Practice-Transcript-6_Redacted_F116

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1 IN THE CIRCUIT COURT OF THE 11th JUDICIAL CIRCUIT IN AND
FOR MIAMI-DADE COUNTY, FLORIDA
2 CASE NO.:
3
4
Plaintiff,
5
-vs-
6
MIAMI-DADE COUNTY a municipal corporation
7 and political subdivision of the State of Florida
and 50 STATE SECURITY SERVICE, INC.,
8
Defendant.
9 __________________________________/
10
11 TRANSCRIPT OF PROCEEDINGS
12 Defendant's Motion for summary Judgment
13 (Volume 1 of 1)
14 DATE TAKEN: Tuesday November 25, 2014
15 TIME: 3:30 p.m. - 4:30 p.m.
16 PLACE: Miami-Dade County Courthouse
73 West Flagler
17 Miami, FL 33130
18 BEFORE: Honorable Abby Cynamon
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25
Stenographically Reported By:
Court Reporter

2
1 APPEARANCES
2 On Behalf of the Plaintiff:
3 KLEMICK & GAMPEL
1953 SW 27th Avenue
4 Miami, FL 33145
BY: HERMAN KLEMICK, ESQUIRE
5
On Behalf of the Defendants:
6
MINTZER, SAROWITZ, ZERIS, LEDVA & MEYERS, LLP
7 1000 N.W. 57th Court
Suite 300
8 Miami, FL 33126
Rjavier@defensecounsel.com
9 BY: JAVIER RAMON, ESQUIRE
10
LAW OFFICE OF JAMES J. GALLAGHER
11 200 East Broward
Suite 1000
12 Fort Lauderdale, FL 33301
BY: DONALD MATES, ESQUIRE
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14
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16
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19
INDEX OF PROCEEDINGS
Page
Court’s Ruling 28
Certificate of Reporter 29
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1 (The following proceedings were had :)
2 THE COURT: So I believe we have an hour
3 together.
4 MR. CIAMPA: We don't have to take an hour.
5 THE COURT: I am six minutes late, so you have an
6 extra six minutes.
7 MR. JAVIER: We have some props for you. You
8 have the video.
9 THE COURT: I remember the video. Wonderful.
10 Delightful. Let me get everything out because I have
11 everything tabbed. Do you want me to come down and take a
12 look at the video when it's appropriate?
13 MR. JAVIER: Whatever you want. I can probably
14 prop it up for you, so you can stay at the bench.
15 THE COURT: Does anyone else need to see it? Do
16 you need to see me see it?
17 MR. MATES: No, Judge.
18 THE COURT: Okay. Well, then why don't you bring
19 it up here? Is the cord long enough?
20 MR. CIAMPA: May I stand on the side to look at
21 it?
22 THE COURT: Sure. I'll tell you what, why don't
23 you come down, this way we can all see it. You can come
24 on over here and we can all look together.
25 MR. JAVIER: This is about a five-minute video.

4
1
(Video commencing off the record.)
2 MR. CIAMPA: Your Honor, may I remain at the
3 table just so I can see?
4 THE COURT: Whatever you want. Everyone can be
5 where ever they want to be. I guess we should put on the
6 record that I just saw, I guess, what purports to be a
7 seven-and-a-half minute video re-enactment.
8 MR. MATES: Yes, Judge. Judge Donald Mates on
9 behalf of 50 States Security Services, Inc. Judge, it's
10 our motion for final summary judgment. Judge, my client
11 had a contract with Miami-Dade County to provide security
12 services for the Metro Dade Transit System. That's the
13 Metrorail System only. We provided Your Honor, of course,
14 with the contract as a bid contract.
15 THE COURT: I remember it.
16 MR. MATES: We've also provided you with a
17 deposition of . is the Chief of
18 Safety and Security for Miami-Dade County. He is the
19 county contract administrator. He has supervisors that go
20 out into the Metrorail systems to ensure that 50 States is
21 in contract compliance. 50 States was to provide security
22 services to protect, and this is important, Judge -- 50
23 States Security Service is to protect Miami-Dade transit
24 property, Miami-Dade County personnel and patrons of the
25 Metro Transit System.

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1
THE COURT: And you argue he's not in any
2 category?
3 MR. MATES: That's correct, Judge. Patrons --
4 is there for the county to enforce the
5 contract. His position is that patrons are people who
6 actually purchase tickets for the Metrorail System.
7 That's found on page 18 and again on page 65 of his
8 deposition. He also stated that security officers must be
9 at the kiosk. The kiosk is at the very end of that video
10 tape, Judge. Inside the kiosk -- and they're supposed to
11 be turnstiles. He doesn't call them turnstiles. That's
12 an old fashion system. That's what I used to call them.
13 THE COURT: That's what I would call them, too.
14 MR. MATES: They call them fair gates. And
15 during peak hours -- peak hours are defined as 6:00 a.m.
16 and 9:00 a.m. That rush hour, obviously. The security
17 guard must be right at the fair gates to help, ensure
18 people don't jump over the gate. To help people if they
19 are in wheelchairs or need assistance to get through the
20 gates. Sometimes people have problems putting their
21 tokens in to get through -- he is right there at the gate
22 to ensure that they're there. He stated that if the
23 security guard went out onto the sidewalk on 27th Avenue
24 where Mr. was walking just before the incident
25 occurred or even was on the grassy area, they would be in

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1 violation of the contract and 50 States would be subject
2 to a fine, administrative costs, they could even be
3 terminated for not being in contract compliance.
4 Because they wouldn't be in a position to see the
5 responsibilities of the fair-gate task that they were
6 responsible for during the time from six to nine and this
7 incident occurred slightly after 6:00 a.m. Now, here is
8 the law that I have indicated is that for security
9 guards -- security guards do not owe a general contractual
10 duty to people. They are not the premises owner. Miami-
11 Dade County is premise owner and their duties are much
12 greater than 50 States Security duties. 50 States
13 Security duty is strictly defined by the contract.
14 The contract said that they have certain
15 responsibilities at open of the Metrorail System at 4:00
16 in the morning, certain responsibilities of closing at
17 1:00 a.m. But during the peak hours at 6:00 a.m. and
18 9:00 a.m., they're supposed to be inside the Metrorail
19 building right by the turnstiles. The fair gates to help
20 make sure they're protecting the Miami-Dade property,
21 Miami-Dade personnel and patrons, people who actually buy
22 the tickets. That's where they're supposed to be.
23 Now, after Mr. was shot and you saw him
24 walk along the outside of the fence, through the gap in
25 the fence, pass the escalator and then around the building

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1 to get into it, he was there and then he fell down and
2 that is exactly where the guard was at. That's exactly
3 where he's supposed to be. That's his contractual
4 obligations. When he fell down, the security guard
5 immediately responded, called fire rescue, called the
6 police. Fire rescue came and his life was saved.
7 The detectives found the bad guy and he was
8 eventually arrested and sentenced to ten years in jail.
9 Our position, Judge, simply is that we complied with the
10 contract. We complied with the duties and
11 responsibilities of the contract. Mr. reviewed
12 everything and found there was no violation of the
13 contractual duties. We were never fined. We were never
14 disciplined in any way. We feel that we're entitled to a
15 summary judgment because there was no breach of the duty
16 that was owed to Mr. by 50 States Security.
17 Thank you, Judge.
18 THE COURT: Can I ask one question?
19 MR. MATES: Sure.
20 THE COURT: If he -- if he was somewhere in the
21 station -- if he were somewhere in the station, it seems
22 like he was on a walkway and then ran to a grassy -- he
23 was on a walkway on the way into a Metrorail station, but
24 was not per se in it. And then he saw the man with the
25 gun and then he ran into a fenced-in grassy area where he

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1 was shot. Just -- I don't know the legal status of either
2 of those, either the sidewalk or the fenced in grassy
3 area. But just assume for purposes of my question that
4 that was within the Metrorail station, would you still
5 seek summary judgment because you would argue that the
6 guard only had a duty to be over by the fair gate?
7 MR. MATES: He has to be --
8 THE COURT: I'm sorry if that's a weird question.
9 If he was shot on the platform and the guard was on the
10 fair gate -- I know he wasn't.
11 MR. MATES: Well, if he was on the platform that
12 means he was a patron. That means he --
13 THE COURT: So he wasn't a fair jumper?
14 MR. MATES: Right. He wasn't a fair jumper. If
15 he was up on the platform, then he's a patron and, yes, we
16 owe him a duty. There's no doubt about that. I wouldn't
17 be in front of Your Honor right now asking for a summary
18 judgment because we would owe him a duty. Maybe the jury
19 would see it a different way because we can't be upstairs
20 and downstairs at that same time, but clearly we would owe
21 him a duty and I wouldn't be in front of Your Honor.
22 He was walking along, as you saw, the 27th Avenue
23 sidewalk, like any other pedestrian in Dade County,
24 walking along the sidewalk. And he realized that he was
25 being followed by, what turned out to be, a shooter. He

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1 then made a left-hand turn off the sidewalk and onto Dade
2 County property. Because they do own -- we found that out
3 there is Dade County property and as he was walking along
4 the walkway to the gates, but not through the gates, and
5 then he made a right turn away from the gate and along the
6 outside of the fence area where he was shot.
7 Now, you saw how the building was and where the
8 guards were located. They could not see anything. You
9 could barely hear anything. The guards who were paying
10 attention -- there is no doubt that the guards were paying
11 attention and I don't believe there going to be an issue
12 as to that. They didn't hear or see anything because they
13 were exactly where they were supposed to be. As a matter
14 of fact and I understand the plaintiff's are going to say,
15 well, he could have been patrolling outside that area. We
16 asked Mr. that exact same question and that would
17 have been in violation of the contract.
18 It would have been subject to certain fines and
19 administrative problems because he was no longer at the
20 station. One more thing, Judge, and I know we brought
21 this up to you last time and you said it had no
22 prejudicial value, but I was the attorney at the exact
23 same station in another case. And, again, I showed you
24 the brief and showed you the procurement affirmed.
25 THE COURT: Yeah.

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MR. MATES: And in that case the plaintiff was
2 shot at the bus station. The bus station -- you have the
3 Metrorail System basically right here, Judge. And the bus
4 station is right here. Within the fence area. They're
5 side-by-side.
6 The plaintiff in that case was never a patron of
7 the Metrorail. He was going from one bus to another. He
8 was waiting for the transfer when he was shot and he
9 brought an action against 50 States Security and the
10 trial -- the trial court in Dade County granted the motion
11 for summary judgment saying there was no duty owed to him
12 because he was never a patron of the Metrorail System and
13 that went up on appeal and was a procurement affirmed. I
14 showed you the brief and I showed you the PCA. This case
15 is so much different. To me, it's so much more clearer
16 because he wasn't even inside the fenced area.
17 But, in any event, he certainly was not a patron
18 of the Metrorail System.
19 THE COURT: That grassy area where he said in
20 Spanish and then in English this is where he fell after he
21 was shot, I thought there was a fence around that.
22 MR. MATES: There's a fence.
23 THE COURT: So who owns that property?
24 MR. MATES: Dade County owns that property.
25 THE COURT: And you can establish, as a matter of

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1 law, that 50 States has no obligation to control that
2 because it's not part of the Metrorail station?
3 MR. MATES: Yes. If you look at the contract, we
4 have the post orders. The post orders are very clear and
5 that's our duties. The case law that I've cited --
6 THE COURT: Respectfully, you're answering a
7 different question than what I'm asking. It's probably my
8 fault because I'm not asking it clearly. I understand
9 that your client has post orders and that there are fines
10 and penalties and consequences with regard to wonder off
11 their post and leave the facility, which they're supposed
12 to be guarding. And I understand that if someone had gone
13 through the fair gates, a duty is owed to that person
14 because that makes them a patron under the contract. I am
15 curious what you can show me where I can conclude, as a
16 matter of law, that fenced-in area, that fenced-in grassy
17 area where he was shot, was not part of the Metrorail
18 station; and, therefore, not part of 50 States contractual
19 duty to patrol.
20 MR. MATES: Well, because we asked Mr.
21 that same question. That's why I asked them if they were
22 out -- if the security guard had wandered away from his
23 post and into the grassy area, for example, which is what
24 you're suggesting -- and I asked him specifically you look
25 at his answer on page 39 -- page 39 of 's

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1 deposition.
2 THE COURT: Okay.
3 MR. MATES: I am paraphrasing, but it basically
4 says, "If a security guard was on the sidewalk or on the
5 grassy area, he would be away from his post?" And if he's
6 away from his post, there are consequences that could
7 occur and that's why they had to be where they are. And
8 the case law, Judge, just to give you a level --
9 THE COURT: Can I try this again? I'm sorry. I
10 have been in special sets all day and I must not be
11 articulating my question. I am less concerned with, in
12 all respect given to Mr. and his position, I am
13 less concerned with his interpretation of the contract.
14 In fact, I can't allow his interpretation of the contract
15 inform my decision because that's having him do my job.
16 As the Court, I am supposed to, as a matter of law on this
17 motion for summary judgment determine -- it's you're
18 burden to show me that, as a matter of law. You're
19 entitled to be out of this case and I am not understanding
20 how Mr. testimony that if a guard left his post
21 he would be reprimanded, written up or whatever.
22 The answers to my question, which is simply --
23 don't they have -- I mean, that area is fenced in where he
24 was shot, so it's not a public sidewalk. He was shot in a
25 fenced-in grassy area.

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MR. MATES: He was shot outside the fenced-in
2 area, outside the fenced-in area. There is a fence
3 between --
4 THE COURT: Again, I just saw this five-minute
5 video.
6 MR. MATES: There is a fence. The fence is
7 on the grassy -- it's about ten yards, 15 yards in from
8 the sidewalk and from the sidewalk, you know, towards the
9 Metrorail is all Dade County property. There's no doubt
10 about that, Judge.
11 THE COURT: All Dade County, but not within the
12 responsibility of 50 States to patrol?
13 MR. MATES: That's right.
14 THE COURT: Why?
15 MR. MATES: Because that's what the contract
16 says.
17 THE COURT: What part of the contract?
18 MR. MATES: The post --
19 THE COURT: Not Mr. saying my guard would
20 get in trouble if they wandered off their post, I mean, I
21 understand that completely, but where does it say that
22 they can't control that area?
23 MR. MATES: It says it in the post orders, Your
24 Honor. In the post orders there are certain obligations
25 as to where they can patrol and where they can't patrol.

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1
THE COURT: Did you want to go off the record and
2 answer it?
3 MR. MATES: So during opening hours and, Your
4 Honor, is correct. During opening hours -- remember the
5 security guards have to be there from either 4:00 in the
6 morning until 1:00 in the evening except for special
7 events and things like that because things may be
8 happening. But generally speaking, it's four to one.
9 When it's opening time, they do have to do an inspection
10 to see if there are any -- and they are supposed to
11 contractually, by their post orders, walk around the
12 entire facility. That's the actual building itself, to
13 make sure there are no vagrants there, pick up garbage,
14 things like that and open because there is an iron gate
15 that comes down when it's closed.
16 They open up the gate and they do have some
17 responsibilities beyond the actual opening and the same
18 thing with closing. At closing time, they make sure that
19 no one is around. They get rid of all the vagrants and
20 all of that and they do walk around in the grassy areas
21 and things like that. But during the time when this man
22 was shot, that is not his responsibility. Their
23 responsibility is to be within that building. Now, the
24 county could have asked us and contracted for us to patrol
25 the entire area. They could have done that, but they

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1 didn't do that.
2 And the case law is very clear. Their duty is
3 contractual. So if the contract says they're only
4 supposed to patrol -- let's say this is the entire area of
5 Dade County, but the security guard is only supposed to be
6 patrolling right here and never move from right here and
7 something happened way over there, there is no breach of
8 any duty because they're only supposed to be over there by
9 the contract. They can't violate the contract.
10 THE COURT: They would say in that hypothetical
11 there would be no beach of the duty because there is no
12 duty.
13 MR. MATES: There is no duty.
14 THE COURT: I understand. Okay. What else do
15 you want to tell me?
16 MR. MATES: That's it, Judge.
17 THE COURT: Okay. Thank you.
18 MR. JAVIER: Ramon Javier on behalf of Miami-Dade
19 County.
20 THE COURT: Good afternoon.
21 MR. CIAMPA: Your Honor, may I respond. I think
22 it would be easier.
23 THE COURT: Are you okay with that? He can
24 respond to 50 States and --
25 MR. JAVIER: I'm okay.

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1
THE COURT: Cool tie by the way.
2 MR. CIAMPA: I think it would be easier if I can
3 respond to the one.
4 THE COURT: Just if you would indulge our court
5 reporter and project.
6 MR. CIAMPA: I will do that, Your Honor.
7 THE COURT: Okay. Thank you.
8 MR. CIAMPA: When we had the first summary
9 judgment hearing, Your Honor stated at the end in ruling
10 the following: "I don't have enough here for me to know
11 whether the duty element is met or isn't met because the
12 threshold question for the Court is whether this was the
13 property for the county, meaning the area where my client
14 was shot and that's sort of how I am. So if you want to
15 find me some supplemental information, because I agree
16 with the defense 100 percent. If this was not in the
17 Metrorail property, then 50 States would be out of it and
18 the county would be out of it under the discretionary
19 portion of sovereign immunity.
20 "But to get there, you have to show me that that
21 was not Metrorail's property. You understand that I need
22 something additional;" and that's how it ended. It can't
23 be -- and 50 States have not provided anything new,
24 anything additional in order to answer that question and
25 nothing additional that says that that area, that grassy

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1 area where there's is a gap in the fence by the building
2 where he was first approached -- nowhere have they found
3 anything that supplements to show that that area was not
4 Metrorail station property.
5 The only thing they did was submit the case that
6 Mr. Mates keeps talking about, except that case is
7 completely distinguishable because in that case in taking
8 in the light most favorable to the plaintiff is that the
9 shooting occurred shortly after they exited the station
10 property, meaning they were not on the property anymore.
11 The assailant shot plaintiff and stole his bicycle
12 approximately 100 yards from the security guard.
13 This was outside 50 States patrol area and the
14 security guard couldn't see the bus pay area where the
15 shooting occurred and that is not part of unincorporated
16 Dade County. And the whole argument was -- and it even
17 stated in the introduction there that, "Plaintiff seeks
18 damages for injuries he sustained as a result of being
19 shot by unidentified assailants while waiting for a Miami-
20 Dade bus in the bus space area located outside and
21 approximately 100 yards north of the entrance to the
22 Metrorail station."
23 In that case, all of the facts were that
24 everything took place outside of the Metrorail property
25 station, so it's not applicable to our case because in our

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1 case we are stating that it took place inside. Your Honor
2 wanted to know and kept asking Mr. Mates here, "What is
3 there that says that this area that I just saw and point
4 out where he was approached and shot in that grassy area
5 was not part of the Metrorail station?"
6 The reason why the question could not be answered
7 by him simply is to show you is -- because it is part of
8 the Metrorail station. If we go to the deposition that
9 Mr. Mate's was referring to of their person in charge of
10 security, et cetera, Chief of Safety and Security for
11 Miami-Dade County, Mr. or J. and we go to
12 page 49 of his deposition he was asked -- I would like you
13 to look at the first page. I think it's called
14 Brownsville Station at the top. That's the survey for
15 this particular property.
16 "Are you aware of the fact that the document
17 shows under crack A, the entire area of the Brownsville
18 Station, the Miami-Dade Transit Authority's property for
19 the Brownsville Station according to the site survey that
20 was provided to us by Miami-Dade County," -- and that has
21 been provided here, Your Honor.
22 THE COURT: Can you tell me again that exhibit?
23 Can you identify that for me by number?
24 MR. CIAMPA: I can try, Exhibit 1.
25 THE COURT: Okay. This is the plaque you're

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1 referring to, Brownsville Station?
2 MR. CIAMPA: Yes. Question, "Does that encompass
3 just the building or does that encompass the entire area
4 including the grassy area, the bus way and the building?"
5 THE COURT: Where are you reading from, sir?
6 MR. CIAMPA: From Mr. deposition, page
7 50. So he was asked whether that area that's the
8 Brownsville Station includes the grass area, the bus way,
9 the building. The witness, the answer is on line 19
10 Mr. says, "It includes the entire area."
11 Question, "And that's Miami-Dade Transit
12 Authority's property for the Brownsville Station,
13 correct?"
14 Answer, "Yes." Then we go to page 55 same
15 deposition.
16 When he was asked at the top about the area and
17 being shown here between the plaza and 27th Avenue, "Is
18 that not grassy area, the Brownsville Station?"
19 Answer, "Yes."
20 Question, "And the property line would be
21 indicating on this diagram of documents that the grassy
22 area would be well within the Brownsville Station,
23 correct?"
24 Answer, "Yes."
25 That's it. That's the end of it. It answers the

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1 question that was asked. It answered the question that
2 was asked of Mr. Mates because his own witness testified
3 as to it, so summary judgment needs to be denied based
4 upon that because we have our own client, Mr.
5 stating that he was shot inside the Metrorail station.
6 Mr. who is their expert, their own witness
7 in this and said that area is within the Metrorail
8 station. They don't answer the question because they know
9 that he had said it's within the Metrorail station. Your
10 Honor said they have not -- they have not done enough to
11 be entitled to summary judgment and you gave them an
12 opportunity to come back and show you the supplement, to
13 show you why that area is within the Metrorail station.
14 They have supplied you nothing to show that, nothing new,
15 nothing, so it doesn't change. Do you want me to go on?
16 THE COURT: I just have one question. The other
17 case that you and Mr. Mates were both talking about, isn't
18 the real issue with that is that it procures --
19 MR. MATES: It --
20 THE COURT: So there is really no option that
21 this Court could rely on.
22 MR. CIAMPA: Absolutely, Your Honor. I just went
23 to it because under the fact there, it was stipulated that
24 it was outside the Metrorail property, so I didn't want
25 that to go unnoticed.

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1
THE COURT: Okay. Before I hear from you,
2 Mr. Javier -- Mr. Mates, did you want to briefly rebut?
3 MR. MATES: Yes, Judge. Mr. Ciampa has made a
4 very strong argument saying the shooting occurred on
5 Miami-Dade County property. I don't dispute that. That's
6 not the issue, Judge. The issue -- again, the law is very
7 clear. The only duty we have is a contractual duty. You
8 look at the contracts. You look at the post orders. You
9 look at the entire contracts and he didn't mention one
10 thing about the contracts because he knows that's a
11 problem for them. Our duty is to be inside the station,
12 inside the station, not inside of Dade County property,
13 inside the station during the time of the shooting and
14 that's exactly where we were.
15 I am not disputing it may be Dade County
16 property. I will for the purposes of summary judgment, I
17 can see that the shooting occurred on Dade County
18 property. That's not the issue, Judge. The issue is what
19 duty did we owe Mr. who was not a patron, who is
20 not an employee of Dade County and it's not property of
21 Dade County, never bought a ticket. As far as we know, he
22 was never intending to buy a ticket. Even if he was
23 intending on buying the ticket, he never did buy a ticket.
24 We had to be in an area where we were and that's exactly
25 where we were. Under the case law, we did not owe him a

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1 duty.
2 THE COURT: One question, Mr. Mates.
3 MR. MATES: Sure.
4 THE COURT: 50 States as a contract with the
5 county to provide security to the Brownsville Station,
6 correct?
7 MR. MATES: To the patrons of the Brownsville
8 Station, yes, Judge.
9 THE COURT: I don't need a surrebuttal. Thank
10 you. Mr. Javier, your turn, sir.
11 MR. JAVIER: For purposes of the record, on page
12 96 of Mr. deposition, line 11 through 21, he
13 talks about -- he says that the physical building --
14 THE COURT: Page 96, line 11 through 21, will you
15 indulge me when I get there.
16 MR. JAVIER: Sure.
17 THE COURT: Thank you. Okay, I'm there.
18 MR. JAVIER: Answer, "The physical building is
19 the station when you're in the transit industry." He goes
20 on, "The station is a physical building. The area in
21 which the transit services are provided. There is the
22 station. There is an entry and exit area and there is a
23 platform area. All the areas outside of that may be
24 Miami-Dade Transit.
25 THE COURT: Okay.

23
1
MR. JAVIER: With respect to Miami-Dade County,
2 Judge, I would submit to the Court that Miami-Dade County
3 is entitled to summary judgment because the undisputed
4 facts establish that there is a discretionary function
5 here and a public duty exception that is applicable to
6 these facts.
7 THE COURT: Okay. Let's talk about that.
8 MR. JAVIER: And this is something where it was
9 presented in the case of Miami-Dade versus Miller. We had
10 cited this case before. The court, the Third DCA found
11 that the discretionary functions and the public duty
12 exception applied and I did point out to the Court that
13 case was abrogated --
14 THE COURT: I remember this whole discussion. In
15 fact, Miller has been procedurally abrogated. I have that
16 note here and you pointed it out to me. Tell me again why
17 you pointed it out to me.
18 MR. JAVIER: Well, the facts are the same. It
19 was abrogated to the extent that certiorari jurisdiction
20 would not be applied concerning the governmental immunity
21 cases. That's what it was abrogated for. The bottom line
22 is the discretionary function and public duties exceptions
23 have not been touched. That's still the law. And based
24 upon that law, Miami-Dade County is immune from suit here
25 and that's it.

24
1
THE COURT: Okay. Let me pull out my highlighted
2 copy of Miller here again. I have to ask you a question.
3 You read Miller more recently by wager. I am reading from
4 headnote seven of Miller, left-hand column towards the
5 bottom, page six. "In the instant case, the county did
6 not create a special tort duty by placing Miller within a
7 zone of risk. Miller was on a public street waiting for a
8 bus. The county had no duty to post a law enforcement or
9 security enforcement at the bus stop or to employee other
10 security measures to protect citizens against law
11 violations." It seems a little factually distinguishable
12 from the facts here.
13 MR. JAVIER: They are suggesting by the facts
14 that that sidewalk where the bus stop was, was not transit
15 property. Here we have an issue of whether or not it was
16 transit property, but we have still the public duty
17 exception that says that they need to be owed a specific
18 duty. That specific duty attaching if he's a patron. To
19 become a patron, you have to pay their fare.
20 THE COURT: Are you arguing for 50 States now or
21 the county?
22 MR. JAVIER: This is how the public duty
23 exception would apply and they would be able to get --
24 with a duty specifically owed to him. That's not the case
25 because he didn't pay his fair. But then if you go to the

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1 discretionary function, they don't need to post a security
2 guard by the front entry way. They don't need to put one
3 also on the sidewalk. They don't need to put one on each
4 corner. There is a discretionary function and that's the
5 reason as to why the county is immune from suit here.
6 THE COURT: Okay. But what I'm stuck on here is
7 I'm aware of the distinctions between discretionary
8 functions and operational functions and sovereign
9 immunity. But the facts of Miller are quite different
10 from the facts in this case. So how do I say -- well, in
11 Miller a public duty exception was found. In Miller,
12 which had different facts -- whereas in this case, this
13 gentleman was shot on property owned by the county. How
14 do I ignore that?
15 MR. JAVIER: Judge, since you're having a
16 difficulty with Miller --
17 THE COURT: I'm not having a difficulty with you
18 or anybody I'm just trying to follow the law.
19 MR. JAVIER: I am just having a discourse with
20 the Court.
21 THE COURT: Absolutely. Discourse away.
22 MR. JAVIER: I think if Millers facts seem to you
23 that they're distinguishable from these facts, that's
24 perfectly okay. I think then while everybody has pointed
25 to Hato [phonetic] versus 50 States, which is that case

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1 that everybody is talking about, I think that -- at the
2 very least, it should be some persuasive case for the
3 Court because that shooting occurs basically on the side
4 on the -- on the side of this property where it's
5 basically right next to that entrance. That's where the
6 bus bays are.
7 THE COURT: Right.
8 MR. JAVIER: And there that court -- I understand
9 it was a PCA, but they said that the county they were
10 entitled to the discretionary function and the public duty
11 function, so the application of these various concepts is
12 applicable here and the county should be entitled to
13 summary judgment based upon those two -- those two
14 functions.
15 THE COURT: Okay. Anything else you want to tell
16 me?
17 MR. JAVIER: No, judge.
18 THE COURT: You want to respond?
19 MR. CIAMPA: Only if you want me to.
20 THE COURT: Absolutely. I believe in giving
21 everybody an opportunity.
22 MR. CIAMPA: I think Your Honor understands well
23 that Miller -- it says the attack upon Miller allegedly
24 occurred after he had exited the Metrorail station and
25 while he was on a public sidewalk waiting to board a bus.

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1 He was not in a Metrorail station, so those facts are in
2 inapplicable to our case. It's a different case and it's
3 not president, under any circumstances, for our case. In
4 addition, the county decided to hire security officers for
5 the station. Once they decide to hire security officers
6 of a private nature and provide them, they have to do it
7 properly and the people who are acting out as the security
8 officer, have to do their job properly.
9 But once sovereign immunity doesn't come in when
10 they decide that, they're going to undertake after feeling
11 the need to hire security. They have to then not do it
12 negligently. And whether or not they were negligent, is a
13 question for the jury. But in terms of the judgment, they
14 can't possibly, successfully, argue sovereign immunity
15 because they choose to hire 50 States and that's alleged
16 that they did.
17 THE COURT: Anything in response, Mr. Javier?
18 MR. JAVIER: No, Judge. I am going to rest on
19 the brief and I will rest on the argument and the law that
20 has been presented to you.
21 THE COURT: I am going to give you a ruling at
22 this time. With respect to 50 States and the county and,
23 you know, counsel, I don't think the law allows me to
24 grant either of your motions for summary judgment. With
25 respect to 50 States -- I'm giving you a thorough detailed

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1 ruling in case you want to take me up. That's completely
2 fine.
3 I think the deposition of Mr. or
4 establishes that the property where this incident occurred
5 was part of the Metrorail station. And I don't believe
6 that the post orders or Mr. interpretation of
7 what 50 States duty can properly inform this Court in its
8 position, therefore I'm respectfully, denying your motion
9 for summary judgment on those grounds. And with regard to
10 the county motions, I am respectfully denying that one as
11 well because I find Miller to be factually distinguishable
12 and that's it. We're in recess.
13 (Hearing concluded at 4:22 p.m.)
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1
2 CERTIFICATE OF REPORTER
3 STATE OF FLORIDA
4 COUNTY OF MIAMI-DADE
5
6 I, Court Reporter, certify that I
7 was authorized to and did stenographically report the
8 hearing of vs. Miami-Dade County, pages 1
9 through 28; that the transcript is a true record of my
10 stenographic notes.
11 I further certify that I am not a relative,
12 employee, attorney, or counsel of any of the parties, nor
13 am I a relative or employee of any of the parties'
14 attorneys or counsel connected with the action, nor am I
15 financially interested in the action.
16 Dated this 21st day of January, 2015.
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22 __________________________________________
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