FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2023-0932

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EDWARD BING, as personal 

representative of The Estate of 

Kayla Nicole Bing Jackson,

Appellant,

v.

ALACHUA COUNTY, et al.,

Appellees.

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On appeal from the Circuit Court for Alachua County.

Gloria Walker, Judge.

August 7, 2024

LEWIS, J.

Appellant, Edward Bing, appeals from an order dismissing his 

fourth amended complaint for wrongful death that he filed after 

his daughter (“the decedent”) was fatally shot while walking to her 

car across the street from a parking lot owned by Appellee, 

Alachua County. Appellant argues that the trial court erred in 

determining that Appellee had no duty to the decedent. For the 

following reasons, we agree with the trial court that no duty 

existed and, therefore, affirm the order on appeal.
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Factual Background

On the night of her death, the decedent attended a “Thirsty 

Thursday” event in Gainesville that was held in the vicinity of a 

parking lot owned by Appellee. While returning to her car that 

was parked at a location not owned by Appellee, she was struck by 

a stray bullet that was fired by an individual who was located in 

Appellee’s parking lot. Appellant, as personal representative of 

the decedent’s estate, filed suit against Appellee along with those 

entities who were involved with hosting the event. As for his claim 

against Appellee, Appellant asserted that “[d]ue to inadequate 

lighting and security in the parking lot owned by [Appellee], the 

killer and his cohorts were able to congregate and lie in ambush in 

the parking lot, waiting for the crowds to leave the bar and make 

their way towards the parking lot owned by [Appellee], as well as 

the parking lot that was situated behind and adjacent to the 

businesses . . . .” Appellant further claimed that Appellee owed a 

non-delegable duty to members of the public walking immediately 

adjacent to its parking lot and within the zone of risk it created 

through its negligence. Appellant alleged that by permitting 

members of the public to use its parking lot, Appellee undertook 

the duty to maintain its premises in a reasonably safe condition 

for both invitees and the public. Appellee allegedly breached its 

duty by failing to provide adequate security guards, off-duty police 

officers, or any other supervisory personnel to patrol and maintain 

control over its parking lot and by failing to warn members of the 

public walking in the area immediately adjacent to the parking lot 

of the dangers present there.

Appellee moved to dismiss the claim against it, arguing that 

Appellant failed to establish that it owed any duty to individuals 

not on its premises. According to Appellee, Appellant did not 

allege any special relationship between it and the decedent, and 

Appellant did not allege that Appellee had any connection with the 

event other than letting the general public park their vehicles in 

the lot during evening hours.

In its Order Dismissing Plaintiff’s Fourth Amended Wrongful 

Death Complaint with Prejudice as to Alachua County for Failure 

to State a Cause of Action, the trial court set forth in part as 

follows:
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3) Plaintiff’s theory against the County is that it 

owed a duty to its invitees and the general public to 

maintain its property with adequate safety, and that the 

County took inadequate steps to protect the safety of its 

invitees and the general public on property adjacent to its 

premises.

4) Plaintiff fails to allege any relationship between 

the Decedent and the County to establish that the 

Decedent was an invitee of the County, or was on the 

County’s premises. Instead, Plaintiff alleges that a duty 

of care was owed to the public in general who were in the 

immediate vicinity of the premises.

5) A special duty to an individual must exist to 

establish a government’s duty of care for purposes of tort 

liability. . . .

6) Plaintiff alleges that failure on the part of the 

County to provide adequate security in its parking lot 

created a foreseeable zone of risk to individuals in the 

immediate vicinity of the parking lot. The Court finds 

that Plaintiff’s reliance on the cases cited for this 

proposition are misplaced, and cannot form the basis of a 

duty on the part of the County extending to Plaintiff 

under the allegations set forth in the Fourth Amended 

Complaint.

7) Plaintiff further alleges that the County 

undertook a duty to protect individuals on its premises by 

maintaining a parking lot. Again, aside from defects in 

the land or design of the premises as recognized in certain 

cases, Plaintiff cannot rely upon those cases to establish 

a duty on the part of the County extending to Plaintiff’s 

decedent.

8) Trianon Park Condo Association v Hialeah, 468 

So. 2d 912, 918 (Fla. 1985), reiterated the rule at common 

law that there is no common law duty to prevent the 

misconduct of third persons.
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9) Plaintiff makes several conclusory statements 

and allegations in support of his claim. However, given 

the basic facts alleged, there are no statements or 

allegations giving rise to a duty on the part of the County 

to protect someone who is not on its premises, and the 

Court does not believe that Plaintiff is able to plead that 

the County had an obligation to conform to a certain 

standard of conduct towards Plaintiff’s Decedent.

10) Moving beyond the question of whether, under 

the facts alleged, any duty exists as a matter of law, given 

the elements of a cause of action for negligence are duty, 

breach, and causation, the Court does not believe that 

assuming a duty existed and it was breached, the 

Plaintiff is able to plead a sufficiently close connection 

between the County’s assumed non-conforming conduct 

and the resulting harm caused by a stray bullet.

11) Given the operative facts as set out in the 

pleadings, memoranda, and the Court’s findings, it is 

clear that given another chance to plead, Plaintiff will be 

unable to state a justiciable cause of action against 

Alachua County, and so the Complaint is unamendable. 

12) If a complaint cannot be amended to state a 

justiciable claim, the complaint should be dismissed with 

prejudice. . . . 

This appeal followed.

Analysis

Whether a complaint’s allegations are sufficient to state a 

cause of action is a question of law reviewable de novo. Aguila v.

Hilton, Inc., 878 So. 2d 392, 395 (Fla. 1st DCA 2004). A trial court 

may not look beyond the four corners of the complaint when ruling 

on a motion to dismiss, and all allegations in the complaint must 

be accepted as true. Sealy v. Perdido Key Oyster Bar & Marina, 

LLC, 88 So. 3d 366, 368 (Fla. 1st DCA 2012).

The tort of negligence includes the four elements of duty, 

breach, causation, and damages. Casey v. Mistral Condo. Ass’n, 
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Inc., 380 So. 3d 1278, 1283 (Fla. 1st DCA 2024). The element of 

duty is ordinarily a question of law for the trial court to decide 

rather than a question of fact. Id. As explained by the Florida 

Supreme Court, a legal duty exists if a defendant’s conduct creates 

a foreseeable zone of risk that poses a general threat of harm to 

others. McCain v. Fla. Power Corp., 593 So. 2d 500, 502 (Fla. 

1992). A defendant who creates a foreseeable zone of risk has a 

duty either to lessen the risk or see that sufficient precautions are 

taken to protect others from the harm that the risk poses. Id. at 

503. It has also been held that since negligent security actions 

concern the landowner’s failure to keep the premises safe and 

secure from foreseeable criminal activity, negligent security cases 

fall under the auspices of premises liability as opposed to ordinary 

negligence. Nicholson v. Stonybrook Apartments, LLC, 154 So. 3d 

490, 494 (Fla. 4th DCA 2015). In premises liability cases, a 

defendant’s duty to the plaintiff is dependent on the plaintiff’s 

status to the land. Id. 

“A landowner is under a duty to invitees to maintain his 

premises in a reasonably safe condition. That duty extends to the 

means which the landowner has expressly provided for use by the 

invitees for ingress and egress.” Gutierrez v. Dade Cnty. Sch. Bd., 

604 So. 2d 852, 853 (Fla. 3d DCA 1992). It is undisputed in this 

case that the decedent was not Appellee’s invitee. 

Notwithstanding that fact, Appellant argues that by permitting 

the decedent’s armed killer to use its parking lot to ambush 

pedestrians leaving the event while the pedestrians were walking 

adjacent to the parking lot, Appellee created or allowed a 

foreseeable zone of risk. 

As we have explained, it is a general principle that a party has 

no legal duty to control the conduct of a third person to prevent 

that person from causing harm to another. Aguila, 878 So. 2d at 

398. A duty to protect an unknown plaintiff from a third party’s 

actions may arise, however, if the defendant is in actual or 

constructive control of (1) the instrumentality of the harm; (2) the 

premises upon which the tort is committed; or (3) the person who 

committed the tort. Id. Appellant cites Aguila and our citation to 

section 315 of the Restatement (Second) of Torts, which provides 

in part that “[t]he defining feature of the cases finding a special 

relationship under section 315(a) is that they all involve situations 
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in which the defendant has a duty of care for the third party who 

caused the harm.” Id. We explained that the defining feature for 

finding such a relationship under section 315(a) was that the cases 

involved situations in which the defendant had a duty to care for 

the third party who caused the harm. Id. Examples included a 

parent/child relationship, a school/student relationship, and a 

retirement home/mentally impaired resident relationship. Id. 

Here, Appellee did not control the gun, i.e., the instrumentality. 

As for where the tort was committed, Appellee had no control over 

the property on which the decedent was shot. Nor was there any 

special relationship alleged between Appellee and the shooter

other than the shooter’s location on its property.

Appellant also cites Daly v. Denny’s Inc., 694 So. 2d 775 (Fla. 

4th DCA 1997). However, as Appellee points out, Daly supports 

the trial court’s ruling in this case. There, the appellant appealed 

an order granting a motion to dismiss filed by the defendant Capri 

Riviera Beach, Inc. Id. at 776. The Fourth District explained that 

the appellant exited a restaurant owned by the appellee and 

walked to her car in the parking lot. Id. Upon the appellant 

entering her vehicle, two unknown assailants, who had previously 

been loitering in the adjacent motel parking lot owned by Capri, 

walked up to her car; one man stood in front of her car while the 

other shot her in the neck. Id. The appellant alleged that prior to 

the incident, there had been numerous armed robberies, assaults, 

and other criminal acts committed on the Capri property. Id. She 

also alleged that Capri’s property was not properly lighted, which 

enabled the unknown assailants to prey on innocent persons in the

restaurant’s parking lot. Id. Capri argued that it had no duty to 

protect the appellant because the act was committed by a third 

party and the appellant never entered its property. Id. In 

affirming, the Fourth District determined that because Capri did 

not own the weapon that injured the appellant, the tortious 

incident did not take place on its property, and it had no connection 

with the tortfeasors, it had no duty to protect the appellant from 

the assailants’ actions. Id. at 777. It observed, “To hold that Capri

owed a duty to [the appellant] in this case would mean that owners 

of not only just parking lots, but also vacant lots, would be required 

to take additional precautions, such as lighting and fencing, to 

prevent the criminal conduct of third persons.” Id. It found no 

authority to extend the law of landowner liability that far. Id.; see 
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also Competitive Softball Promotions, Inc. v. Ayub, 245 So. 3d 893, 

894–96 (Fla. 3d DCA 2018) (finding no evidence to suggest that the 

appellant exercised any control over the premises where the 

appellee was injured or that the appellant’s conduct created the 

conditions that led to the incident at issue and agreeing with the 

appellant that it had no duty to the appellee). 

In a factually similar case to this one, it was explained by a 

federal magistrate on a motion for judgment on the pleadings that 

the plaintiff filed an action against the owners of a gas station for 

damages resulting from the shooting of the decedent, who, while 

stopped at a traffic light, was shot in the head by a person located 

on the defendant’s premises. See Johnson v. Exxon Mobil Corp., 

Case No. 6:05-cv-874-Orl-28DAB, 2006 WL 8439360, at *1 (M.D. 

Fla. June 22, 2006). The plaintiff alleged that the gas station was 

located in a high crime area and that, by remaining open twentyfour hours a day, the station created a foreseeable risk of harm to 

its patrons and to the public, including people on adjacent 

roadways. Id. After citing the pertinent Florida law, including a 

citation to Daly, the magistrate explained that there were no 

allegations that the defendant had control over the gun or control 

over the tortfeasor “who is not alleged to have been an employee, 

an agent, or otherwise connected to the Defendant.” Id. at *2. In 

analyzing whether the defendant had control over the premises, 

the magistrate found it critical to define the premises at issue and 

observed, “As an injury resulting in damages are essential 

elements of the tort, the tort was not complete until it caused 

injury to Plaintiff, and that occurred on the public road.” Id. The 

magistrate set forth, “Plaintiff’s cause of action may have been 

precipitated by events on Defendant’s premises, but the tort 

accrued off premises, on land not owned or controlled by 

Defendant.” Id. He further observed:

Even if Plaintiff were to show a foreseeability connection 

between allowing crowds to gather and a person being 

shot on the public road by a stray bullet, however, “a legal 

duty is not established by evidence of foreseeability 

alone.” Aguila v. Hilton, Inc., 878 So. 2d 392, 396 (Fla. 1st

DCA) . . . . There must also be a showing that, under the

Kaisner-McCain rule, Defendant’s conduct created or 

controlled the risk. Here, as noted above, there are no 
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allegations sufficient to establish that Defendant had 

actual control over a third person, nor does Plaintiff 

allege any facts (such as knowledge that the shooter was 

armed or that a gunfight was about to ensue) which could 

arguably trigger a duty to call the police or evict the 

shooter from the premises. Moreover, Plaintiff’s decedent 

was a stranger to Defendant and not even on the 

premises when she was shot. Florida courts have found 

no duty on facts much more compelling than these. 

See Murray v. Osenton, 126 So. 2d 603 (Fla.2d DCA

1961) (court held that the owner of a service station was 

not liable for the shooting of one of its employees during 

the course of a nighttime robbery, despite allegations that 

the defendant knew of the likelihood of service station 

robberies in Orlando and yet failed to take reasonable 

measures to protect the plaintiff whom he required to 

work alone at night); Lane v. Estate of Morton, 687 So.2d

53, 54 (Fla. 3d DCA 1997) (landowner did not breach its 

duty to warn recreational vehicle driver, an uninvited 

licensee, of danger of criminal assaults on property or to 

provide adequate security against criminal attacks);

Barrio v. City of Miami Beach, 698 So.2d 1241 (Fla. 3rd

DCA 1997) (visitor to city beach brought premises 

liability action against city for injuries sustained on 

beach at 3:30 a.m. when she was shot while being robbed 

at gunpoint - held, no liability as a matter of law as 

danger of crime and criminal assaults was open and 

obvious and no duty to warn uninvited licensee).

Plaintiff has not established a special relationship 

between Defendant and the shooter or Defendant and 

Plaintiff’s decedent under the Restatement (Second) of

Torts, Section 315 . . . . Here, the shooter was, at best, a 

business invitee, and at worst, a trespasser, but in 

neither case was the shooter controlled by Defendant. 

Prior to the incident, Defendant was not free to search 

the shooter or otherwise detain him, nor did Plaintiff 

plead any facts sufficient to establish that Defendant had 

a duty to care for the shooter, other than the legal duty of 

any proprietor to any business invitee; that is, the duty 

to use due care to maintain the premises in a reasonably 
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safe condition commensurate with the activities 

conducted thereon. . . . Moreover, as noted above, 

Plaintiff’s decedent was a stranger to Defendant, with no 

relationship whatsoever. As such, Defendant had no duty 

under the Restatement to protect her and no legal basis 

for liability has been alleged.

Plaintiff contends that the fact that decedent was not an 

invitee, a patron, or even on Defendant’s property is “a 

distinction without a difference,” citing Holiday Inns, Inc.

v. Shelburne, 576 So. 2d 322 (Fla. 4th DCA 1991) for the 

proposition that a defendant could be liable “even where 

the shooter himself was not on Defendant’s property, but 

where the property was adjacent to Defendant’s property, 

and Defendant appeared to have exercised some control

over the property.” . . . While it is true that some courts 

have found a landowner liable for negligence when a 

patron was injured off property, in such cases, as noted 

by Plaintiff, there was a showing that the landowner, 

through some action or conduct, exercised control over 

the other property or otherwise extended his foreseeable 

zone of risk beyond his own premises. Here, there is no 

such showing. Compare Marinacci v. 219 South Atlantic

Blvd., 855 So. 2d 1272 (Fla. 4th DCA 2003) (negligently 

advising patron to park in nearby lot where she was 

assaulted stated cause of action) with Daly v. Denny’s,

Inc., 694 So. 2d 775 (Fla. 4th DCA 1997) (no cause of 

action against owner of motel adjacent to parking lot 

where patron was attacked).

While it is tragic that Decedent was shot and killed, 

under Florida law, her estate cannot seek redress from 

this Defendant solely because the criminal stood on 

Defendant’s premises when the fatal shot was fired.

Id. at *2–*3. The magistrate recommended that the motion be 

granted and the action be dismissed. Id. at *3. Although the 

motion for judgment on the pleadings was ultimately denied by the

district court because of an unopposed motion for the approval of a 

settlement and dismissal of the case, we agree with the reasoning 

put forth by the magistrate and apply it to this case. 
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Here, as in Johnson, Appellant’s cause of action may have 

been precipitated by an event on Appellee’s premises, but the tort 

occurred on property not owned or controlled by 

Appellee. Moreover, as we stated, Appellant failed to establish or 

show a special relationship between Appellee and the shooter or 

Appellee and the decedent. Furthermore, there was no showing 

that Appellee, through some action or conduct, exercised control 

over the other property or otherwise extended its foreseeable zone 

of risk beyond its own premises.

The case of National Property Investors, II, Ltd. v. Attardo, 

639 So. 2d 691, 692 (Fla. 5th DCA 1994), also supports the trial 

court’s ruling in this case. There, the appellee sued the appellant, 

which was the owner of an apartment complex where the appellee 

was a tenant, after she was abducted, threatened, and assaulted 

by a male while on the complex premises. Id. The appellant filed 

a third-party action against the owner of a 7-Eleven store located 

across the street. Id. In affirming the dismissal of the complaint, 

the Fifth District reasoned:

Had [the appellee] sought damages for injuries sustained 

on 7-Eleven property, then the action against [the owner 

of the 7-Eleven] would be appropriate. Had Weir grabbed 

[her] on the 7-Eleven parking lot and carried her to the 

[complex] to assault her, the action might be sustainable. 

But to suggest that [the owner] is liable because someone 

who happens to be on its property . . . follows a patron 

down the street to an unlighted parking lot and there 

commits a crime is carrying landlord liability too far. . . . 

No court has yet extended landlord liability beyond this 

point.

Id. at 692. Here, while the shooter was allegedly on Appellee’s 

property when the shot was fired, the bullet traveled from that 

property just as the assailant traveled from the landowner’s 

property in Attardo. 

Appellant attempts to liken this case to Thunderbird Drive-In 

Theatre, Inc. v. Reed, 571 So. 2d 1341, 1342 (Fla. 4th DCA 1990), 

where the appellants appealed from a final judgment entered in a 

suit for personal injuries resulting from a motor vehicle accident. 
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The accident at issue occurred on a boulevard near the entrance to 

the theatre. Id. The appellee argued at trial that the theatre was 

negligent in the design and maintenance of its entrance and that 

the negligence caused traffic to build on the boulevard creating a 

known dangerous condition and that the appellant failed to 

ameliorate the dangerous condition by hiring additional police 

personnel to supervise the traffic. Id. at 1343. The jury returned 

a verdict in favor of the appellee. Id. In considering whether the 

theatre, as a property owner adjacent to a busy public highway, 

was liable for the accident in question, the Fourth District 

reasoned that one could conclude from the record that the theatre 

was on notice that privately-hired police were necessary to handle 

large crowds of cars and people, and it concluded that the issue of 

whether the injuries were foreseeable to the theatre was a jury 

question. Id. 

We find Appellant’s reliance on Reed to be misplaced given 

that there were allegations there that the theatre’s design and 

maintenance of its entrance created a dangerous condition. Here,

as stated, the only alleged connection between Appellee and the 

shooter was that the shooter was on Appellee’s property when he 

fired his gun. That connection, as the foregoing cases make clear, 

was not sufficient to establish a duty on Appellee’s part to the 

decedent or to the general public. 

Accordingly, we affirm the order on appeal. 

AFFIRMED. 

ROBERTS and RAY, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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Brian J. Lee of Morgan & Morgan, Jacksonville, for Appellant.
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Robert C. Swain, Deputy County Attorney, Alachua County 

Attorney’s Office, Gainesville, for Appellees.