May 2014 Article:
Pages v. Seliman-Tapia, 39 Fla. L. Weekly D543a (Fla. 3d DCA March 12, 2014)
Third District Court of Appeal affirmed dismissal of civil complaint filed by doctor and his wife for damages relating to an assault and battery which took place in a mall parking lot as alleged attacker was found justifiable in his use of force under Florida’s Stand Your Ground laws.
On December 27, 2009, Dr. and Mrs. Pages were in the parking lot of the Dolphin Mall when they were confronted by Tapia, who accused Dr. Pages of parking too close to his car, causing it to become inoperable. According to witnesses who testified at an evidentiary hearing, Dr. Pages became very agitated, and was acting in an aggressive and confrontational manner toward Tapia, who had his hands in his pockets and was backing away from Dr. Pages. Dr. Pages continued to be confrontational and was bumping into Tapia with his chest. Mrs. Pages got between her husband and Tapia. At some point, Dr. Pages turned toward Tapia’s wife, Ms. Singer, who was telling Dr. Pages to calm down. Dr. Pages then rushed toward Ms. Singer in an aggressive manner. At this point Tapia became worried about his wife, who was disabled, and Tapia rushed toward Dr. Pages and pushed him down, causing Dr. Pages to hit his head. Mrs. Pages testified that Tapia picked Dr. Pages up and threw him in the air, causing him to land on his head. She also testified that in doing so, Tapia made contact with Mrs. Pages, and that her back hurt for a few days afterward. Mrs. Pages was the only witness who testified that Tapia came into contact with her when Tapia pushed Dr. Pages down.
Tapia was later charged by information with felony battery on Dr. Pages and misdemeanor battery on Mrs. Pages. Pursuant to a negotiated plea, Tapia pled guilty to the misdemeanor battery, was adjudicated guilty, and the State entered a nolle prosequi to the felony battery charge. The Pages filed a civil lawsuit against Tapia, and in the complaint asserted two counts — assault and battery against Dr. Pages and loss of consortium on Mrs. Pages’ behalf. The complaint was later amended to include an additional count of assault and battery upon Mrs. Pages. Tapia asserted entitlement to immunity based on Florida’s Stand Your Ground laws.
The issue of immunity was referred to a general magistrate, who conducted an evidentiary hearing on June 14, 2012. The general magistrate found that Tapia had established his entitlement to immunity under section 776.032, Florida Statutes (2009), applying a preponderance of the evidence standard. Specifically, the magistrate found that Mrs. Pages was not credible, and that the testimony of all the other witnesses established that Dr. Pages was the aggressor, and that Tapia acted only when Dr. Pages began moving aggressively toward Tapia’s wife. Dr. and Mrs. Pages filed exceptions to the general magistrate’s Report and Recommendation and, after a hearing, the trial court denied the exceptions and adopted the general magistrate’s Report and Recommendation. The court later entered final judgment in favor of Tapia, and dismissed the amended complaint with prejudice. The Third DCA affirmed the trial court’s dismissal.