the-limit speed) driver: Statistically speaking, the engineer explained, the chances of a crash were “as close to zero as you can get in a roadway transportation system.” Though case law has held that an “absence of accidents” statistic does not dispositively relieve a landowner of his or her duty to protect an invitee, in the absence of “constructive knowledge of similar accidents at other similar locations,” such a statistic can certainly still shed light on the difference between whether an accident is merely possible and whether it is reasonably foreseeable. Springtree Props., Inc. v. Hammond, 692 So.2d 164, 168 (Fla. 1997); see also Lewis v. Sun Time Corp., 47 So.3d 872, 873 (Fla. 3d DCA 2010) (“It is well recognized that a no-accident history of the location of a premises liability case may be admitted into evidence for a variety of purposes including the central one of showing that the area was not in fact dangerous or defective.”).

We are also unpersuaded that the evidence of “speeding” on Sagamore Road established that the placement of this particular cabana fifteen feet from the road constituted a dangerous condition about which Riverside knew or should have known. The former Riverside employees who testified were concerned with speeding solely in relation to Riverside’s invitees crossing the road from one hotel building to the next. None of the plaintiffs witnesses stated or even hinted that they or Riverside’s management, were afraid that speeding might lead to an accident involving a nearby structure such as the cabana, or even pedestrians on the sidewalk.

Various Florida courts have determined that some accidents are too unusual or extraordinary to be reasonably foreseeable. In Florida Power & Light Co. v. Macias ex rel. Macias, 507 So.2d 1113 (Fla. 3d DCA 1987), the court held that a utility company did not have a duty to protect drivers from a utility pole it placed six feet away from Okeechobee Road. Id. at 1114-16. The court held that, without more evidence suggesting the road was dangerous, and because “the chance that a vehicle in the ordinary course of travel will deviate from the roadway and collide with a pole is only a remote possibility, under certain circumstances [such a collision] is not a legally foreseeable event.” Id, at 1115. Those “certain circumstances” the court alluded to include evidence that the pole “was not obscured from view, visibility was; good, and the speed limit was moderate.” Id. at 1116. The present case is similar. As the county’s 2011 speed study showed, there were no “sight-distance limitations or other physical conditions that would indicate Southeast 4th [was] operating in an unsafe manner.” Moreover, the speed limit of the road was “moderate,” arguably even low—only twenty-five miles per hour. As in Macias, this case presents such a remote possibility of an injury that the placement of this pool cabana in relation to Sagamore Road cannot be found to have created a “dangerous condition” to people in the pool cabana of which Riverside was actually or constructively aware and that further created a duty on the part of Riverside to protect the plaintiffs wife and other invitees from said “danger.”

The case of Graham v. Langley, 683 So.2d 1147 (Fla. 5th DCA 1996), is also similar to the, instant case. There, an intoxicated driver, while attempting to park in a restaurant’s parking lot, drove over a curb, across a sidewalk, and through a plate glass window of the restaurant, hitting a customer who then filed a negligence claim against the restaurant owner. Id. at 1148. The plaintiff contended his injuries were attributable, in part, to the height of the-parking lot curb, with his expert opining “that the curb at the point of the accident was approximately 3½ inches high and that, had it been six inches high, it may have stopped Langley’s vehicle.” Id. The Fifth District Court of Appeal first held that, “in order to impose a duty upon [the restaurant], Langley’s driving into [the restaurant] must have been reasonably foreseeable, not just possible.” Id. (citing Firestone Tire & Rubber Co. v. Lippincott, 383 So.2d 1181 (Fla. 5th DCA 1980)). Next, in addressing foreseeability, the court noted that this type of “specific incident” had not occurred “with such frequency that it may be expected to happen again,” and thus there was no “suggestion] that the defendant reasonably needed to take steps to avoid or prevent the incident.” Id. In both Graham and the instant case, “the record is clear that no vehicle previously had been driven into that ... restaurant [or cabana].” Id.

Moreover, in both this case and Graham, there was no evidence presented that there was a construction code violation (in Graham with respect to the height of the curb, in the instant case with respect to the cabana’s structure or distance from the road). Finally, the Graham opinion referenced two earlier opinions from the First and Second District Courts of Appeal for the proposition “that although store owners have a duty to exercise ordinary care to maintain their premises in a reasonábly safe condition, they have no duty to protect patrons from injuries caused by a vehicle driven through a window and into the store.” Graham, 683 So.2d at 1148 (citing Jones v. Dowdy, 443 So.2d 467, 467 (Fla. 2d DCA 1984); Schatz v. 7-Eleven, Inc., 128 So.2d 901, 904 (Fla. 1st DCA 1961)); see also Food Fair, Inc. v. Gold, 464 So.2d 1228, 1229-31 (Fla. 3d DCA 1985) (reversing and remanding for the trial court to enter a directed verdict in favor of the defendant store because the store owed no duty to protect its invitee from a car crashing into her in the parking lot).

In sum, the . mere fact that some speeding occurred on the slightly-curved Sagamore Road does not mean that a dangerous condition existed at Riverside’s premises, of which Riverside was aware or should have been aware, which extended to persons inside the cabana situated fifteen feet back from the road. Sagamore Road had a twenty-five mile per hour speed limit sign, visibility was clear, there was no history of any off-road accidents in the forty-nine year existence of this road and curve, and there were no other physical conditions that would indicate the road was dangerous. “It is incumbent .upon the courts to place limits on' foreseeability, lest all remote possibilities be interpreted as foreseeable in the legal sense.” Macias, 507 So.2d at 1115. We do so here, and reverse the trial court with respect to Riverside’s motion for directed verdict on the issue of duty.

2. Breach

Even if we were to agree with the trial court that, due to the placement of this pool cabana in relation to Sagamore Road, a dangerous condition existed on Riverside’s premises of which it knew or should have known, thus creating an affirmative duty on the part of Riverside to protect the users of its pool cabana from these dangers, we hold that Riverside did not breach that duty.

“In a negligence action, whether a defendant exercised reasonable care under a given set of facts is generally an issue for the jury to decide.” L.A. Fitness Int'l, LLC v. Mayer, 980 So.2d 550, 557 (Fla. 4th DCA 2008) (emphasis added)'. However, “where the facts are undisputed, or are viewed in the light most favorable to the plaintiff, the question of breach can be decided by a court on ... a motion for. directed verdict,” Langbehn v. Pub. Health Tr. of Miami-Dade Cty., 661 F.Supp.2d 1326, 1336-37 (S.D. Fla. 2009) (citing L.A. Fitness, 980 So.2d at 557-62; Franco v. Miami-Dade Cty., 947 So.2d 512, 517 (Fla. 3d DCA 2006); St. Joseph’s Hosp. v. Cowart, 891 So.2d 1039, 1041-42 (Fla. 2d DCA 2004)).

Even viewing the facts in the light most favorable to the plaintiff, Riverside took sufficiently reasonable precautions to fortify and protect its invitees within the caba.-na from car accidents such that it did not breach its duty, if one existed, as a matter of law. As already mentioned, Riverside protected its cabana from any danger posed by the road by use of a curb (whether this was placed by Riverside or merely used by it is irrelevant), a palm tree, and various hedges. Then, although the cabana itself was partially comprised of wood siding, it contained thousand-pound solid concrete columns reinforced with steel. The cabana was up-to-code and in a proper location according to the zoning regulations. Finally, Riverside attempted, on multiple occasions, to slow the traffic on Sagámore Road, even going so far as to erect its own stop signs before the county government removed them.

It is easy, in hindsight, to recognize exactly what precautions could have been taken to avoid any specific injury. The fact that Riverside did not erect a palm tree or other barricade in exactly the right spot to prevent a driver from taking this particular path through its defenses is both unfortunate and tragic, but it is not a breach of duty. Assuming Riverside had a duty to take reasonable care to protect its invitees, including the plaintiffs wife, from the dangers of the road, it did so as a matter of law under the specific facts of this case.

3. Proximate Cause

Finally on the issue of the directed verdict, even if Riverside breached a duty of care to the plaintiffs wife, the evidence with respect to proximate causation was sufficiently “unequivocal” to “take this matter from the fact-finder.” McCain v. Fla. Power Corp., 593 So.2d 500, 504 (Fla. 1992); see also Chirillo v. Granicz, 199 So.3d 246, 252-53 (Fla. 2016) (holding that a court may decide the issue of proximate cause without sending it to the jiiry if “the evidence supports no more than a single reasonable inference” (quoting McCain, 593 So.2d at 504)). As our supreme court explained, “[t]he law does not impose liability for freak injuries that were utterly unpredictable in light of common human experience.” McCain, 593 So.2d at 503.

Contrary to the plaintiffs argument below and on appeal, the death of the plaintiffs wife was not caused by Riverside’s failure to place additional palm trees between the road and the cabana. Instead, her death was unequivocally attributable only to “an improbable freak [accident].” Id. To recap: Kim (the driver) was intoxicated to more than three times 'the legal limit and, with no apparent attempt to brake or turn away, drove across an oncoming traffic lane, over a curb, across a pedestrian sidewalk, through a row of bushes, narrowly avoided a palm tree and utility pole, and collided with the steel-reinforced concrete column of the cabana, set back fifteen feet from the road, with enough force to cause it to collapse.

“An intervening cause may relieve the defendant ... from liability if the intervening cause is completely independent of the defendant’s negligence, was not set in motion' by - the defendant’s negligence, and was not foreseeable by the defendant.” Bosket v. Broward Cty. Hous. Auth., 676 So.2d 72, 74 (Fla. 4th DCA 1996). Here, the jury found that Kim was the primary cause of the plaintiff’s damages. We hold but a step further, that under the “freakish and improbable chain of events” involved in this case, “the evidence supports no more than a single reasonable inference.” McCain, 593 So.2d at 504. That inference is that the plaintiffs wife’s death was “unquestionably unforeseeable,” even assuming it was caused by a dangerous condition. Id. at 503.

For the reasons set forth above, we hold that Riverside owed no duty of care to the plaintiffs wife where the cabana’s placement near the road did not create a dangerous condition of which Riverside should have been aware. We further hold that, even assuming such a duty, the facts (viewed in the light most favorable to the plaintiff) establish that Riverside met this duty by establishing various barriers to vehicles, meeting all building and zoning codes, and by taking action to minimize the speed at which traffic passed. Finally, we hold that, even assuming a duty and breach had been established, the entirely unforeseeable (“freakish and improbable”) scenario which led to the plaintiffs wife’s death in this case removes, as a matter of law, the necessary element of proximate cause connecting any duty and breach on the part of Riverside to the injuries^ sustained. Accordingly, we reverse the trial court’s denial of Riverside’s motion for a directed verdict and remand with instructions to grant said motion.

B. Riverside’s motions for a mistrial based on opening statements and closing arguments

“A trial court’s denial of a motion for mistrial and a motion for new trial based on improper closing arguments are reviewed for abuse of discretion.” R.J. Reynolds Tobacco Co. v. Calloway, 201 So.3d 753, 759 (Fla. 4th DCA 2016) (quoting Whitney v. Milien, 125 So.3d 817, 818 (Fla. 4th DCA 2013)).

Riverside argues on appeal that the trial court erred in denying its motion for a mistrial based on the plaintiffs counsel’s remarks during opening and closing arguments., “Generally, a mistrial or new trial should be granted only when counsel’s arguments are so inflammatory and prejudicial that they deny the opposing party a fair trial.” Bakery Assocs., Ltd. v. Rigaud, 906 So.2d 366, 367 (Fla. 3d DCA 2005) (quoting Maksad v. Kaskel, 832 So.2d 788, 793 (Fla. 4th DCA 2002)). When assessing the comments, “[c]ontext is crucial. To determine whether the challenged statements and arguments were in fact prejudicial, the statements cannot be evaluated in isolation but must be .placed and evaluated in context.” Engle v. Liggett Grp., Inc., 945 So.2d 1246, 1272 (Fla. 2006).

Though we are not required to address this matter in light of our holding on the directed verdict issue, we .express our concern regarding several of -the comments made by the plaintiffs counsel during opening and closing arguments, and caution against their future use. The plaintiffs counsel stated during opening that, “the reason why we are in this courtroom today is that this corporation has refused to accept any responsibility for its role in this death.” After the trial court correctly sustained objections to this statement, the plaintiffs lawyer .doubled down, stating, “[t]hey will look at everyone else’s conduct but their own. And these are defenses that are just attempts to avoid responsibility.”

As the Third District Court of Appeal has declared, “[t]he law is clear that it is improper for an attorney to disparage an opposing party’s defense of a ease or to suggest that a party should be punished for contesting a claim.” Fasani v. Kowalski, 43 So.3d 805, 809 (Fla. 3d DCA 2010). We recently reaffirmed this principle. See Calloway, 201 So.3d at 765. We thus find it inexplicable that counsel would so wantonly make statements opening the door for a mistrial, both in these statements made during opening, as well as in the “value of human life” comments made during closing. See City of Orlando v. Pineiro, 66 So.3d 1064, 1070 (Fla. 5th DCA 2011) (“It is clearly error to ask a jury to place a monetary value on the life of a decedent because ‘the value of a human life is not an element of damages' and is not the proper topic for closing argument.’ ” (quoting Wilbur v. Hightower, 778 So.2d 381, 383 (Fla. 4th DCA 2001))).

Conclusion

The plaintiff and his wife were, unfortunately and through no fault of their own, in the wrong pláce at the wrong time. However, Riverside was also without fault. Riverside owed no duty of care to invitees within its walls with regard to Sagamore Road, as a danger to the hotel’s invitees from the placement of the pool cabana in relation to that road was not one of which Riverside knew or should have known. Additionally, even if a duty was owed, the actions taken to prevent injury were legally Sufficient such that there was no breach of this duty. Finally, even assuming a duty and a breach, the collision of the severely intoxicated driver’s car with the pool cabana, at such speed and force as to collapse the steel-reinforced concrete columns of the cabana, was an extraordinary and unforeseeable event, making Riverside legally not the proximate cause of any of the injuries suffered in this highly fact-specific case. Thus, we reverse and remand for the trial court to grant Riverside’s motion for a directed verdict.

Reversed and remanded.

Warner and Levine, JJ., concur.

      . Riverside’s expert witness testified that Kim must have been significantly accelerating to reach 58 miles per hour on a 600 feet roadway. He also concluded that Kim" did not apply the brakes at any point prior to impact with the building. He based this conclusion on the fact that there were no brake marks on the roadway—indicating the car did not try to stop—and based on video footage of the car seconds before impact.

      . We need not address whether the expert was qualified for purposes of section 90.702, Florida Statutes, given our reversal on the motion for a directed verdict. However, we do note that the trial court judge expressed "extraordinary, extreme misgivings” about the expert’s qualifications and that even the expert himself stated, "I’m not an expert in palm trees." -

      . Although this witness testified after Riverside’s motion for directed verdict, we are required to consider the evidence both before and after the motion which was denied. McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla. 1992).

      . Although this argument was later supported by Riverside’s own evidence, the expert called by the plaintiff who testified regarding the fifteen percent statistic described above also testified that, again based on a county traffic study, there had in fact been one previous accident on the road. However, the engineer did not provide any specifics about the accident, including whether it was an on-road or off-road accident.

      . We note that the plaintiff did not argue that the death in this case was attributable to a design or building flaw with respect to the cabana, from which Riverside may have had a duty to protect the plaintiff and his wife, as opposed to the claim that' Riverside should have built a sturdier cabana to protect from the allegedly separate risk posed by the road.

      . Even accepting the plaintiff’s evidence which indicated that there was one accident of an unknown nature on this road in the past, Riverside’s expert’s conclusion remains compelling.

      . In light of oür holding, we need not rule on the trial court’s denial of Riverside’s motions for mistrial related to the plaintiff’s counsel’s opening and closing arguments.