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Alamo Rent A Car had no “duty to warn” a Dutch couple visiting Miami not to drive into high-crime areas of the city, lawyers for the company told a three-judge panel of the 3rd District Court of Appeal Wednesday in an effort to overturn a $5.2 million jury verdict. Lawyers for Alamo told the judges that there is no way their client could have known that the couple would venture into Miami’s Liberty City neighborhood, where Tosca Dieperink was shot to death as she sat in the rental car in 1996. “We look to police to protect. How can you transfer that responsibility to a private entity? That is what you are doing here,” said Bellows, an appellate lawyer with Miami’s Holland & Knight. In May 2000, a Miami-Dade Circuit Court jury awarded the victim’s husband, Gerrit, $5.2 million. With interest, that figure is now closer to $6 million. Bellows based his “duty to warn” argument on another case decided by the 3rd District Court of Appeal in February 2000. In Poleyeff v. Seville Beach Hotel Corp., the 3rd District Court, sitting en banc, ruled 9-2 that an entity, in that case a hotel on Miami Beach, had no duty to warn a couple of New York tourists who drowned in the ocean behind the hotel about the dangers of rip tides. The appellate court found that because the hotel “did not control or undertake a responsibility to control” the ocean, it did not have a duty to warn. Judge Alan Schwartz, who authored the Seville ruling, dismissed Bellows’ argument, saying: “All they had to say to the Dieperinks was, ‘Don’t go into Liberty City.’” Tosca Dieperink, a 39-year-old mother of three, was shot to death by robbers while she sat in her rental car on Feb. 23, 1996. The car was in the parking lot of a Shell Gas station where her husband had stopped to ask for directions. The car door was locked, so the gunman, later arrested and identified as 16-year-old Max Brazley, opened fire through the closed window, striking her in the chest. In June 1998, Brazley and a 20-year-old accomplice pleaded guilty to second-degree murder. Brazley was sentenced to 40 years in prison; his accomplice, Barry Chandler, got 35 years. Dieperink’s appellate lawyer, Miami solo practitioner Robert Glazier, told the 3rd District Court that Alamo is wrong when it argues its duty to warn ended once the Dieperinks left its premises. “All Alamo needed to do was to give warning to its customers that criminals were targeting tourists in rental cars in a certain area of Miami,” Glazier said in an interview after Wednesday’s oral arguments. “The government agencies told Alamo they should warn their customers, and Alamo failed to give the warning.” In court, Glazier pointed to a case involving a British tourist that the 3rd District Court ruled on in 1996. In Shurban v. Dollar Rent-A-Car, the appellate court reversed a ruling by Miami-Dade Circuit Judge Ronald Friedman dismissing Patricia Ann Shurben’s case for failure to state a cause of action. The appellate court said that if the facts alleged by Shurban were true, then Dollar had a duty to warn her of foreseeable criminal conduct directed at tourists in rental cars. “The rental company knew there were organized criminal attacks in certain areas,” said Judge Gerald Cope Jr., who sat on Wednesday’s panel and who authored the Shurban ruling. “If your client knows of actual targeted areas … isn’t it logical a duty to warn would arise?” he asked Bellows. But Bellows argued that case was different because Shurban, a British citizen, rented a car that bore a license tag identifying it as a rental. Shurban was shot in late 1991 while driving the car. The incident occurred at a time when tourists in Miami were being attacked frequently. Bellows told the court that his case was different because Alamo’s cars no longer had anything on them to identify them as being rentals. The state required rental car companies to remove any such identifiers because of previous attacks on tourists. Just hours after Bellow argued his case, the 3rd District Court reaffirmed its en banc ruling in a second case filed by the husband of Eugenie Poleyeff, who died in 1997 when she was caught up in a rip current and swept out to sea. A second tourist, Zachary Breaux, a 36-year-old jazz guitarist from New York, also died when he tried to rescue the 66-year-old Poleyeff. The second case was brought by the families of both drowning victims against the city of Miami Beach. The suit alleged that the city had a duty to warn tourists about the dangers of rip tides. In a 3-2 decision the 3rd District Court upheld Miami-Dade Circuit Judge David Tobin’s decision to enter summary judgment in favor of the city. However, Judge Cope, in a dissenting opinion, said his colleagues’ opinion is “contrary to controlling decisions” of the Florida Supreme Court and the 3rd District Court of Appeal. Cope reasoned that because the city had entered into concession agreements to provide beach and water equipment and because the city provided showers, restrooms and parking, it knew that there would be swimmers in the area. As a result, Cope said, the city “does control” the stretch of beach where the tourists died and “has undertaken a particular responsibility.” Therefore, he said, Tobin’s summary judgment should be reversed.

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